Paracella Pty Ltd ATF The Kelvin Flintoff Family Trust and Comptroller-General of Customs
[2021] AATA 1988
•29 June 2021
Paracella Pty Ltd ATF The Kelvin Flintoff Family Trust and Comptroller-General of Customs [2021] AATA 1988 (29 June 2021)
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2020/4831
TAXATION AND COMMERCIAL DIVISION )Re: Paracella Pty Ltd ATF The Kelvin Flintoff Family Trust
Applicant
And: Comptroller-General of Customs
RespondentCORRIGENDUM
TRIBUNAL: Deputy President Boyle
DATE OF CORRIGENDUM: 1 July 2021
PLACE: Perth
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application:
- The words “The Australian Standard in effect agrees” in para [34(a)] of the reasons be deleted and replaced with, “The Applicant’s submissions of facts and evidence agree”; and
- In the first sentence of para [41] of the reasons, the word “not” be inserted after the word “does” and before the word “meet”.
............................[SGD].......................................
Deputy President
Division:TAXATION AND COMMERCIAL DIVISION
File Number:2020/4831
Re:Paracella Pty Ltd ATF The Kelvin Flintoff Family Trust
APPLICANT
AndComptroller-General of Customs
RESPONDENT
DECISION
Tribunal:Deputy President Boyle
Date:29 June 2021
Place:Perth
The decision under review to refuse the refund application is affirmed.
...[SGD].....................................................................
Deputy President Boyle
CATCHWORDS
CUSTOMS – decision to reject the Applicant’s application for a refund of duty paid in respect of steel pallet racking – whether steel pallet racking constitutes ‘like goods’ for the purposes of the Act – statutory interpretation of ‘dimensions that can be adjusted as required’ – Project Blue Sky principles and s 15AA Acts Interpretation Act 1901 (Cth) applied – pallet racking in question falls within the scope of Australian Standard 4084-2012 – reviewable decision affirmed
LEGISLATION
Acts Interpretation Act 1901 (Cth) – s 15AA
Administrative Appeals Tribunal Act 1975 – s 37(1)(a)
Competition and Consumer Act 2010 (Cth) – sch 2
Customs Act 1901 (Cth) – ss 8(1), 42, 163, 163(1)(b), 269TC(4), 269TD, 269TG, 273GA(1)(haaa)
Customs Tariff (Anti-Dumping) Act 1975 (Cth) – s 8
Customs Regulation 2015 (Cth) – regs 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112
CASES
Carter and Australian Securities and Investments Commission [2020] AATA 809
Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389
Eley and Tax Practitioners Board [2020] AATA 3192
GM Holden Limited v Commissioner of the Anti-Dumping Commission [2014] FCA 708
Kang and Secretary, Department of Social Services [2019] AATA 758
Marine Power Australia Pty Limited and Marine Power International Pty Limited v the Comptroller-General of Customs; Outboard Marine Australia Pty Limited and Yamaha Motor Australia Pty Limited [1989] FCA 210
Minister of State for Home Affairs v Siam Polyethylene Co Ltd [2010] FCAFC 86
Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355
Weston and Cleanaway Operations Pty Ltd [2018] AATA 3740
Woodbridge v Comcare [1994] FCA 1249
REASONS FOR DECISION
Deputy President Boyle
29 June 2021
THE APPLICATION
The Applicant seeks the review of a decision of the Respondent made under s 163 of the Customs Act 1901 (Cth) (Customs Act) to reject the Applicant’s application for a refund of duty paid in respect of steel pallet racking imported by the Applicant.
BACKGROUND
The following background and facts are taken from the Respondent’s Statement of Findings on Material Questions of Fact and Reasons for Decision[1] and are not in dispute.
[1] R4, T2.
On 13 November 2017 the Anti-Dumping Commissioner (ADC) initiated an investigation regarding steel pallet racking exported from China and Malaysia by publishing an initiation notice[2] pursuant to s 269TC(4) of the Customs Act.
[2] R4, T3.
The goods the subject of the application to which the notice under s 269TC(4) refers were described as follows:
Steel Pallet racking, or parts thereof, assembled or unassembled, of dimensions
that can be adjusted as required (with or without locking tabs and/or slots, and/or
bolted or clamped connections), including any of the following – beams, uprights
(up to 12m) and brace (with or without nuts or bolts).
Further information
The goods are adjustable static racking structures capable of carrying and storing
product loads, and components used to make static racking structures.
Adjustable racking is a structure typically made from cold-formed or hot rolled
steel structural members and includes components such as plates, rods, angles,
shapes, sections, tubes and the like. Welding, bolting or clipping are the typical
methods used to assemble them. It may be racking installed within a building.
A typical storage configuration comprises upright frames perpendicular to the
aisles and independently adjustable, positive locking beams parallel to the aisle,
spanning between the upright frames, and brace designed to support unit load
actions. The racking layout and components used are designed to get the best
efficiency for the shape and volume of the items stored. The applicable
Australian Standard is AS4084-2012.[3]
[3] R4, T3/57.
On 18 June 2018 the ADC, pursuant to s 269TD of the Customs Act, issued a preliminary affirmative determination (PAD) by public notice[4] that there were sufficient grounds for the publication of a dumping duty notice and that it was necessary to require and take securities in relation to exports of the goods under consideration (GUC) from China and Malaysia to prevent material injury to the Australian industry occurring while the investigation continued.
[4] R4, T4.
After the issue of the PAD, Australian Border Force (ABF) officers, who are “officers of customs” for the purposes of the Customs Act, took securities pursuant to s 42 of the Customs Act for further imports of the GUC, pending the completion of the investigation, including security from the Applicant.
On 6 May 2019 the Minister for Industry, Science and Technology published an anti-dumping notice pursuant to s 269TG of the Customs Act (the ADN).[5] The ADN applied to exports of the GUC and “like goods” that were exported to Australia for home consumption since 19 June 2018. The ADN described the GUC in the same terms as in the initiation notice referred to at [4] above.
[5] R4, T31.
By the ADN the Minister accepted the recommendations, reasons and material findings of fact in the ADC’s Final Report No. 441.[6] That report also described the GUC in the same terms as the initiation notice.[7] Paragraph 3.5.1 of that report considered and rejected claims made by the Applicant (referred to therein as “Abbott Storage”) that its steel pallet racking is adjustable, but not of dimensions that can be adjustable “as required”.[8] The ADC was satisfied that the Applicant’s pallet racking was within the scope of the GUC.
[6] R4, T28.
[7] See para [7] above and R4, T28/352–3.
[8] R4, T28/356–7.
After the dumping duty notice was published, the Respondent sought to enforce the securities and “convert” them into payments of interim dumping duty on relevant past entries, including from the Applicant, and to collect interim dumping duty on further imports of the GUC. The Applicant eventually paid the assessed duties.
The Applicant and some other interested parties applied to the Anti-Dumping Review Panel (ADRP) for review of the Minister’s decision to publish the ADN. The ADRP published Report 103 regarding this review on 27 August 2019.[9] At paras 1, 3 and 27–81 of that report, the ADRP referred to, considered, and rejected claims made by the Applicant (referred to as “Abbott”) that its steel pallet racking is adjustable, but not of dimensions that can be adjustable as required. The ADRP also rejected claims made by other review applicants and recommended that the Minister’s decision be affirmed. The Minister affirmed her decision on 26 September 2019.[10]
[9] R4, T40.
[10] R4, T44.
ABF sent a letter to the Applicant on 24 April 2020 which explained that the imported pallet racking was considered “like goods” to the GUC and was therefore subject to dumping duty by reference to the findings of the ADRP, the ADC, and other material available to the ABF regarding the subject goods.[11]
[11] R4, T56.1.
By letter dated 10 July 2020,[12] submitted to ABF on 13 July 2020 by Schenker Australia Pty Ltd, as agent for the Applicant,[13] the Applicant applied for a refund of dumping duties that it had paid. The basis of the refund application was stated to be:
The imported goods do not meet the ‘description of goods’ subject to the dumping measures. There is no actual evidence available to date that the goods have the ability to acheive [sic] the performance characteristic(s) specified in the ‘description of goods’. There exists ample actual evidence to the contrary.
Further, there being no actual evidence available to date that any goods exist that have the ability to acheive [sic] the performance characteristic(s) specified in the ‘description of goods’, it is not possible to assess whether Abbott’s imported goods could be ‘like goods’[14]
[12] R4, T61.1.
[13] R4, T61.
[14] R4, T61.1/732.
According to a screenshot dated 28 September 2020 and headed “Refunds Approve/Reject” the Applicant’s appplication for a refund of the dumping duty was, apparently, rejected with the following text inserted next to the heading “Statement”:
NOT ELIGIBLE TO CLAIM DUMPING ‘GOODS’ EXEMPTION AS CONSIDER THAT AS A COMPLETE SYSTEM THEY CONTAIN VERTICLE POSTS WITH MULTIPLE HOLES TO ALLOW PLACEMENT AND ADJUSTMENT OF HORIZONTAL BEAMS, BRACING SUPPORTS, ETC THEREFORE MAKING THEM ADJUSTABLE. REFUND REJECTED.[15]
[15] R4, T62/755.
Despite recording a “Department User ID”, the above document did not clearly identify who was making the decision to (apparently) refuse a refund of duty paid. The “Statement” contained in the document (see [13] above) suggested that it was a response to a request for exemption to the application of dumping duty rather than an application for the refund of duty paid. Other language of the document, however, indicated that it was a rejection of an application for a refund.
By email dated 11 August 2020, Marlon Ellis, whose position is described in that email as “Senior Border Force Officer / National Refunds Intervention Trusted Trader and Trade Compliance Branch Customs Group Australian Border Force”, advised Schenker Australia Pty Ltd, which had submitted the Applicant’s application for a refund of duty (see [12] above), that:
Acknowledging that Schenker Australia Pty. Ltd. are [sic] a Trusted Trader broker and this refund was lodged Amber. Just letting you know that it has been rejected.[16]
[16] R4, T63/763.
The application for review lodged by the Applicant with the AAT on 11 August 2020[17] identified the decision of which review was sought as having been received on 11 August 2020.[18] The application for review attached the email from Mr Ellis dated 11 August 2020 referred to in [15] above but did not attach the document referred to in [13] above. It does not appear that reasons for the decision, other than those in the “Statement” section of the undated document referred to in [13] above, were given to the Applicant at that time.
[17] R4, T1.
[18] R4, T1/9.
On 30 September 2020 the Respondent lodged in the Tribunal a statement of findings on material questions of fact and reasons for decision in accordance with s 37(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth)) (s 37 Statement).[19] This document was in the form of a statement signed by Mr Ellis and dated 29 September 2020.
[19] R4, T2.
JURISDICTION
By a document headed “Respondent’s Facts and Contentions” lodged in the Tribunal on 3 December 2020 (Respondent’s SFC), the Respondent identified the Tribunal’s jurisdiction “to review a decision under s 163 regarding an application for a refund of duty” as arsing under s 273GA(1)(haaa) of the Customs Act.[20] That section provides that the Tribunal can review:
a decision of a Collector under section 163 in relation to an application for a refund, rebate or remission of duty.
[20] Respondent’s Facts and Contentions (Respondent’s SFC) para 7.
In the s 37 Statement, Mr Ellis stated that he made the decision “to reject the application for refund made by Paracella Pty Ltd ATF The Kelvin Flintoff Family Trust” as “Delegate of the Comptroller-General of Customs”.[21]
[21] R4, T2/41.
Section 273GA(1)(haaa) empowers the Tribunal to review a decision of a Collector under s 163 of the Customs Act, not the Comptroller-General of Customs. No submissions were made by either party as to how the Tribunal has the power to review a decision made by a Delegate of the Comptroller-General given that s 273GA(1)(haaa) specifically refers to a Collector. The answer appears to be provided by s 8(1) of the Customs Act which relevantly provides:
(1) In this Act, a reference to the Collector, or to a Collector, is a reference to:
(a)the Comptroller-General of Customs; or …
While there is no evidence before the Tribunal that Mr Ellis was delegated to make a decision under s 163 of the Customs Act on behalf of the Respondent (or at least no evidence to which the Tribunal was taken, noting that the T documents comprised 765 pages), it was not contended by either party that that was not the case and the Tribunal proceeds of the assumption that Mr Ellis was so delegated. The Tribunal, in any event, notes that the decision not to refund the duty is a decision which, as a matter of fact, was made by someone with apparent authority. Effect has been given to the decision, and it would, even if made without due authority, be a decision which the Tribunal could review: Woodbridge v Comcare[22] at [60] per Hill J; Weston and Cleanaway Operations Pty Ltd[23] at [69]–[70].
[22] [1994] FCA 1249.
[23] [2018] AATA 3740.
The Tribunal is satisfied that the decision not to refund the dumping duty paid by the Applicant is a decision which the Tribunal can review by virtue of s 273GA(1)(haaa) of the Customs Act.
THE HEARING
The application was heard on 22 April 2021. Mr K Flintoff, a director of the Applicant, represented the Applicant and Mr R Northcote appeared for the Respondent. The following documents were admitted into evidence:
(a)Applicant’s submissions of facts and evidence dated 15 January 2021 (A1);
(b)Website extract from IRIA filed with the Tribunal by Mr Flintoff on 21 April 2021 (A2);
(c)Respondent’s Statement of Facts, Issues and Contentions filed with the Tribunal and dated 3 December 2020 (R1);
(d)Respondent’s reply to the Applicant’s submissions filed with the Tribunal and dated 5 February 2021 (R2);
(e)Australian Standard 4084-2012 (R3); and
(f)T-documents – volumes 1 and 2, filed with the Tribunal 12 April 2021 (R4).
Further documents and submissions were provided by the Applicant on 21 April 2021. In the end they were not relevant to the Tribunal’s considerations.
THE LEGISLATIVE FRAMEWORK
Section 269TG of the Customs Act relevantly provides:
(1)Subject to section 269TN, where the Minister is satisfied, as to any goods that have been exported to Australia, that:
(a) the amount of the export price of the goods is less than the amount of the normal value of those goods; and
(b) because of that:
(i)material injury to an Australian industry producing like goods has been or is being caused or is threatened, or the establishment of an Australian industry producing like goods has been or may be materially hindered; or
(ii)in a case where security has been taken under section 42 in respect of any interim duty that may become payable on the goods under section 8 of the Dumping Duty Act—material injury to an Australian industry producing like goods would or might have been caused if the security had not been taken;
the Minister may, by public notice, declare that section 8 of that Act applies:
(c) to the goods in respect of which the Minister is so satisfied; and
(d) to like goods that were exported to Australia after the Commissioner made a preliminary affirmative determination under section 269TD in respect of the goods referred to in paragraph (c) but before the publication of that notice.
Section 269T of the Customs Act defines “like goods” as follows:
like goods, in relation to goods under consideration, means goods that are identical in all respects to the goods under consideration or that, although not alike in all respects to the goods under consideration, have characteristics closely resembling those of the goods under consideration.
Section 163(1)(b) of the Customs Act relevantly provides that refunds of duty may be made “in such circumstances, and subject to such conditions and restrictions … as are prescribed”.
The Customs Regulation 2015 (Cth) (Customs Regulation) relevantly prescribe such circumstances and conditions in regs 102–112. The claimed refund circumstance, and the only refund circumstance that could potentially apply in this matter, is the circumstance prescribed by item 6 of the table in sch 6 of the Customs Regulation which is:
Duty has been paid on goods because of manifest error of fact or patent misconception of the law.
THE ISSUES
The Applicant’s submissions of facts and evidence (A1) did not specifically identify the issue or issues to be determined by the Tribunal. The Respondent’s SFC identified the issue as being:
… whether the refund application was correctly refused. That involves the following:
(a) Whether the applicant’s adjustable steel pallet racking was subject to the dumping duty notice, which requires consideration of whether that pallet racking was “like goods” to the GUC; and if not
(b) Whether duty was paid through manifest error of fact or patent misconception of the law.[24]
[24] Respondent’s SFC para 8.
While the Applicant’s written submissions did not specifically identify the issues to be determined by the Tribunal, the Applicant’s submissions, both written and made by Mr Flintoff at the hearing, addressed the issue identified in the Respondent’s submission identified in [28] above. The Tribunal considers the issue for determination to be whether the goods in relation to which the Applicant paid duty come within the scope of the ADN. The hearing proceeded on the basis of that being the issue.
The Respondent’s submissions
The Respondent’s SFC was provided first. The Respondent contends that the prescribed refund circumstance cannot apply if the goods were subject to the ADN as being the GUC or “like goods” to the GUC. While expressed in the negative, the Tribunal understands the Respondent’s position to be that, if the goods in relation to which duty has been paid do not come within the operation of the ADN as being like goods to GUC, then the duty paid is properly refundable.
The Respondent argues that the adjustable pallet racking system on which the Applicant has paid duty are “like goods” to the GUC because they are identical to the GUC. The Respondent contends that the Tribunal should reject the Applicant’s argument for the reasons that the ADC (see [8] above) and the ADRP (see [10] above) rejected those same arguments.
The Respondent contends that:
(a)The description of the GUC consists of two parts: an initial description and “further information”. As the ADRP held, that description should be construed and applied as a whole. Upon doing so, it is clear that the subject goods are within the GUC. Referring to the initial description:
(i)The subject goods are clearly “steel pallet racking, or parts thereof” imported “unassembled”. The relevant parts imported include “beams” and “uprights” which respectively incorporate “locking tabs” and “slots”. “Brace” parts are also with nuts and bolts.
(ii)Further, the steel pallet racking clearly is “of dimensions that can be adjusted as required” applying the ordinary meaning of that term. That term construed in context clearly requires the pallet racking to have some adjustable dimensions, rather than the individual parts, which is one of the Applicant’s claims. All the significant dimensions of the subject goods can be adjusted as required for a particular installation by selecting different components and fitting them together in different ways. The most obvious dimensional adjustment which can be made with any set of beams and uprights is to adjust the height of the horizontal beams when installed, by selecting different slots on the uprights into which the tabs on the beams will be inserted. This means the heights of the storage levels for the racking can be adjusted.
(b)Consideration of the “further information” in the ADN confirms that the subject goods are within the goods description, since every sentence of the further information clearly applies to the subject goods. Most relevantly the subject goods are “adjustable static racking structures” to which Australian Standard AS4084-2012 applies. An extract from that Standard was referred to by the ADRP.[25] AS4084-2012 applies to:
[25] R4, T40/550 at para 61.
adjustable static pallet racking made of made of cold rolled or hot rolled steel structural members.” … [a] ‘storage system comprising upright frames perpendicular to the aisles and independently adjustable, positive locking pallet beams parallel to the aisles, spanning between the upright frames, and designed to support unit load actions.
(c)The description of adjustable static pallet racking in AS4084-2012 is very similar to parts of the goods description of the GUC in the ADN. The GUC goods description was clearly intended to include, and does legally include, adjustable static pallet racking as described in AS4084-2012. The subject goods are adjustable static pallet racking which are described by, and claimed by the Applicant to comply with, AS4084-2012.
(d)The Applicant has previously admitted that the subject goods are adjustable steel pallet racking described by AS4084-2012, but has claimed that the subject goods are not “of dimensions that can be adjusted as required” because a customer may require an adjustment that cannot be precisely accommodated by the limited incremental adjustments the system allows.
(e)The ADC and ADRP correctly rejected these claims. The ADC found that:
The requirement for the pallet racking to be adjustable as required does not necessitate the ability to infinitely position and reposition beams and braces at specific precise heights. All pallet racking systems observed by the Commission, including Abbott Storage’s, feature evenly spaced slots along the upright upon which beams and braces can be placed at the required height and adjusted to a different height as required.[26]
(f)The ADRP[27] correctly construed the phrase “of dimensions that can be adjusted as required” on its ordinary meaning as requiring the steel pallet racking to have length, height, breadth or depth dimensions that can be arranged or changed to be more suitable. Further, the ADRP[28] found that the phrase “dimensions that can be adjusted as required” is not meant to restrict the goods covered or specify a particular type of pallet racking system.
(g)The ADN is a species of delegated legislation, and as such the ordinary principles of statutory interpretation apply.[29] The meaning of the description of the GUC, including the requirement that the steel pallet racking is “of dimensions that can be adjusted as required” must be ascertained by considering that phrase in the context of the whole instrument, and striving to give harmonious effect to all the words that are used, and giving effect to the purpose of the instrument, if that is possible.[30]
(h)Case law as developed by the High Court and s 15AA of the Acts Interpretation Act 1901 (Cth) require that an interpretation which is consistent with the purpose of the instrument is to be preferred to an interpretation that is not. An interpretation which results in the instrument having no effect at all is therefore obviously to be avoided. The Applicant’s interpretation that adjustable steel pallet racking does not have “dimensions that can be adjusted as required” because the adjustments which can be made are limited rather than infinite, would result in the dumping duty notice applying to no goods. There is no reason to accept such an illogical, absurd interpretation or result, which obviously does not accord with the purpose of the ADN.
(i)In context, the ADN applies to adjustable steel pallet racking, for which some adjustment of length, breadth, depth or height dimensions (including the heights of storage levels) can be made. The GUC clearly include adjustable steel pallet racking described in AS4084-2012. There is no need to depart from a literal grammatical meaning of the ADN to arrive at this sensible interpretation of it, which accords with the evident purpose of the ADN.
(j)If it is necessary to depart from a literal grammatical meaning of the ADN to find a sensible legal meaning of it which gives effect to its purpose, then that should be done as required by principles expounded by the High Court in cases such as Project Blue Sky v Australian Broadcasting Authority[31] (Project Blue Sky).
[26] R4, T28/356.
[27] R4, T40/552.
[28] R4, T40/554.
[29] Citing Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 at 398.
[30] Citing Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 (Project Blue Sky) at [69]–[71].
[31] (1998) 194 CLR 355.
The Applicant’s submissions
The Applicant’s submissions of facts and evidence dated 15 January 2021 are to the following effect:
(a)The “description of goods” includes the performance characteristic “of dimensions that can be adjusted as required” constructed as a combination of:
(i)The performance action: “of dimensions that can be adjusted”;
(ii)The scope to which the action can be performed: “as required”.
(b)Importers are required to self-assess whether the imported goods meet the goods description. There is some scope for removing and/or changing some wording of the description to match the product. The ADC can provide confirmation on whether certain goods meet the description above.
(c)In response to an enquiry made of the ADC in October 2018, the ADC advised that the wording of the description could not be changed and that the good description as stated in the Dumping Commodity Register (DCR) for steel pallet racking is exactly as it states.
(d)The decision to reject the refund considers the goods meet the description of goods by meeting only part of the description. It ignored the requirement that the adjustment be “as required”. The goods therefore do not meet the relevant description.
(e)The DCR expresses in its text the wording of the “description of goods” and does not include the “further information” in the text. Further confirming the separability of the “description of goods” from the “further information”; and highlighting the inappropriate, unfounded attempts to apply focus on the “further information” at the expense of the “description of goods”.
(f)Investigation 441 carried out by the ADC is flawed, negligent, self-contradictory and incomplete. No party has been able to supply any physical demonstrative evidence of any steel pallet racking that is capable of carrying out the performance characteristic specified in the description of goods. The ADC and ADRP refused every offer made by the Applicant to provide demonstrative opportunity for evidence.
(g)The Applicant cites the Australian Consumer Law,[32] the “Fair-Trading Act” and the provisions therein relating to misleading and deceptive conduct, including conduct relating to description of the characteristics of goods. The Applicant appears to argue that if it were to describe the goods as being “adjustable as required” it would be engaging in misleading and deceptive conduct as defined in that legislation.
(h)As there is no evidence that any goods exist that can be represented in connection with their supply in trade by the “description of goods” without contravention of Australian Consumer Law, there can be no established “like goods” except on the basis that the Australian Consumer Law has been breached initially.
(i)The ADRP refers to a comment of the ADC that “the purpose of a steel pallet racking system is to assemble it in a multitude of configurations that can be adjusted as required”.[33] This is a manifest error of fact. The purpose of a steel pallet racking system is to store palletised goods. Any ability of the system to be configured or adjusted is a feature of the system, not the purpose of the system. Both the ADC, and the ADRP demonstrate an undeveloped and inadequate understanding of steel pallet racking.
(j)The ADRP dismisses evidence that became available during the investigation, in favour of what was initially understood,[34] nullifying the investigation by avoidance and non-acceptance of evidence that did not agree with initial understanding.
(k)No dimension of the system can be adjusted to the scope of “as required” and to represent that any dimension can be, in connection with this supply of goods is contravention of Australian Consumer Law. Further, reliance on the construal of the actual term in context can become the direct cause of severe injury and death.
(l)Paragraphs 8.1.3, 8.1.4 and 8.2 of AS4084-2012 specify a prohibition on altering or deviating from the load application and configuration furnished for the racking installation, requirement for a plaque on the racking specifying, amongst other things, load limits and prohibition on unauthorised alteration, and requirements for regular inspection.
(m)Accordingly, the steel pallet racking described in AS4084-2012 is legally excluded from the “description of goods” of the GUC.
[32] Competition and Consumer Act 2010 (Cth) sch 2.
[33] R4, T40/544.
[34] R4, T40/550.
Respondent’s reply
By his reply dated 5 February 2021, the Respondent contended:
(a)The Applicant’s submissions of facts and evidence agree that the adjustable steel pallet racking is “of dimensions that can be adjusted” but denies that the adjustments can be made “as required”.
(b)Thus, the Applicant only claims those two words of the dumping duty notice do not apply. The Applicant in effect concedes that every other word of the goods description in the dumping duty notice, including the further information, applies to the subject goods.
(c)The Applicant claims that the subject goods are not “of dimensions that can be adjusted as required” on the basis that that phrase must be construed as requiring the pallet racking of being infinitely adjustable exactly as a user may desire. The Applicant’s submissions repeat its previous claims to the effect that the ADN does not apply to any goods. If the Applicant’s construction is correct it will have the manifestly absurd result that the dumping duty notice will not apply to any goods.
(d)The Applicant’s construction is incorrect, and that absurd result must be avoided by either: applying a more appropriate ordinary meaning of the phrase construed in context; or if necessary, departing from the literal meaning in order to give the dumping duty notice a sensible legal meaning.,
(e)In relation to the Applicant’s argument that the effect of AS4084-2012 is that the shelving cannot be adjusted once installed, the Respondent repeats the ADRP’s dismissal of that argument which was as follows:
I also note that Abbott’s statements that once installed that it should not be altered. Abbott refers to the Australian Standard in this regard. It does not, however, mean that the goods are unable to be adjusted to different heights, if undertaken in accordance with the Australian Standard.
(f)Adjustments of beam heights and inserting more beams or taking beams out to produce more or less pallet storage levels, are a known and advertised feature of adjustable pallet racking.
(g)Insofar as the Applicant relies of the Australian Consumer Law, that law does not restrict the application of High Court cases on statutory construction. The Australian Consumer Law prohibits false or misleading claims being made about goods “in trade and commerce”: it is not a law about construing and applying legislative instruments to goods.
The Applicant’s argument was further explained by Mr Flintoff at the hearing. The following relevant exchanges took place:
TRIBUNAL: But the – once you concede that the racks can be adjusted, I’m not quite sure what the significance of the “as required” is. If your argument is that means that once installed, loaded, and operational, they can be adjusted at that point, is that what you say the effect of the words, quote, “as required” are?
MR FLINTOFF: Well, the “as required” means according to need - - -
TRIBUNAL: Yes.
MR FLINTOFF: - - - or freely or liberally really. Which is totally opposed to the actual nitty gritty of the system.
TRIBUNAL: But in what sense are they then adjustable?
MR FLINTOFF: They can be adjusted, but to represent that you can adjust it how you like or according to as you need is not it. It has got to – the only way it can be adjusted if it goes back through the engineering process and the recertified. But to represent that it can be adjusted as required, someone picks that up and yes, you’ve got dead employees, for example.
TRIBUNAL: Well, that’s only if you unlawfully adjust it when it’s unsafe to do so. Which would be contrary - - -
MR FLINTOFF: Yes, that’s exactly what it is. Adjusting it as required is against the Australian Standard, which is technically not exactly law.
TRIBUNAL: Well, no. No, it’s not. Why do you say that? You’re assuming that the person that these shelves – well, your argument seems to assume that “as required” equals adjustable, once installed, in place, and fully loaded.
MR FLINTOFF: Not necessarily fully loaded.
TRIBUNAL: Well, okay, loaded. But surely they’re adjustable prior to installation, for instance. So if you’ve got a particular need you can adjust the shelves to suit the needs.
MR FLINTOFF: Yes, prior to installation, that comes back to like tailoring the system.
TRIBUNAL: And after installation, provided it can be done safely, you can adjust them.
MR FLINTOFF: That’s exactly right. That’s why we approached the ADC and said, “Can we add some words here.” Because “as required” on its own doesn’t require that – doesn’t apply that restraint that you’ve just put forward now.
…
MR FLINTOFF: People do get that. And it’s a difficult one to even explain to clients, they say, you know, they have got notches and we can shift these up and down. We’ve got to say no. Like people just think they can do it. And to represent they can do it, as they require, just opens the door for a problem. And it will all, you know, it could all come back to the person that actually ticked the box and said yes, that’s what it is, which I don’t want to be that person, obviously.[35]
[35] transcript at 7–8.
…
TRIBUNAL: Yes, but perhaps before you do you might want to clarify the - Mr Northcote intimated or suggested that there were two elements, I think, to the applicant’s argument in relation to the as required. The first element, which I don’t think you addressed in your opening, was an argument that says that insofar as there are slots in the columns or in the uprights, the shelving is not adjustable, if you like, infinitely adjustable. So, that insofar as somebody requires a particular dimension, it may be that that dimension can’t be accommodated either because of the location of the slots, or I guess the engineering integrity that may require certain shelves over certain distances of columns.
For instance, I assume - without reading the technical specifications - you can’t have one shelf, for instance, at just above ground level, and the only other shelf at six metres off the ground, or ten metres off the ground. I assume that there is some requirement for torsional or lateral stability, which would be provided by the shelving. Is that correct?
MR FLINTOFF: That is correct.
…
TRIBUNAL: So in that sense it’s not infinitely - you can’t just manufacture a theoretical configuration and say, well, you can’t do that. So, is that part of your argument - that the connotation as required must mean as required in all circumstances.
MR FLINTOFF: Yes, I guess - - -
TRIBUNAL: Or in any circumstances.
MR FLINTOFF: Yes, well that’s what it implies. If you take (indistinct) of the products, if I supply the pallet racking to a person - say, there’s your steel pallet racking, dimensions can be adjusted as required. There you go - yes, you’ve got a problem, like, obviously. I can’t represent that.
…
TRIBUNAL: And that’s where your argument is that “as required” effectively should be read as infinitely adjustable.
MR FLINTOFF: Well to be correct of the system, it’s not possible to include, ‘as required,’ in that statement, and the statement be correct of the system. That’s (indistinct) evident, like Mr Northcote now, when he went through that he referred to, you know, everything’s good, apart from those two words. And he went on and effectively as though those words weren’t there. Which that is why (indistinct) as I said, I (indistinct) if - can we remove some words. Because we need to make it correct. And in every instance where they’ve come back, they’ve either added them in under a - I’ll say, dodgy, I suppose - way to try and squeeze them back in, or left them out altogether.
TRIBUNAL: I’m not quite sure - just explain to me - given that you’re pinning your whole argument on the words, ‘as required,’ why would you have wanted them deleted from the - effectively deleted from the description?
MR FLINTOFF: Because I’m not - and I know Mr Northcote’s made a bit of a thing about his sympathy for the dumping duty we may have paid. That’s not my primary consideration. This is not primarily about the money, it’s about being correct according to the law. That’s my issue. Because you’ve got - - -
TRIBUNAL: Surely your argument can’t be that if you were to describe the shelving as being adjustable, but if somebody were to purchase that and then say, well, hang on, you can’t actually put a shelf 293 and a half centimetres above ground level, because the slots are only seven centimetres apart, therefore it’s not adjustable. I mean that argument wouldn’t fly.
MR FLINTOFF: On that score - on that particular point - you’ll notice that you did actually mention that I haven’t probably brought it up more recently. I don’t see that as a point of law.
TRIBUNAL: I thought that was your fear of being accused of misrepresenting by saying something’s adjustable.
MR FLINTOFF: No, my fear is - and this is where it comes to your obligation - in relation to outcomes. Now there’s dollars around the dumping, which that’s - to me that’s a bit off to the side. There’s dollars involved there, but it’s not the primary consideration. It’s the dollars, if you like, or the implications of what could occur elsewhere. Now, I know Mr Northcote said, you know, they don’t pass this information onto end users, or it doesn’t go anywhere, and we can just - he says we can just put a line through it and send it in. Well, the Dumping Commission tell me I can’t. Like, they’ve actually given in writing that we can’t cross words out, we can’t change it, it’s got to be as it is. I mean, he’s saying we can.[36]
[36] transcript at 19–23.
…
TRIBUNAL: No, that’s - sorry, that’s - I maybe should have put in context - I - it seemed to me that Mr Northcote was raising two lines of argument that you had raised, which only the second of which you had outlined in your opening. That being the issue of, ‘as required,’ connoting some temporal qualification that it can be adjusted at any time whether already assembled and certified and loaded. So that’s one argument that you’re saying, ‘as required,’ somehow connotes that it has to be adjustable at any time.
The second element that I am now - I only was aware of when Mr Northcote raised it - is an argument that says adjustable as required effectively equates to infinitely adjustable. Is that an argument that you’re still running?
MR FLINTOFF: Not at this point.
TRIBUNAL: Well, when you say, ‘not at this point,’ I need to know what your argument is for the purposes of properly addressing - - -
MR FLINTOFF: As far as correctly representing the product, I don’t see that as a consequential issue. So that’s why I haven’t brought it up more recently - because - and putting the argument through to the AAT, there was a whole lot of stuff I obviously had to go through. And part of it was, you know, it has to be on a question of law.
TRIBUNAL: And, really, the issue that I’m looking at is not whether or not there are consequences that you say may flow from customers being potentially misled by a description that you give the product for the purposes of determining whether or not a duty applies. My role is solely - and, in fact, the investigation and the decisions that have gone below are of some interest but not really relevant to my consideration - because what I’m required to do is - hearings before this tribunal are what are called hearings de novo. So, I have to make my decision on what the correct or preferable decision is now, based on the evidence presented to me. So, while all those other things and the investigations are of some historical interest to provide a background, they’re not really relevant to my consideration.
And as with all of these cases involving duties, my role is simply to determine whether or not the goods in question fall within the description of the goods - or the description contained in the anti-dumping notice. So that’s the sole job. And I understand the argument that you’re primarily running is that, ‘adjustable as required,’ connotes adjustable once it’s installed and loaded.
…
TRIBUNAL: So your primary argument is that those words should be construed as meaning that, ‘once assembled.’ Because it does say, ‘assembled or unassembled,’ ‘adjustable as required,’ are meant to cover the situation of the shelves being adjustable at the point that they’re already assembled, and potentially certified by an engineer as being safe, and potentially even loaded with pallets.
MR FLINTOFF: Yes.
TRIBUNAL: So that’s what you say the meaning of those words, ‘as required,’ is - - -
MR FLINTOFF: Well, it’s more - - -
TRIBUNAL: And the shelves don’t do that, so they don’t fall within that definition.
MR FLINTOFF: No.[37]
[37] transcript 24–26.
The conversation between Mr Flintoff and the Tribunal along the above lines continued for some time with Mr Flintoff returning to the theme of the Applicant being held liable for injury or damage suffered as a result of someone adjusted the shelving after it had been assembled, while the shelving was loaded or adjusting the shelving causing it to be unsafe in its reconfigured form.
CONSIDERATION
Helpful summaries of the history and operation of the legislative anti-dumping scheme effected by the Customs Act, the Customs Tariff (Anti-Dumping) Act 1975 (Cth) (Dumping Duty Act) and other relevant legislation, are set out in the judgment of Mortimer J in GM Holden Limited v Commissioner of the Anti-Dumping Commission[38] (GM Holden) at [7]–[11] and in the judgment of the Full Court of the Federal Court (Bennett, Graham and Flick JJ) in Minister of State for Home Affairs v Siam Polyethylene Co Ltd[39] at [31]–[39]. The Tribunal respectfully adopts those summaries.
[38] [2014] FCA 708.
[39] [2010] FCAFC 86.
As the Tribunal advised Mr Flintoff at the hearing, the issue for the Tribunal to determine in these proceedings is whether the goods in relation to which the Applicant has paid duty come within the operation of the ADN. That is the only issue. With respect, many of the Applicant’s submissions and arguments were not relevant to that consideration. Many of the submissions criticised the Respondent and other bodies that undertook investigations, prepared reports and made decisions. Those criticisms of those bodies and the claimed deficiencies in the processes that they undertook are not relevant to the Tribunal’s function in these proceedings. The role of the Tribunal is to reach its own correct or preferable decision, not to examine the decision under review for error, whether that be legal, evidential or substantial, nor is it the role of the Tribunal to examine the processes undertaken by those bodies. This Tribunal summarised the role of the Tribunal in reviewing a decision in Kang and Secretary, Department of Social Services[40] at [18] as follows:
The role of the Tribunal in such a review is to determine for itself what is the correct and preferable decision: see Shi v Migration Agents Registration Authority. The Tribunal is not limited to reviewing the decision for legal or other error, but rather conducts its own de novo assessment and determination of the matter. Its role is ‘to “do over again” what the original decision maker did’: see Yao v Minister for Immigration and Border Protection, referring to Shi at [100] (per Hayne and Heydon JJ) and at [37] (per Kirby J). See also Drake v Minister for Immigration and Ethnic Affairs reference to that case in CMHV and Director-General of Security and Minister for Foreign Affairs at [37].[41]
(Citations omitted.)
[40] [2019] AATA 758.
[41] (See also Carter and Australian Securities and Investments Commission [2020] AATA 809 at [50]; Eley and Tax Practitioners Board [2020] AATA 3192 at [63]).
In the present case the starting point for the Tribunal’s consideration is the ADN, the notice issued under s 269TG of the Customs Act by which the Minister declares that s 8 of the Dumping Duty Act applies to the goods the subject of that notice. It is that instrument which creates the liability to pay dumping duty. The Applicant has not sought to argue that the ADN is invalid or otherwise ineffective as a matter of law and there is nothing before the Tribunal to suggest that that is the case. The sole issue for determination is whether the pallet racking imported by the Applicant comes within the description of the goods or like goods as described in the ADN.
Insofar as the Applicant has raised issues about it being held liable under the Australian Consumer Law or wanting the description of the goods changed by deleting the words “as required”, they are arguments that are irrelevant to the issue that the Tribunal has to determine and are, in any event, beyond the jurisdiction of the Tribunal under s 273GA(1)(haaa) of the Customs Act.
The Tribunal does not accept the Applicant’s argument that the pallet racking does not meet the description of the goods or like goods in the ADN because it does not meet the criterion of adjustable “as required”. As Lockhart J noted in Marine Power Australia Pty Limited and Marine Power International Pty Limited v the Comptroller-General of Customs; Outboard Marine Australia Pty Limited and Yamaha Motor Australia Pty Limited[42] at [60], the expression “like goods” should not be interpreted in a narrow or restricted fashion. While on one view the words “as required” might be considered to be superfluous, “as required” cannot be taken to mean infinitely or in any circumstances which is what the Applicant contends. The Applicant, in effect, argues that because the shelving cannot be adjusted once erected and loaded, or at least safely adjusted, means that the shelving cannot be adjusted “as required”. The Tribunal rejects that argument. The fact that obvious steps, such as removing load, must be taken before the shelving can be adjusted safely does not mean that the racking system is not adjustable “as required”.
[42] [1989] FCA 210.
The Applicant’s argument also confuses the description of the goods, or a particular characteristic of the goods, in this case their adjustability, with the circumstances in which they can be adjusted. The fact that in certain operational applications it may not be possible, as a matter of fact, to adjust the shelving to accommodate some altered requirement, or to adjust the shelving safely, does not mean that the shelving is not adjustable as required. Its physical characteristics do not change. It simply means that steps may need to be taken before the shelving can be safely adjusted as required or to better suit a particular requirement.
The Tribunal understands the Applicant not to rely on an argument that the shelving is not adjustable “as required” because the shelving is not adjustable to any dimension due to the dimensions being limited by the slots in the components. While Mr Flintoff in the exchange with the Tribunal quoted at [35] above indicated that the Applicant no longer relied on that argument, it is an argument that the Tribunal would not have accepted. The words “as required” could not be taken in the context of the purpose of the legislative regime and the language of the relevant provisions to mean “infinitely adjustable”. Clearly any shelving system is going to be subject to certain constraints, whether they be a matter of centimetres because of the inherent nature of components that are supplied in an unassembled form or because of the laws of physics that make certain configurations impossible. To impose that gloss on the words “as required” is unwarranted and would render the description of the goods of no application. As the Respondent’s submissions pointed out, the meaning of the description of the goods, including the requirement that the steel pallet racking is “of dimensions that can be adjusted as required” must be ascertained by considering that phrase in the context of the whole instrument, and striving to give harmonious effect to all the words that are used, and giving effect to the purpose of the instrument, if that is possible: Project Blue Sky at [69]–[71]. If a proposed interpretation leads to a result that is absurd, in that it would render the provision futile, it should be avoided: Collector of Customs v Agfa-Gevaert Ltd[43] at 401. The Applicant’s own submissions in effect concede that the interpretation it contended would render the ADN of no application (see [33(f)] and [33(g)] above). Further, s 15AA of the Acts Interpretation Act 1901 (Cth) requires that an interpretation which is consistent with the purpose of the instrument is to be preferred to an interpretation which is not.
[43] (1996) 186 CLR 389.
In this case, in any event, the Tribunal agrees with the Respondent’s submission that the pallet racking falls within AS4084-2012 which is specifically identified in the ADN. The literal meaning of the ADN results in the pallet shelving coming within the scope of the goods or like goods. The Applicant’s adjustable steel pallet racking allows dimensional adjustments to be made and is covered by AS4084-2012. It comes within the operation of the ADN: Project Blue Sky at [70].
DECISION
The decision under review to refuse the refund application is affirmed.
I certify that the preceding 45 (forty-five) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle
...[SGD].....................................................................
Associate
Dated: 29 June 2021
Date of hearing: 22 April 2021 Counsel for the Applicant: Mr K Flintoff Counsel for the Respondent: Mr R Northcote Solicitors for the Respondent: Department of Home Affairs
8
9
0