Thai Pineapple Canning Industry Corporation Ltd v Minister of State for Justice and Customs (No 2)

[2008] FCA 978

FEDERAL COURT OF AUSTRALIA

Thai Pineapple Canning Industry Corporation Ltd v Minister of State for Justice & Customs (No 2) [2008] FCA 978

Kanthal Australia Pty Ltd v Minister for Industry, Technology and Commerce (1987) 14 FCR 90

THAI PINEAPPLE CANNING INDUSTRY CORPORATION LTD v MINISTER OF STATE FOR JUSTICE AND CUSTOMS and CHIEF EXECUTIVE OFFICER AUSTRALIAN CUSTOMS SERVICE

NSD 2386 OF 2006

BUCHANAN J
27 JUNE 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2386 OF 2006

BETWEEN:

THAI PINEAPPLE CANNING INDUSTRY CORPORATION LTD
Applicant

AND:

MINISTER OF STATE FOR JUSTICE AND CUSTOMS
First Respondent

CHIEF EXECUTIVE OFFICER AUSTRALIAN CUSTOMS SERVICE
Second Respondent

JUDGE:

BUCHANAN J

DATE OF ORDER:

1 AUGUST 2008

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.Orders 1, 3 and 4 made on 27 June 2008 be vacated.

2.Reasons for Judgment handed down on 4 April 2008 redacted in accordance with Order 2 made on 27 June 2008 be available for General Distribution.

3.Reasons for Judgment handed down on 27 June 2008 be available for General Distribution.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2386 OF 2006

BETWEEN:

THAI PINEAPPLE CANNING INDUSTRY CORPORATION LTD
Applicant

AND:

MINISTER OF STATE FOR JUSTICE AND CUSTOMS
First Respondent

CHIEF EXECUTIVE OFFICER AUSTRALIAN CUSTOMS SERVICE
Second Respondent

JUDGE:

BUCHANAN J

DATE OF ORDER:

27 JUNE 2008

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The Confidential Reasons for Judgment published herewith be, until further order, available only to persons who have given confidentiality undertakings in connection with the proceedings.

2.The motion by the respondents seeking redactions to the confidential Reasons for Judgement handed down on 4 April 2008 be determined as follows:

(a)The redactions sought by confidential Schedule A filed in Court on 26 June 2008 be made.

(b)The redactions sought by confidential Schedule B and confidential Schedule C filed in Court on 26 June 2008 not be made.

3.The Confidential Reasons for Judgment handed down on 4 April 2008, as amended in accordance with Order 2 be, until further order, available only to persons who have given confidentiality undertakings in connection with the proceedings.

4.The parties have liberty to apply on three days’ notice.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2386 OF 2006

BETWEEN:

THAI PINEAPPLE CANNING INDUSTRY CORPORATION LTD
Applicant

AND:

MINISTER OF STATE FOR JUSTICE AND CUSTOMS
First Respondent

CHIEF EXECUTIVE OFFICER AUSTRALIAN CUSTOMS SERVICE
Second Respondent

JUDGE:	BUCHANAN J
DATE:	27 JUNE 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

BUCHANAN J:

1. This judgment deals with a motion that I make specified redactions to Confidential Reasons for Judgment published on 4 April 2008, before releasing the judgment for general distribution.

2. The Confidential Reasons for Judgment explained why I had concluded that a recommendation by the Chief Executive Officer of Customs and a decision by the Minister for Justice and Customs to impose anti-dumping measures on the applicant should both be set aside.  At that time I made the following orders:

   ‘1.The applicant bring in short minutes of order to give effect to the Confidential Reasons for Judgment published herewith.

   2.The Confidential Reasons for Judgment be available only to persons who have given confidentiality undertakings in connection with the proceedings.

   3.The parties confer about redactions necessary to permit Reasons for Judgment to be published in a publicly available form.’

3. The parties, in due course, agreed on the orders which should be made to give effect to those reasons for judgment.  Accordingly, on 13 June 2008 I made the following final orders:

   1.The decisions of the first respondent made on or about 28 September 2006 to:

   (a)accept the recommendation of the second respondent and to take steps to secure the continuation of the anti-dumping measures applying to consumer pineapple exported to Australia from Thailand by the applicant; and

   (b)accept the recommendation of the second respondent and to declare the anti-dumping measures concerning consumer pineapple exported by the applicant take effect as if different variable factors had been fixed;

   are set aside.

   2.The decisions of the second respondent made on or about 12 September 2006 to make recommendations to the first respondent:

   (a)that the first respondent take steps to secure the continuation of anti-dumping measures applying to consumer pineapple exported to Australia from Thailand by the applicant;

   (b)to the extent that the measures involved the publication of a dumping duty notice, that the notice has effect as if different variable factors had been ascertained in respect of the applicant’s exports of consumer pineapple to Australia from Thailand; and

   (c)that the first respondent be satisfied pursuant to sub-section 269 TAC(14) of the Customs Act 1901 (Cth) (‘the Act’) that the volume of sales for consumer pineapple by another seller was still large enough to permit a proper comparison for the purposes of setting a dumping margin for the exports of the applicant of consumer pineapple to Australia from Thailand under section 269 TACB of the Act;

   be set aside.

   3.The respondents pay the applicant’s costs.’

4. There remained the question of redactions which might be necessary in order for the reasons for judgment to be published in a form which would not unreasonably compromise confidentiality relating to the identity of enterprises dealing in the Thai or Australian markets or the prices and volumes of pineapple products sold to or by such enterprises.  The respondents initially provided a list of 101 suggested redactions from 44 paragraphs of the judgment.  A small number of these were agreed by the applicant to be necessary.  Further, more detailed confidential schedules were provided by the respondents shortly before the resumed hearing on 26 June 2008.  Those confidential schedules grouped the suggested redactions into three categories - ‘prices and volumes’, ‘the other seller’s identity’ and ‘other classes of redaction’.  I deal with each of those categories hereunder.

5. Counsel for the respondents indicated their desire to have an opportunity to challenge the rulings which I might make.  To facilitate an adequate opportunity for the respondents to consider their position, take advice and, if they chose, make any such challenge I indicated that I would grant leave to the respondents to move orally that the redactions in the three confidential schedules be made, that I would publish a judgment dealing with that motion and that I would provide an adequate period for consideration of the judgment, and the reasons it contained before releasing the earlier Confidential Reasons for Judgment for general distribution in the form I had determined was appropriate.

6. I also propose, in the first instance, to keep the terms of the present judgment confidential to guard against the possibility that even the limited references it makes to the issues discussed in the earlier judgment might inadvertently prejudice the respondents’ position before they have decided on the course they wish to take.

   Prices and Volumes

7. This schedule was introduced with the following explanation:

   ‘The information in the following table is claimed to be confidential by the respondent and should not be disclosed because the information discloses the prices or pricing practices or volumes of goods sold or purchased by an entity.’

8. The suggested redactions were either actively supported by the appellant or not opposed. 

9. Some of the suggested redactions concerned specific prices of various products sold by the applicant, the seller with whom a comparison was made concerning the applicant’s sales and another seller on the Thai domestic market.  Others of the suggested redactions concerned volumes of sales in various markets, sometimes described very generally. 

10. I accept that it is appropriate to keep confidential specific prices and volumes, whether of the applicant or some other entity selling on the Thai domestic market.  I am also prepared to extend confidentiality, although not with as much confidence, to statements about general orders of magnitude of sales volumes and profit margins.  The redactions and substitutions suggested by confidential Schedule A will be made.

    The other seller’s identity

11. The largest group of redactions sought was introduced by the following:

    ‘The information in the following table is claimed to be confidential by the respondent and should not be disclosed because the information discloses the identity of the other seller used for the purposes of calculating the normal value of the applicant, or makes reference such that the identity of the other seller can be deduced.’

12. One specific concern was that disclosure of the other seller’s identity would enable the applicant to estimate with fair precision the prices at which the other seller sold.  Mr Lloyd, who appeared for the respondents, very helpfully and candidly indicated that preservation of confidentiality ultimately depended on all, and not just some, of the redactions being made.  He also conceded that there was no evidence that the other seller would suffer any prejudice if its identity was revealed, either to the applicant or the general public.  In fact the applicant and the other seller are not direct competitors in either the Thai or Australian markets.  In addition there was no evidence that the other seller had made any claim to the confidentiality of its identity.  On the contrary, as indicated in the earlier judgment, there was material on the public file disclosing its identity and its relationship to the company which the applicant’s representative, Mr Simpson, had mistakenly believed was to be used as the point of comparison with the applicant.

13. In my view, the specific concern that the applicant could estimate the other seller’s prices does not provide sufficient reason to keep its identity confidential.

14. The other, more general, appeal by the respondents was to the need to preserve the capacity of Customs to get information from overseas companies which can not be compelled to assist.  I was referred to the observations of Wilcox J in Kanthal Australia Pty Ltd v Minister for Industry, Technology and Commerce (1987) 14 FCR 90. His Honour’s comments were circumspect. On one hand his Honour accepted (at 94) that:

    ‘It is desirable, in the public interest, that Australia’s international obligations, and assurances given to particular persons on behalf of the Australian Government, be honoured.  But even that important value is not absolute.  Like any other aspect of the public interest it must be balanced against any competing public interest relevant to the particular case.’

    while also saying (at 97):

    ‘… it occurred to me that the inherent problem appears to be exacerbated by an undue readiness of the Australian Customs Service to promise confidentiality.  It must be remembered that it will usually be in the commercial interests of affected companies to assist the Australian Customs Service as much as possible.’

15. In the present case there was no evidence of any assurance, or claim, of confidentiality of identity but the respondents emphasised that they nevertheless wish to do their best to protect confidentiality.  I accept the necessity to bear in mind the concerns expressed by Customs.  However, it is also important that the Court’s reasons for its decisions appear clearly from the explanations given in the judgments which it publishes.  Although I am satisfied that is still possible if details like prices and volume are suppressed, I am not satisfied it is possible in the present case if the identity of the other seller remains confidential.

16. Of particular concern to me is the desirability that it be clearly apparent why I concluded that the applicant was not afforded procedural fairness.  I do not think that will be achieved if a number of the suggested redactions are made.

17. In the circumstances I do not propose to make the redactions proposed by confidential Schedule B.

    Other suggested redactions

18. The final group of suggested redactions sought to conceal the identity of the applicant’s customers in Australia.  The applicant does not make this claim.  I am not persuaded these redactions are necessary.  Accordingly, this group of redactions will not be made as sought by confidential Schedule C.

    ORDERS

19. I will make the following orders, which will be publicly available:

    1.The Confidential Reasons for Judgment published herewith be, until further order, available only to persons who have given confidentiality undertakings in connection with the proceedings.

    2.The motion by the respondents seeking redactions to the confidential Reasons for Judgement handed down on 4 April 2008 be determined as follows:

    (a)The redactions sought by confidential Schedule A filed in Court on 26 June 2008 be made.

    (b)The redactions sought by confidential Schedule B and confidential Schedule C filed in Court on 26 June 2008 not be made.

    3.The Confidential Reasons for Judgment handed down on 4 April 2008, as amended in accordance with Order 2 be, until further order, available only to persons who have given confidentiality undertakings in connection with the proceedings.

    4.The parties have liberty to apply on three days’ notice.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.

Associate:

Dated:        27 June 2008

Counsel for the First Applicant:	Mr N Williams SC
Solicitor for the First Applicant:	Baker & McKenzie
Counsel for the First and Second Respondents:	Mr S Lloyd
Counsel for the First and Second Respondents:	Australian Government Solicitor

Date of Hearing:	13, 26 June 2008
Date of Judgment:	27 June 2008
Date of Publication:	1 August 2008