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

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.