Wilson Transformer Company Pty Ltd v Anti-Dumping Review Panel (No 2)

Case [2022] FCAFC 30

FEDERAL COURT OF AUSTRALIA

Wilson Transformer Company Pty Ltd v Anti-Dumping Review Panel (No 2) [2022] FCAFC 30

File number(s): VID 365 of 2021
Judgment of: GRIFFITHS, O’CALLAGHAN AND THAWLEY JJ
Date of judgment: 8 March 2022
Catchwords:

PRACTICE AND PROCEDURE – interlocutory application to set aside orders by consent – where Court made erroneous finding – appropriate to make orders pursuant to r 39.05(f) of the Federal Court Rules 2011 (Cth)

ADMINISTRATIVE LAW – procedural fairness – whether Anti-Dumping Review Panel failed to comply with procedural fairness requirements in failing adequately to disclose to the appellant the substance of a confidential conference – where non-confidential summary of conference not published until after Panel’s review complete – whether Subdiv C of Div 9 of Pt XVB of Customs Act 1901 (Cth) exhaustive of procedural fairness requirements – whether appellant suffered practical injustice – appellant deprived of opportunity to be heard – held: procedural unfairness
Legislation:

Customs Act 1901 (Cth) ss 269ZZRA, 269ZZT, 269ZZX

Migration Act 1958 (Cth) s 422B

Federal Court Rules 2011 (Cth) r 39.05(f)

Explanatory Memorandum, Customs Amendment (Anti-Dumping Measures) Bill (No. 1) 2015 (Cth)
Cases cited:

BSX15 Minister for Immigration and Border Protection [2017] FCAFC 104; 249 FCR 1

Degning v Minister for Home Affairs [2019] FCAFC 67; 270 FCR 451

Dunn v Minister for Immigration and Border Protection [2018] FCAFC 233; 267 FCR 246

Hamlett on behalf of the Wajarri Yamatji People v State of Western Australia (No 3) [2021] FCA 869

Jagroop v Minister for Immigration and Border Protection [2014] FCAFC 123; 255 FCR 482

Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421

Minister for Immigration and Border Protection v WZARH [2015] HCA 40; 256 CLR 326

MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 390 ALR 560

Nathanson v Minister for Home Affairs [2020] FCAFC 172; 281 FCR 23

Nathanson v Minister for Home Affairs [2021] HCATrans 170 (15 October 2021)

National Disability Insurance Agency v WRMF [2020] FCAFC 79; 276 FCR 415

Nguyen v Minister for Home Affairs [2019] FCAFC 128; 270 FCR 555

O’Rafferty v The Queen (No 2) [2014] ACTCA 52; 10 ACTLR 278

Pharm-a-Care Laboratories Pty Ltd v Commonwealth of Australia (No 7) [2011] FCA 715

Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; 206 CLR 57

Saeed v Minister for Immigration and Citizenship [2010] HCA 23; 241 CLR 252

Wilson Transformer Pty Ltd v Anti-Dumping Review Panel [2022] FCAFC 4
Division: General Division
Registry: Victoria
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 30
Date of last submissions: 21 February 2022
Date of hearing: Determined on the papers
Counsel for the Appellant: Mr S Lloyd SC with Mr R Scheelings
Solicitor for the Appellant: Ms M Williams (General Counsel)
Counsel for the First Respondent: Mr C Horan QC with Ms R Amamoo
Solicitor for the First Respondent: Australian…

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AGLC
Wilson Transformer Company Pty Ltd v Anti-Dumping Review Panel (No 2) [2022] FCAFC 30
Case
[2022] FCAFC 30
Decision Date

CaseChat Overview and Summary

In the matter of Wilson Transformer Company Pty Ltd v Anti-Dumping Review Panel, the Court of appeal was tasked with determining an interlocutory application brought by the appellant, Wilson Transformer Company Pty Ltd, to set aside previous orders made by the Court. These orders had dismissed the appellant's appeal against the Anti-Dumping Review Panel and ordered the appellant to pay the Panel's costs. The appellant argued that the Court had made an erroneous finding in relation to ground 3 of the notice of appeal, which claimed that the Panel had failed to comply with the requirements of procedural fairness by not disclosing the substance of a confidential conference.

The legal issues before the Court were whether the Anti-Dumping Review Panel had failed to comply with procedural fairness requirements by not adequately disclosing to the appellant the substance of a confidential conference, and whether the appellant had suffered practical injustice as a result of the Panel's failure to comply with procedural fairness. The Court had to determine whether the appellant was deprived of an opportunity to be heard and whether the Panel's failure to disclose the substance of the confidential conference amounted to procedural unfairness.

The Court found that the Anti-Dumping Review Panel had indeed failed to comply with procedural fairness requirements in not disclosing the substance of the confidential conference to the appellant. The Court held that the Panel's power of review, including its power to obtain information on the review, was conditioned on a duty to afford natural justice. The Court further found that in the circumstances, the Panel ought to have informed Wilson of the substance of the information communicated during the conference in a way which appropriately preserved confidentiality. The Court concluded that if procedural fairness had been afforded, the possibility of a different outcome could not be excluded. The Court allowed the appeal in respect of ground 3 and rejected the Panel's notice of contention.

The Court ordered that the interlocutory application be upheld, and that orders 1 to 3 of the orders dated 21 January 2022 be set aside. The parties were directed to seek to agree orders which give effect to these supplementary reasons for judgment, in respect of both the appeal and the proceeding below, including as to costs. If agreement could not be reached, the parties were required to file and serve a copy of their respective proposed orders, together with an outline of written submissions in support not exceeding three pages in length. Final orders were to be determined on the papers and without a further oral hearing.

Orders

Orders of the court

1. The interlocutory application dated 18 February 2022 be upheld.

2. Pursuant to r 39.05(f) of the Federal Court Rules 2011 (Cth), orders 1-3 of the orders dated 21 January 2022 be set aside.

3. The parties should seek to agree orders which give effect to these supplementary reasons for judgment, in respect of both the appeal and the proceeding below, including as to costs.

4. If agreement cannot be reached, by no later than 18 March 2022, each party should file and serve a copy of their respective proposed orders, together with an outline of written submissions in support not exceeding three pages in length.

5. Final orders will then be determined on the papers and without a further oral hearing.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

For the following reasons, we consider that orders 1 to 3 dated 21 January 2022 should be set aside and replaced with other orders which give effect to these supplementary reasons for judgment. The parties should be given an opportunity to seek to agree orders relating to both the appeal and the trial, including as to costs. Background By majority (Griffiths and O’Callaghan JJ), in First Full Court the Court ordered inter alia that all three of the appellant’s grounds of appeal be dismissed, that the appellant pay the first respondent’s costs (as agreed or taxed) and that there otherwise be no order as to costs. These are the orders which are the subject of the interlocutory application. As noted above, the interlocutory application relates only to ground 3 of the notice of appeal and the Panel’s notice of contention. Ground 3 of the notice of appeal claimed, in brief, that the primary judge erred in not upholding the appellant’s claim that the Panel denied it procedural fairness by not disclosing the substance of the conference which the Panel held with some of the Commissioner’s staff on 8 May 2020, on the basis that the failure of the Panel to comply with procedural fairness requirements was not a material error. The Panel’s notice of contention claimed that the primary judge erred in finding that the Panel had failed to comply with the requirements of procedural fairness. The majority’s reasons for upholding the Panel’s notice of contention (and therefore rejecting the appellant’s claims under ground 3) are set out in First Full Court at [61] to [80]. In brief, the majority found that there was no procedural unfairness because the Panel had published a summary of the 8 May 2020 conference (while not disclosing any confidential information) prior to finalising its review (see, in particular, at [63] and [67]-[68]). Accordingly, the majority found that the appellant had an opportunity to respond to that summary prior to the Panel finalising its review. It is accepted that this finding was in error and was based on a misunderstanding by the majority of the date on which the Panel’s summary was published. In fact, that summary was not published until after the Panel had finalised its review and not beforehand. As the appellant pointed out in its written submissions in support of its interlocutory application, Thawley J in dissent may have had the same misunderstanding. In its written submission in support of the interlocutory application, the appellant explained that, rather than pursuing an application for special leave to appeal, a more efficient approach is for the Court to set aside the current relevant orders under r 39.05 of the Federal Court Rules 2011 (Cth) (2011 FCRs) and re-determine the appeal in relation to both ground 3 and the Panel’s notice of contention. The appellant acknowledged that this would not require any further consideration of grounds 1 and 2. As previously noted, all the parties consent to the setting aside of the earlier orders and support the Court reconsidering the matter on the limited basis indicated. The parties were also content for ground 3 of the notice of appeal and the notice of contention being reconsidered on the basis of written and oral submissions already made to the Court.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

For these reasons, the appeal should be allowed in respect of ground 3 and the notice of contention rejected. Conclusion For these reasons, we consider that the interlocutory application should be upheld. The parties should seek to agree orders which give effect to these supplementary reasons for judgment, in respect of both the appeal and the trial, including as to costs. If agreement cannot be reached, by no later than 18 March 2022, each party should file and serve an outline of submissions not exceeding three pages in length setting out its proposed orders and supporting submissions. The Court will then finalise orders on the papers and without a further oral hearing. For the dissenting reasons given in Wilson Transformer Pty Ltd v Anti-Dumping Review Panel [2022] FCAFC 4, I considered each of the three grounds of appeal had been made out and would have allowed the appeal. In relation to ground 3 specifically, I have already expressed my view that: (a) the Panel’s power of review, including its power to obtain information on the review, is conditioned on a duty to afford natural justice: at [152]; (b) what procedural fairness requires depends upon the particular facts and the statutory context: at [153]; (c) in the circumstances, the Panel ought to have informed (but did not inform) Wilson of the substance of the information communicated during the conference in a way which appropriately preserved confidentiality: at [163]; and (d) if procedural fairness had been afforded, the possibility of a different outcome could not be excluded: at [163]. Because the ADRP Conference Summary was in any event inadequate, the date of its publication is not essential to my reasoning. I agree with Griffiths and O’Callaghan JJ that, in the circumstances their Honours describe in their joint reasons, orders 1 to 3 dated 21 January 2022 should be set aside. I concur in the orders proposed. SCHEDULE OF PARTIES

Ratio Decidendi

Legal Principle Established

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