Sanwa Pty Ltd and Comptroller-General of Customs
[2019] AATA 5166
•31 October 2019
Sanwa Pty Ltd and Comptroller-General of Customs [2019] AATA 5166 (31 October 2019)
Division:TAXATION AND COMMERCIAL DIVISION
File Number: 2019/3308
Re:Sanwa Pty Ltd
APPLICANT
AndComptroller-General of Customs
RESPONDENT
AndAustube Mills Pty Ltd
JOINDER APPLICANT
DECISION
Tribunal:Deputy President Dr P McDermott RFD
Date:31 October 2019
Date of reasons: 29 November 2019
Place:Brisbane
The Tribunal makes an order pursuant to section 30(1A) of the Administrative Appeals Tribunal Act 1975 (Cth) that Austube Mills Pty Ltd be made a party to the proceeding.
............................[SGD]............................................
Deputy President Dr P McDermott RFD
Catchwords
PRACTICE AND PROCEDURE – JOINDER – application to be added as a party – whether party has an indirect interest in the decision under review – whether discretion should be exercised to add an applicant as a party to the proceeding – proper administration of anti-dumping measures – consistent interpretation of statute – application granted.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Customs (International Obligations) Regulation 2015 (Cth)
Customs Act 1901 (Cth)
Customs Tariff (Anti-Dumping) Act 1975 (Cth)
Customs Tariff Act 1995 (Cth)
Cases
ACN 154 520 199 Pty Ltd and Commissioner of Taxation (Taxation) [2018] AATA 2404
Allan v Development Allowance Authority (1999) 56 ALD 418
Alphapharm Pty Ltd v Smith Kline Beecham (Australia) Pty Ltd (1994) 121 ALR 373
Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2018) 357 ALR 510
Dow Agroscience Australia Limited and Chief Executive Officer of Customs [2009] AATA 17
Dunsdon and Australian Community Pharmacy Authority and Anor [2012] AATA 307
Faulkner and Repatriation Commission (1990) 19 ALD 194
Hasbro Australia Pty Ltd and CEO of Customs [1998] AATA 696
Maritime Union of Australia v Minister for Transport and Regional Services (Honourable John Anderson) (2000) 61 ALD 675
Price and Official Trustee in Bankruptcy [1998] AATA 67
Queensland Newsagents Federation Ltd v Trade Practices Commission; Ex parte Newsagency Council of Victoria Ltd (1993) 118 ALR 527
Re Control Investments Pty Ltd and Ors and Australian Broadcasting Tribunal (No 1) (1980) 3 ALD 74
Re McHattan and Collector of Customs (New South Wales) (1977) 1 ALD 67
Re Samir Pty Ltd and Aged Care Standards and Accreditation Agency Ltd (2013) 135 ALD 567
Re Tridon Pty Limited and Collector of Customs [1982] AATA 119
Ryan and Australian Securities and Commission and Ors [1997] AATA 835
Scott and Secretary, Department of Social Services (1996) 42 ALD 738
Stemcor Pty Ltd and Chief Executive Officer of Customs [2007] AATA 134
Tierney and Secretary, Department of Education, Employment and Workplace Relations [2008] AATA 257
Transurban City Link Ltd v Allan (1999) 95 FLR 553
Workpac Pty Ltd v Skene (2018) 362 ALR 311
Secondary Materials
D.C Pearce, Statutory Interpretation in Australia (LexisNexis Butterworths, 9th ed, 2019)
Stephen Skehill, ‘Sir Gerald Brennan and Administrative Tribunals’ in R. Creyke and P. Keyser (eds.), The Brennan Legacy, (Federation Press, 2002)
Minister for Home Affairs (Cth), ‘Customs Act 1901 – Part XVB – Certain Hollow Structural Sections – Exported from the People’s Republic of China (China), the Republic of Korea (Korea), Malaysia and Taiwan – Findings in relation to a dumping investigation – Notice under section 269TG (1) and (2) of the Customs Act 1901’ in Commonwealth of Australia Gazette, No S108, 3 July 2012
REASONS FOR DECISION
Deputy President Dr P McDermott RFD
29 November 2019
INTRODUCTION
The applicant has lodged an application with the Tribunal to review a demand for the payment of customs duty. Austube Mills Pty Ltd (“Austube”) has made an application under s 30(1A) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) to be made a party to the proceeding. Third parties have previously been joined in AAT proceedings where the decision under review related to an application concerning tariff concession orders.[1] This application by Austube appears to be the first instance before this Tribunal where an Australian manufacturer has applied to be added as a party to a customs duty dispute. I give my reasons why I consider that Austube has an indirect interest in the decision under review and why it is appropriate to exercise the discretion vested in the Tribunal to make Austube a party to the proceeding.
[1] See e.g Dow Agroscience Australia Limited and Chief Executive Officer of Customs [2009] AATA 17; Hasbro Australia Pty Ltd and CEO of Customs [1998] AATA 696; Stemcor Pty Ltd and Chief Executive Officer of Customs [2007] AATA 134.
BACKGROUND
On 25 October 2018, the respondent made decisions for the payment of customs duty, interim dumping duty and interim countervailing duty amounting to $8,228,917.33. The customs duty was imposed upon certain goods being hollow structural sections (“HSS”) imposed from China. The respondent classified the goods under subheading 7306.30 in Schedule 3 of the Customs Tariff Act 1995 (Cth).The respondent made the decision after exercising its monitoring powers from 5 June 2018 with the consent of the applicant.
On 6 June 2019, the applicant made an application to this Tribunal for the review of the decision to demand payment of customs duty amounting to $297,430.27. This Tribunal does not have jurisdiction to review the decisions to demand payment for interim dumping duty and interim countervailing duty.
The issue in dispute before the Tribunal concerns whether the goods have been correctly classified by the respondent or whether the goods should be subject to the classification to tariff subheading 7306.19.00 in Schedule 3 of “line pipe of a kind used for oil and gas pipelines”.
Joinder Application of Austube
On 5 August 2019 Austube made an application to be made a party under s 30(1A) of the AAT Act. Austube is a manufacturer in Australia of HSS which are goods classified pursuant to subheading 7306 of Schedule 3 of the Customs Tariff Act 1995 (Cth).
Austube contends that it has an interest in the decision under review because the classification of goods for home consumption by the applicant will determine whether or not anti-dumping measures are imposed pursuant to ss 8 and 10 of the Customs Tariff (Anti-Dumping) Act 1975 (Cth). Austube submits that as an Australian manufacturer of HSS there will be economic harm to the business of Austube if the goods are not subject to the anti-dumping measures.
The necessity for an added party to have an interest in a decision under review
Before the Tribunal can determine whether to exercise its discretion to make Austube a party to the proceedings under s 30(1A) of the AAT Act, it must first have regard to whether Austube comes within the expression in that subsection of “any other person whose interests are affected by the decision subject to review”.
The expression “interests are affected” in ss 27 and 30 of the AAT Act was considered in Re Control Investments Pty Ltd and Ors and Australian Broadcasting Tribunal (No 1)[2] by President Davies J. who remarked:
“In their context in ss 27 and 30, the words “interests are affected” denote interests which a person which a person has other than as a member of the general public and other than as a person merely holding a belief that a particular type of conduct should be prevented or a particular law observed. The interest affected need not be a legal interest nor need the person seeking joinder establish legal ownership of the interest”.[3]
[2] (1980) 3 ALD 74.
[3] (1980) 3 ALD 74 at 79.
In Transurban City Link Ltd v Allan (’Transurban’)[4] a Full Court of the Federal Court of Australia considered the issue of standing in the context of s 27 of the AAT Act. Black CJ, Hill, Sundberg, Marshall and Kenny JJ remarked:
“In summary, the question of standing to review an administrative decision is to be determined by reference to the interest which the applicant has in the decision which is under review. It is to be determined by reference to the nature and subject matter of the review and the relationship which the applicant individually or a representative body may have to it. An interest in the outcome of the review may give standing. But there will be no standing where the actual outcome of the review will not affect the applicant. There will be a question of degree involved in many cases.”[5]
Their Honours in considering s 27 of the AAT which makes reference to “any person ... whose interests are affected by the decision” consider that “[a]n interest in the outcome of the review may give standing”. Austube certainly does not have a direct interest in the decision under review because the decision does not impose any liability upon Austube. However, I have to determine whether Austube may be joined as a party if it has an indirect interest in the decision under review.
[4] (1999) 95 FCR 553.
[5] (1999) 95 FCR 553 at 565.
Whether a person having an indirect interest in a decision under review may be added as a party
That a person may have an indirect interest in a decision under review in this Tribunal was first recognised by President Brennan J in Re McHattan and Collector of Customs (New South Wales),[6] (‘Re McHattan’) who remarked: “a decision which affects the interests of one person directly may affect the interests of others indirectly. Across the pool of sundry interest, the ripples of affection may widely extend”.[7] President Brennan J was the inaugural President of this Tribunal. Mr Stephen Skehill has remarked: “Sir Gerard in those formative years was called to make a number of significant decisions which would shape the Tribunal for the future”.[8] Mr Skehill has commented that one of those decisions was Re McHattan in which: “Sir Gerard … was reluctant to lay down a hard and fast rule about standing in the Tribunal”.[9] Certainly, the decision of President Brennan J in
Re McHattan which recognises that a person with an indirect interest in a decision under review may have standing before the Tribunal is a long-standing authoritative decision which has been cited by the Federal Court of Australia,[10] and has been consistently followed by this Tribunal.[11][6] (1977) 1 ALD 67 at 70.
[7] (1977) 1 ALD 67 at 70.
[8] S. Skehill, “Sir Gerald Brennan and Administrative Tribunals” in The Brennan Legacy, R. Creyke and P. Keyser (eds.), Federation Press (2002), 72 at 79.
[9] Ibid 84.
[10] See e.g Allan v Development Allowance Authority (1999) 56 ALD 418; Alphapharm Pty Ltd v Smith Kline Beecham (Australia) Pty Ltd (1994) 121 ALR 373; Maritime Union of Australia v Minister for Transport and Regional Services (Honourable John Anderson) (2000) 61 ALD 675; Queensland Newsagents Federation Ltd v Trade Practices Commission (1993) 11 ALR 527; Queensland Newsagents Federation Ltd v Trade Practices Commission; Ex parte Newsagency Council of Victoria Ltd (1993) 118 ALR 527; Transurban City Link Ltd v Allan (1990) 95 FCR 553.
[11] See e.g Faulkner and Repatriation Commission (1990) 19 ALD 194; Price and Official Trustee in Bankruptcy [1998] AATA 67; Ryan and Australian Securities and Commission and Ors [1997] AATA 835; Re Samir Pty Ltdand Aged Care Standards and Accreditation Agency Ltd (2013) 135 ALD 567; Scott and Secretary, Department of Social Services (1996) 42 ALD 738; Tierney and Secretary, Department of Education, Employment and Workplace Relations [2008] AATA 257.
In considering the meaning of the expression “whose interests are affected” in s 30(1A) of the AAT Act, I have had regard to the long-standing principle of consistent interpretation of statutes.[12] Recently, in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (‘Australian Building and Construction Commissioner’),[13] Allsop CJ remarked: “The consistency of meaning of the same word of phrase in a statute is a sensible working hypothesis which can be rebutted, by context, purpose, or surrounding text”.[14] In Workpac Pty Ltd v Skene,[15] Tracey, Bromberg and Rangiah JJ similarly remarked:
“It is ordinarily considered a sound rule of construction that the same word appearing in different parts of a statute should be given the same meaning. Such an assumption is a logical starting point or a sensible working hypothesis particularly where an expression is used in the same division or in closely proximate provisions of a statute”.[16]
[12] D.C Pearce, Statutory Interpretation in Australia (LexisNexis Butterworths, 9th ed, 2019), pp 142,454.
[13] (2018) 357 ALR 510.
[14] (2018) 357 ALR 510 at 312; [2018] FCAFC 88 at [3].
[15] (2018) 362 ALR 311.
[16] (2018) 362 ALR 311 at 332; [2018] FCAFC 131 at [106].
The expression “whose interests are affected” in relation to a person is found in s 27 and
s 30(1A) of the AAT Act. Certainly, in the context of s 27 of the AAT Act a person who would seek the review of a decision would do so because the interests of that person would be prejudiced by the decision. The terms of s 30(1A) of the AAT Act do not require that a person who applies to be made a party to the proceeding has to be aggrieved by the decision under review. It may be the case, as is the case here, that a person who applies to be made a party to the proceeding may have an interest in a decision under review being affirmed.Sections 27 and 30 of the AAT Act are closely proximate provisions in that Act and there is no reason why the “sensible working hypothesis” as enunciated by Allsop CJ in Australian Building and Construction Commissioner,[17] should be rebutted. I have already mentioned that In Transurban, Black CJ, Hill, Sundberg, Marshall and Kenny JJ explained that for the purposes of s 27 of the AAT Act: “An interest in the outcome of the review may give standing”.[18] I consider that such an interpretation should be accorded to the interpretation of s 30 of the AAT Act. I therefore conclude that for the purposes of s 30(1A) of the AAT Act, “a person whose interests are affected” would include a person who may have an interest in the “outcome of the review” and would be a person who is seeking a decision from this Tribunal to either affirm, vary or set aside the decision under review pursuant to s 43(1) of the AAT Act.
[17] (2018) 357 ALR 510 at 312; [2018] FCAFC 88 at [3].
[18] (1999) 95 FCR 553 at 565.
Whether Austube has an indirect interest in the decision under review
I next have to determine whether Austube has an indirect interest in the decision under review. While submitting that Austube’s interests generally as an Australian manufacturer of HSS are not sufficient to comprise the type of interest required to enliven s 30(1A) of the AAT Act, the applicant has nonetheless quite properly recognised that the interests of Austube may be prejudiced if the applicant was successful in challenging the payment of customs duty. In coming to this conclusion I have relied upon the submissions of the applicant that the only ‘interest’ that Austube would have would be the “potential flow-on effect in the event that the review is in Sanwa’s favour”. The applicant submits that:
“a decision to classify the specific goods imported by Sanwa as line pipe may have a flow-on effect to import duties applying to hollow structural sections in general, which in turn may affect the commercial interests of Australian manufacturers of hollow structural sections (a class of which Austube is a member) and that Austube’s apparent “interests” in this case are indistinguishable from the “interests” of Australian manufacturers of hollow structural sections as a class”.
The applicant contends that Austube is a competitor with no interest in the decision other than a potential commercial or financial advantage.
The fact that the applicant quite properly recognises that there is a “potential flow-on effect” which would affect Austube as an Australian manufacturer of HSS if the decision under review is set aside or varied in favour of the applicant certainly takes the decision under review out of the class of private decisions which was discussed by Davies J in Alphapharm Pty Ltd v Smith Kline Beecham (Australia) Pty Ltd (‘Alphapharm’).[19] The concession of the applicant and the submission of the respondent that Austube has a potential commercial interest in the decision under review make it unnecessary in these interlocutory proceedings to hear direct evidence from Austube as to the nature of its interest.[20]
[19] (1994) 121 ALR 373.
[20] Cf.,Re McHattan and Collector of Customs (New South Wales) (1977) 1 ALD 67 at 70.
The applicant in referring to the “potential flow-on effect in the event that the review is in Sanwa’s favour” as well as “any legitimate interest Austube may have in the proceeding” has recognised that the “interests” of Austube may be affected if the types of HSS goods imported by the applicant were allowed to be classified as being exempt from significant dumping and countervailing duties. I accept the submissions of the respondent that if the applicant succeeds at the hearing then the practical width of the anti-dumping measures may generally be reduced leading to less protection of Austube’s manufacturing business.
In Re McHattan President Brennan J remarked that he was not “seeking to lay down a hard and fast rule as what interests may be relatively affected by demand for payment of customs duty” and that “the ripples of affection may widely extend”’.[21] In this case I consider that the Austube may have an indirect interest in the decision under review which is a demand for the payment of customs duty. As has been recognised by both the applicant and respondent, Austube may have a commercial or financial interest that may be affected if the decision under review was set aside by this Tribunal. I have already concluded that for the purposes of s 30(1A) of the AAT Act a person who applies to be made a party to the proceeding may have an interest in the outcome of a review. In this case Austube has an interest in the decision under review being affirmed. The interest of Austube in the proceeding as an Australian manufacturer of HSS is certainly other than as a member of the general public.[22]
[21] (1977) 1 ALD 67 at 70.
[22] Re Control Investments Pty Ltd and Ors and Australian Broadcasting Tribunal (No 1) (1980) 3 ALD 74 at 79.
Whether it is appropriate for Austube to be made a party to the proceedings
Having determined that Austube has an indirect interest in the decision under review, I next have to determine whether I should exercise the discretion which is vested in the Tribunal under s 30(1A) of the AAT Act to make Austube a party to the proceeding. The applicant submits that even if Austube is a person whose interests are affected by the decision, the Tribunal should refuse to exercise its discretion to allow Austube to be joined to the proceeding as a party. The respondent has in the consideration of this application by Austube quite properly assisted the Tribunal pursuant to s 33(1AA) of the AAT Act. The respondent has adopted a neutral position in submitting that “it is not clear to the respondent that the Tribunal should determine that Austube’s interests are affected by the decision (or sufficiently affected) to give rise to the discretion”. However, the respondent does not oppose Austube being added as a party to the proceedings.
I have considered a number of matters in deciding whether or not to exercise the discretion under s 30(1A) of the AAT Act.
Expert evidence
Austube submits that in tariff classification cases the Tribunal in coming to the correct and preferable decision will base its decision on an “informed inspection” as was discussed by a Full Bench of this Tribunal in Re Tridon Pty Limited and Collector of Customs.[23] Austube submits that it would be able to assist the Tribunal by leading expert evidence as to the specific characteristics and industry usage relevant to the classification of the goods.
[23] [1982] AATA 119 at [15].
Whilst the respondent has indicated that it will assist the Tribunal pursuant to s 33(1AA) of the AAT Act, the respondent may not be in a position to lead expert evidence in support of the interests of Austube. The respondent informed the Tribunal that it often has difficulty in obtaining expert evidence in technical matters.
Having Austube as a party would ensure that there would be expert opinion led by a contradictor on the issue of the classification of the goods as well as expert evidence led by the applicant. This consideration weighs heavily in my view in favour of adding Austube as a party. In this respect I am mindful that the task of classification of goods is complex as has been emphasised by both Austube and the respondent. There will certainly be a need for the Tribunal to consider technical evidence having regard to the submission of the applicant that there will need to be evidence as to “the characteristics of the goods imported”. The respondent has pointed out that the classification of goods as line pipe “of a kind used for oil and gas pipelines” is a known difficult classification issue, of interest to importers and Australian manufacturers, due to its direct implications for the anti-dumping measures.
Commercially sensitive material
I do not accept the submission of the applicant that the Tribunal should not exercise its discretion to add Austube as party to the proceeding because the application concerns commercially sensitive material. The respondent and Austube submit that protective orders can be made over commercially sensitive material. This Tribunal is certainly experienced in protecting commercially sensitive documentation.[24] There is no issue that Austube is a commercial competitor of the applicant. The Tribunal would protect the interests of the applicant by making an order under s 35 of the AAT Act which would restrict sensitive price information from being disclosed to Austube which is a commercial competitor. The protection of sensitive price information would in my view be a simple administrative process. I accept the submission of the respondent that Austube should have no need to examine sensitive price information in order to meaningfully participate in the tariff classification exercise.
Adequate representation of interests of added party
[24] See e.g ACN 154 520 199 Pty Ltd and Commissioner of Taxation (Taxation) [2018] AATA 2404 at [35] (Deputy President Bernard J McCabe and Senior Member G Lazanas).
The applicant contends that it would be appropriate to draw the inference that any legitimate interest that Austube may have in the proceeding would in any event be adequately represented by the respondent. Certainly there was no submission from the applicant that the Comptroller-General of Customs is vested with any statutory responsibility to represent the interest of Austube under the Australian Border Force Act 2015 or the Customs Act 1901 (“the Customs Act”). I accept the submission of the respondent that it does not have a role to represent Australian manufacturers, but rather to assist the Tribunal in coming to a correct and preferable decision. This consideration weighs heavily in favour of adding Austube as a party to the proceeding so that its interests can be adequately protected. In Alphapharm, Davies J observed: “The question of standing is, indeed, related to issues of procedural fairness. If a person has interests which ought to be taken into account in the making of a decision, than ordinarily that person should be entitled to be heard”.[25]
Anti-dumping scheme
[25] (1994) 121 ALR 373 at 383.
This application before the Tribunal concerns the tariff classification of goods. In general the tariff classification of goods would not affect another party’s interest so that ordinarily a customs duty case would in the words of Davies J in Alphapharm concern “the affairs of one person alone”[26] However the decision under review affects the Australian steel industry and the imposition of anti-dumping duties which are a matter of public interest. On 12 June 2012 the Minister for Home Affairs issued a notice under s 269H of the Customs Act concerning the importation of HSS piping.[27] This notice is integral to the operation of the anti-dumping measures. I consider that Austube should be added as a party to the proceeding because Austube is concerned with the proper administration of the anti-dumping scheme which is dependent upon the correct classification of goods. I also consider that there is a public interest in making an order to add Austube as a party to the proceeding having regard to the submission of the respondent that if the applicant succeeds at the hearing then the practical width of the anti-dumping measures may be reduced.
Alternative avenues of relief
[26] (1994) 121 ALR 373 at 385.
[27] See Minister for Home Affairs (Cth), ‘Customs Act 1901 - Part XVB - Certain Hollow Structural Sections - Exported from the People’s Republic of China (China), the Republic of Korea (Korea), Malaysia and Taiwan - Findings in relation to a dumping investigation - Notice under section 269TG (1) and (2) of the Customs Act 1901’ in Commonwealth of Australia Gazette, No S108, 3 July 2012.
A discretionary consideration is whether alternative avenues of relief are available to Austube. The applicant contends that the discretion should not be exercised in favour of Austube because Austube can gain assistance from the Anti-Dumping Review Panel (“the Panel”). However, Austube submits that the jurisdiction of the Panel is limited to specific decisions of the Commissioner and Minister taken under Part XVB of the Customs Act. Austube also submits that the Panel has no jurisdiction in relation to tariff classification matters which are the sole preserve of the respondent. After submissions were made by Austube concerning whether there is the availability of recourse to the Panel, the applicant did not press an argument that the existence of the Panel furnished a reason against adding Austube as a party to a proceeding. I have concluded that the existence of the Panel does not furnish a valid reason against Austube being made a party in the proceedings.
In considering alternative avenues of relief Austube has quite properly raised the possibility of the exercise of the powers of the Minister to modify the goods description in an existing dumping or countervailing duty notice under the anti-circumvention provisions of Division 5A of Part XVB of the Customs Act. Circumvention activity for the purpose of s 269ZDBB of the Customs Act is prescribed by the Customs (International Obligations) Regulation 2015 (Cth) (“the Regulation”).[28] Section 269ZDBH(2)(a) of the Customs Act provides that the Minister, after considering a following an inquiry and report by the Commissioner on an application for an anti-circumvention inquiry, may alter an original notice for the specification of different goods that are to be the subject of the original notice.
[28] Customs (International Obligations) Regulation 2015 (Cth) s 269ZDBB(6).
Austube informed the Tribunal that it is not currently aware of any grounds to request the Commissioner to conduct an inquiry into the actionable circumvention activity activities which are specified in subparagraph 48(2) of the Regulation. The Tribunal accepts that for circumvention activity to occur all of the circumstances in subparagraph 48(2) must apply. The decision under review provides that the imports are classifiable to subheading 7306.30, consequently subparagraph 48(2)(e) does not apply. This is because after the decision under review sections 8 and 10 of the Customs Tariff (Anti-Dumping) Act 1975 do apply to the goods. The applicant has not taken issue with the contention of Austube that there is no probative evidence that all of the remaining four circumstances in regulation 48(2) of the Regulation apply. Accordingly there are no grounds at this stage to assume that there is any actionable circumvention activity. Even if there had been such an enquiry and report, it would be inappropriate for this Tribunal to anticipate the exercise of Ministerial discretion.
Settlement of dispute
One matter which was raised by the applicant was that making Austube as a party to the proceeding may render settlement of the dispute difficult. The respondent certainly shares the concerns of the applicant in this regard because consent orders could not be made under s 42C of the AAT Act. I certainly accept that if Austube were added as a party to the proceeding that there would be a difficulty in agreeing to potential terms of settlement if that settlement resulted in a consent order under s 42C of the AAT Act. However, the consent of an added party is not required where an applicant withdraws an application upon terms agreed between the applicant and respondent. For this reason, I do not consider that there will be a difficulty in settlement if Austube is added as a party to the proceeding.
The Tribunal adjourned the application of Austube to be added as a party to enable further submissions to be filed. The adjournment enabled the applicant and respondent the opportunity to have settlement negotiations prior to the Tribunal making a decision as to whether to make an order to make Austube a party to the proceedings. However, no settlement had occurred prior to my making the order for Austube to be made a party to the proceeding.
CONCLUSION
In these reasons I have outlined why I consider that Austube may have an indirect interest in the decision under review. This is because Austube may suffer economic harm if the decision under review is set aside. I also determine that it is appropriate to exercise the discretion vested in the Tribunal under s 30(1A) of the AAT Act to make Austube a party to the proceeding.
My foremost reason for exercising the discretion in favour of adding Austube as a party to the proceeding is that the Tribunal would be assisted in reaching the correct and preferable decision by hearing expert evidence from a contradictor as well as from the applicant about the specific characteristics and industry usage relevant to the proper classification of the goods. The importance of having a contradictor in an administrative review was emphasised by Deputy President Hack in Dunsdon and Australian Community Pharmacy Authority and Anor.[29] Having such expert evidence would assist the Tribunal in the complex task of the classification of the goods.
[29] [2012] AATA 307.
Another consideration which weighs heavily in favour of adding Austube as a party to the proceeding is to ensure that its interests can be adequately protected. I have not accept the submission of the applicant that it is the function of the respondent to represent the interests of Austube. In these reasons I have explained why I consider that no alternative grounds of relief are available to Austube to protect its interests.
Another reason why the discretion should be exercised to make Austube a party to the proceeding is that this application raises important public policy considerations relating to the proper administration of the anti-dumping measures. The administration of the anti-dumping scheme is contingent upon the proper classification of goods.
The applicant is concerned that if Austube is added as a party to the proceeding that confidential information will be released to a commercial competitor. I have in these reasons explained why the interests of the applicant can be safeguarded by having protective orders for any commercially sensitive material. The pricing arrangements of the applicant should have no relevance to the issue before the Tribunal which is the appropriate classification of the goods.
In these reasons I have explained why adding Austube as a party will not preclude a settlement being achieved between the applicant and respondent.
37. I certify that the preceding 36 (thirty-six) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD
.................[SGD].............................
Associate
Dated: 29 November 2019
Date/s of Hearing
Solicitors for the Applicant:
Solicitors for the Respondent:
Solicitors for the Joinder Applicant
16 September 2019 and 30 October 2019
Moulis Legal Pty Ltd
Roger Northcote
Minter Ellison
2