Toyota Motor Sales Australia Ltd v The Minister of State for Small Business Construction and Customs

[1993] FCA 143

IN THE FEDERAL COURT OF AUSTRALIA	) )
NEW SOUTH WALES DISTRICT REGISTRY )	NO NG 884 of 1992

)

GENERAL DIVISION )

BETWEEN:	TOYOTA MOTOR SALES AUSTRALIA LIMITED
First Applicant
TOYOTA MOTOR CORPORATION AUSTRALIA LIMITED
Second Applicant

AND :	THE MINISTER OF STATE FOR SMALL BUSINESS CONSTRUCTION AND CUSTOMS
First Respondent
THE COMPTROLLER-GENERAL OF CUSTOMS
Second Respondent KEN BEAMAN Third Respondent

m:	HILL J
PLACE	: SYDNEY
DATED	:  22 MARCH 1993

MINUTES OF ORDER

THE COURT DIRECTS THAT:

REQISTRY

The applicants bring in short minutes of order on Friday,

26 March 1993.

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

2 2 MAR 1993

AUSTRALIA

PRINCIPAL

IN THE FEDERAL COURT OF AUSTRALIA )

)

NEW SOUTH WALES DISTRICT REGISTRY ) NO NG 884 of 1992

)

GENERAL DIVISION )

BETWEEN:	TOYOTA MOTOR SALES AUSTRALIA LIMITED
First Applicant
TOYOTA MOTOR CORPORATION AUSTRALIA LIMITED
Second Applicant
THE MINISTER OF STATE FOR SMALL BUSINESS CONSTRUCTION AND CUSTOMS
First Respondent
THE COMPTROLLER-GENERAL OF CUSTOMS
Second Respondent KEN BEAMAN Third Respondent

m:	HILL J
PLACE :	SYDNEY
DATED :	22 MARCH 1993

REASONS FOR JUDGMENT

Corporatlon of Australia Limited, the applicants, (both of which Toyota Motor Sales Australia Limited and Toyota Motor	companies are compendiously referred to as "Toyota") seek
judlclal review of determinations of the respondents, the Minister of State for Small Business, Constructions and Customs, the Comptroller-General of Customs and Mr Beaman, the delegate of the Minister. The determinations in question are those made on or about 30 June 1992 to review Dumping Report No 91/23 and the consequent imposition of dumping duties pursuant to Review Finding 1992/1. The application was brought pursuant to s.39B of the Judiciarv Act and was heard together with the application brought by Powerlift (Nissan) Pty Limited and Nissan Motor CO Ltd, judgment in which I delivered on 17 February 1993, (Powerlift (Nissanl Ptv Limited v Minister of State for Small Business, Construction and Customs, unreported).
But for one matter, the facts in the present application parallel those in powerlift and the outcome must be the same, namely, that the matter must go back to the decision- maker for reconsideration in accordance with law. Counsel for Toyota, however, made a separate submission which depended upon the peculiar facts of the Toyota matter and asked that I rule upon that. Counsel for the respondents did not oppose that course, but indicated that there was no present intention to appeal the Powerlift matter and, by implication, if I were to set aside the decisions in the present matter on the same grounds as I dealt with in the Powerllft matter, no appeal would be lodged
might be thought to be otiose, since the determination would not in the present matter either. To determine the extra matter affect the outcome.
However, since the issue involved in the present case might well arise afresh if the matter is reconsidered by the decision-maker, and since it has been raised in the present proceedings, it is, I think, desirable in the interests of the parties that I give consideration to it in a separate judgment.

The problem arises in the following way. In December

1991, Report No 91/23 was published. In it, assessments of normal value and of export value were made. Seven weeks after the release of that report a review was initiated by the Australian Customs Service ("ACS") into export prices. That review culminated in the publication of Review Findlng 1992/1 on

30 June 1992 and it is this document which contains the decision

complained of by Toyota.

The report notes that while normal values had not been substantially altered, there had been minor adjustments to them to reflect certaln options, attachments and componentry at variance to basic model configuration. Normal values were affected in two other ways, discussed in the Powerlift judgment, namely, the question of the inclusion or exclusion of a profit component in constructed normal values and the question of the applicable date for currency conversion purposes.

inter alia, calculated normal values for three Toyota models

"revlew" normal values dealt with in the 1991 report, in fact,

It appears, however, that Mr Beaman, in purporting to which were not the subject of an original calculation. That this was so appears from a comparison of two confidential instructions, the one showing in respect of 14 models enumerated the normal values initially calculated, and the other the calculations made for the purposes of the 1992 Report and the calculation of dumping duty consequential upon that report, which shows 17 models. There was no explanation proffered by Mr Beaman

for this course. It appears to have arisen by mistake.

It is difficult to sustain the validity of what purported to be a revision of normal values calculated in 1991, when in fact no such values had been calculated at all. Counsel for the respondents did not do so and, indeed, when invited so to do made no submission on the matter. In these circumstances, I am of the view that the purported revision of the normal values in respect of the three models in question was invalid and should be set aside. This would not, of itself, affect the validity of the redetermination of the normal values ofthe remainingmodels. Since, however, I am of the view that all the calculations of normal value must be set aside, for the reasons already dealt with in the Powerlift judgment, the present judgment will not require any different order to be made than would have been made had the additional matter not been at issue.

over to a date to be agreed with counsel when short minutes of The parties are agreed that the matter should be stood

order will be handed up to reflect the matters dealt with in the

Powerlift ~udgment, so far as they are applicable to the present

case. I am told that the parties will be able to agree upon the

quantum of duty which will require to be refunded to Toyota and
that the orders will incorporate the question of refund. Having
regard to the fact that Toyota was unsuccessful in its principal
submission, I am of the view that the proper order is that there
be no order as to costs.

I certify that this and the
preceding four (4) pages
are a true copy of the Reasons
for Judgment herein of his Honour
Mr Justice Hill.

Associate: 1 -K (it7- c

Date: 22 March 1993

Counsel and Solicitors Mr P Roberts instructed by

for Applicants:  Sly & Weigall

Counsel and Solicitors	Mr A Robertson & Mr S Gageler
for Respondents:	instructed by the Australian Government Solicitor
Dates of Hearing:	4 December 1992
Date Judgment Delivered:	22 March 1993