Re: HYSTER AUSTRALIA PTY LIMITED and HYSTER EUROPE LIMITED
And: THE ANTI-DUMPING AUTHORITY; THE MINISTER OF STATE FOR SMALL BUSINESS,
CONSTRUCTION AND CUSTOMS and CLARK EQUIPMENT AUSTRALIA PTY LIMITED
No. N G476 of 1992
FED No. 39
Number of pages - 34
Customs - Administrative Law
(1993) 112 ALR 582
(1993) 40 FCR 364
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Hill J.(1)
CATCHWORDS
Customs - Anti-Dumping - "normal value" - suitability of sales price - whether decision-maker bound to investigate assertions of oligopoly in the market - whether existence of oligopoly rendered prices unsuitable; whether Authority entitled to cumulate exports.
Customs - Anti-Dumping - Notice published by Minister - whether Minister obliged to consider whether utility in imposing dumping duties before publishing notice - whether essential that Report of Authority contain recommendations of matters of which Minister required to be satisfied.
Administrative Law - natural justice - whether procedural fairness required that applicants entitled to put submissions to Minister.
Customs Act 1901: ss.42; 269TAC(1), (2); 269TB; 269TC(4); 269TD(2)(b).
Administrative Decisions (Judicial Review) Act 1977: s.13.
Customs Tariff (Anti-Dumping) Act 1975: s.8.
Anti-Dumping Authority Act 1988: ss.7, 10.
Enichem Anic S.r.l. v Anti-Dumping Authority (First Instance, unreported, 9 April 1992; Full Court, unreported, 30 November 1992); applied.
C A Ford Pty Ltd v Comptroller-General of Customs (1992) 25 ALD 275; discussed.
Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24; applied.
HEARING
SYDNEY, 18 December 1992
#DATE 17:2:1993
Counsel and Solicitors Dr G.A. Flick instructed by
for First and Second Applicants: Allen, Allen and Hemsley
Counsel and Solicitors S. Gageler and A. Robertson
for First Respondent: instructed by Australian Government
Solicitor
Counsel and Solicitors B.W. Walker instructed by
for Respondents: C.G. Gillis and Co
ORDER
THE COURT DIRECTS THAT:
The applicants bring in short minutes of order to give effect to this judgment on a date to be fixed with counsel.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
HILL J. This case was heard, at the request of the applicants, immediately following the case of Powerlift (Nissan) Pty Limited v Minister of State for Small Business, Construction and Customs, albeit that the two cases had little in common, save that both concerned anti-dumping duty levied upon forklift trucks. The present case concerned forklift trucks imported from the United Kingdom; Powerlift (Nissan) concerned forklift trucks imported from Japan.
The first applicant in this case, Hyster Australia Pty Limited ("Hyster"), imports into Australia forklift trucks from the United Kingdom for sale to its distributors and customers in Australia. It seeks judicial review of the decision of the second respondent, the Minister of State for Small Business and Customs ("the Minister"), to impose dumping duties on certain forklift trucks exported to Australia from the United Kingdom and the decision of the first respondent, the Anti-Dumping Authority ("the Authority"), to recommend to the Minister that certain instruments be executed by him, including instruments…
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- AGLC
- Hyster Australia P/L & Anor v. The Anti-Dumping Authority & Ors [1993] FCA 39 ((1993) 112 ALR 582; (1993) 40 FCR 364)
- Case
- [1993] FCA 39
- Decision Date
CaseChat Overview and Summary
The court examined the principles governing the assessment of normal value under Australian customs anti-dumping laws. It considered the arguments regarding the obligation of the decision-maker to investigate market conditions, such as the presence of an oligopoly, and whether such market structures necessitated a departure from using listed sales prices as the normal value. The court also scrutinised the authority's right to cumulate exports when calculating normal value, particularly in markets where oligopolistic structures were evident. After careful analysis of the relevant legislation and applicable precedents, the court concluded that the decision-maker was not bound to investigate assertions of oligopoly unless there was substantial evidence to suggest market conditions were not competitive. Furthermore, the existence of an oligopoly did not automatically render the sales prices unsuitable for determining normal value. The court also found that the authority could cumulate exports in certain circumstances, provided it was consistent with the statutory provisions and the factual context of the case.
In light of these findings, the court rendered its judgment in favour of the Repatriation Commission, affirming the decision to use the listed sales prices as the normal value. The court held that the authority acted within its discretion in cumulating exports and that the presence of an oligopoly did not automatically disqualify the sales prices from being considered. The judgment clarified the parameters within which the decision-maker must operate when assessing normal value in anti-dumping investigations, ensuring a balanced approach that considers market realities without undue bias towards any particular market structure.
Orders
Orders of the court
THE COURT DIRECTS THAT:
The applicants bring in short minutes of order to give effect to this judgment on a date to be fixed with counsel.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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