FEDERAL COURT OF AUSTRALIA

GM Holden Limited v Commissioner of the Anti-Dumping Commission [2014]

FCA 708

Citation: GM Holden Limited v Commissioner of the Anti-Dumping Commission [2014] FCA 708

Parties: GM HOLDEN LIMITED v COMMISSIONER OF THE ANTI-DUMPING COMMISSION (AS SUCCESSOR TO THE CHIEF EXECUTIVE OFFICER OF THE AUSTRALIAN CUSTOMS AND BORDER PROTECTION SERVICE), MINISTER FOR IMMIGRATION AND BORDER PROTECTION and ANTI-DUMPING REVIEW PANEL (AS SUCCESSOR TO THE TRADE MEASURES REVIEW OFFICER)

File number: VID 555 of 2013

Judge: MORTIMER J

Date of judgment: 4 July 2014

Catchwords: ADMINISTRATIVE LAW – Application under Administrative Decisions (Judicial Review) Act 1977 (Cth) and Judiciary Act 1903 (Cth) for review of recommendations and decisions in relation to the issue of dumping and countervailing duty notices against Chinese importers pursuant to Customs Act 1901 (Cth) – construction of phrase “like goods” – whether denials of procedural fairness – construction of the statutory terms “normal value”, “material injury”, “public body” and “adequate remuneration” – construction of “selected” or “residual” exporters – no failure to afford procedural fairness – misconstruction of “investigated” resulted in misunderstanding and misconstruction by CEO and Minister of the terms “selected exporters” and “residual exporters” – reviewable decisions of CEO and Minister affected by jurisdictional error – application allowed in part.

Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5Customs Act 1901 (Cth) ss 42, 269T, 269TAAC, 269TAC, 269TACB, 269TACC, 269TAG, 269TB, 269TC, 269TD, 269TDA, 269TDAA, 269TEA, 269TG, 269TJ, 269ZL, 269ZN, 269ZX, 269ZZA, 269ZZD, 269ZZE, 269ZZL,

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269ZZK, 269ZZMCustoms Amendment (Anti-Dumping Commission) Act 2013 (Cth)Customs Amendment (Anti-Dumping Improvements) Act (No 1) 2012 (Cth)Customs Tariff (Anti-Dumping) Act 1975 (Cth) ss 8, 10Evidence Act 1995 (Cth) s 191Judiciary Act 1903 (Cth) s 39B

Agreement on the Implementation of Article VI of the General Agreement on Tariffs and Trade 1994

Cases cited: Avon Downs v Federal Commissioner of Taxation (1949) 78 CLR 353Buck v Bavone (1976) 135 CLR 110Cabal v Attorney-General (Cth) (2001) 113 FCR 154; [2001] FCA 583Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576Foley v Padley (1984) 154 CLR 349Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; [2002] HCA 54Hope v Bathurst City Council (1980) 144 CLR 1Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21Panasia Aluminium (China) Ltd v Attorney-General (Cth) (2013) 217 FCA 64; [2013] FCA 870Pilkington (Australia) Ltd v Minister for Justice and Customs (2002) 127 FCR 92; [2002] FCAFC 423R v Connell; Ex parte Hetton Bellbird Collieries Ltd (No 2) (1944) 69 CLR 407Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; [2001] HCA 22Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212; [2003] HCA 56Swan Portland Cement Ltd v Minister for Small Business and Customs (1991) 28 FCR 135SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63Thai Pineapple Canning Industry Corp Ltd v Minister for Justice and Customs (2008) 104 ALD 481; [2008] FCA 443Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55; [1999] NSWCA 8

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WTO Appellate Body Report, United States — Definitive Anti-Dumping and Countervailing Duties on Certain Products from China, DS379 (11 March 2011)WTO Appellate Body Report, United States — Final Countervailing Duty Determination with respect to Certain Softwood Lumber from Canada, WT/DS257/AB/R (19 January 2004)WTO Panel report, European Communities — Anti-Dumping Measure on Farmed Salmon from Norway, WTO Doc WT/DS337/R (adopted 15 January 2008)

Aronson M and Groves M, Judicial Review of Administrative Action (5th ed, Lawbook, 2013)

Date of hearing: 24–26 March 2014

Date of last submissions: 26 March 2014

Place: Melbourne

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 257

Counsel for the Applicant: Mr RM Niall SC and Mr C Horan

Solicitor for the Applicant: Hunt & Hunt Lawyers

Counsel for the Respondent: Mr PRD Gray SC and Ms Z Maud

Solicitor for the Respondent: Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION VID 555 of 2013 BETWEEN: GM HOLDEN LIMITED

Applicant

AND: COMMISSIONER OF THE ANTI-DUMPING COMMISSIONFirst Respondent

MINISTER FOR IMMIGRATION AND BORDER PROTECTIONSecond Respondent

ANTI-DUMPING REVIEW PANELThird Respondent

JUDGE: MORTIMER J

DATE OF ORDER: 4 JULY 2014

WHERE MADE: MELBOURNE

THE COURT DIRECTS THAT:

1. On or before 4.00pm on 18 July 2014, the parties file agreed proposed final orders

reflecting the Court’s reasons for judgment, together with a note not exceeding two

pages explaining the basis for the orders proposed.

2. If no agreement can be reached pursuant to paragraph 1, on or before 4.00pm on 18

July 2014, the parties file and serve separate proposed final orders reflecting the

Court’s reasons for judgment, together with a submission not exceeding two pages

explaining the basis for the orders proposed.

3. The parties have leave to file and serve submissions on costs, not exceeding three

pages, on or before 4.00pm on 18 July 2014.

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

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IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION VID 555 of 2013 BETWEEN: GM HOLDEN LIMITED

Applicant

AND: COMMISSIONER OF THE ANTI-DUMPING COMMISSIONFirst Respondent

MINISTER FOR IMMIGRATION AND BORDER PROTECTIONSecond Respondent

ANTI-DUMPING REVIEW PANELThird Respondent

JUDGE: MORTIMER J

DATE: 4 JULY 2014

PLACE: MELBOURNE

REASONS FOR JUDGMENT

INTRODUCTION

1 This is an application for judicial review of six decisions, made by the Chief

Executive Officer of the Australian Customs and Border Protection Service (now

Commissioner of the Anti-Dumping Commission), the Trade Measures Review Officer (now

Anti-Dumping Review Panel) and the Minister for Home Affairs (now Minister for

Immigration and Border Protection), in respect of anti-dumping measures under the Customs

Act 1901 (Cth) (the Customs Act). The decisions concern certain aluminium road wheels

(ARWs) exported to Australia from the Peoples’ Republic of China (PRC). The applicant,

GM Holden Ltd (Holden), seeks orders under s 5 of the Administrative Decisions (Judicial

Review) Act 1977 (Cth) (AD(JR) Act) and under s 39B of the Judiciary Act 1903 (Cth)

(Judiciary Act). It requires an extension of time under the AD(JR) Act in respect of some of

the decisions under challenge, which was not opposed by the respondents. The measures

were imposed after an investigation following an application by Arrowcrest Group Pty Ltd

(Arrowcrest), requesting the Minister to publish a dumping duty notice and a countervailing

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duty notice in respect of the wheels. Arrowcrest is a manufacturer of ARWs in Australia. The

applicant purchases ARWs from a number of sources, including exports from the PRC. It

objected to the imposition of such duties and actively participated in the investigation and

decision-making process, seeking to persuade the respondents that such duties should not be

imposed.

2 Chronologically, the first “decision” challenged is in fact a report in June 2012 by the

Chief Executive Officer of the Australian Customs and Border Protection Service (CEO) to

the responsible Minister, the Minister for Immigration and Border Protection. Pursuant to

ministerial arrangements, the functions under the Customs Act were then performed by the

Minister for Home Affairs. This report recommended the Minister publish a dumping duty

notice and a countervailing duty notice in respect of the ARWs which had been the subject of

an investigation under Part XVB of the Customs Act. The last decision under challenge was

made in early May 2013, being the Minister’s decision to accept recommendations in a report

by the CEO after a further investigation, and effectively maintaining the imposition of

dumping duties and countervailing duties on the ARWs which had been the subject of the

initial report by the CEO. Between these two decisions, four other decisions relating to the

imposition of these duties are also challenged.

3 For reasons I set out below, I have concluded that Holden has made out one of its

grounds of review. The respondents sought, and the applicant did not oppose, an opportunity

to consider the Court’s conclusion and reasons for the purpose of making submissions about

appropriate orders, if any of Holden’s grounds were successful. Directions have been made

affording the parties that opportunity, and the Court will pronounce final orders after those

submissions have been made and considered.

THE APPLICATION

4 Holden’s application is made under the AD(JR)Act and the Judiciary Act. No

objection to the Court’s jurisdiction was made. Although several of the decisions challenged

were in the form of recommendations or reports, the respondents did not submit the decisions

lacked the character of finality, or insufficiently affected rights or interests, such that they

could not be the subject of orders in the nature of certiorari.

5 The proceeding was commenced and continued by application and affidavit. At the

hearing, Holden was granted leave to rely on a second further amended application, which

contained one additional ground that had been addressed by both parties in their outlines of

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submissions filed before hearing. At the hearing, Holden indicated that it did not press

grounds 6 and 7 of the second further amended application. Accordingly, they have not been

considered.

6 Holden requires an extension of time under the AD(JR) Act in respect of some of the

decisions challenged. The respondents did not oppose an extension of time being granted.

Since the Court has jurisdiction under s 39B of the Judiciary Act in respect of the same

decisions, it is in the interests of the administration of justice for the whole of the dispute

between the parties to be ventilated and determined. An extension of time will be granted.

LEGISLATIVE SCHEME

Overview

7 The Customs Act is the domestic implementation of Australia’s obligations under a

number of international agreements, which are set out in the judgment of Nicholas J in

Panasia Aluminium (China) Ltd v Attorney-General (Cth) (2013) 217 FCA 64; [2013] FCA

870 at [7]. The one of principal importance in the present proceeding is the Anti-Dumping

Agreement, or, more formally, the Agreement on the Implementation of Article VI of the

General Agreement on Tariffs and Trade 1994. A definition of dumping is set out in Art 2.1:

For the purpose of this Agreement, a product is to be considered as being dumped, i.e. introduced into the commerce of another country at less than its normal value, if the export price of the product exported from one country to another is less than the comparable price, in the ordinary course of trade, for the like product when destined for consumption in the exporting country.

8 In Pilkington (Australia) Ltd v Minister for Justice and Customs (2002) 127 FCR 92;

[2002] FCAFC 423 at [3], the Full Court described the central operation of Part XVB of the

Customs Act:

Dumping is the exporting of goods to a country (here, to Australia) at a price below the “normal” or foreign domestic price of the goods. The Act provides for a procedure for the investigation of complaints of dumping made by Australian companies, which procedure involves the Chief Executive Officer (CEO) of the Australian Customs Service (Customs) providing a report to the Minister about the matter. That report is concerned with a period identified in steps leading up to the report as the “investigation period”. (In this case the “investigation period” ended on a date some twenty months before the Minister’s decision was made.) After considering the CEO’s report the Minister may take “anti-dumping measures” that include the publication of a “dumping duty notice” which has the effect of duty becoming payable under the Duty Act in respect of goods covered by it.

9 At [22]-[23], the Full Court explained the way in which Part XVB came to be

introduced:

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… it should be noted that Part XVB reflects, in substance, amendments to the Act made in 1994 by the Customs Legislation (World Trade Organisation Amendments) Act 1994 (Cth) (the 1994 Act) and in 1998 by the Customs Legislation (Anti-Dumping Amendments) Act 1998 (Cth) (the 1998 Act). The explanatory memorandum to the Bill which became the 1994 Act stated as follows:

This Bill is one of a package of Bills that make changes to Australian law to enable Australia to meet its obligations under agreements negotiated in the Uruguay Round of the General Agreement on Tariffs and Trade (GATT).

This Bill will amend the Customs Act 1901 and the Anti-Dumping Authority Act 1988 to bring Australia’s anti-dumping and countervailing regimes into conformity with the standards and principles arising from the Uruguay Round agreements.

While the fundamental elements of dumping and subsidy investigations remain unchanged the Agreements now provide much greater guidance and prescriptive direction in the conduct of an investigation. The Bill will amend the relevant Acts to incorporate the broader technical and operational matters as required by the agreements.

A summary of the main points follows.…• The terms of the agreements will also lead to a formalisation and

expansion of the public file system which is intended to provide interested parties with the opportunity to comment on information available to the investigating authorities. There will be a corresponding emphasis on parties providing non-confidential versions of submissions and the possibility to disregard information if a non-confidential summary is not provided. Parties which are not directly involved in the particular investigation will also receive increased detail via a broader range of public notifications. While these provisions will impose additional obligations both on the administrators and interested parties, they should result in a process that is more transparent and open.

…[emphasis added]

The 1998 Act amended the procedure leading to a decision by the Minister. The then existing two-stage, two-agency investigative process, involving a preliminary inquiry by Customs and a further inquiry by the Anti-Dumping Authority (ADA), was changed. The ADA was abolished and Customs took on the sole responsibility for investigations. The second reading speech of the then Minister in respect of the Bill which became the 1998 Act included the following:

Australia has committed itself to anti-dumping and countervailing legislation which is consistent with the obligations imposed by the relevant agreements of the World Trade Organisation, WTO. Of particular importance is the obligation that “throughout an investigation all interested parties must have a full opportunity for the defence of their interests”, including the opportunity to see all relevant information, to acquaint themselves with the opposing views and to offer rebuttal arguments.

10 The 1998 amendments introduced the review function performed by the Trade

Measures Review Officer (TMRO). That officer’s functions are of some importance to the

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applicant’s arguments in this proceeding and are dealt with in more detail below at [37]-[45].

It should also be noted that the legislative scheme has been subject to further amendment

after the events giving rise to this proceeding, but those amendments need not be addressed.

11 Relevantly for this proceeding, the publication of notices under Part XVB of the

Customs Act triggers the operation of ss 8 and 10 of the Customs Tariff (Anti-Dumping) Act

1975 (Cth) (the Duty Act) and the imposition of dumping duties and countervailing duties.

12 Before descending into the relevant detail of Part XVB, there is one further aspect of

the Full Court’s decision in Pilkington 127 FCR 92; [2002] FCAFC 423 which is important

to the resolution of the competing contentions in this proceeding. At [25]-[28], the Full Court

set out the applicable principles of statutory construction in the context of a legislative

scheme such as Part XVB:

The particular agreement negotiated at the Uruguay Round of the General Agreement on Tariffs and Trade (GATT) to which the explanatory memorandum made reference (see [22] above) was the Implementation Agreement. The Implementation Agreement created international obligations upon Australia. To the extent that the Parliament has passed (as it has) legislation dealing with the subject matter of the Implementation Agreement, that legislation will be interpreted and applied, as far as its language permits, so that it is in conformity, and not in conflict, with Australia's international obligations. Where a statute is ambiguous (the conception of ambiguity not being viewed narrowly) the court should favour a construction consistent with the international instrument and the obligations which it imposes over another construction: Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 287; Kartinyeri v Commonwealth (1998) 195 CLR 337 at 384 [97].The ascertainment of the meaning of, and obligations within, an international instrument (here the Implementation Agreement) is to be ascertained by giving primacy to the text of the international instrument, but also by considering the context, objects and purposes of the instrument: Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 230 (per Brennan CJ, agreeing with McHugh J), at 240 (per Dawson J), at 251-256 (per McHugh J), at 277 (per Gummow J, also agreeing with McHugh J); and Morrison v Peacock (2002) 210 CLR 274 at 279 [16]; 192 ALR 173 at 176 [16] (per Gleeson CJ, McHugh, Gummow, Kirby and Hayne JJ). The manner of interpreting the international instrument is one which is more liberal than that ordinarily adopted by a court construing exclusively domestic legislation; it is undertaken in a manner unconstrained by technical local rules or precedent, but on broad principles of general acceptation: Stag Line Ltd v Foscolo Mango & Co Ltd [1932] AC 328 at 350; James Buchanan & Co Ltd v Babco Forwarding and Shipping (UK) Ltd [1978] AC 141 at 152; Fothergill v Monarch Airlines Ltd [1981] AC 251 at 281-282, 285, 293; Shipping Corporation of India Ltd v Gamlen Chemical Co (Australasia) Pty Ltd (1980) 147 CLR 142 at 159; Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 412-413; Applicant A at 255; and Morrison v Peacock at 279 [16]; 176 [16]. The reasons for this approach were described by Lord Diplock in Fothergill at 281-282, as follows:

The language of that Convention that has been adopted at the international conference to express the common intention of the majority of the states represented there is meant to be understood in the same sense by the courts of

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all those states which ratify or accede to the Convention. Their national styles of legislative draftsmanship will vary considerably as between one another. So will the approach of their judiciaries to the interpretation of written laws and to the extent to which recourse may be had to travaux préparatoires, doctrine and jurisprudence as extraneous aids to the interpretation of the legislative text.

The language of an international convention has not been chosen by an English parliamentary draftsman. It is neither couched in the conventional English legislative idiom nor designed to be construed exclusively by English judges. It is addressed to a much wider and more varied judicial audience than is an Act of Parliament that deals with purely domestic law. It should be interpreted, as Lord Wilberforce put it, in James Buchanan & Co Ltd v Babco Forwarding & Shipping (UK) Ltd [1978] AC 141, 152, ‘unconstrained by technical rules of English law, or by English legal precedent, but on broad principles of general acceptation.’The need for a broad or liberal construction is reinforced by the matters which can be taken into account under Art 31 of the Vienna Convention on the Law of Treaties done at Vienna on 23 May 1969, in accordance with which Australian courts interpret treaties: Koowarta v Bjelke-Petersen (1982) 153 CLR 168 at 265; Commonwealth v Tasmania (Tasmanian Dam Case) (1983) 158 CLR 1 at 93, 177; and Applicant A at 251-252. The word “treaty” is defined in the Vienna Convention as an international agreement concluded between States in written form and governed by international law, whether in one or more instruments and whatever its particular designation. This covers the Implementation Agreement.It is unnecessary to set out in detail the provisions of the Implementation Agreement. It sets out, in particular in Arts 5, 6 and 12, the framework for the investigation and determination of complaints in an ordered manner, giving some emphasis to the provision of relevant information in a public way to all interested parties. Procedural transparency is called for. This is not surprising given that the parties interested in any conclusion by the authorities (here the Minister) include foreign corporations and foreign governments. Also, Art 5 makes clear that the primary method of initiating an investigation is to be by written application by or on behalf of the “domestic industry”. Provision is also made for “the authorities” to initiate the investigation: see Arts 5.1 and 5.6.

13 Finally, the parties agreed that the applicable version of the Customs Act was that as

at 25 June 2012. References to the scheme set out below are to that version.

Relevant aspects of the investigation process

14 An investigation into dumping may be required either as a result of a decision by the

Minister (s 269TAG) or, and more usually, because of an application by a person. Both

parties accepted that the application is intended by the scheme to frame the investigation

which is then conducted, unless the application is rejected pursuant to ss 269TC(1)-(3). The

application provision relies on the identification, as a matter of fact, of a “consignment of

goods” although not necessarily one actually imported at the time of the application. It

provides:

269TB Application for action under Dumping Duty Act

(1) Where:

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(a) a consignment of goods:(i) has been imported into Australia;(ii) is likely to be imported into Australia; or(iii) may be imported into Australia, being like goods to goods to which subparagraph (i) or (ii) applies;

(b) there is, or may be established, an Australian industry producing like goods; and(c) a person believes that there are, or may be, reasonable grounds for the publication of a dumping duty notice or a countervailing duty notice in respect of the goods in the consignment;

that person may, by application in writing lodged with the Customs in accordance with subsection (5), request that the Minister publish that notice in respect of the goods in the consignment.

15 Paragraph (b) should be noted. It allows for an application where there is currently no

Australian industry, but where one “may be established”. This highlights a point made by

Lockhart J in Swan Portland Cement Ltd v Minister for Small Business and Customs (1991)

28 FCR 135, to which further reference will be made, that “industry” is not the same as

“market”: the provisions do not look only to what is occurring in the industry at the time of

the consignment, but rather what might occur in the future.

16 As the applicant submitted, the focus of s 269TB is on a specific consignment of

goods — in that way, the “goods” are readily identifiable at a factual level.

17 Subject to an applicant withdrawing the application, the CEO is then required by s

269TC, within a short period of time (20 days), to examine the application with a view to one

of two consequences. Either the application will be rejected on the grounds provided in ss

269TC(1)-(2), or the application and the investigation process will be notified to the public,

other exporters and governments of countries from which those exports come.

18 In s 269TC the referential phrase used is “goods the subject of the application”: this is

one of the textual indicators that the reference point for comparison in respect of “like goods”

comes from the goods as described in the application. Section 269TC(4) sets out, with

considerable particularity, what must be published in the public notice. Several observations

can be made about this provision, relevant to the grounds advanced by the applicant. The

breadth and depth of notification is considerable, and this reflects the Anti-Dumping

Agreement’s emphasis on the importance of notification, receipt of submissions and

information, and consideration of those submissions and information. Section 269TC(4) is

thus one example of the domestic implementation of the Anti-Dumping Agreement. The

second observation is that the investigation process is intended to move efficiently and in a

timely way, with time limits set out for various steps. The third is that the notification through

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subs (4) is designed to emphasise the importance of the public record as a receptacle of

information for all interested parties.

19 On receipt of submissions from interested parties as invited by the notice, the CEO is

empowered by s 269TD to make a preliminary affirmative determination that there appear to

be sufficient grounds for the publication of dumping or countervailing duty notices. Such a

determination was made by the CEO in the present circumstances.

20 A critical step then occurs — the publication of a Statement of Essential Facts on the

public record. Section 269TDAA requires the document to foreshadow the facts the CEO

proposes to rely on in making a recommendation to the Minister about the application. This

stage is an important aspect of the scheme’s procedural fairness requirements. However it is

also a way for the CEO to ensure that the information proposed to be used is as reliable and

complete as it can be. By giving those with knowledge and information an opportunity to see

the proposed factual findings and the material on which they are based, and to comment on

them, the scheme intends to support the CEO’s fact-finding ability.

21 By s 269TEA (and provided there has been no termination of the investigation

pursuant to s 269TDA), the CEO is required to report to the Minister on the outcome of the

investigation (CEO report). The subject matter of the report is “the goods the subject of the

application”, emphasising again how the scheme relies on the goods identified in the

application to frame the investigation and decision-making powers and functions under Part

XVB. The report is to contain recommendations to the Minister concerning dumping duties,

the matters of which the Minister can be satisfied and what consequent notifications need to

be given.

22 Section 269TEA(2) is important. It provides:

The CEO’s report must, to the extent that it is practicable to do so, also extend to any like goods not covered by the application but imported into Australia during the period starting on the date of initiation of the investigation and ending 20 days after the statement of essential facts in respect of the investigation is placed on the public record.

23 By this provision, the comparison required to be made in the report by the CEO is

between the goods in the consignment on which the application was based, and goods which

are identical in all respects or have characteristics closely resembling the goods in the

consignment. If such goods were imported in the period referred to in subs (2), that provision

requires the CEO to report on them (and the effect of their importation) if practicable. Section

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269TEA(3) requires the CEO to have regard to the two rounds of submissions for which the

scheme provides, one round before and one after the publication of the statement of essential

facts. Section 269TEA(4) confers a discretion on the CEO to have regard to late submissions

made in the second round, the import of the provision being that late submissions should not

delay the timely preparation of the report to the Minister. That judgment is left by the statute

to the opinion of the CEO.

The dumping duty notices

24 On receipt of the CEO report the Minister is then able to address the question whether

to publish dumping duty notices or countervailing duty notices. This is the task imposed by

s 269TG. There are comparable provisions relating to the publication of notices concerning

third-country dumping duties or countervailing duties, based on material injury to an industry

in that third country. Those provisions are not presently relevant, although they turn even

more centrally on the concept of “like goods”, because it is only the “like goods” which are

being imported into Australia. The comparative term in these third-country provisions is “any

goods produced or manufactured in a particular country”. There is nothing in the text or

context of these provisions which suggests the term “like goods” is used any differently there

than in the provisions with which this case is concerned, especially since the term is defined

in s 269T. The proposition that the “respects” or characteristics to which the definition in s

269T refers are physical or use-based, rather than extending to matters such as market, is

reinforced by the comparative term’s focus on production and manufacture. The comparison

is, in my opinion, to be one capable of practical judgment.

25 The power to issue notices is conditioned on the Minister’s satisfaction as to a number

of matters. The proposition that the use of this language requires the repository’s satisfaction

to be formed according to law is well established: R v Connell; Ex parte Hetton Bellbird

Collieries Ltd (No 2) (1944) 69 CLR 407 at 430 per Latham CJ; Avon Downs v Federal

Commissioner of Taxation (1949) 78 CLR 353 at 360 per Dixon J; Buck v Bavone (1976) 135

CLR 110 at 118-119 per Gibbs J; Foley v Padley (1984) 154 CLR 349 at 353 per Gibbs CJ, at

370 per Brennan J.

26 The formation of such a state of satisfaction by the repository of the power has been

characterised as itself a jurisdictional fact: see Minister for Immigration and Multicultural

Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at [130]-[137] per Gummow J;

Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; [2002] HCA 54 at [183] per

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Gummow and Hayne JJ. Some commentators have questioned this approach: see Aronson M

and Groves M, Judicial Review of Administrative Action (5th ed, Lawbook, 2013) at [4.490].

The debate need not be addressed in these reasons: whether or not the formation by the

Minister of a state of satisfaction is characterised as a jurisdictional fact, the key question is

whether it was lawfully formed, in accordance with the authorities at [25] to which I have

referred. On grounds 1 and 2, the applicant raises the “narrow” kind of jurisdictional fact

argument to which Aronson and Groves refer in the paragraph cited above.

27 Section 269TG relevantly provides (omitting the provisions concerning undertakings

in place of duty notices which are of no relevance to the issues in this proceeding):

(1) Subject to section 269TN, where the Minister is satisfied, as to any goods that have been exported to Australia, that:

(a) the amount of the export price of the goods is less than the amount of the normal value of those goods; and(b) because of that:

(i) material injury to an Australian industry producing like goods has been or is being caused or is threatened, or the establishment of an Australian industry producing like goods has been or may be materially hindered; or(ii) in a case where security has been taken under section 42 in respect of any interim duty that may become payable on the goods under section 8 of the Dumping Duty Act—material injury to an Australian industry producing like goods would or might have been caused if the security had not been taken;the Minister may, by public notice, declare that section 8 of that Act applies:

(c) to the goods in respect of which the Minister is so satisfied; and (d) to like goods that were exported to Australia after the CEO made a preliminary affirmative determination under section 269TD in respect of the goods referred to in paragraph (c) but before the publication of that notice.

(2) Where the Minister is satisfied, as to goods of any kind, that:(a) the amount of the export price of like goods that have already been exported to Australia is less than the amount of the normal value of those goods, and the amount of the export price of like goods that may be exported to Australia in the future may be less than the normal value of the goods; and(b) because of that, material injury to an Australian industry producing like goods has been or is being caused or is threatened, or the establishment of an Australian industry producing like goods has been or may be materially hindered;

the Minister may, by public notice (whether or not he or she has made, or proposes to make, a declaration under subsection (1) in respect of like goods that have been exported to Australia), declare that section 8 of the Dumping Duty Act applies to like goods that are exported to Australia after the date of publication of the notice or such later date as is specified in the notice.

(3) Where:(a) a notice under subsection (1) declares particular goods to be goods to which section 8 of the Dumping Duty Act applies; or

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(b) a notice under subsection (2) declares like goods in relation to goods of a particular kind to be goods to which that section applies;the notice must, subject to subsection (3A), include a statement of the respective amounts that the Minister ascertained, at the time of publication of the notice:(c) was or would be the normal value of the goods to which the declaration relates; and(d) was or would be the export price of those goods; and(e) was or would be the non-injurious price of those goods.

(3A) If any person who has provided information to assist the Minister to ascertain the normal value, export price or non-injurious price of goods to which a declaration under subsection (1) or (2) relates claims, in writing, that the information is confidential or that the inclusion in a notice under that subsection of that value or price would adversely affect the person’s business or commercial interests:

(a) in accordance with subsection 269ZI(9) the Minister is not required to include in the notice a statement of that value or price; but(b) upon request the CEO may notify that value or price to persons who, in the CEO’s opinion, would be affected parties in any review of the rate of interim duty imposed on like goods to the goods to which the declaration relates.

(3B) In ascertaining a normal value and export price for goods of the residual exporter, the Minister must ensure that:

(a) the normal value does not exceed the weighted average of normal values for like goods of selected exporters from the same country of export; and(b) the export price is not less than the weighted average of export prices for like goods of selected exporters from the same country of export.

(3C) For the purposes of subsection (3B), the weighted average of normal values and the weighted average of export prices of the selected exporters must not include any normal value or export price if:

(a) in a comparison under section 269TACB involving that normal value or export price, the Minister has determined:

(i) that there is no dumping; or(ii) that the dumping margin, when expressed as a percentage of the export price or weighted average of export prices used to establish that dumping margin, is less than 2%; or

(b) that normal value was determined under subsection 269TAC(6) or that export price was determined under subsection 269TAB(3).

…

(5) In giving a notice, and in considering the terms of any proposed undertaking, the Minister must have regard to the desirability that any price increase to which the undertaking relates is limited to an amount such that the total price of the goods is not more than the non-injurious price of the goods.

28 In terms, s 269TG does not specify that the Minister must rely on the report prepared

by the CEO under s 269TEA in the formation of her or his satisfaction, but that is the

inference which should be drawn from the structure of the scheme set out Part XVB.

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Although the Minister may initiate an investigation without an application (see s 269TAG),

the Customs Act nevertheless contemplates there will be an investigation even on an exercise

of this “own motion” power and, therefore, a CEO report. That report should be seen as a

mandatory consideration for the Minister. Whether the Minister can go outside the CEO

report and, if so, what procedural fairness constraints may attach need not be considered in

determining the arguments in this proceeding.

29 The statutory task under s 269TG informed the submissions of both parties in this

proceeding. Aspects of the task may be identified as follows:

Operating under either or both of the two different scenarios in ss 269TG(1) and

269TG(2), there are three central factual issues about which the Minister must be

satisfied before notices can issue: whether the “export price” of the goods is less than

the “normal value” of those goods, whether there is material injury to an Australian

industry and, thirdly, whether that material injury was caused by the margin between

the export price and the normal value of the goods.

Section 269TG(1) is concerned with any specific consignments of goods to which the

application in s 269TB relates, and any “like goods” exported to Australia after a

preliminary determination by the CEO under s 269TD but before the publication of a

duty notice about the consignment goods. That is, it operates on goods already

exported to Australia before the date of issue of any duty notices.

Section 269TG(2) operates prospectively. For it to operate consistently with s

269TG(1) and to provide coverage for dumping measures that are connected to an

investigation, the phrase “goods of any kind” must be construed by reference to the

description of goods given in the s 269TB application. The respondents submitted as

much and I accept that submission. That is because otherwise there would be no

reference point for the comparison with export price and normal value of “like goods”

also required by subs (2). It is also because the application frames the investigation by

the CEO on which the Minister’s satisfaction must be based. However, the existence

of the Minister’s own motion power in s 269TAG may explain why s 269TG(2) needs

to turn on the more broadly expressed subject matter of “goods of any kind”. Any

duty payable under ss 8 and 10 of the Duty Act operates on “like goods” exported to

Australia after the date of publication of the notice.

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Section 269TG(2) thus involves a more speculative exercise than s 269TG(1) because

it operates on “like goods” which may be exported to Australia in the future. Thus, it

involves the Minister being satisfied that the export price of those like goods “may”

be less than their normal value.

In the case of a notice issued pursuant to either ss 269TG(1) and (2), there is a

requirement for the notice to specify the normal value, the export price and the non-

injurious price for the goods.

Section 269TG(3B) operates as a control on the task in s 269TG(3). For reasons I will

outline in more detail below, I reject the respondents’ submission that ss 269TG(3B)

and (3C) only operate where there has been a sampling exercise under s 269TACB(8).

In my opinion, subs (3B) (and, therefore, subs (3C)) operates as a general control on

the determination required to be made by the Minister pursuant to s 269TG(3). Its

purpose is to control the levels of duty which can be set for exporters who have not

been investigated and, accordingly, about whose exports nothing reliable is known:

that is, “residual exporters” within the meaning of that phrase in s 269T.

30 Section 269TJ makes similar provision in relation to countervailing duties. I

reproduce it because notices also were issued under this section by the Minister:

(1) Subject to section 269TN, where the Minister is satisfied, as to any goods that have been exported to Australia, that:

(a) a countervailable subsidy has been received in respect of the goods; and(b) because of that:

(i) material injury to an Australian industry producing like goods has been or is being caused or is threatened or the establishment of an Australian industry producing like goods has been or may be materially hindered; or(ii) in a case where security has been taken under section 42 in respect of any interim duty that may become payable on the goods under section 10 of the Dumping Duty Act—material injury to an Australian industry producing like goods would or might have been caused if the security had not been taken;

the Minister may, by public notice, declare that section 10 of that Act applies: (c) to the goods in respect of which the Minister is so satisfied; and (d) to like goods that were exported to Australia after the CEO made a preliminary affirmative determination under section 269TD in respect of the goods referred to in paragraph (c) but before the publication of that notice.

(2) Where the Minister is satisfied, as to goods of any kind that:(a) a countervailable subsidy:

(i) has been received in respect of goods the subject of the application that have already been exported to Australia; and(ii) may be received in respect of like goods that may be

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exported to Australia in the future; and(b) because of that, material injury to an Australian industry producing like goods has been or is being caused or is being threatened, or the establishment of an Australian industry producing like goods has been or may be materially hindered;

the Minister may, by public notice (whether or not he or she has made, or proposes to make, a declaration under subsection (1) in respect of like goods that have been exported to Australia), declare that section 10 of the Dumping Duty Act applies to like goods that are exported to Australia after the date of publication of the notice or such later date as is specified in the notice.

(3B) In giving a notice, and in considering the terms of any proposed undertaking, the Minister must have regard to the desirability that any price increase arising from the undertaking is limited to an amount such that the total price of the goods is not more than the non-injurious price of the goods.

(3C) The Minister:(a) may give a notice under subsection (2A) whether or not the giving of such a notice has been recommended by the CEO in a recommendation under section 269TEA; and(b) may accept an undertaking whether or not the acceptance of such an undertaking has been recommended by the CEO in a recommendation under section 269TEB; and(c) must not:

(i) give a notice to a government or exporter under subsection (2A); or(ii) accept an undertaking from a government or an exporter;in respect of particular goods or like goods unless a preliminary affirmative determination, or an equivalent determination in an investigation conducted under section 269TAG, has been made to the effect that there are grounds for publication of a countervailing duty notice in respect of those like goods; and

(d) must not accept an undertaking from an exporter unless the government of the country of export consents to the giving of the undertaking; and(e) must give public notice of any undertaking so accepted.

…

(11) If a notice under subsection (1) or (2) declares particular goods to be goods to which section 10 of the Dumping Duty Act applies, the notice must, subject to subsection (12), include a statement setting out:

(a) the amount of countervailable subsidy that the Minister ascertained, at the time of publication of the notice, had been or would be received in respect of the goods to which the notice relates; and(b) the amount that the Minister has ascertained, at that time, was or would be the non-injurious price of the goods.

31 The three concepts which inform the determination of the Minister under ss 269TG

and 269TJ, and to which reference has already been made, should be noted.

32 Section 269TAB establishes how the “export price” for goods is to be ascertained:

(1) For the purposes of this Part, the export price of any goods exported to Australia is:

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(a) where:(i) the goods have been exported to Australia otherwise than by the importer and have been purchased by the importer from the exporter (whether before or after exportation); and(ii) the purchase of the goods by the importer was an arms length transaction;

the price paid or payable for the goods by the importer, other than any part of that price that represents a charge in respect of the transport of the goods after exportation or in respect of any other matter arising after exportation; or(b) where:

(i) the goods have been exported to Australia otherwise than by the importer and have been purchased by the importer from the exporter (whether before or after exportation); and(ii) the purchase of the goods by the importer was not an arms length transaction; and(iii) the goods are subsequently sold by the importer, in the condition in which they were imported, to a person who is not an associate of the importer;

the price at which the goods were so sold by the importer to that person less the prescribed deductions; or(c) in any other case—the price that the Minister determines having regard to all the circumstances of the exportation.

(1A) For the purposes of paragraph (1)(a), the reference in that paragraph to the price paid or payable for goods is a reference to that price after deducting any amount that is determined by the Minister to be a reimbursement of the kind referred to in subsection 269TAA(1A) in respect of that transaction.(2) A reference in paragraph (1)(b) to prescribed deductions in relation to a sale of goods that have been exported to Australia shall be read as a reference to:

(a) any duties of Customs or sales tax paid or payable on the goods; and(b) any costs, charges or expenses arising in relation to the goods after exportation; and(c) the profit, if any, on the sale by the importer or, where the Minister so directs, an amount calculated in accordance with such rate as the Minister specifies in the direction as the rate that, for the purposes of paragraph (1)(b), is to be regarded as the rate of profit on the sale by the importer.

(3) Where the Minister is satisfied that sufficient information has not been furnished, or is not available, to enable the export price of goods to be ascertained under the preceding subsections, the export price of those goods shall be such amount as is determined by the Minister having regard to all relevant information.

(4) For the purposes of this section, the Minister may disregard any information that he or she considers to be unreliable.

(5) Paragraphs (1)(a) and (b) apply in relation to a purchase of goods by an importer from an exporter whether or not the importer and exporter are associates of each other.

33 Section 269TAC establishes how the “normal value” for goods is to be ascertained.

The relevant provisions are as follows:

(1) Subject to this section, for the purposes of this Part, the normal value of any goods exported to Australia is the price paid or payable for like goods sold in the

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ordinary course of trade for home consumption in the country of export in sales that are arms length transactions by the exporter or, if like goods are not so sold by the exporter, by other sellers of like goods.

(1A) For the purposes of subsection (1), the reference in that subsection to the price paid or payable for like goods is a reference to that price after deducting any amount that is determined by the Minister to be a reimbursement of the kind referred to in subsection 269TAA(1A) in respect of the sales.

(2) Subject to this section, where the Minister:(a) is satisfied that:

(i) because of the absence, or low volume, of sales of like goods in the market of the country of export that would be relevant for the purpose of determining a price under subsection (1); or(ii) because the situation in the market of the country of export is such that sales in that market are not suitable for use in determining a price under subsection (1);

the normal value of goods exported to Australia cannot be ascertained under subsection (1); or(b) is satisfied, in a case where like goods are not sold in the ordinary course of trade for home consumption in the country of export in sales that are arms length transactions by the exporter, that it is not practicable to obtain, within a reasonable time, information in relation to sales by other sellers of like goods that would be relevant for the purpose of determining a price under subsection (1);

the normal value of the goods for the purposes of this Part is:(c) except where paragraph (d) applies, the sum of:

(i) such amount as the Minister determines to be the cost of production or manufacture of the goods in the country of export; and(ii) on the assumption that the goods, instead of being exported, had been sold for home consumption in the ordinary course of trade in the country of export—such amounts as the Minister determines would be the administrative, selling and general costs associated with the sale and, subject to subsection (13), the profit on that sale; or

(d) if the Minister directs that this paragraph applies—the price determined by the Minister to be the price paid or payable for like goods sold in the ordinary course of trade in arms length transactions for exportation from the country of export to a third country determined by the Minister to be an appropriate third country, other than any amount determined by the Minister to be a reimbursement of the kind referred to in subsection 269TAA(1A) in respect of any such transactions.

(3) The price determined under paragraph (2)(d) is a price that the Minister determines, having regard to the quantity of like goods sold as described in paragraph (2)(d) at that price, is representative of the price paid in such sales.

…

(6) Where the Minister is satisfied that sufficient information has not been furnished or is not available to enable the normal value of goods to be ascertained under the preceding subsections (other than subsection (5D)), the normal value of those goods is such amount as is determined by the Minister having regard to all relevant information.

(7) For the purposes of this section, the Minister may disregard any information

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that he or she considers to be unreliable.

34 Section 269TACB then provides for how the Minister is to determine whether

dumping has occurred, using those concepts:

(1) If:(a) application is made for a dumping duty notice; and(b) export prices in respect of goods the subject of the application exported to Australia during the investigation period have been established in accordance with section 269TAB; and(c) corresponding normal values in respect of like goods during that period have been established in accordance with section 269TAC;

the Minister must determine, by comparison of those export prices with those normal values, whether dumping has occurred.(2) In order to compare those export prices with those normal values, the Minister may, subject to subsection (3):

(a) compare the weighted average of export prices over the whole of the investigation period with the weighted average of corresponding normal values over the whole of that period; or(aa) use the method of comparison referred to in paragraph (a) in respect of parts of the investigation period as if each of these parts were the whole of the investigation period; or(b) compare the export prices determined in respect of individual transactions over the whole of the investigation period with the corresponding normal values determined over the whole of that period; or(c) use:

(i) the method of comparison referred to in paragraph (a) in respect of a part or parts of the investigation period as if the part or each of these parts were the whole of the investigation period; and(ii) the method of comparison referred to in paragraph (b) in respect of another part or other parts of the investigation period as if that other part or each of these other parts were the whole of the investigation period.

(2A) If paragraph (2)(aa) or (c) applies:(a) each part of the investigation period referred to in the paragraph must not be less than 2 months; and(b) the parts of the investigation period as referred to in paragraph (2)(aa), or as referred to in subparagraphs (2)(c)(i) and (ii), must together comprise the whole of the investigation period.

(3) If the Minister is satisfied:(a) that the export prices differ significantly among different purchasers, regions or periods; and(b) that those differences make the methods referred to in subsection (2) inappropriate for use in respect of a period constituting the whole or a part of the investigation period;

the Minister may, for that period, compare the respective export prices determined in relation to individual transactions during that period with the weighted average of corresponding normal values over that period.

(4) If, in a comparison under subsection (2), the Minister is satisfied that the weighted average of export prices over a period is less than the weighted average of

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corresponding normal values over that period:(a) the goods exported to Australia during that period are taken to have been dumped; and(b) the dumping margin for the exporter concerned in respect of those goods and that period is the difference between those weighted averages.

(4A) To avoid doubt, a reference to a period in subsection (4) includes a reference to a part of the investigation period.

(5) If, in a comparison under subsection (2), the Minister is satisfied that an export price in respect of an individual transaction during the investigation period is less than the corresponding normal value:

(a) the goods exported to Australia in that transaction are taken to have been dumped; and(b) the dumping margin for the exporter concerned in respect of those goods and that transaction is the difference between that export price and that normal value.

(6) If, in a comparison under subsection (3), the Minister is satisfied that the export prices in respect of particular transactions during the investigation period are less than the weighted average of corresponding normal values during that period:

(a) the goods exported to Australia in each such transaction are taken to have been dumped; and(b) the dumping margin for the exporter concerned in respect of those goods is the difference between each relevant export price and the weighted average of corresponding normal values.

(7) Subject to subsection (8), the existence of dumping and the size of a dumping margin will normally be worked out for individual exporters of goods to Australia.

(8) If the number of exporters from a particular country of export who provide information in relation to an application for a dumping duty notice is so large that it is not practicable to determine the existence of dumping and to work out individual dumping margins for each of them, the Minister may, on the basis of information obtained from an investigation of a selected number of those exporters:

(a) who constitute a statistically valid sample of those exporters; or(b) who are responsible for the largest volume of exportations to Australia that can reasonably be investigated;

decide whether dumping exists, and, if it does, fix dumping margins for such selected exporters and for exporters who are not so selected.

(9) If information is submitted by an exporter not initially selected under subsection (8) for the purposes of an investigation, the investigation must extend to that exporter unless to so extend it would prevent the investigation’s timely completion.

(10) Any comparison of export prices, or weighted average of export prices, with any corresponding normal values, or weighted average of corresponding normal values, must be worked out in respect of similar units of goods, whether determined by weight, volume or otherwise.

35 A different method is used for determining if it is necessary to impose countervailing

duties. One of the applicant’s grounds relates specifically to the functions performed under

s 269TACC. Section 269TACC provides:

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(1) If:(a) a financial contribution referred to in paragraph (a) of the definition of subsidy in subsection 269T(1); or(b) income or price support referred to in paragraph (b) of that definition;

is received in respect of goods, the question whether that financial contribution or income or price support confers a benefit, and, if so, the amount of subsidy attributable to that benefit, are to be worked out according to this section.

(2) If a financial contribution in respect of goods is a direct financial payment received from a government of a country, a public body of that government or of which that government is a member, or a private body entrusted or directed by that government or public body to carry out a governmental function, a benefit is taken to be conferred because of that payment.

(3) If:(a) there is no financial contribution of the kind referred to in subsection (2) received in respect of goods; but(b) a financial contribution of another kind, or income or price support, is received in respect of those goods from a government of a country, a public body of that government or of which that government is a member, or a private body entrusted or directed by that government or public body to carry out a governmental function;

the question whether that financial contribution or income or price support confers a benefit is to be determined by the Minister.

(4) In determining whether a financial contribution confers a benefit, the Minister must have regard to the following guidelines:

(a) the provision of equity capital from the government or body referred to in subsection (3) does not confer a benefit unless the decision to provide the capital is inconsistent with normal investment practice of private investors in the country concerned;(b) the making of a loan by the government or a body referred to in subsection (3) does not confer a benefit unless the loan requires repayment of a lesser amount than would be required for a comparable commercial loan;(c) the guarantee of a loan by the government or a body referred to in subsection (3) does not confer a benefit unless, without the guarantee, the enterprise receiving the loan would have to repay a greater amount;(d) the provision of goods or services by the government or body referred to in subsection (3) does not confer a benefit unless the goods or services are provided for less than adequate remuneration;(e) the purchase of goods by the government or body referred to in subsection (3) does not confer a benefit if the purchase is made for more than adequate remuneration.

(5) For the purposes of paragraphs (4)(d) and (e), the adequacy of remuneration in relation to goods or services is to be determined having regard to prevailing market conditions for like goods or services in the country where those goods or services are provided or purchased.

36 The meaning of “public body” in s 269TACC(2) and the meaning of “less than

adequate remuneration” in s 269TACC(4)(d) are raised by the applicant’s grounds of review

in this proceeding.

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Review

37 If the Minister determines under ss 269TG or 269TJ to publish notices concerning

dumping duties or countervailing duties, a review process exists under Div 9 of Part XVB for

an “interested party”. That term is defined in s 269ZX. It is common ground Holden was

within the definition.

38 The TMRO is a suitably qualified or experienced independent statutory officer, with

the same protection and immunity as a Justice of the High Court (see s 269ZN). She or he is

appointed for a term not exceeding three years. An officer of the Australian Customs and

Border Protection Service (Customs) cannot be appointed to the office, which sits outside the

Department: see ss 269ZL(1), (3). In substance, the TMRO provides a form of merits review,

with two notable constraints. First, the TMRO is restricted to the material which was before

the CEO when the CEO made her or his recommendations to the Minister: ss 269ZZK(4),

(6). Second, the TMRO is not empowered to overturn or change the Minister’s decisions, but

is restricted to making recommendations (s 269ZZK(1)), which the Minister is free to accept

or reject (s 269ZZL(1)(b)).

39 A review is initiated by an application in accordance with the requirements in

s 269ZZE, within 30 days after the publication of the notices: s 269ZZD. Section 269ZZE(2)

sets out express requirements for the application:

(2) Without limiting paragraph (1)(c), an application must:(a) contain a full description of the goods to which the application relates; and(b) particularise the ground or grounds that, in the applicant’s view, would warrant the reinvestigation of a finding or findings that formed the basis of the reviewable decision; and(c) specify the finding or findings.

40 Although the “reviewable decision” as defined in s 269ZZA is the decision of the

Minister to publish a dumping notice or a countervailing duties notice (a decision not to do so

is also reviewable — see s 269ZZA(1)(b)), the review is not to be conducted in order

necessarily to alter the Minister’s decision. The function is more limited than that. As is

apparent from the terms of s 269ZZE(2), the focus in the review is on the reasons why

particular findings should be reinvestigated by the CEO. The findings which can be

reinvestigated are ones which “formed the basis” of the reviewable decision: that is, the

scheme requires the findings to have some material connection to the conclusion reached by

the Minister. That reinvestigation, as the subsequent aspects of the review scheme

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demonstrate, may or may not produce different findings and may or may not result in a

change to the Minister’s decision.

41 It is important to note the definition of “finding” in s 269ZX:

finding, in relation to a reviewable decision under Subdivision B, means a finding on a material question of fact or on a conclusion based on that fact.

42 Thus, the Minister’s reasoning processes by which she or he arrived at the

determination to publish dumping or countervailing duty notices can be challenged on this

review.

43 Putting to one side the provisions dealing with, essentially, summary rejection of an

application for review, s 269ZZK sets out how the review is to be conducted:

(1) If an application is not rejected under section 269ZZG or 269ZZH, the Review Officer must make a report to the Minister on the application by:

(a) recommending that the Minister affirm the reviewable decision; or(b) recommending that the Minister direct the CEO to reinvestigate a finding or findings that formed the basis of the reviewable decision, being the finding or any of the findings specified in the application.

(2) In a report under subsection (1), the Review Officer must:(a) if the Review Officer is of the view that the finding or findings specified in the application should be affirmed—recommend that the Minister affirm the reviewable decision; and(b) if the Review Officer recommends that a finding or findings be reinvestigated—set out the finding or findings; and(c) set out the reasons for the Review Officer’s recommendations.

(3) The report must be made:(a) at least 30 days after the public notification of the review under section 269ZZI; but (b) not more than 60 days after that notification, or such longer period allowed by the Minister in writing because of special circumstances.

(4) In making the recommendation, the Review Officer:(a) must not have regard to any information other than the relevant information; and(b) subject to subsection (5), must only have regard to the relevant information and any conclusions based on the relevant information that are contained in the application for the review or in any submissions received from interested parties within 30 days as mentioned in section 269ZZJ.

(5) The Review Officer must not have regard to a submission under subsection (4) if:

(a) the person giving the submission claims that information included in it is confidential or is information whose publication would adversely affect a person’s business or commercial interest; and(b) the person fails to give a summary of that information to the Review Officer in accordance with section 269ZZY.

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(6) In this section:

relevant information means:(a) if the reviewable decision was made pursuant to an application under section 269TB—the information to which the CEO had had regard or was, under paragraph 269TEA(3)(a), required to have regard, when making the findings set out in the report under section 269TEA to the Minister in relation to the making of the reviewable decision; and(b) if the reviewable decision was made pursuant to an investigation initiated by the Minister as mentioned in section 269TAG—the information:

(i) that was collected for the purposes of that investigation in accordance with the Minister’s requirements; and(ii) that was before the Minister when the Minister made the reviewable decision.

44 It will be seen that, like the CEO function, the review function is recommendatory.

The TMRO has available two options under s 269ZZK(1) — either a recommendation that

the Minister affirm the reviewable decision, or a recommendation that one or more findings

which are the subject of the application for review should be reinvestigated. The TMRO is,

through the definition of “relevant information”, restricted to a consideration of the material

which was before the CEO and in the CEO’s report to the Minister under s 269TEA.

45 Section 269ZZL(3) is the only provision in Part XVB which deals expressly with the

conduct of the further investigation by the CEO. In marked contrast to the very detailed

scheme established for the principal investigation, the scheme is relatively silent about the

manner in which any further investigation is to be conducted.

Minister’s function after review

46 Upon receipt of the TMRO’s report, the Minister must affirm the reviewable decision

if either that is what the TMRO recommends, or the Minister decides to reject the TMRO’s

recommendations for further investigation.

47 If, however, the TMRO recommends further investigation of a finding or findings,

ss 269ZZL(2), (3) and (4) relevantly provide:

(2) If the Minister accepts a recommendation by the Review Officer to require the CEO to reinvestigate a finding or findings, the Minister must:

(a) in writing, require the CEO to:(i) make further investigation of the finding or findings, having regard only to the information and conclusions to which the Review Officer was permitted to have regard; and(ii) report the result of the further investigation to the Minister within a specified period; and

(b) by public notice indicate the acceptance of that recommendation (including particulars of the requirements made of the CEO).

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…

(3) The CEO must conduct an investigation in accordance with the Minister’s requirements under subsection (2) and give the Minister a report of the investigation concerning the finding or findings within the specified period.

(4) In a report under subsection (3), the CEO must:(a) if the CEO is of the view that the finding or any of the findings the subject of reinvestigation should be affirmed—affirm the finding or findings; and(b) set out any new finding or findings that the CEO made as a result of the reinvestigation; and(c) set out the evidence or other material on which the new finding or findings are based; and(d) set out the reasons for the CEO’s decision.

Any further notices by the Minister

48 By s 269ZZM(1), on receipt of a report from the CEO after the reinvestigation, the

Minister is empowered either to affirm the reviewable decision or revoke it and substitute a

new decision. In turn, by s 269ZZM(3) the Minister may publish, vary or revoke dumping

and countervailing duty notices in accordance with the decision made under subs (1).

49 The scheme contemplates that, even if the CEO has changed her or his findings and

conclusions on the matters which were further investigated, the Minister is not obliged to

accept any new or different recommendations. Subject of course to matters such as the legal

requirements of rationality and reasonableness, she or he is able to maintain the dumping or

countervailing duty notices in the form they were made.

FACTUAL FINDINGS

50 The parties agreed facts pursuant to s 191 of the Evidence Act 1995 (Cth), and

annexed to the statement of agreed facts were a number of documents relevant to the

resolution of the issues in the proceeding, including those recording the six decisions under

challenge. The parties also read affidavits which sought to prove facts not the subject of the

statement, and which formed the evidentiary basis for the subsequent agreed facts.

51 While resolution of the applicant’s grounds of review may involve the proper

characterisation of the facts revealed by the evidence, there was no cross-examination, and no

party identified any contentious matters of fact. The following facts are established by the

evidence, including the agreed facts.

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52 Holden is a wholly-owned subsidiary of General Motors Company, which is listed on

the New York Stock Exchange and has its headquarters in Detroit, Michigan in the United

States of America. Holden is a major Australian motor vehicle manufacturer which designs,

builds and sells vehicles throughout Australia and overseas. Its headquarters are in Port

Melbourne, Victoria. It has an engine manufacturing plant in Port Melbourne and vehicle

manufacturing operations in Adelaide, South Australia. Holden is represented by

approximately 235 dealerships nationwide.

53 Holden is responsible for design, vehicle and powertrain engineering for its locally

made vehicles and also performs work for global General Motors programs.

54 As I describe in more detail below, Part XVB of the Customs Act has been subject to

a number of significant amendments since the time at which the decisions in this proceeding

were made. The first respondent is now, by reason of the Customs Amendment (Anti-

Dumping Commission) Act 2013 (Cth), the Commissioner of the Anti-Dumping Commission.

During the period of decision-making with which this proceeding is concerned, the CEO held

the position the Commissioner now holds. The third respondent, the TMRO, is also an office

which no longer exists. On 10 June 2013, it was replaced by the Anti-Dumping Review

Panel: see Customs Amendment (Anti-Dumping Improvements) Act (No 1) 2012 (Cth).

55 The responsibilities of the second respondent, the Minister for Immigration and

Border Protection, were at all relevant times performed by the Minister for Home Affairs,

pursuant to administrative arrangements.

56 Arrowcrest is a manufacturer of ARWs in Australia. Relevantly, it trades as ROH

Automotive and ROH Wheels Australia. During the course of its investigation, the CEO

estimated that Arrowcrest accounted for more than 95% of the Australian production of

ARWs during the investigation period. The Australian market for ARWs was approximately

2 million pieces during the investigation period.

57 Holden purchases ARWs from a number of sources, including exporters from the

PRC. They are incorporated into the manufacture of new vehicles in Australia, whether for an

entirely new vehicle program or for a new model in an existing vehicle program. Holden’s

decisions on the sourcing and purchase of ARWs are based on a number of factors, including

the ability of a seller to meet demand, the specifications, quality of the product and price.

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58 Sales of ARWs in Australia occur through the “Original Equipment Manufacture”

(OEM) sector and the “Aftermarket” (AM) sector. The existence of these sectors is important

to several of Holden’s grounds of review in this proceeding.

59 Aside from Holden and an independent and separate entity known as Holden Special

Vehicles, the other Australian passenger motor vehicle manufacturers which purchase ARWs

as original equipment for use in the manufacture of their vehicles are the Toyota Motor

Corporation Australia, the Ford Motor Company, and Ford Performance Vehicles. There is

collaboration between these motor vehicle manufacturers and the ARW manufacturers in

relation to new designs. Production contracts can be awarded up to two years prior to the

production phase of a new vehicle or new model of an existing vehicle. The typical life-cycle

for the development, production and sale of a new vehicle or a new model of an existing

vehicle is between two and five years.

60 In contrast, in the AM sector, ARWs are designed by ARW manufacturers. The

purchasers in Australia in this sector are primarily wheel importers, tyre wholesalers, tyre

retailers, performance motor vehicle aftermarket customer service divisions, passenger motor

vehicle retailers and manufacturers of trailer vehicles.

61 During the investigation period, this sector represented over 70% of the Australian

combined ARW market.

62 In late September 2011, Arrowcrest lodged with Customs an application pursuant to

s 269TB of the Customs Act requesting the Minister to publish a dumping duty notice and a

countervailing duty notice in respect of certain ARWs exported to Australia from the PRC.

63 The goods the subject of the application were described as ARWs for passenger motor

vehicles, including wheels used for caravans and trailers, in diameters ranging from 13 inches

to 22 inches, whether finished or semi-finished, unpainted, painted, chrome plated, forged or

with tyres. There were some exclusions which are not material to the issues on judicial

review.

64 On 7 November 2011, Customs published Australian Customs Dumping Notice No

2011/54 pursuant to s 269TC of the Customs Act. The notice invited interested parties to

lodge submissions concerning the publication of the dumping and countervailing duty notices

no later than close of business on 19 December 2011.

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65 In early November 2011, Customs wrote to Holden and told it about the ARW

investigation. It asked Holden to complete an importer questionnaire for the purposes of the

investigation and to facilitate a visit to Holden’s premises to discuss the investigation and

verify information provided in its response to the importer questionnaire. Holden responded

to Customs’ questionnnaire and a visit to Holden’s premises by Customs occurred in late

January 2012.

66 Prior to this visit, Customs had conducted a visit to Arrowcrest’s premises, in early

November 2011. Customs published a report about that visit in late December 2011. This

report was published by Customs on what is known as the “public file” or “electronic public

record”. The CEO is required by s 269ZJ of the Customs Act to maintain a public record for

purposes relating to applications under s 269TB. It will be recalled that the public and

transparent conduct of the investigation and wide participation in the decision-making

process are key aspects of the Anti-Dumping Agreement.

67 Customs’ visit report set out the application by Arrowcrest, the investigation process

and timeline, a detailed description of the goods and the Australian industry and market. It

then examined in detail sales, costs to make and sell ARWs, the economic condition of the

ARW industry and what could be said to be the causal relationship between the goods

Arrowcrest alleged were being dumped and the injury Arrowcrest claimed to be suffering. All

these matters, as recorded in the visit report, were of course from the perspective of, and

reliant on information from, Arrowcrest.

68 In this investigation report, amongst other matters, there was a section dealing with

Arrowcrest’s position in the OEM market. This section dealt with Arrowcrest’s supply

relationship with various motor vehicle manufacturers in Australia. In relation to Holden, the

report made the following statement:

Arrowcrest advised it had supplied Holden with ARWs and steel wheels for many years. Arrowcrest provided Holden with a quote for steel wheels in 2001 but as directed by GM Global Purchasing in Detroit, Holden awarded the business to Korea. Shortly thereafter Holden’s ARW business was awarded to a Chinese supplier. Arrowcrest attempted to regain some business recently with a quote for the Holden Cruze wheels but was unsuccessful.

69 In mid-December 2011, Holden made a submission to the CEO in respect of his

investigation. It appears the submissions may have been in response to the Arrowcrest visit

report which was placed on the public record in November 2011. The submission was 14

pages in length, and was prepared and submitted by Holden’s legal representatives. Two

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versions were produced — confidential and non-confidential. The non-confidential version

was in evidence before the Court and said by both parties to be sufficient for the purposes of

this proceeding.

70 Holden’s submission emphasised to the CEO the particular disadvantage Holden was

likely to suffer (as opposed to some of their competitors, such as Ford Australia and

Mitsubishi Australia) from the imposition of dumping duties, including any interim measures.

The submissions said Holden “generally rejects” Arrowcrest’s contention that the Australian

industry (including Arrowcrest) has suffered material injury from Chinese exports. The

submission put a contention that ARWs produced for the OEM and AM sectors were not

“like goods” for the purposes of Part XVB of the Customs Act, made submissions about how

the normal value and export price should be calculated in applying the provisions of the

Customs Act, made express submissions about whether there was “material injury” for the

purposes of the Customs Act and sought the opportunity to provide further information and

make further submissions.

71 Customs’ visit to Holden’s premises in Port Melbourne in late January 2012 also

resulted in the production of a report by Customs, entitled an “Importer Visit Report”. This

was also published on the public record. The report identified the purpose of Customs’ visit

to Holden in the following terms:

The purpose of this visit was to:• confirm that GMH is the importer of ARWs as identified within the import

database and obtain information to assist in establishing the identity of the suppliers/exporters of the ARWs GMH imports;

• verify information on GMH’s imports of ARWs to assist in the determination of export price;

• establish whether the purchases of ARWs by GMH was in arms length transactions;

• recommend how export price for exporters or ARWs that supply GMH may be determined; and

• provide the company with an opportunity to discuss any issues it believed relevant to the investigation.

72 The report records Holden’s position on whether the OEM and AM ARWs are “like

goods”, how the Australian market should be defined, and how Holden went about choosing

a supplier for ARWs. The report also used information provided by Holden to calculate

export prices for selected shipments, and to identify exporters in the PRC.

73 Following on from Customs’ site visit, on 20 February 2012 Holden made a second

submission to the CEO, stating it should be read with its first submission. This submission

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was again made by its legal representatives. The second submission dealt again with

Holden’s arguments on “like goods”, developing those by reference to more detailed

submissions on the characteristics of OEM and AM ARWs. It also dealt with matters such as

the calculation of “normal value” and subsidy for the purposes of the Customs Act, and the

approach which should be taken to the question of whether there has been material injury to

the Australian industry, picking up and supporting submissions made by other Australian

motor vehicle manufacturers.

International Trade Remedies Issues Paper 2012/181

74 In March 2012, Customs published International Trade Remedies Issues Paper

2012/181 which outlined its preliminary views on three issues relevant to its investigation

into ARWs exported from the PRC. Relevantly for the issues in this proceeding, Customs

outlined its preliminary views on which goods should be considered “like goods” for the

purposes of Arrowcrest’s application. Customs set out its approach to the question of what

goods were “like goods” in the following terms:

Like goods to the goods the subject of the application are ARWs produced by the Australian industry and sold into the Australian market and ARWs produced by Chinese manufacturers and sold into the Chinese domestic market.

Customs and Border Protection regards like goods as identical goods (goods that are identical in physical characteristics) and in the absence of identical goods, goods closely resemble the goods. Customs and Border Protection assesses whether goods closely resemble the goods against the following criteria:

(1) Physical likeness;(2) Commercial likeness;(3) Functional likeness;(4) Production likeness; and(5) Other considerations e.g. marketing.

(Emphasis in original.)

75 The issues paper then rehearsed the competing contentions about the identification of

“like goods” and stated Customs’ preliminary view in the following terms:

It is Customs and Border Protection’s preliminary view that the difference between OEM and AM ARWs relates to the different channels of distribution. The manufacture and sale of OEM wheels involves the car industry in the process of developing and designing the wheel whereas the development and design of AM wheels is principally controlled by the wheel manufacturer. OEM and AM wheels share similar physical and technical characteristics and are interchangeable. There is also evidence that AM ARWs are being placed on new passenger motor vehicles by motor vehicle dealers before customers take delivery without affecting the new car warranty.

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It is Customs and Border Protection’s preliminary view that the Australian ARW market will be treated as a single market ie OEM and AM wheels will not be treated as two separate goods.

It is also Customs and Border Protection’s preliminary view that OEM and AM are separate segments of the Australian ARW market which will be analysed separately in injury/causation analysis.

76 The conclusion in the last sentence concerning injury and causation is of particular

relevance to Holden’s grounds of review in this proceeding.

77 On 10 April 2012, Holden, through its legal representatives, made a further

submission to Customs, commenting on this issues paper. The focus of this submission was

again on the characterisation of “like goods” for the purposes of the investigation.

78 Following the statutory process, pursuant to s 269TDAA Customs published a

Statement of Essential Facts at the end of April 2012, and placed this document on the

electronic public record. As the document stated and the Customs Act contemplates, the

statement of essential facts gives notice to all interested parties of the facts on which the CEO

(or, in this case, a delegate of the CEO) charged with making recommendations to the

Minister will base her or his recommendations, and notice of the recommendations which are

proposed to be made.

79 On the existence of an Australian industry, the statement of essential facts made the

following preliminary findings and conclusions:

Customs and Border Protection found:• there is an Australian industry producing like goods;• the like goods were wholly manufactured in Australia by Arrowcrest; and• the Australian industry consists of one main Australian manufacturer of ARWs, being the applicant. The applicant manufactures the majority of Australian produced ARWs and as such any injury to the applicant is considered representative of overall injury to the Australian industry. All other Australian manufacturers were contacted and their volumes considered too small to be considered separately.

80 The statement of essential facts then reported preliminary findings and conclusions

that there had been dumping of goods to more than a negligible extent, finding a variety of

dumping margins (expressed as a percentage of export price), with the highest margin being

for what the document identified as “selected non-cooperating exporters”, where the margin

was fixed at 32.9%. The document also reported preliminary findings and conclusions that

there were countervailable subsidies operating in 34 programs in the PRC, and found subsidy

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margins (expressed as a percentage of export price) to varying degrees. Again the highest

margin was for “selected non-cooperating exporters” where the margin was found to be

58.8%.

81 There was a reported preliminary finding and conclusion of injury, expressed in the

following way:

Customs and Border Protection has made the preliminary finding that in the investigation period the Australian industry producing like goods experienced injury in the form of:

• lost sales volume;• lost revenue;• price suppression;• lost profits and profitability;• reduced return on investment;• reduced employment; and • reduced capacity utilisation.

82 The document then recorded the finding that the dumping and subsidisation had

caused material injury, and may cause further injury, such that the CEO proposed to

recommend to the Minister that a dumping duty notice and a countervailing duty notice be

published in accordance with the Customs Act.

83 In accordance with s 269TEA(4), in this investigation the CEO was “not obliged” to

have regard to submissions made in response to the statement of essential facts which were

received by the CEO after 17 May 2012. On 16 May 2012 Holden lodged, through its legal

representatives, a responding submission. The submission was 13 pages and went through the

statement of essential facts sequentially. Seven overall points of error were identified, many

with sub-categories of errors Holden submitted had been made. There was, as there had been

from the start of its submissions, some considerable focus by Holden on the characterisation

of the OEM and AM segments as “like goods”. There was also some focus on the assessment

by Customs of material injury across both segments, when Holden contended there was no

material injury caused by alleged dumping or subsidy in the OEM segment.

84 One specific response made by Holden should be mentioned, because it relates to a

ground of review in this proceeding. Dealing with the preliminary findings and conclusions

made in Ch 9 of the statement of essential facts concerning whether dumping and subsidy had

caused material injury, Holden referred to findings about whether Arrowcrest had lost a

tender for ARWs for the Holden Cruze because of price. In its response, Holden submitted:

In paragraph 9.5.2 of the SEF, Customs refers to allegations from

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Arrowcrest that it quoted to supply Holden ARWs and having been unsuccessful in a tender. Our client has instructed us to point out that this contact between our client and Arrowcrest has been misrepresented. Our client only issued a “Request for Interest to supply” not a “Request for Quotation” as part of a tender process and any business including price would have been subject to negotiations once Arrowcrest had advanced beyond that initial point where assessment was based on criteria other than price, which did not occur. For these purposes it is difficult to see how these developments could be construed as being “material injury” when Arrowcrest was not producing for our client at the time and did not lose existing contracts or production.

85 Towards the end of May, in a letter dated 28 May 2012, Arrowcrest lodged a response

to Holden’s submission dated 16 May 2012. This response was also placed on the public

record, as Holden’s submissions had been. I infer that the CEO formed the opinion, in

accordance with s 269TEA(4), that it would not prevent the timely preparation of the report

to the Minister to have regard to that submission. Arrowcrest responded particularly to the

submissions from Holden which I have extracted at [84] above. Arrowcrest stated:

11. Requests for quotation from HoldenHunt&Hunt suggests at (g) on page 11 that GM-Holden had not issued Arrowcrest with requests for quotation for ARWs, rather it had only issues a “Request for Interest to supply”.However, Arrowcrest has provided quotations to GM-Holden for supply of ARWs as recently as 28 September 2010 for GM-Holden’s Cruze model. GM-Holden replied that Arrowcrest’s quotation was 37% higher than “our expectations based on international market prices”. This quotation was in respect of ARWs for GM-Holden’s Cruze model which Arrowcrest understands are sourced by GM-Holden from China.Arrowcrest has also quoted GM-Holden for ARWs (and steel wheels) for its local production, in 2009 quotations submitted to Harvey Li, the then Global Wheels & Wheel Trim buyer headquarted in Shanghai. Arrowcrest was unsuccessful on that occasion as well.Copies of GM-Holden correspondence verifying that GM-Holden has in fact issued requests for quotation to Arrowcrest in 2009 and 2010 are attached herewith.

86 In a submission made on 18 April 2012 and placed on the public file, Arrowcrest had

also referred to Holden’s response to it that Arrowcrest’s quotation was 37% higher, so the

similar statement in this document was not the first time Arrowcrest had made this claim.

87 One of Holden’s procedural fairness grounds revolves around what it submits was the

denial to it of an opportunity to respond to what Arrowcrest had said. The evidence on behalf

of Holden in this proceeding was:

Holden was never provided with a copy of Arrowcrest’s submission of 28 May 2012. Holden obtained a copy of Arrowcrest's submission from the public record. Holden was not offered any opportunity by Customs to respond to Arrowcrest’s submission regarding the “Cruze” ARW quotation. Had Customs provided Holden with an

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opportunity to comment on Arrowcrest’s submission of 28 May 2012, Holden would have corrected Arrowcrest’s submission by confirming that (among other matters) the ARW tender for Holden’s “Cruze” car model went to a Korean rather than a Chinese exporter and the decision to award that tender was not based on the price of Chinese ARW exports.

88 Shortly after receipt of Arrowcrest’s submission, on 30 May 2012, the CEO made a

Preliminary Affirmative Determination in accordance with s 269TD of the Customs Act. The

CEO determined that securities were required and should be taken under s 42 of the Customs

Act in respect of interim dumping duty and interim countervailing duty that may become

payable on Chinese exports of ARWs. A notice was published to that effect the following

day.

89 About a week later, on 8 June 2012, and following on from its conclusions in the

statement of essential facts, the CEO published a notice terminating the dumping

investigation so far as it related to the exporter Zhejiang Shuguang Industrial Co Ltd (PDW)

on the basis that there had been no dumping by that exporter; and terminating the

countervailing subsidies investigation so far as it related to the exporters CITIC Dicastal

Wheel Manufacturing Co Ltd and PDW on the basis that the subsidy received in respect of

the goods exported to Australia by those companies never exceeded the negligible level at

any time after the start of the investigation period.

90 On 12 June 2012, the CEO reported to the Minister by a document entitled “Report to

the Minister No 181: Aluminium road wheels exported from the People’s Republic of

China”. I shall refer to this as Report 181. Report 181 recommended the Minister publish a

dumping duty notice and a countervailing duty notice in respect of the goods the subject of

the investigation, other than goods by exporters in respect of whom the investigation had

been terminated on 8 June 2012.

91 The Minister accepted the recommendations in Report 181. On 27 June 2012, he gave

notices under ss 269TG and 269TJ of the Customs Act declaring that dumping duties and

countervailing duties applied to the goods the subject of the investigation and to like goods

exported to Australia from the PRC after 31 May 2012, but before publication of the notices.

92 The effect on Holden of the notices was that two of the exporters who are subject to

the dumping and/or countervailing duties sell OEM ARWs to Holden. One of those exporters

is a “selected non-cooperating exporter”. This is significant because the margin to be applied

to imports of ARWs from that exporter is, in accordance with the Minister’s notices, 29.3%.

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93 The imposition of these duties was confirmed by notice issued by Customs on 5 July

2012. The findings were also notified in the Commonwealth of Australia Gazette on 5 July

2012.

94 As it was entitled to do, through its legal representatives Holden applied for review of

the Minister’s decisions to the TMRO. The application was made on 6 August 2012. The

application was 25 pages long and identified 29 specific grounds of review, several of which

resemble the grounds pursued in this Court and include the contentions Holden had made

since the start of the investigation about “like goods” and material injury. Eight other affected

parties also applied for review, including three of the Chinese exporters specified in the

Minister’s notices.

95 Having sought and been granted a five-week extension of time by the Minister, the

TMRO issued a report on the review applications on 21 December 2012. The TMRO

affirmed the Minister’s decision to issue a dumping notice, save for two aspects. Those two

aspects were the treatment of residual or “selected non-cooperating” exporters, and the way

in which the calculation of the “normal value” of the goods is to be approached for the

purposes of calculating dumping margin. Both those aspects are relevant to the grounds of

review. On those two aspects the TMRO recommended:

that the Minister direct the CEO to reinvestigate the calculation of the dumping

margins for all “residual” exporters; and

that, when the CEO reports the results of any such reinvestigation, the CEO should

also raise the possibility of a direction under s 269TAC(2)(d) of the Customs Act and

request that the Minister consider whether or not to issue a direction under s

269TAC(2)(d) so that “any eventual reliance upon section 269TAC(2)(c) can be

placed on a more legally sound basis”.

96 I note this second recommendation reflects the substance of Holden’s argument in is

ground of review 8: namely that consideration by the Minister whether to make a direction

under s 269TAC(2)(d) is a precondition to any determination under s 269TAC(2)(c). I have

rejected that argument at [187] below.

97 In respect of the Minister’s decision to publish a countervailing duty notice, the

TMRO affirmed the Minister’s decision, save that he recommended the Minister direct the

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CEO to reinvestigate two specific findings. This recommendation is not relevant to the

grounds of review.

98 Consequent upon consideration of the TMRO review, on 16 January 2013, the

Minister issued a public notice under s 269ZZL(2) of the Customs Act stating that he

accepted the recommendations of the TMRO and the reasons for those recommendations.

The Minister directed the CEO to reinvestigate certain findings in Report 181, in accordance

with the TMRO recommendations.

99 In accordance with s 269ZZL(2)(a)(i), no new information or conclusions could be

considered in the CEO’s reinvestigation, but interested parties were able to make

submissions. In mid-February 2013 Holden made a short submission through its legal

representatives to the CEO for the purposes of the reinvestigation. It submitted that, in

relation to the recalculation of dumping margins for the particular “selected non-cooperating

exporter” who is a supplier to Holden, the CEO should use the actual invoiced prices, which

Holden had provided to the CEO. It also made some submissions about the countervailing

subsidy issues.

100 The reinvestigation resulted in a report to the Minister entitled “International Trade

Remedies Branch: Report to the Minister No 204”. Report 204 recommended the Minister

affirm the June 2012 ministerial decisions to publish dumping and countervailing duty

notices. The report found that non-cooperating exporters from the PRC were investigated and

therefore met the definition of “selected exporter” in s 269T. The report recommended that

the Minister vary the countervailing duty notices in respect of ARWs exported to Australia

from the PRC by one exporter (YHI Manufacturing Co Ltd) on the basis that exporter had not

received a benefit under all the subsidy programs in the PRC previously identified by

Customs in Report 181.

101 The Minister accepted the recommendations in Report 204 on 8 May 2013 by a notice

published pursuant to s 269ZZM of the Customs Act. Thus, except where inconsistent with

the 8 May 2013 notice, the dumping and countervailing duty notices the Minister had issued

on 27 June 2012 remained in force.

102 This proceeding was commenced by Holden on 24 June 2013.

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DECISIONS UNDER CHALLENGE AND GROUNDS OF REVIEW

103 During the decision-making process, Holden had requested and obtained statements

of reasons from the Minister in respect of several of his decisions. Those reasons are in

evidence and were relied on to identify some but not all of the applicant’s grounds of review.

104 Holden challenges six decisions during the process. They are the recommendation of

the CEO under s 269TEA to the Minister to issue the dumping and countervailing duty

notices; the two decisions of the Minister to issue those notices pursuant to ss 269TG(1) and

(2) and ss 269TJ(1) and (2); the TMRO recommendation to the Minister under s 269ZZK to

affirm the decisions to issue the dumping and countervailing duty notices; the decision of the

Minister under s 269ZZL to accept the TMRO recommendations; and the decision of the

Minister under s 269ZZM to affirm his previous decisions to issue dumping and

countervailing duty notices.

105 Some of the grounds of review are contended to attach to more than one decision. For

example, the first ground of review concerning the proper construction and application of the

term “like goods” is expressed to attach to three decisions. The same basis is then repeated in

the second ground of review in respect of two other decisions. There are separate procedural

fairness contentions against the CEO and the TMRO (grounds 3, 4 and 5A). These denials of

procedural fairness are then said to flow on to affect the lawfulness of the Minister’s

decisions (grounds 5 and 5B). Five decisions are said to involve a calculation of normal value

which was not available to the decision-makers because a condition precedent to that

calculation had not been fulfilled (ground 8). Five decisions are contended erroneously to

have approached the assessment of the “material injury” suffered by the Australian industry

(ground 9). The CEO’s recommendation, the Minister’s decision to issue the countervailing

subsidy notice, the Minister’s decision to affirm the issue of the notices after the TMRO

review and the further investigation are said to involve errors in the construction and

application of more than one statutory phrase (grounds 10 and 11). Finally, the CEO’s

recommendation, the Minister’s decision to issue dumping duty notices and the Minister’s

decision to affirm the issue of the notices after the TMRO review and the further

investigation are said to involve an error in the construction or application of the term

“investigated” in the definition of “selected exporter” in s 269T of the Act (ground 12).

106 Declarations and orders in the nature of certiorari are sought in respect of all the

decisions. Consistently with the approach it took throughout the investigation and decision-

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making process, Holden does not seek to have the decision remade, as its substantive

contention is that no dumping duty or countervailing subsidy notices should ever have been

issued.

CONSIDERATION

The character of the challenged decisions

107 As I have noted, the respondents did not take issue with the jurisdiction of this Court

to deal with Holden’s attack on any of the six decisions on the basis that one or more of those

decisions was only recommendatory in character and did not have the requisite effect to

sustain the grant of orders quashing the decision or report.

108 Although not expressly said to be so, the recommendation reports of the CEO and the

TMRO to the Minister are properly seen as relevant considerations the Minister must take

into account in her or his decision-making. They could each also be characterised as

conditions precedent to the exercise of the respective powers of the Minister which are

challenged in this proceeding. In that sense, the two recommendation reports of the CEO and

the TMRO are within the principles set out in Hot Holdings Pty Ltd v Creasy (1996) 185

CLR 149 at 162 per Brennan CJ, Gaudron and Gummow JJ, and those reports are amenable

to being set aside if affected by jurisdictional error.

109 No separate arguments were advanced by Holden as between the AD(JR) Act and the

Judiciary Act. It was not contended that, for example, if some of the grounds of review could

not succeed on the basis of jurisdictional error, they could still succeed under the AD(JR)

Act. Accordingly, I have considered each of the grounds of review together, without

differentiating about the basis of the Court’s jurisdiction to set them aside.

The “like goods” argument (grounds 1 and 2)

110 Grounds 1 and 2 were expressed in the following way:

1. The Declarations, January 2013 Minister’s Decision and May 2013 Minister’s Decision involved an error of law or was not authorized by the Customs Act (Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”) ss 5(1)(d) and (f)) and constituted jurisdictional error or a failure to exercise jurisdiction.

(a) The Declarations were not authorised by s 269TG and s 269TJ of the Customs Act because the goods included with the scope of the Declarations were not “like goods”, namely aluminium road wheels produced for the Original Equipment Manufacture (“OEM”) market and aluminium road wheels produced for the After Market (“AM”).(b) Further or alternatively, in making the said decisions, the Minister

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adopted and applied an erroneous construction of the term “like goods” in s 269T of the Customs Act by construing “characteristics” as being limited to physical characteristics and as not including market considerations such as cost structures, price, route to market, market segmentation, and other marketconsiderations.(c) Further or alternatively, in making the said decisions, the Minister erred in treating OEM aluminium road wheels and AM aluminium road wheels as “like goods” but subjecting them to separate injury, causation and price analysis, including the calculation of non-injurious price.(d) Further or alternatively, the fact as to whether OEM aluminium road wheels and AM aluminium road wheels are “like goods” within the meaning of s 269T of the Customs Act was a jurisdictional fact on which the power to make the said decisions depended, and in fact, OEM aluminium road wheels and AM aluminium road wheels are not “like goods”.

2. The CEO Decision and the TMRO Decision involved an error of law or was not authorized by the Customs Act (ADJR Act ss 5(1)(d) and (f)) and constituted jurisdictional error or a failure to exercise jurisdiction.

(a) The Applicant refers to and adopts paragraphs 1 (a) to (d) as if the references to the Minister were a reference to the CEO and TMRO respectively

111 Holden contends it was erroneous to characterise OEM and AM ARWs as “like

goods” for the purposes of investigations into dumping duty or countervailing duty and

erroneous to impose a single set of dumping measures for the entire ARW industry. It

contends the error can be described in one of two alternative ways. First, the existence of

goods as like goods is a jurisdictional fact for the investigation of anti-dumping measures,

and the steps consequent upon an investigation. Alternatively, there was a misconstruction or

misapplication of the definition of “like goods” such that the various decision-makers asked

the wrong question by disregarding the differences in the markets for each of OEM and AM

wheels and concluding the differences were no more than different channels of distribution.

112 In Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55;

[1999] NSWCA 8 at [37]-[41], Spigelman CJ described the character and function of a

jurisdictional fact:

The issue of jurisdictional fact turns, and turns only, on the proper construction of the statute: see, eg, Ex parte Redgrave; Re Bennett (1946) 46 SR (NSW) 122 at 125). The parliament can make any fact a jurisdictional fact, in the relevant sense: that it must exist in fact (objectivity) and that the legislature intends that the absence or presence of the fact will invalidate action under the statute (essentiality): Project Blue Sky Inc v Australian Broadcasting Authority (1998) 72 A:JR 841 at 859-861; 153 ALR 490 at 515-517.“Objectivity” and “essentiality” are two inter-related elements in the determination of whether a factual reference in a statutory formulation is a jurisdictional fact in the relevant sense. They are inter-related because indicators of “essentiality” will often suggest “objectivity”.Any statutory formulation which contains a factual reference must be construed so as

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to determine the meaning of the words chosen by parliament, having regard to the context of that statutory formulation and the purpose or object underlying the legislation. There is nothing special about the task of statutory construction with regard to the determination of the issue whether the factual reference is a jurisdictional fact. All the normal rules of statutory construction apply. The academic literature which describes “jurisdictional fact” as some kind of “doctrine” is, in my opinion, misconceived. The appellation “jurisdictional fact” is a convenient way of expressing a conclusion — the result of a process of statutory construction.Where the process of construction leads to the conclusion that parliament intended that the factual reference can only be satisfied by the actual existence (or non-existence) of the fact or facts, then the rule of law requires a court with a judicial review jurisdiction to give effect to that intention by inquiry into the existence of the fact or facts.Where the process of construction leads to the conclusion that parliament intended that the primary decision-maker could authoritatively determine the existence or non-existence of the fact then, either as a rule of the law of statutory interpretation as to the intent of parliament, or as the application of a rule of the common law to the exercise of a statutory power — it is not necessary to determine which, for present purposes — a court with a judicial review jurisdiction will inquire into the reasonableness of the decision by the primary decision-maker (in the Wednesbury sense Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223), but not itself determine the actual existence or non-existence of the relevant facts.

113 This ground contends the exercises of power in ss 269TG and 269TJ miscarried by

reason of the jurisdictional facts in those provisions not being made out. This ground is not

expressed to be an attack on the validity of the application because of the existence of a

jurisdictional fact in s 269TB(1)(b). There is no basis for treating the existence of “like

goods” as a jurisdictional fact in these two provisions.

114 First, at a textual level, both ss 269TG and 269TJ use the language of “satisfaction”.

This, as Spigelman CJ observed in Timbarra 46 NSWLR 55; [1999] NSWCA 8 at [42],

often, but not necessarily, tends against a conclusion of jurisdictional fact. That is because the

use of such language indicates Parliament’s intention that the repository of the power himself

or herself is to determine whether the contested facts exist or do not exist. Like terms such as

“opinion” or “belief”, satisfaction refers to a state of mind and, in doing so, contemplates that

reasonable minds may differ.

115 Each of the provisions identifies several factual matters which need to be determined.

For example, under s 269TG, aside from the identification of “like goods”, the Minister must

form a state of satisfaction about whether the “export price” is less than the amount of the

“normal value” of the goods, whether there has been “material injury” and, if so, whether it is

to an “Australian industry”, and whether the material injury is caused by the difference

between the export price and the normal value. There is no basis in the text or structure of the

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provision to single “like goods” out as a fact the Parliament intended objectively to exist,

while at the same time identifying the remaining factual issues as matters for the Minister

authoritatively to determine. Nor is there any basis on which it might be said that Parliament

intended that all of the factual matters involved in a decision under s 269TG were objectively

to exist before the power to issue a notice arose.

116 Further, in Timbarra at [44] Spigelman CJ said:

The authorities suggest that an important, and usually determinative, indication of parliamentary intention, is whether the relevant factual reference occurs in the statutory formulation of a power to be exercised by the primary decision maker or, in some other way, necessarily arises in the course of the consideration by that decision maker of the exercise of such a power. Such a factual reference is unlikely to be a jurisdictional fact. The conclusion is likely to be different if the factual reference is preliminary or ancillary to the exercise of a statutory power. The present case is, so far as I have been able to discover, unique in that the one statutory regime contains the same factual reference in both kinds of provisions.…

117 The text and structure of ss 269TG and 269TJ demonstrate the latter of the two

circumstances posited by Spigelman CJ. Neither provision expresses the factual question of

“like goods” as a preliminary matter to the exercise of power. Rather, as I have observed

above, the assessment whether there is an “Australian industry producing like goods” (ss

269TG(1)(b)(i) and 269TJ(1)(b)(i)) is but one of many factual determinations for the Minister

which arises in the course of his consideration whether to exercise the power to issue notices

or not. Contrary to the applicant’s submissions, determination of whether there is an

“Australian industry producing like goods” is not a threshold issue. Since the statutory task

set out in s 269TEA for the CEO in making recommendations to the Minister is to

recommend whether the Minister can be satisfied of the matters the Minister needs to

consider before issuing notices (see s 269TEA(1)(d)), the identification of “like goods” is no

more a threshold to the CEO’s task than it is to the Minister’s, and certainly not to the

TMRO’s. The provisions in issue here can be compared, in terms of text and structure, with

those considered by Weinberg J in Cabal v Attorney-General (Cth) (2001) 113 FCR 154;

[2001] FCA 583.

118 The context in which the phrase appears also tends against the applicant’s contention.

It should be noted that the statutory phrase is not, in fact, “like goods” at all. It is “an

Australian industry producing like goods” or, in s 269TG(2), also “like goods which have

already been exported to Australia”, although the applicant did not develop how its

construction argument applied in the latter circumstance. The words which come before the

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phrase “like goods” inform the meaning to be given to them, a matter to which I return

below. When the whole phrase is considered in its context it is apparent that the Minister is

called on to make several factual judgments, of an evaluative nature, of which the contested

phrase is but one. There is no basis to select out the phrase “like goods” and ascribe to

Parliament an intention that what constitutes like goods must be objectively determined,

while all the other factual issues in each of the provisions are to rest on the opinion of the

Minister.

119 To the extent the applicant’s submissions then move to treat the phrase “like goods”

as a jurisdictional fact and to make submissions as to the findings the Court should make

about whether OEM and AM ARWs are “like goods”, those submissions need not be further

considered.

120 Nevertheless, the text and context of ss 269TG and 269TJ indicate that the Minister’s

satisfaction about whether there is material injury to an Australian industry producing like

goods is a core aspect of the statutory task in each provision. If the Minister’s decision

revealed a misunderstanding of that task, including by reason of a misconstruction of the

statutory terms, his decision to issue notices would be without jurisdiction: Kirk v Industrial

Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 at [75] per French CJ,

Gummow, Hayne, Crennan, Kiefel and Bell JJ.

121 Holden’s challenge did not centre on anything the Minister said about the phrase “like

goods” in the reasons for his decisions, which were provided pursuant to Holden’s request

under the AD(JR) Act. Those reasons were brief, and in substance involved cross-references

back to the source documents such as Reports 181 and 204 and the TMRO report. The term

“like goods” is, as I have observed, a defined term in s 269T. The applicant’s contention on

ground 1 does not concern any asserted constructional choice about the term “like goods” in s

269T, but rather the application of the defined term to OEM and AM ARWs. The applicant’s

written submissions summarised how this argument was put against each of the CEO, the

Minister and the TMRO:

Once Customs had concluded that OEM ARWs and AM ARWs were physically similar, it effectively disregarded all other differences in the separate markets – for example, by treating those differences as amounting to no more than different channels of distribution, or as merely a difference in the name given to otherwise identical goods according to the stage at which the ARW is fitted to the vehicle. The TMRO adopted too narrow a focus on physical design and time of fitting. Each of Customs and the TMRO ignored or discounted the market considerations that were identified in Holden’s submissions and the many “characteristics” of OEM ARWs

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which did not “closely resemble” those of AM ARWs.

122 Holden submitted that the evidence showed OEM ARWs were designed and

developed pursuant to a production contract several years in advance and “physically

attached as an integrated part of a complete vehicle” which is then sold to retail customers. In

contrast, it submitted, AM ARWs were sold to retail customers as “standalone” products, and

were packaged, advertised and marketed as separate products. On this basis, the applicant

submitted, OEM ARWs are not “identical in all respects” to AM ARWs, nor do they have

“characteristics closely resembling” each other.

123 The use of the adjective “like” in the phrase “like goods” invites a comparison

between the goods which are the subject of the application, as they are defined in the

application, and other goods produced by Australian industry. The goods defined in the

application are, within s 269T, identified as the “goods under consideration”. The question is,

what does the statutory definition, read in context, suggest the comparison is to consist of?

124 The definition in s 269T allows for two alternative assessments. The first is goods

which are “identical in all respects”. The second is goods which “although not alike in all

respects” have “characteristics closely resembling” the goods which are the subject of the

application. It is clear that the statute uses “identical” and “alike” in the same way in this

definition. Both nouns focus on a visual or physical comparison. This is reinforced by the use

of the word “characteristics” in the alternative assessment, which implies a comparison of the

physical characteristics of the goods themselves, including but not limited to their

appearance. Characteristics would include, for example, the composition of the goods, the

materials used to manufacture them, their outward appearance and the uses for which they

were suitable in a commercial and practical sense. This approach is consistent with provisions

in Part XVB such as s 269TC(4)(a) where, as one of the mandatory requirements of the

notice the CEO must give upon receipt of an application the CEO proposes to investigate, the

“particulars of the goods the subject of the application” must be set out. The use of the term

“particulars” implies in my opinion physical features of the goods which can be the subject of

a list in a notice such as this.

125 The definition in s 269T closely follows the terms of Art 2.6 of the Anti-Dumping

Agreement, which provides:

Throughout this Agreement the term “like product” (“produit similaire”) shall be interpreted to mean a product which is identical, i.e. alike in all respects to the product under consideration, or in the absence of such a product, another product

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which, although not alike in all respects, has characteristics closely resembling those of the product under consideration.

126 The use of the term “product” in the Anti-Dumping Agreement, together with the

other phrases in Art 2,6, emphasises that the comparison required is a visual or physical one.

Adopting the approach to which I have referred at [12] above, a construction of s 269T which

focuses on the matters to which I have referred in [124] above is consistent with the terms of

the Anti-Dumping Agreement. The WTO decisions to which the Court was referred, and in

particular the WTO Panel report, European Communities — Anti-Dumping Measure on

Farmed Salmon from Norway, WTO Doc WT/DS337/R, adopted 15 January 2008, at [7.16]-

[7.75], appear to adopt a similar approach.

127 The respondents submitted that the application of the definition of “like goods” to

OEM and AM ARWs for which the applicant contended posited a question about how “alike”

OEM and AM ARWs were as between themselves. That, the respondents submitted, was not

the question posed by the statute. I agree with that submission.

128 It will be recalled that the description of the ARWs given in the application was as

follows:

The goods the subject of the application (the goods) are aluminium road wheels for passenger motor vehicles, including wheels used for caravans and trailers, in diameters ranging from 13 inches to 22 inches.For clarification, the goods include finished or semi-finished ARWs whether unpainted, painted, chrome plated, forged or with tyres and exclude aluminium wheels for go-carts and All-Terrain Vehicles.

129 The applicant’s argument does focus on points of difference as between OEM and

AM ARWs, rather than looking at the ARWs which were described in Arrowcrest’s

application, and asking whether the ARWs produced by Arrowcrest were “like goods” to the

ARWs as described in the application.

130 The applicant placed some emphasis on the terms of s 269TG(2), and the use of the

phrase “goods of any kind”, as the alternative situation to that in subs (1), which dealt with

the export to Australia of a specific consignment of goods. The applicant submitted this

phrase intended to refer to a “genus” and, if that is the case, then OEM and AM ARWs were

not one “genus” of ARW, but two. Again, the flaw in this argument is to engage in a

comparison between OEM and AM ARWs, which is not the comparison the statute requires.

In subs (2), the phrase “goods of any kind” must, as the respondents submitted, be seen still

to refer to the goods identified in the application under s 269TEA. The use of the term “like

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goods” in a phrase together with “to an Australian industry producing…” implies, as the

respondents submitted, a need to identify a single industry which produces the goods said to

be like goods. That may confine the class or genus to which the description “goods of any

kind” might be applied. That is, however, the extent of the confinement. It occurs first by

reference to the description of goods in the application, or identified by the Minister in

exercise of his own motion power, and second by reference (if s 269TG(2) is engaged) to the

need to identify a single Australian industry producing what are said to be the like goods.

Beyond those two matters, there is no textual or contextual basis for any necessary further

division of goods by reference to the markets to which they may be directed.

131 Seen in this way, the applicant’s arguments are not about construction at all. They are

about the application of the phrase “like goods produced by an Australian industry” to a

particular factual situation. In Swan Portland Cement 28 FCR 135, in the context of a claim

by the applicant in that case that, as the sole manufacturers and suppliers of cement clinker in

Western Australia, it constituted an “Australian industry” within the meaning of s 269TG(1)

(b)(i), Lockhart J stated (at 144-145):

In my opinion, the expression “Australian industry” in the context of the anti-dumping legislation refers to an industry viewed throughout Australia as a whole and does not refer to a part of that industry, whether the part be determined by geographic, market or other criteria. The difficulty seems to me to lie, not in defining the expression, but in determining on the facts of a given case whether a particular industry answers the statutory description of an Australian industry. The latter is not a question of construction; it is a question of identification by the relevant fact-finding body, in this case, the Authority.The determination whether material injury to an Australian industry producing like goods has been, or is being caused, or is threatened, is not an exercise of counting heads of markets, production or distribution centres or things of this kind. It is essentially a practical exercise designed to achieve the objective of determining whether, when viewed as a whole, the relevant Australian industry is suffering material injury from the dumping of goods.The present case raises the difficulties nicely. There is no dispute about the relevant market being the market in Western Australian for clinker. To say that the clinker industry must be regarded throughout Australia as a whole does not mean that the threat caused by dumping only in Western Australia and which may injure only the players in the market in Western Australia, cannot constitute material injury to the Australian clinker industry as a whole. Plainly it may where, for example, the continuance of the dumping may annihilate the West Australian industry. I find no difficulty with the proposition that an injury of this kind may constitute material injury to the Australian market as a whole. It depends on the facts of the case and inevitably it is a question of degree that involves balancing all relevant considerations and integers before concluding whether or not the dumping constitutes material injury to the Australian industry. For these reasons I reject the applicants’ argument that it was necessary to interpret “an Australian industry” as they contended to achieve the purpose of the legislation of ensuring that industries in Australia are not damaged by competition from foreign exports at dumped prices.

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I have considered the “pricing argument” put forward by the applicants and reject it for three reasons. First, the term “industry” on its plain meaning does not have any geographical connotations and it certainly does not equate with the term “market”. The term “industry” is defined in The Shorter Oxford English Dictionary as (relevantly) “a particular branch of productive labour, a trade or manufacture”. K Yorston and I Winlaw, The Australian Commercial Dictionary, (5th ed, 1972), defines “industry” as consisting of “a group of firms producing closely related and therefore competitive products”. A Dictionary of Economics (4th ed), defines “industry” as being “a productive enterprise, especially manufacturing or certain service enterprises such as transportation and communications, which employs relatively large amounts of capital and labour. It is also used to identify a special segment of productive enterprise such, for example, as the steel industry”. The Dictionary of Business and Economics, defines it as a “specific branch of mining, manufacturing, or processing, in which a number of firms produce the same kind of commodity or service, or are engaged in the same kind of operation”.While the above definitions are by no means identical, in no definition is there a reference to geographical or market considerations. An industry, using its plain meaning, is defined only by the product involved. The description “Australian”, when added to “industry” provides the only geographical reference in s 269TG of the Customs Act.

132 Although the applicant submitted Lockhart J’s decision should be distinguished or not

followed, no argument was developed as to why that was so. In my respectful opinion, his

Honour was correct in his approach to the term “industry”, defining it by reference to a

product rather than a market. This reinforces the construction I have given to “like goods

produced by an Australian industry” as a phrase which focuses on the physical characteristics

of the goods in question rather than their markets.

133 Further, as his Honour observed, there will be questions of fact and degree involved in

the application of these statutory phrases to a given circumstance. Those are assessments the

Parliament has left to the formation of the Minister’s satisfaction.

134 In my opinion, what occurred here was that Holden erected identified factual

differences between OEM and AM markets and distributions and then sought to import those

differences into the scheme of ss 269TG and 269TJ, when the scheme did not require the

decision-maker to evaluate those differences for the purposes of forming a view whether

there was an “Australian industry producing like goods”. The statutory question was a

practical one to be answered by a comparison predominantly of the physical characteristics of

and uses for the products produced by the Australian industry, with those which were the

subject of the application under the Customs Act by Arrowcrest.

135 As Lockhart J goes on to observe in Swan Portland Cement 28 FCR 135 at 145 that,

when the Minister is determining the question of “material injury” within the meaning of s

269TEA, and may examine price, that is not to say considerations of the “‘market” are

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irrelevant, to the contrary. Once price has to be considered, it will be set by the market, and as

markets within an industry may differ, so may prices, and in that way the Minister may have

to consider different price impacts in order to determine whether an injury, across an

industry, is material. None of this involves, as Holden’s argument seeks to do, dividing goods

with similar physical characteristics and uses into categories on the basis of the markets in

which those goods are sold.

136 Neither the Minister, nor the CEO nor the TMRO, adopted an erroneous construction

of the term “like goods”, nor of the phrase “like goods produced by an Australian industry”.

137 In his Report 181, the CEO stated:

It should be noted that ‘the goods’ described in the initiation notice for an investigation cannot be changed once the investigation has commenced. The description of the goods covered by this investigation covers both OEM and AM wheels. The evidence shows that Arrowcrest manufactures ARWs for both the OEM and AM markets and an issue considered is whether those goods manufactured by Arrowcrest are ‘like’ to the exported goods which are both OEM and AM wheels.

138 The CEO then addressed physical likeness, commercial likeness, functional likeness

and production likeness between the goods listed in Arrowcrest’s application and the goods

produced by the Australian industry and concluded:

i. Physical likeness:– Products made by the Australian industry have a physical likeness to the goods exported to Australia from China;– Arrowcrest manufactures ARWs in sizes 13” to 20”. Arrowcrest has supplied sufficient evidence that 20” wheels can be substituted with 22” wheels;– The like goods are manufactured by Arrowcrest to meet Australian Standards.

ii. Commercial likeness:– Australian industry products compete directly with imported goods in the Australian market, both OEM and AM, as evidence by the supply of the Chinese ARWs to many customers of the Australian industry.

iii. Functional likeness:– Both imported and Australian produced goods have comparable or identical end-uses as evidence by Australian industry customers that source equivalent Chinese made ARWs.– Both imported and Australian produced goods may be fitted on passenger motor vehicles and used for the same purpose.

iv. Production likeness:– Based on evidence obtained from visits to Arrowcrest and Chinese exporters, the Australian industry products are manufactured in a similar manner to the imported goods.

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The findings above lead to the conclusion that the Australian produced products, some of which are not identical, have characteristics closely resembling the imported goods. These findings are not premised on a comparison of individual imported and domestically produced models, but rather represent a global consideration.

Customs and Border Protection has therefore found that the ARWs produced by the Australian industry are like goods to the goods exported from China.

139 For the reasons I have set out, there is nothing in the construction of the phrase “like

goods produced by the Australian industry” which precluded the approach taken by the CEO

in Report 181, nor which precluded the Minister accepting and acting on those

recommendations in issuing the notices. In its argument, Holden did not challenge the four

categories of “likeness” identified in Report 181, but rather sought to identify factual

differences between the markets for OEM and AM wheels. This, I have found, sought to

move away from the statutory task.

140 The TMRO was, as the respondents submitted, more influenced by the physical

characteristics of the wheels than the uses to which they were put. In the TMRO report he

said, relevantly, after extracting the definition of like goods from s 269T:

This definition does not use terminology such as “substitutable”, but rather focuses on characteristics. Goods may have characteristics closely resembling those of the goods under consideration even if some further alteration is required in order to put the goods to the same end use and even if they are incapable of being altered to perform an identical use. Whether or not that alteration or a difference in characteristics precludes a good from being a like good will necessarily be a question of fact and degree.The goods that are subject to the investigation are those describes by Customs as:

…aluminium road wheels for passenger motor vehicles, including wheels used in caravans and trailers, in diameters ranging from 13 inches to 22 inches. For clarification the goods include finished or semi-finished ARWs whether unpainted, painted, chrome plated, forged or with tyres and exclude aluminium wheels for go-carts and All-Terrain vehicles.

The review applicants object to the treatment of wheels that are sold in both the AM and OEM market segments as like goods. In my view, the only essential difference between the segments is the time of fitting the wheel, which is not a difference related to the product itself, but rather to the application of the product.ARWs may be technically different one from the other because the car manufacturer requires or chooses to specify particular requirements in relation to quality, design or fit. But in my view such differences are insufficient for the goods to be considered not like goods. I consider this to be the case even if the manufacturer’s requirements arise from a particular regulatory standard that it has to meet as a consequence of applying the ARW to a new vehicle.It is not necessary that goods be identical to be “like”, but simply that they have characteristics closely resembling those of the goods under consideration. Accordingly, the fact that a wheel will fit only a particular brand or model of car does not render it unlike in this sense. Nor does the fact that a car manufacturer may choose or be required to fit to a new vehicle a wheel of a higher quality than those

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sold for fitting to used cars. And while a manufacturer may choose not to fit to its new cars wheels of a more “radical” design favoured by some individual owners of used cars, that choice is driven by its perception of what will sell in the mass market. Notably, it is not that long ago that most manufacturers offered as original equipment only steel wheels with decorative hubcaps, and not the spoked alloy wheels then sold in the after-market segment which they commonly fit as standard equipment today.In my view, there is but one market for ARWs falling within the definition of goods under consideration, albeit with two segments that are relatively easily discernible at any point in time (although particular designs may move from the AM segment to the OEM segment over time as new car manufacturers perceive consumer demand to change).

141 The applicant submitted this approach was “too narrow”, which was not quite the

same submission as the construction argument. It was a matter for the TMRO how he

assessed each of the different kinds of characteristics of the ARWs he was required by the

statute to compare in reviewing the Minister’s decisions based on the CEO report. He could,

as he did, place more weight on the physical characteristics. This is not a narrow approach

but rather it is one which emphasises, in a way which was open to him, the features of the

ARWs he considered “closely resembled” those in the application.

142 None of the decisions which grounds 1 and 2 seek to impugn adopted an incorrect

construction of the term “like goods” in s 269T such as to result in jurisdictional error, or

error of law.

The material injury argument (ground 9)

143 Ground 9 was expressed as follows:

In making the CEO Decision, the Declarations, the TMRO Decision, the January 2013 Minister’s Decision and the May 2013 Minister’s Decision, the CEO, the TMRO and the Minister erred in law and constituted jurisdictional error or a failure to exercise jurisdiction on the basis that the nature of the injury, if any, was different as between the OEM and AM segments of the market for aluminium road wheels and:

(a) The difference was such that any injury to the Australian industry could not be construed as “material”; and(b) The difference did not allow for a single material injury that was applicable to both OEM and AM goods.

144 Also relying on a failure to distinguish sufficiently between OEM and AM ARWs,

Holden contended that, in producing his report, the CEO failed to differentiate between the

injury (if any) caused by the export of OEM ARWs and the injury (if any) caused by the

export of AM ARWs. Holden contended it was a jurisdictional error not to address separately

the existence and extent of any injury to each of the OEM and AM ARW markets in

Australia.

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145 This argument should be rejected for similar reasons to the rejection of the first and

second grounds. It does not, in truth, rely on any different construction of the phrase

“material injury” in the statute, nor on any different construction of “Australian industry”.

The applicant’s challenge was to the manner in which the CEO, the Minister and the TMRO

applied the material and evidence before them, which is nothing more than an attack on fact

finding: see Hope v Bathurst City Council (1980) 144 CLR 1 at 7-8 per Mason J; Collector of

Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287-288.

146 The extract from Swan Portland Cement 28 FCR 135 at [131] above correctly

identified, in my respectful opinion, that the statute directs attention to a single Australian

industry not restricted in geographical terms, and then requires the decision-maker to

determine whether “material” (meaning not insignificant, but tangible, injury) had been

caused to that industry by the importation of the goods as described in the application. It may

be the case, as Lockhart J observed, that in a given case the fact of different pricing structures

of some of the “like goods” by reason of different markets must be brought into that analysis

and may influence the ultimate inclusion whether there is material injury to the industry as a

whole. Those are factual issues which will arise on a case-by-case basis. Whether or not it

was correct, in an earlier investigation about pineapple, to treat canned pineapple sold to

consumers and canned pineapple sold to the food service industry as different market

segments (see Thai Pineapple Canning Industry Corp Ltd v Minister for Justice and Customs

(2008) 104 ALD 481; [2008] FCA 443 at [47] per Buchanan J) cannot at either a factual or

legal level assist the applicant’s argument in the current proceeding.

147 It was common ground that, for all practical purposes, Arrowcrest was the Australian

industry, since it was responsible for more than 95% of ARW manufacture in Australia.

Thus, the material injury inquiry involved consideration of whether there was material injury

to Arrowcrest’s production of like goods.

148 The TMRO in his report identified some evidence which, in his opinion, the CEO

should not have relied on in the material injury analysis, in the part of that analysis dealing

with price suppression. Chief amongst this evidence was the alleged loss by Arrowcrest of a

tender for ARWs for the Holden Cruze. The TMRO decided, however, that, despite these

errors, there was sufficient other evidence on which to make the material injury assessment.

He concluded:

The question posed by the legislation is simply whether dumping-caused injury to the

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Australian industry is material. Customs was therefore only required to form a qualitative view about the significance of the injury attributable solely to dumping, and in particular whether the injury caused by dumping was “material”. Other factors need to be considered to ensure that their impact is not wrongly attributed to dumping, but I do not consider that the legislation imposes a requirement to calculate the quantitative impact of each separate factor individually.

149 This approach is consistent with Swan Portland Cement 28 FCR 135 and discloses no

jurisdictional error.

150 The CEO in Report 181 had found there was price undercutting in both the AM and

OEM segments, and some price suppression. His conclusion was:

Customs and Border Protection considers that the evidence set out in this section provides sufficient grounds to conclude that dumped and subsidised exports from China significantly undercut the prices of the Australian industry.In some instances, the Australian industry has been unable to match prices of the imported product and it has therefore lost sales volume. Additionally, customers of the Australian industry have used prices of ARWs from China to ensure that Australian industry prices are suppressed. These factors have led to reduced volumes and suppressed prices and consequently reduced profits and profitability.Customs and Border Protection considers that other possible causes of injury proffered by interested parties do not detract from the assessment that dumping and subsidisation, in isolation, has caused material injury to the Australian industry.

151 Holden’s factual point on this ground is that most of the evidence about price

undercutting and price suppression came from the AM sector. One of the key “injuries”

identified in the OEM sector — Arrowcrest’s loss of the Holden Cruze tender — was found

by the TMRO to be factually wrong. Holden used these facts as a basis to suggest that,

because of the unevenness of the evidence of injury as between the two sectors, the Court

should find that the CEO had asked the wrong question.

152 I do not accept this submission. For the applicant to characterise, as it does in its

written submission, the errors by the CEO, the Minister and the TMRO as not differentiating

between injury to the AM market and injury to the OEM market, is to invite a question

different from the statutory question to be asked. The statute looks to injury to an Australian

industry, not to various markets within that industry. Answering that question by

consideration of the effects on different markets within the industry for the purpose of

assessing overall injury is not precluded, as Lockhart J observed. The requirement to look at

the industry as a whole allows for an uneven effect in different sectors of the industry to be

established in any given case. Where such unevenness exists, the question the statute asks is

whether the injury to the industry as a whole is “material”. An injury to one sector of an

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industry, depending on the importance and value of that sector, may be sufficient. These will

always be questions of fact for the opinion of the repository of the power.

153 By not differentiating between OEM and AM ARWs when assessing the nature of

any injury, none of the decisions of the CEO, Minister or TMRO challenged by Holden in

ground 9 were affected by jurisdictional error, or error of law.

Procedural fairness and wrong findings of fact (grounds 3 and 5)

154 Grounds 3 and 5 were expressed in the following way:

3. The CEO Decision involved a denial of procedural fairness (ADJR Act s 5(1)(a)) and constituted jurisdictional error or a failure to exercise jurisdiction.

(a) The CEO failed to accord procedural fairness to the Applicant by finding that Arrowcrest Group Pty Ltd (“Arrowcrest”) lost an alleged tender for the supply of OEM aluminium road wheels to the Applicant to a Chinese exporter in circumstances where that finding was based entirely on an erroneous submission by Arrowcrest to Statement of Essential Facts No. 181 dated 27 April 2012 that was filed outside of the time limit prescribed and where the Applicant was not provided with any reasonable opportunity to respond to and correct that submission.…

5. By reason of the denial of procedural fairness by the CEO and the failure of the TMRO to discharge its review function in relation to the findings, the Declarations, the January 2013 Minister’s Decision and the May 2013 Minister’s Decision involved an error of law or jurisdictional error (ADJR Act s 5(1)(f)) and constituted jurisdictional error or a failure to exercise jurisdiction.

155 The CEO report and the Minister’s decision to issue notices under Part XVB are

impugned by Holden through four separate procedural fairness grounds. The subject matter

of the challenges are the findings of Report 181 to the Minister about Arrowcrest’s quotation

to Holden to supply OEM ARWs to Holden for its Cruze model, whether the tender was

unsuccessful solely because of pricing considerations and whether the tender was ultimately

awarded to a Chinese manufacturer. Holden contends these findings were factually wrong,

adverse to Holden and made without notice to it and therefore a denial of procedural fairness.

It submits that denial was not and could not be cured on review by the TMRO, because the

TMRO was not itself engaged in full merits review. The Cruze tender also forms the basis of

ground 4, with which I deal at [169] below.

156 Grounds 3 and 5 should be rejected.

157 In Pilkington 127 FCR 92; [2002] FCAFC 423 at [22]-[23], having noted the

emphasis in the international materials on transparency and openness in the investigation

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process, the Full Court extracted parts of the extrinsic material introducing Part XVB. In his

second reading speech the Minister had emphasised that

“throughout an investigation all interested parties must have a full opportunity for the defence of their interests”, including the opportunity to see all relevant information, to acquaint themselves with the opposing views and to offer rebuttal arguments.

158 This objective is pursued not only through staged decision-making with opportunities

for submissions, but also through the material used in the investigation, and conclusions

reached at various points about that material, being available on a public record. Arrowcrest’s

submissions of 28 May 2012 were so available, as were its earlier submissions and material.

There is evidence to suggest Holden did not check the public record after submissions closed

on 17 May 2012, and did not become aware of the Arrowcrest submission until 5 July 2012,

when Report 181 was published. It was, however, available, and the evidence before the

Court establishes Holden had access to the electronic public file, using it when it chose to. A

scheme such as Part XVB assumes interested parties can take responsibility for accessing

material when they choose to do so, in order to advance their own interests and perspectives

on the contentions and issues in a particular investigation.

159 The way in which Holden sought to put its case to the CEO, to the Minister and then

to the TMRO was fulsome and detailed. It was legally represented throughout the process and

took not only every opportunity the process allowed, but sometimes pre-empted the statutory

hearing opportunities. At various points in the process, Holden sought to emphasise different

issues or aspects of its contentions about why no dumping measures should be imposed,

sometimes proactively and sometimes responsively. There is no suggestion the CEO failed to

comply with the notification and submission requirements in Part XVB, nor that the

statement of essential facts was legally deficient. There is no basis to find that Holden was

prevented from making a submission it wished to make at the time it wished to make it. There

is no basis to find Holden was misled by anything said or done by the CEO into wrongly

assuming a decision would be made in a particular way, or information would or would not

be taken into account. I see no basis in the evidence for a finding that the information and

material about the Cruze tender was dealt with any differently, or disadvantageously to

Holden, from other information. That on review by the TMRO some factual errors were

identified suggests the opportunities to be heard at different stages of the process which were

afforded to Holden worked as they should, rather than suggesting anything to the contrary.

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160 More critically, Holden was aware of the substance of the claim about the Cruze

tender and there is nothing in the 28 May 2012 Arrowcrest submissions which advances the

issue in a significant way to impose a particular obligation on the CEO to do more than place

it on the public record.

161 Holden’s complaint is that this submission, in particular, was not drawn to its

attention and it was not given a specific opportunity to comment on that submission.

162 Its complaint is not that it was not aware Arrowcrest was relying on its lack of success

in the Cruze tender as an example of price undercutting or price suppression in relation to the

OEM market. The evidence establishes it was aware of this issue and dealt with it on several

occasions:

The substance of Arrowcrest’s claim formed part of the Customs report of its visit to

Arrowcrest in December 2011, where the following summary of Arrowcrest’s claim

appeared:

Arrowcrest advised it had supplied Holden with ARWs and steel wheels for many years. Arrowcrest provided Holden with a quote for steel wheels in 2001 but as directed by GM Global Purchasing in Detroit, Holden awarded the business to Korea. Shortly thereafter Holden’s ARW business was awarded to a Chinese supplier. Arrowcrest attempted to regain some business recently with a quote for the Holden Cruze wheels but was unsuccessful. …Arrowcrest believes that it has been unable to capitalise on this growth and has been unsuccessful in its recent quotations to supply ARWs to Holden because of dumped and subsidised imports from China.

Arrowcrest’s claims were able to be answered by Holden when Customs visited

Holden in January 2013. Ms Nicole Platt from Customs deposed in an affidavit in this

proceeding that, during that visit, she discussed with Holden’s representatives

Holden’s tender processes and Arrowcrest’s claims. She was not cross-examined. Her

evidence was that the visit report summarised Holden’s response, which was as

follows:

GMH advised that price was not the sole determining factor when choosing a supplier for ARW needs. In order to be considered in GMH’s production schedule an entity must be an approved supplier. GMH stated that reliability for quality and quantity supply played a big factor and the cheapest supplier was not always the best and therefore not always successful. GMH conducted a competitive tender process for each new model considered. Arrorwcrest [sic] has previously participated in the tender process and has not been successful based on the numerous considerations over the course of the tender process, not because of dumped products from China and not solely based on pricing.

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Holden addressed again Arrowcrest’s claim about loss of tenders to Chinese suppliers

in its submissions in February 2012. It did so by asserting that Arrowcrest’s injury

could be explained by nothing more than a loss through a competitive tender process

with Holden. That was the extent of detail Holden chose to address to this issue in that

submission.

More detail was given by Arrowcrest in a submission, available on the public record,

made in April 2012 in response to a submission made on behalf of Mullins Wheels.

Amongst other matters, Arrowcrest claimed that it had been advised by Holden in

relation to the Cruze tender that its prices were 37% higher than alternative

quotations. Arrowcrest went on to use this difference as evidence of dumping and

subsidies benefiting its Chinese competitors.

Then, in the statement of essential facts, Customs disclosed its preliminary

conclusions on this issue:

Arrowcrest has provided evidence of its sales to Holden Limited in recent times. It has also provided evidence of its quote to supply Holden ARWs for a particular model in the investigation period. It was unsuccessful in its tender, which ultimately was awarded to a Chinese manufacturer. Holden advised that the reason Arrowcrest has been unsuccessful in recent tender was not solely due to pricing. Customs and Border Protection considers it reasonable to conclude, however, that price would be an important factor in any tender process. The evidence of Arrowcrest’s supply of other ARWs to Holden supports the view that Holden perceives at least some of Arrowcrest’s ARWs to be of sufficient quality for its needs.

In its response to the statement of essential facts, Holden expressly addressed this

paragraph. Its response focused on whether Arrowcrest had in fact reached the tender

stage or not, and did not deal with other aspects of Arrowcrest’s claim, such as the

claim the ultimate successful tenderer was a Chinese company.

163 In the late-filed submissions which are the catalyst of this procedural fairness

complaint, Arrowcrest repeated these claims. I do not accept that the substance of what it said

in this late submission varied in any material way from what it had said on earlier occasions,

to which Holden had another chance to respond. Arrowcrest’s late-filed submission

materially said:

Arrowcrest has provided quotations to GM-Holden for supply of ARWs as recently as 28 September 2010 for GM-Holden’s Cruze model. GM-Holden replied that Arrowcrest’s quotation was 37% higher than “our expectations based on international market prices.” This quotation was in respect of ARWs for GM-Holden’s Cruze model which Arrowcrest understands are sourced by GM-Holden from China.

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164 In Report 181, the key finding was:

Arrowcrest has provided evidence of its sales to GM Holden in recent times. It has also provided evidence of its quote to supply GM Holden ARWs for a particular model in the investigation period. It was unsuccessful in its tender, which ultimately was awarded to a Chinese manufacturer. Holden advised that the reason Arrowcrest has been unsuccessful in the recent tender was not solely due to pricing. Further evidence of the tender process was requested by Customs and Border Protection from Holden subsequent to the verification visit in order to establish the reasons that Arrowcrest’s bid was not successful, but no further detail was provided. In the absence of this information, Customs and Border Protection considers it reasonable to conclude that price would be an important factor in any tender process. The evidence of Arrowcrest’s supply of other ARWs to Holden supports a view that Holden perceives at least some of Arrowcrest’s ARWs to be of sufficient quality for its needs.

Submission to SEFGM Holden submitted that the contact between it and Arrowcrest in relation to the quote has been misrepresented. GM Holden claims that the client only issued a “Request for Interest to Supply” and any discussion in relation to price would only have taken place once Arrowcrest had advanced beyond a point “where assessment was based on criteria other than price, which did not occur”. Arrowcrest has provided Customs and Border Protection with contemporaneous correspondence that clearly shows that a quote for supply – including price – was requested by GM Holden.GM Holden also submitted that Arrowcrest’s supply of ARWs to GM Holden in recent times was only to meet a requirement to support spare parts, and the purchases were “relatively minor”. It seems reasonable to conclude that if GM Holden had any concerns with the quality of Arrowcrest’s product it would not fit them to its vehicles regardless of maintenance contracts or order quantity.

9.5.3. FindingArrowcrest’s loss of volume in the AM segment in the investigation period was caused by dumped and subsidised ARWs exported from China.

Arrowcrest’s reduction in OEM sales volume in the investigation period is indicative of reduced motor vehicle production by Toyota, and Customs and Border Protection has not attributed this loss of volume to dumping or subsidisation. Arrowcrest did, however, lose a tender during the investigation period to Chinese imports at dumped prices.

165 Holden submits, and the TMRO agreed, that these conclusions contained factual

errors. This is how the TMRO described the factual problems with the CEO’s conclusions:

I asked Customs whether it had any further information to support its conclusion that Arrowcrest was unsuccessful in its tender based on price. Customs provided me with correspondence between ROH Automotive (a trading division of Arrowcrest) and Customs which indicated that ROH Automotive’s prices for ARWs were significantly higher than Holden expected based on international market prices. Customs indicated that this evidence supported its conclusion that price was a factor when Holden considered which entity would be awarded the tender.

Whilst I am satisfied that it was reasonable for Customs to infer that price could have been an important factor in the tender process, I am not satisfied that, in the absence of any additional information, it was reasonable to conclude that Arrowcrest lost the

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tender based on price alone. There are many additional and perhaps equally important matters that Holden might properly have considered when deciding to award a tender, such as warranty terms.

Furthermore, Holden stated that the tender was awarded to a Korean Exporter, not a Chinese exporter. Whilst I am advised that this information was not before the CEO when the CEO made his recommendation to the Minister, neither was there any direct evidence that the tender was awarded to the Chinese exporter. This highlights the danger in making assumptions about the outcome of the tender process in the absence of specific information. I am thus not satisfied that it was reasonable to assume that dumped and subsided exports from China caused Arrowcrest to lose the tender.

166 What this recitation of the sequence of events reveals is not a denial of procedural

fairness but a changing focus by Holden on different issues, and different aspects of the

factual claims, as the investigation proceeded and as it considered at various times which

points might, or were, weighing more heavily with Customs. Holden had been on notice that

Arrowcrest was claiming it lost the Cruze tender to a Chinese exporter, because of pricing,

since well before the impugned submission in May 2012. It chose to respond to those claims

in reasonably general ways, emphasising price was not its only factor. Those submissions did

not resonate with the CEO in Report 181. Once a finding was made in Report 181 which was

specific, Holden then sought to impugn that finding before the TMRO, as it was entitled to

do. It succeeded in demonstrating some errors, but not in persuading the TMRO that they

were significant enough to justify a recommendation for further investigation. There is no

denial of procedural fairness in that sequence of events: rather, the sequence records a failure

by Holden to persuade the relevant decision-makers to see the importance of the Cruze tender

facts to material injury in the Australian industry in the same way Holden saw them.

167 Holden submits the TMRO review was not capable of “curing” any denial of

procedural fairness which had occurred by the timely disclosure of the 28 May 2012

Arrowcrest submission. I have found there was no such denial. If I had found a denial of

procedural fairness, in my opinion a denial of this kind would have been cured by the TMRO

decision. That is because the TMRO expressly addressed this particular issue as it was raised

by Holden before him. Indeed, he agreed with Holden’s characterisation of the CEO’s factual

findings as being erroneous, as I have extracted above. That is all Holden could have

achieved had the 28 May 2012 submissions been drawn to its specific attention the way it

asserted they should have been: namely that the CEO may have had to reassess his reliance

on the Cruze tender as an example of Arrowcrest losing a supply contract for OEM ARWs by

reason of price undercutting from Chinese exporters. Consideration of the statutory question

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of material injury to the Australian industry as a whole was a different exercise altogether

and, even when properly informed about the Cruze facts, the TMRO decided there was,

despite these factual errors, enough material before the CEO to justify his finding of material

injury to the industry as whole. That finding was made having not only afforded Holden

procedural fairness on the Cruze issue, but having agreed with what Holden submitted it

would have said to the CEO about it.

168 There being no denial of procedural fairness by the CEO nor consequentially by the

Minister, alternatively, it having been cured by the TMRO review, ground 3 is not made out,

and therefore ground 5 also cannot succeed.

The TMRO’s function (grounds 4 and 5)

169 Ground 4 was expressed in the following way:

4. In conducting its review, the TMRO misunderstood the nature of its function to review the findings of the CEO and/or was not authorized by the Customs Act (ADJR Act ss 5(1)(d) and (f)) and constituted jurisdictional error or a failure to exercise jurisdiction.

(a) The TMRO wrongly concluded that in reviewing findings it had no power to review the process that led to those findings, including whether the process adopted by the CEO was irregular or involved a denial of procedural fairness.(b) Having found that the findings in relation to the tender allegedly lost byArrowcrest were erroneous or not based on correct information, the question for the TMRO was not whether the ultimate holding of the CEO in relation to material injury was capable of being supported by other material but whether the CEO’s finding in relation to the tender, on which the CEO and the Minister had relied, should be reinvestigated and whether the failure to allow an opportunity for comment might possibly have affected the result.

170 Holden accepted that although these grounds came under a procedural fairness

heading in the second further amended application, it was not in reality a procedural fairness

challenge but rather a challenge to the approach taken by the TMRO to his function under the

Customs Act. I accept that is the correct characterisation. Ground 5 (see above) refers to this

ground and picks up the consequences Holden submits must follow if ground 4 is correct.

171 Holden submitted that, by refusing to consider its complaints about denial of

procedural fairness where they went to the non-existence of facts critical to the imposition

and calculation of duty under Part XVB, the TMRO had imposed limitations on its review

powers for which there was no basis in Div 9 of Part XVB of the Customs Act.

172 I reject both aspects of the submission. First, the TMRO’s review is not, on the

statute, concerned with claims in the nature of denial of procedural fairness. It was not

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contentious between the parties that the TMRO has a limited review function. The terms of

the statute make that clearly so. Its function is to hear and determine an applicant’s claim that

there are “reasonable grounds” to warrant a further investigation of specified findings set out

in the review application: see s 269ZZF.

173 The TMRO is empowered only to make recommendations, not to make her or his own

decision. A recommendation by the TMRO does not bind the Minister, who can reject it: see

s 269ZZL(1)(b). There are limits to the recommendation function under s 269ZZK: if the

TMRO determines not to recommend affirming the CEO’s decision, all he or she is

empowered to do is recommend that specified findings be further investigated. The TMRO is

expressly limited to the material which was before the CEO: ss 269ZZK(4), (6).

174 The TMRO’s function is to assess factual and reasoning errors in the CEO report,

which an applicant for review articulates in its application to the TMRO. It is a method by

which the scheme ensures that the Minister’s decision whether to issue notices or not is based

on probative material which has been rationally considered. The TMRO review does not exist

to change either the Minister’s decision or the CEO’s recommendations, but rather to ensure

both the fact finding and the reasoning of the CEO are as complete as possible, and have been

exposed to some testing.

175 That being the function, there is no basis in the scheme to impose an obligation on the

TMRO to consider and deal with a claim of denial of procedural fairness in its own terms.

What the TMRO may need to do, as it did in this case, is examine an underlying factual and

reasoning challenge articulated by the party said to have been denied procedural fairness in

relation to a particular “finding” in the CEO report.

176 Otherwise, to import into the scheme a process review function, given that the TMRO

ultimately makes a recommendation to the Minister, would be to have the Minister herself or

himself also engage in some kind of supervisory function over the CEO in the production of

his report. There is no basis to consider the scheme intended such a function to be performed

by the Minister.

177 Insofar as Holden challenges the decision of the TMRO not to direct a further

investigation of the Cruze tender issue, because the TMRO had found some factual errors,

this challenge must fail, also for lack of support in the statutory text. The powers of the

TMRO as conferred in the statute, taking into account their purposes to which I have referred

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above, do not suggest the TMRO is compelled to make a recommendation of further

investigation if it finds factual error. The recommendation power is discretionary — that

feature alone contemplates there will be times where factual findings may be identified as

wrong by the TMRO but, on balance, the TMRO may determine there should be no further

investigation, perhaps because of the weight or place of those factual findings in the overall

conclusions reached by the CEO and accepted by the Minister. These are matters of weight

and degree for the TMRO.

178 As I set out in more detail below, where the TMRO does recommend further

investigation and the Minister accepts that recommendation, the intention of the scheme is

that the CEO will investigate afresh those factual issues which led to the reinvestigation, and

will then reach, afresh, a conclusion having carried out a further investigation. This aspect of

the scheme supports the discretion given to the TMRO to evaluate on the whole of the

material what should or should not be the subject of further investigation, according to the

view the TMRO forms of how particular findings did or did not affect the overall conclusion

reached by the CEO.

179 For those reasons, neither the TMRO recommendations, nor the Minister’s decisions,

are affected by jurisdictional error, or error of law.

Calculation of normal value of the ARWs (ground 8)

180 Ground 8 was expressed as follows:

8. In making the CEO Decision, the Dumping Declaration, the TMRO Decision, the January 2013 Minister’s Decision and the May 2013 Minister’s Decision, the CEO, TMRO and Minister erred in the construction and application of s 269TAC(2) of the Customs Act by using a calculation of “normal value” of the goods by reference to s 269TAC(2)(c) of the Customs Act in circumstances where that provision was not available in the absence of a consideration by the Minister as to whether to give a direction under s 269TAC(2)(d) of the Customs Act (ADJR Act s 5(1)(f)) and constituted jurisdictional error or a failure to exercise jurisdiction.

181 Holden submitted that when Customs then proceeded to “construct” a normal value

under s 269TAC(2)(c), it was not permitted to do this unless the Minister had considered

whether or not to give a direction under s 269TAC(2)(d). Consideration of whether to make a

direction under s 269TAC(2)(d) was said to be a precondition to the exercise of power under

s 269TAC(2)(c).

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182 Holden submitted (and the respondents accepted) the Minister’s reasons disclosed he

had not considered whether to give such a direction, and therefore Holden contended there

was no power under para (c) to construct a normal value.

183 This ground misconstrues the operation of s 269TAC(2)(d). In the absence of being

able to determine a normal value for goods based on home consumption in the country of

export, s 269TAC(2) empowers the Minister to construct a normal value by the method set

out in para (c), based on costs of production and manufacture in the country of export,

adjusted to reflect administrative and selling costs. By s 269TAC(4), the Minister is

empowered to use another method if satisfied the method in subs (2) is inappropriate, because

of government control on monopoly conditions in the country of export, which influences

domestic price. Subsection (4) includes, in para (d), a similar determination power in respect

of third countries as that contained in s 269TAC(2)(d). Both are affected by, for example, s

269TAC(5C).

184 In s 269TAC(4), para (d) is one of three choices of methods of determination given to

the Minister in that provision. That subs (4) is differently structured does not, however, affect

the parallel with ss 269TAC(2)(c) and (d). Paragraph (d) of s 269TAC(2) is but another

option available to the Minister, if he chooses in his discretion to direct that it should apply.

185 It should be noted that s 269TAC(2)(c) commences with the word “except” and does

not use the formulation of “subject to”, which is what one might expect to see if para (d) was

intended to act as a precondition to the method in para (c) being available to be used.

186 The entirety of s 269TAC gives the Minister a range of powers to fix normal value,

intended no doubt to accommodate the variety of situations which might give rise to

difficulty in fixing on such a value, depending on conditions in the country of export. The

provisions are designed to give the Minister the widest choice to ensure there is an

appropriate value which can be placed on the goods so as to compare that with the export

price for the purposes of s 269TACB.

187 By s 269TAC(2)(d), one of those choices may be reflected in a direction given by the

Minister. If, in the exercise of his discretion, the Minister chooses to give such a direction,

then the introductory words to subs (2)(c) are given work to do and the calculation is made by

reference to a determination under subs (2)(d). Otherwise, that factual situation having not

arisen, the Minister may fix the normal value by reference to subs (2)(c) or, if he is satisfied

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that is inappropriate, by reference to the methods set out in s 269TAC(4). These are

discretionary matters for the CEO, the Minister and the TMRO. None of their decisions are

affected by jurisdictional error, or error of law, in the way suggested by this ground.

188 Given the conclusion I have reached, the consequences of any failure to consider

making a determination under s 269TAC(2)(d) need not be considered.

Selected or residual exports (ground 12)

189 Ground 12 provided as follows:

12. In making the CEO Decision, the Dumping Declaration and the May 2013 Minister’s Decision, the CEO and the Minister erred in the construction or application of the term “investigated” in the definition of “selected exporter” in s 269T of the Customs Act by finding that the exportations of non-cooperating exporters were “investigated” for the purposes of the phrase “selected exporters” (ADJR Act s 5(1)(f)) and constituted jurisdictional error or a failure to exercise jurisdiction.

190 Holden also challenged the way the CEO, and the Minister, had identified exporters

as “selected exporters” under s 269T. In Report 181 these entities were described as “selected

non-cooperating exporters”.

191 Part XVB of the Customs Act adopts the terms “selected exporters” and “residual

exporters”. By s 269T, a “selected exporter” is an exporter of goods the subject of the

application or like goods “whose exportations were investigated for the purpose of deciding

whether or not to publish” a dumping duty notice or a countervailing duty notice. This being

the defined term by reference to investigation by the CEO, an exporter who is not a selected

exporter is deemed by s 269T to be a “residual exporter”.

192 As Holden submitted, the distinction between selected and residual exporters is

important in the calculation of the existence of dumping and the size of the dumping margin

for particular exporters. Section 269TG(3B), which is located in the provision empowering

the issuing of dumping duty notices by the Minister if he or she is satisfied of the requisite

matters, places limits on the normal value and export price for goods of a residual exporter,

by reference to the weighted averages of normal values and export prices for like goods of

selected exporters. The scheme assumes, in my opinion, that the latter category have had their

exports investigated in accordance with the Customs Act, and at least some information is

available on which the Minister can base calculations of normal value and export price,

whereas such information is not available for residual exporters. The Customs Act then seeks

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to constrain the way normal value and export prices should be calculated for those exporters,

in the absence of specific information, by requiring the Minister to use averages derived from

information available from the selected exporters. This controls the size of any dumping

margins which could be imposed in respect of goods from residual exporters, but deprives

them (and their importer clients) of the benefit of individually-calculated margins.

193 Holden submitted, and I accept, that, in Report 181, CEO found that there were 117

entities that exported ARWs from the PRC to Australia in the investigation period. Customs

issued an exporter questionnaire to all 117 entities, and then divided the entities into

“cooperating” and “non-cooperating” categories depending on whether and how they

responded to the exporter questionnaires.

194 It is apparent from the terms of Report 181 that the CEO regarded the sending of the

exporter questionnaire as sufficient to bring all 117 entities within the definition of “selected

exporter” in s 269T. In Report 181, it said:

…Customs and Border Protection sought to determine exporter-specific dumping (and subsidy) margin calculations for all exporters, after investigating the exportations of all exporters in the investigation period, whether or not they cooperated with the investigation. Therefore, Customs and Border Protection regards all exporters to be ‘selected exporters’ in relation to section 269T.In the case of those exporters that provided an adequate and timely response to the exporter questionnaire, Customs and Border Protection was able to base the dumping margin (and subsidy) calculations on the data submitted and verified. These exporters were considered to be ‘selected cooperating exporters’.In some instances, the data submitted by these exporters was verified in on-site visits to the exporters’ premises. In other cases, the data was examined by Customs and Border Protection without on-site verification.In the cases of those exporters that provided inadequate responses to the exporter questionnaire, or did not make themselves known to Customs and Border Protection, Customs and Border Protection regarded these exporters as ‘selected non–cooperating exporters’.Customs and Border Protection received 6 responses to the exporter questionnaire issued in relation to the dumping and subsidy investigation on ARWs. There were 5 exporters that provided adequate and timely responses to the exporter questionnaires – four were visited for verification purposes, and data for the other exporter was examined without on-site verification.

195 Thus, 112 of the 117 entities were categorised by Customs as “selected non-

cooperating exporters”.

196 Holden contended that exporters who had not answered the exporter questionnaires

distributed by Customs could not fall within the definition of “selected exporters” in s 269T,

because it was not possible to describe their exportations as having been “investigated”,

simply by the sending of a questionnaire to them.

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197 It contended the TMRO correctly identified this flaw in the CEO’s Report 181, but

that, on further investigation, the CEO had simply adhered to his previous, and erroneous,

opinion. The classification was critical, Holden submitted, because it affected the calculation

of dumping margins. The effect can indeed be seen from the table at p 33 of Report 181, and

the notices issued by the Minister. The dumping margins calculated for the “selected

cooperating exporters” range between <2% and 9.9%. The margin for the selected non-

cooperating exporters is set at 29.3%.

198 On this issue, the TMRO agreed with Holden’s position and said that entities who had

failed to provide information for the purposes of the investigation could not be said to have

been investigated so as to be within the definition of “selected exporter”. On this issue, the

TMRO recommended the CEO’s findings should be the subject of further investigation.

199 The respondents accepted in their submissions that whether an exporter is a “selected

exporter” or a “residual exporter” for the purpose of Part XVB of the Customs Act depends

upon whether the exportations of that exporter were “investigated for the purpose of deciding

whether or not to publish” a notice. The Minister submitted that the definition did not depend

on any determination that sufficient reliable information had been obtained in relation to an

exporter to permit calculation of dumping margin by that exporter which, the Minister

submitted, seemed to be the approach taken by the TMRO. The Minister submitted the

approach of the TMRO and the submissions of Holden identified something not present in the

statutory definition: namely, the provision of reliable information to permit calculation of

dumping margins. Instead, the Minister submitted, the statute focused — by the use of the

term “investigation” — on whether steps had been taken by the CEO to obtain that

information.

200 The respondents referred to the terms of Report 181 as it described the approach taken

by the CEO. The report states that Customs undertook verification visits to four selected

exporters, which collectively accounted for an estimated 30% of the volume of exports of

ARWs to Australia from the PRC in the investigation period, and based dumping margin and

subsidy calculations on that verified data. In relation to one other exporter, the CEO states in

Report 181 that Customs received an exporter questionnaire from that exporter but did not

undertake a verification visit. One further exporter completed the questionnaire but did not

provide further information to the CEO when asked, although Customs visited its related

importer in Australia. Ultimately, the CEO states in Report 181 he considered the data was

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materially deficient and unreliable and therefore it regarded this exporter as a “non-

cooperating exporter”.

201 The circumstances of this exporter provide in my opinion a useful contrast in the

application of the statutory definitions (as opposed to the non-statutory ones employed by the

CEO), and I return to this example below.

202 Report 181 states that, having considered using export price on its own database, or

from importer visits, or from Arrowcrest’s application itself, the CEO considered that, in

relation to the 112 entities, “the most directly relevant and therefore best information

available would be the export price data obtained and verified in relation to the selected

cooperating exporters”. This is the approach it took, although it then chose to use the “lowest

weighted average export price” for the investigation period and the “highest weighted

average normal value” for the investigation period. As Holden submits (and the respondents

did not contest) there is no explanation in Report 181 for these choices. By using the lowest

export price and the highest normal value, obviously the margin would be greater. It ended up

at 29.3%. Customs stated in Report 181 that this method was in accordance with s

269TAC(6).

203 There is no challenge to the method employed being that contained in s 269TAC(6),

in the sense Holden does not challenge the formation of the Minister’s satisfaction that

sufficient information had not been furnished to use the other methods for these 112 entities.

The same could be said of the reliance on s 269TAB(3) in relation to export price.

204 None of these exercises could be said to be erroneous if the exporters were lawfully

classified as selected exporters. Holden submitted, however, that where they could not be so

classified, they must be identified as residual exporters and the capping effect of

s 269TG(3B) would be engaged. This would not have entitled the CEO to take the lowest

average export price and the highest normal value, as it did, and it may have resulted in a

lower margin.

205 Although the working out of this seems complicated, in reality the issue revolves

around whether the CEO correctly construed the definition of “selected exporter” in s 269T

as enabling the 112 entities to be characterised in that way.

206 The CEO’s use of glosses on the statute by employing the concepts of “cooperating”

and “non-cooperating” is the first indication of a misconstruction. The two statutory

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definitions of residual and selected exporters do not turn on cooperation, any more than they

turn on reliability of information obtained. They turn on, and only on, whether an exporter

has been “investigated”. Thus the question becomes what is intended by the use of the term

“investigated” in that definition.

207 A starting point is to recall that the entire activity which is undertaken by the CEO

under Part XVB is described as an “investigation”: see the use of this term for example in

s 269TC. Part XVB, and Div 2 in particular, although very specific about steps in the

investigation process, is relatively silent about the manner in which the CEO is to carry out

the investigation. No coercive powers are conferred on the CEO for the purposes of the

investigations, and she or he cannot compel the participation or cooperation of exporters or

importers, or members of the relevant Australian industry. Matters such as the “site visits”

undertaken on the evidence by the CEO are not given statutory force. The evidence shows the

CEO has resort to the Customs database for the purpose of collecting information and,

although the legislative scheme contemplates that the CEO will disclose access to and use of

such information through, for example, the statement of essential facts, Part XVB does not

prescribe the sources of information to which the CEO may have regard.

208 None of this is to gainsay the lawfulness of the CEO engaging in site visits, or

accessing the Customs database or obtaining material in the ways the evidence discloses. It is

rather to illustrate the non-prescriptiveness of the legislative scheme about these matters,

which in turn means the text of the legislative scheme is of little assistance in filling in the

content of what Parliament intends an investigation to look like under Part XVB.

209 Although the statute itself may be silent on those issues, the provisions dealing with

consecutive submissions, the availability of the public record of the investigation and the

publication of statements of essential facts contemplate the CEO will rely on information

which is gathered through these processes. In addition those processes obviously fulfil a

procedural fairness function. The “investigation” must comprise both the taking of the steps

expressly required by the statute, and the performance of complementary administrative

functions designed to acquire the information the statute requires to be gathered, so that the

matters which need to be reported to the Minister can be addressed.

210 The evidence shows that 117 entities were identified as exporters. This step in my

opinion cannot be said to be part of any investigation, because the two definitions in s 269T

themselves contemplate identified exporters: the division between them is, having been

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identified, based on whether they are then investigated. The only other step taken by the CEO

was to send an exporter questionnaire to all 117 entities.

211 The centrality of the term “investigation” in the current scheme signals in my opinion

that, when Parliament uses that word to distinguish between the two categories of exporters,

it is intending to refer to the course of conduct undertaken by the CEO pursuant to her or his

obligations in Div 2 of Part XVB. It is intended to use this term to cover exporters whose

exports of like goods were analysed and assessed in a level of detail which would enable the

identification of the export or potential export of “like goods” to Australia, and the

calculation of export prices and normal values, those being three of the central exercises

necessary to establish whether dumping had occurred.

212 It is significant that, in the definition in s 269T of “selected exporter”, the subject of

the “investigation” is not the exporter itself, but its “exportations”, of either the application

goods or like goods. What is to be investigated before an entity can be characterised as a

selected exporter is, therefore, not the entity itself, but rather those transactions which involve

the sending of the application goods or like goods from the exporter’s country to Australia.

The “investigation” is in that sense a process of acquiring information about transactions of

particular goods.

213 It cannot be said that sending a questionnaire to an entity constitutes an inquiry into

the transactions of that entity in exporting the ARWs which were the subject of the

application by Arrowcrest, or like goods, to Australia. More is required. The scheme assumes

that an investigation will yield information upon which the CEO can then base findings and

recommendations about export prices and normal value, and her or his conclusions about

dumping and subsidy. It assumes the acquisition of information. Section 269TG(3B) is

premised on the absence of such information: in those circumstances, it permits use of

information acquired from other exporters and mandates an averaging process, but with a

limit.

214 Holden is correct to submit that the CEO misconstrued the terms “selected exporter”

and “residual exporter” in s 269T and, in doing so, categorised at least 111 of the 117

exporters as selected when they should not have been. The one exporter who responded but

whose information was assessed by the CEO as being unreliable and insufficient is, in my

opinion, an example of an exporter whose exportations were “investigated” and was correctly

classified as a selected exporter.

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215 The respondents sought to meet this argument by submitting that s 269TG(3B) was

only engaged when there had been a sampling exercise carried out under s 269TACB(8). It is

important at this point to set out s 269TACB, which is the provision in Part XVB that

prescribes how the Minister (and therefore the CEO in her or his report) is to work out

whether dumping has occurred.

269TACB Working out whether dumping has occurred and levels of dumping (1) If:

(a) application is made for a dumping duty notice; and(b) export prices in respect of goods the subject of the application exported to Australia during the investigation period have been established in accordance with section 269TAB; and(c) corresponding normal values in respect of like goods during that period have been established in accordance with section 269TAC;

the Minister must determine, by comparison of those export prices with those normal values, whether dumping has occurred.

(2) In order to compare those export prices with those normal values, the Minister may, subject to subsection (3):

(a) compare the weighted average of export prices over the whole of the investigation period with the weighted average of corresponding normal values over the whole of that period; or(aa) use the method of comparison referred to in paragraph (a) in respect of parts of the investigation period as if each of these parts were the whole of the investigation period; or(b) compare the export prices determined in respect of individual transactions over the whole of the investigation period with the corresponding normal values determined over the whole of that period; or(c) use:

(i) the method of comparison referred to in paragraph (a) in respect of a part or parts of the investigation period as if the part or each of these parts were the whole of the investigation period; and(ii) the method of comparison referred to in paragraph (b) in respect of another part or other parts of the investigation period as if that other part or each of these other parts were the whole of the investigation period.

(2A) If paragraph (2)(aa) or (c) applies:(a) each part of the investigation period referred to in the paragraph must not be less than 2 months; and(b) the parts of the investigation period as referred to in paragraph (2)(aa), or as referred to in subparagraphs (2)(c)(i) and (ii), must together comprise the whole of the investigation period.

(3) If the Minister is satisfied:(a) that the export prices differ significantly among different purchasers, regions or periods; and(b) that those differences make the methods referred to in subsection (2) inappropriate for use in respect of a period constituting the whole or a part of the investigation period;the Minister may, for that period, compare the respective export prices determined in relation to individual transactions during that period with the

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weighted average of corresponding normal values over that period.

(4) If, in a comparison under subsection (2), the Minister is satisfied that the weighted average of export prices over a period is less than the weighted average of corresponding normal values over that period:

(a) the goods exported to Australia during that period are taken to have been dumped; and(b) the dumping margin for the exporter concerned in respect of those goods and that period is the difference between those weighted averages.

(4A) To avoid doubt, a reference to a period in subsection (4) includes a reference to a part of the investigation period.

(5) If, in a comparison under subsection (2), the Minister is satisfied that an export price in respect of an individual transaction during the investigation period is less than the corresponding normal value:

(a) the goods exported to Australia in that transaction are taken to have been dumped; and(b) the dumping margin for the exporter concerned in respect of those goods and that transaction is the difference between that export price and that normal value.

(6) If, in a comparison under subsection (3), the Minister is satisfied that the export prices in respect of particular transactions during the investigation period are less than the weighted average of corresponding normal values during that period:

(a) the goods exported to Australia in each such transaction are taken to have been dumped; and(b) the dumping margin for the exporter concerned in respect of those goods is the difference between each relevant export price and the weighted average of corresponding normal values.

(7) Subject to subsection (8), the existence of dumping and the size of a dumping margin will normally be worked out for individual exporters of goods to Australia.

(8) If the number of exporters from a particular country of export who provide information in relation to an application for a dumping duty notice is so large that it is not practicable to determine the existence of dumping and to work out individual dumping margins for each of them, the Minister may, on the basis of information obtained from an investigation of a selected number of those exporters:

(a) who constitute a statistically valid sample of those exporters; or(b) who are responsible for the largest volume of exportations to Australia that can reasonably be investigated;decide whether dumping exists, and, if it does, fix dumping margins for such selected exporters and for exporters who are not so selected.

(9) If information is submitted by an exporter not initially selected under subsection (8) for the purposes of an investigation, the investigation must extend to that exporter unless to so extend it would prevent the investigation’s timely completion.

(10) Any comparison of export prices, or weighted average of export prices, with any corresponding normal values, or weighted average of corresponding normal values, must be worked out in respect of similar units of goods, whether determined by weight, volume or otherwise.

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216 It can be seen the provision offers a number of different ways for the Minister to

assess whether dumping had occurred — by average weighted prices and corresponding

values, by individual transactions or by a mixture of both — and to use different methods for

different periods of the investigation. Dumping is then deemed to have occurred if, by the

method used, export prices are less than normal values.

217 Subsection (7) of s 269TACB is important: it requires the size of the dumping margin

to be worked out for individual exporters, subject only to subs (8).

218 Subsection (8) then sets out the sampling method on which the Minister relies in

argument for this ground. The need for sampling is expressly premised in the subsection on

the existence of such a large number of exporters in a particular country who have provided

information that the task is too big. It is to be noted the premise operates on exporters who

have “provided information” and so is intended to operate in a situation where information

has been received and its volume is too much to expect the CEO to handle. Then, a sampling

exercise may be undertaken, provided the requirements of subs (8) are met.

219 Sampling is not intended wholly to replace consideration of the exportations of

individual exporters: subs (9) requires the investigation to extend to information provided by

individual exporters who have not been selected in the sampling exercise, unless to do so

would prevent the timely completion of the report. The scheme thus contemplates that the

CEO will examine, and “investigate”, the exportations of all those exporters who provide

information on an individual level to the CEO.

220 Section 269TACB(8) could not have been triggered in the present case, because only

six of the 117 exporters provided information to the CEO. As the respondents submitted, it

could not be said that the number of relevant exporters was so large that it was not practicable

to determine the existence of dumping and work out the margins for each of the exporters.

221 Subsection (9) provides the key to rejecting the respondents’ submission of a

connection between the operation of s 269TACB(8) and s 269TG(3B). The respondents seek

to have those individual exporters who are not selected in a sampling exercise as the only

ones who would fit the definition of “residual exporter”. They seek to equate those who are

“investigated” in s 269T with a “sample” in s 269TACB. There are several flaws in this

argument. First, it self-evidently will not cover all circumstances — as in this case, where

there is no sampling exercise. The scheme does not suggest that the classification of selected

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and residual exporters should not be applied unless there is a sampling exercise. They are

freestanding definitions and do not themselves refer to s 269TACB. The placement of s

269TG(3B) in the general discretion to issue dumping duty notices also is not consistent with

the respondents’ submissions — if those submissions were correct, one would expect to find

a provision like s 269TG(3B) with the sampling provisions in s 269TACB.

222 Instead, s 269TACB(9) indicates that, even where a sampling exercise is conducted,

the statute contemplates those outside the sampling exercise who have provided information

will also be investigated and will be considered by the statute to have been “selected

exporters”. Those exporters do not have any dumping margin addressed by averages, but

rather by reference to their own information, that is the intent of the scheme. I do not consider

that the term in s 269TACB(8), “exporters who are not so selected”, is synonymous with

‘residual exporters” in s 269T. Rather, I consider it refers to those exporters who will be

picked up by subs (9) and who will still, the scheme assumes, be categorised as selected

exporters.

223 Finally, the text and context of s 269TG(3B) simply do not suggest it is limited in the

way identified by the respondents. Although the respondents describe the effect of s

269TG(3B) as a “benefit”, in my opinion it may be better to describe it as a cap or a limit on

the calculations which can be made in respect of residual exporters. Those exporters will not

be given individual assessments based on the information provided — they will have to take

their chances with the averages set out in subs (3B). That may or may not be to their

advantage. In my opinion, the scheme does not intend to allow the CEO to penalise those she

or he characterises as “non-cooperating” exporters with a form of calculation of margin

which is, in effect, left up to the CEO herself or himself to determine, without regulation

from the statute. The rest of the scheme for calculation of margins is carefully detailed and

described. If s 269TG(3B) is given effect in the way Holden contends, calculations for

residual exporters are also contained and regulated rather than, as occurred here, allowing the

CEO, apparently arbitrarily, to select highest and lowest values and prices and arrive at a very

high dumping margin.

224 The TMRO was correct to identify this aspect of the report as erroneous and to direct

it be reinvestigated. The way the CEO carried out that reinvestigation also suffered from the

same flaw.

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225 In those circumstances, the recommendations of the CEO in Report 181, the

Minister’s decision to issue the dumping notice based on those recommendations, the CEO’s

recommendations on reinvestigation in Report 204 and the Minister’s affirmation of the

reviewable decision were affected by jurisdictional error, because of a misunderstanding and

misconstruction of what the statute means by the use of the terms “selected” and “residual”

exporters.

Countervailing subsidy: public body/adequate remuneration findings (grounds 10 and 11)

226 Grounds 10 and 11 were expressed in the following way:

10. In making the CEO Decision, Subsidy Declaration and the May 2013 Minister's Decision, the CEO and the Minister erred in the construction and application of the phrase “public body” in the definition of “subsidy” in s 269T of the Customs Act by applying the term to “state-invested enterprises” in circumstances where the material before the Minister did not disclose the exercise of any “government functions or authority” by the state-invested enterprises (ADJR Act s 5(1)(f)) and constituted jurisdictional error or a failure to exercise jurisdiction.

11. In making the CEO Decision, the Subsidy Declaration and the May 2013 Minister’s Decision, the CEO and the Minister erred in the construction or application of the phrase “adequate remuneration” in s 269TACC(4) of the Customs Act (as it was at all relevant times) by applying a “market price” test rather than an “adequate return on investment” test.

227 Next, Holden contended that in his decision on the imposition of countervailing duty,

the CEO had misinterpreted two statutory concepts and so his decision was affected by

jurisdictional error.

228 This ground concerns the CEO’s decision-making about a program in the PRC called

Program 1. Program 1 (the first program in a table produced by the CEO in his statement of

essential facts and in Report 181) was a program whereby aluminium was said to be provided

by government to manufacturers and producers of ARWs in the PRC at less than fair value.

As part of the investigation, the CEO forwarded a questionnaire about this program (and

others) to the government of the PRC, and received a response. After visiting selected

exporters, the CEO added further programs he considered could constitute countervailing

subsidies in relation to ARWs, and gave the PRC government a further questionnaire, to

which it also provided a response. Arrowcrest’s allegation was that PRC exporters of ARWs

benefited from the provision of raw material (in the form of aluminium and aluminium alloy)

from the PRC government at less than adequate remuneration, through state-invested

enterprises (SIEs). There seemed to be no real debate on the material provided to the CEO,

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whether through selected exporters or through the PRC government, that these SIEs were

significant suppliers of aluminium and aluminium alloy to the PRC ARW exporters, and this

was consistent with findings made by the CEO in an earlier investigation into aluminium

extrusions. The volume purchased could not reliably be ascertained.

229 For the definition of countervailable subsidy in s 269TAAC to apply, there needed to

be a “subsidy” within the meaning of that phrase in s 269T of the Customs Act. That

definition provides:

subsidy, in respect of goods that are exported to Australia, means:(a) a financial contribution:

(i) by a government of the country of export or country of origin of those goods; or(ii) by a public body of that country or of which that government is a member; or(iii) by a private body entrusted or directed by that government or public body to carry out a governmental function;

that is made in connection with the production, manufacture or export of those goods and that involves:

(iv) a direct transfer of funds from that government or body to the enterprise by whom the goods are produced, manufactured or exported; or(v) a direct transfer of funds from that government or body to that enterprise contingent upon particular circumstances occurring; or(vi) the acceptance of liabilities, whether actual or potential, of that enterprise by that government or body; or(vii) the forgoing, or non collection, of revenue (other than an allowable exemption or remission) due to that government or body by that enterprise; or(viii) the provision by that government or body of goods or services to that enterprise otherwise than in the course of providing normal infrastructure; or(ix) the purchase by that government or body of goods provided by that enterprise; or

(b) any form of income or price support as referred to in Article XVI of the General Agreement on Tariffs and Trade 1994 that is received from such a government or body;

if that financial contribution or income or price support confers a benefit in relation to those goods.

230 First, Holden contended the CEO had misinterpreted the term “public body” in the

definition of subsidy in s 269T, and its misinterpretation led it to conclude that state-owned

enterprises that manufacture aluminium and aluminium alloy in the PRC are “public bodies”.

Holden submitted that the TMRO had been correct to see this finding as erroneous, and to

recommend it be reinvestigated. However, when the CEO came to reinvestigate it, in Report

204 he simply maintained his original conclusion, so that the error Holden identified

persisted, it submitted.

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231 Second, Holden contended the CEO had misinterpreted and misapplied the phrase

“adequate remuneration” in s 269TACC(4)(d), in considering whether raw materials for the

wheels (aluminium and aluminium alloy) had been provided for “less than adequate

remuneration”. Holden submitted it was erroneous to compare the prices which would prevail

in a competitive market with the price paid, and instead the comparison should be to focus on

whether there had been an adequate return on investment. Since there was no evidence on this

latter issue, the CEO could not lawfully have reached the conclusion he did, Holden

submitted.

232 The approach taken by the CEO, given there was no definition of “public body” in the

Customs Act, was to draw from a decision of the WTO Appellate Body in United States —

Definitive Anti-Dumping and Countervailing Duties on Certain Products from China, DS379

(11 March 2011), where the WTO Appellate Body set out some of the indicia which could be

used to identify a public body: namely, is there a statute or other legal instrument which vests

government authority in the entity concerned; does the entity exercise governmental

functions and does it exercise meaningful control over an entity. The first indicium was not

made on the CEO’s analysis of the way PRC SIEs operated — there was no statute or

instrument vesting government authority in the SIEs. However the CEO considered the

second and third indicia were made out on the material. The TMRO disagreed that they were.

233 Having noted that the approach taken by the WTO Appellate Body adopted an

approach to the tem “public body” which was likely to be the same as that adopted by an

Australian Court, the TMRO found:

The evidence analysed by Customs indicates that certain producers of aluminium and/or alloy are actively taking steps to comply with the policies promulgated by the Government of China, and display an awareness that there may be negative consequences to their business if they fail to do so. However, in my view, active compliance with the governmental policies and/or regulation does not equate to the exercise of governmental functions or authority. It does not evidence the essential element of exercising a power of governments over third persons.Customs substantially relied on s 36 of the Company Law, which requires SIEs making investments to comply with National Industrial Policies. But in my view this section requires no more than compliance with the policies of the Government of China. It falls short of establishing that State-Invested aluminium or alloy producers are invested with the power to control, compel, direct or command private bodies and persons.Moreover, even if it were accepted that the Government of China exercises meaningful control over State-Invested aluminium or alloy producers, the third test drawn from DS379 would again not be met, in my view, because the evidence again fails to establish that the enterprises are exercising governmental authority.

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234 In its submissions on this ground, Holden relied on the approach taken by the TMRO

and did not advance any independent submissions. The respondents submitted the TMRO did

not dispute the approach taken by the CEO in Report 181 to determine whether or not SIEs

that manufacture aluminium and aluminium alloy in China were “public bodies” for the

purpose of the definition of “subsidy” in s 269T. Rather, the TMRO disagreed with the

CEO’s analysis of the evidence and findings in relation to “indicia 2” and “indicia 3”.

235 I agree with the respondents’ submissions. Holden made no submission on the

construction of the term “public body” in the definition of “subsidy” in s 269T. It did not

submit the approach taken by the WTO Appellate Body was wrong. It did not advance any

separate or independent construction of the term: cf Panasia 217 FCR 64; [2013] FCA 870. It

simply adopted what the TMRO had said. And all that amounted to was a disagreement on

fact finding with the CEO. No error of law, let alone a jurisdictional one, is made out.

236 The second aspect of this ground — the construction of the term “adequate

remuneration” in s 269TACC(4) was but only broadly developed in oral submissions on

behalf of Holden. Again, reliance was placed on the analysis of the TMRO. The term is not

defined in the Customs Act and the CEO adopted an approach using competitive market price

for aluminium in the PRC. Customs found that the PRC government influences on the market

for aluminium and aluminium alloy in the PRC distorted all prices within that market, so that

the PRC domestic price was unsuitable to use. Instead, Customs applied data from the

London Metal Exchange to construct competitive market prices for aluminium and

aluminium alloy in the PRC.

237 The TMRO disagreed with this approach, concluding that the term “requires an

assessment of the adequacy of the return on investment”. It took account of statements of the

WTO Appellate Body in United States — Final Countervailing Duty Determination with

respect to Certain Softwood Lumber from Canada, WT/DS257/AB/R (19 January 2004) and

by the Macquarie Dictionary definition of “remuneration” and “remunerate”. This was an

issue on which it recommended further investigation, which the Minister accepted. The CEO,

however, on further investigation in Report 204, maintained the approach he had taken

originally.

238 Again, Holden in submissions on this ground adopted the reasoning of the TMRO.

Although that reasoning provides another mechanism by which remuneration might be

assessed, it is not the only one for which the statute allows. I accept the respondents’

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submissions that there is nothing in the text, context or purpose of s 269TACC(4) which

suggests only one way of assessing adequate remuneration is permissible. This is a statutory

scheme which is replete with alternative methods of calculation and which leaves for the

CEO, and the Minister (and the TMRO on review), considerable latitude about the adoption

of methods in any given factual case. That is to be expected because of the particular

combination of difficulty of access to reliable information from exporting countries,

uncertainty of evidence about influences in those markets, potential lack of cooperation, and

the absence of coercive powers and the difficulties of finding appropriate benchmarks for

pricing in various circumstances.

239 These are choices for the CEO and the Minister in the first instance, and the TMRO

on review. On any further investigation, neither the CEO nor the Minister are bound by the

views of the TMRO on review, although no doubt they are a relevant consideration. Choice

of method by which to calculate whether remuneration for provisions of goods by

government is “less than adequate” is left by this scheme as a matter for the decision-makers.

Nicholas J reached a similar conclusion in Panasia 217 FCA 64; [2013] FCA 870 at [83], and

I respectfully agree with his Honour’s reasoning .

240 This ground is not made out against any of the respondents

Procedural fairness: no notice of departure from aspects of TMRO decision (grounds 5A and 5B)

241 Grounds 5A and 5B were expressed in the following way:

5A. In conducting the reinvestigation, the CEO failed to accord procedural fairness to the Applicant:

(a) by failing to notify the Applicant that it was proposing to revisit or departfrom the findings and reasons for the TMRO decision and the January 2013Minister’s decision, and in particular the findings:

(i) that non-cooperating exporters were “residual exporters” and not “selected exporters” (TMRO Report, pp 49-51);(ii) that State-invested enterprises that manufacture aluminium and aluminium alloy in China were not “public bodies” for the purposes of the definition of “subsidy” in s 269T (TMRO Report, pp 59-65); and(iii) that “adequate remuneration” for the purposes of s 269TACC(4)(d) required an assessment of the adequacy of return on investment and could not be determined by reference only to competitive market price (TMRO Report, pp 65-69);

(b) by failing to give the Applicant an opportunity to be heard on why the CEO should not revisit the above findings and reasons for the TMRO decision and the January 2013 Minister’s decision, or alternatively why those findings and reasons were correct.

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5B. By reason of the denial of procedural fairness by the CEO, the May 2013 Minister’s Decision involved a denial of procedural fairness (ADJR Act s 5(1)(a)) or an error of law (ADJR Act s 5(1)(D) and constituted jurisdictional error or a failure to exercise jurisdiction.

242 Finally, by the additional ground in the second further amended application, Holden

submitted there had been a further denial of procedural fairness because, on further

investigation pursuant to s 269ZZL, the CEO did not give Holden notice that, on the two

issues (namely, “non-cooperating exporters” and whether Chinese aluminium producers were

“public bodies”) it did not accept the findings of the TMRO and would reach conclusions

opposed to those reached by the TMRO. If there was a denial of procedural fairness in this

way by the CEO on the reinvestigation there was, Holden contended by ground 5B, an

invalidating effect on the Minister’s decision in May 2013 to affirm the reviewable decision.

243 Relying on Commissioner for Australian Capital Territory Revenue v Alphaone Pty

Ltd (1994) 49 FCR 576 at 591-592; SZBEL v Minister for Immigration and Multicultural and

Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 at [29]-[32]; Re Minister for

Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212;

[2003] HCA 56 at [22]; Re Minister for Immigration and Multicultural Affairs; Ex parte

Miah (2001) 206 CLR 57; [2001] HCA 22 at [194], Holden contended it had a legitimate

expectation that the CEO would not revisit or depart from the TMRO findings without giving

interested parties such as Holden an opportunity to be heard on why he should not revisit or

depart from those findings. That expectation arose, it submitted, because it was not

“obviously … open on the known material” (see Alphaone 49 FCR 576) that the two matters

on which the TMRO had reached the opposite conclusion to the CEO would be determined

on the reinvestigation in a way contrary to Holden’s submissions, and contrary to the findings

of the TMRO.

244 Holden submitted that, when the CEO invited submissions, he did not provide any

indication that the reasons of the TMRO would be revisited, or not accepted. Had he done so,

Holden would have made submissions as to why the TMRO findings were correct and the

reinvestigation should have proceeded on that basis.

245 The respondents submitted the TMRO’s findings were “provisional” and did not bind

the CEO on a further investigation. The TMRO was only required to determine, on the basis

of the particulars contained in the application, that there were “reasonable grounds to warrant

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the reinvestigation of the finding or findings specified in the application”: see 269ZZF. The

TMRO’s views were in that sense not conclusive, the respondents submitted, but rather

provisional and could not bind the CEO on a further investigation.

246 I do not accept the respondents’ characterisation of the TMRO finding as

“provisional”. The scheme gives it no such character. It is true that the Minister need not

accept the recommendation and need not order a further investigation. However, if the

Minister does accept the TMRO investigation, the CEO is obliged to conduct a further

investigation. Some conclusive effect is given to the TMRO finding. It is to be assumed, in

my opinion, that if the scheme has authorised the TMRO to recommend a finding made by

the CEO should be investigated again, it is because there is something erroneous about its

reasoning, methods or the material relied on or a combination of all of those matters. The

CEO’s finding on a material question of fact or conclusion based on such a fact is, in the

TMRO’s opinion, flawed. If the Minister accepts the recommendation of the TMRO, she or

he should be taken to agree that the flaw should cause the CEO to re-examine and reconsider

what he had reported to the Minister, even if perhaps she or he should not necessarily be

taken to agree with what the TMRO has said.

247 Holden’s use of legitimate expectation in this context may be unnecessary. It seems to

me its argument is based squarely on SZBEL 228 CLR 152; [2006] HCA 63 at [35], where

the Court stated:

The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are “the issues arising in relation to the decision under review”. That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.

248 Although the statute does use the term “reinvestigation” in some parts of s 269ZZL,

subss (3) and (4) provide:

(3) The CEO must conduct an investigation in accordance with the Minister’s requirements under subsection (2) and give the Minister a report of the investigation concerning the finding or findings within the specified period.(4) In a report under subsection (3), the CEO must:

(a) if the CEO is of the view that the finding or any of the findings the

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subject of reinvestigation should be affirmed — affirm the finding or findings; and(b) set out any new finding or findings that the CEO made as a result of the reinvestigation; and(c) set out the evidence or other material on which the new finding or findings are based; and(d) set out the reasons for the CEO’s decision.

249 This second “further” investigation is confined to the finding or findings which the

Minister requires the CEO to investigate under s 269ZZL(2). The detailed scheme for

notification and procedural fairness which is established in relation to the principal

investigation under Div 2 of Part XVB is not repeated in relation to the conduct of this further

investigation, no doubt because of its limited nature.

250 Assuming the CEO is by these provisions required to undertake a full re-examination

of her or his reasoning process and the material on which it relied to reach the conclusion the

TMRO has identified as flawed, there is nothing in the scheme to suggest the CEO is

prevented ultimately from adhering to her or his initial reasoning and conclusions. The

review process confronts the CEO with a different analysis, and the view of an independent

person that the CEO’s conclusion and/or reasoning were flawed. So long as the CEO engages

in a bona fide further examination of those findings, taking into account what the TMRO has

said, she or he will perform her or his statutory task.

251 The prospect she or he may adhere to her or his original reasoning and conclusion is

obvious in the circumstances as one of at least two options available to the CEO. There may

be circumstances (not this case) where what the TMRO has said, and the material (perhaps by

way of submission) considered by the TMRO gives rise to such new issues that the CEO will

be obliged to afford interested parties an opportunity to make further submissions by

foreshadowing her or his proposed conclusions in advance, consistently with the approach

outlined in SZBEL 228 CLR 152; [2006] HCA 63. One cannot discount the possibility of

such a situation arising.

252 It is not, however, the current situation. Holden was well aware of the TMRO’s

reasoning process from the review report. It was well aware of the CEO’s process from his

original report. It should be taken to realise the CEO had no obligation under the scheme to

change his position to that stated by the TMRO, but rather to consider what the TMRO had

said and investigate the matters again, both at a factual and at a conclusionary level. Unlike

the situation in SZBEL 228 CLR 152; [2006] HCA 63, the only matters which could under

the statute form the subject of the further investigation were the very matters decided

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differently by the TMRO. The issues for any further investigation were framed by the

TMRO’s identification of those matters. The issues — and the two competing assessments of

them — were obvious, and the evidence shows Holden was in fact afforded a further

opportunity by the CEO to make submissions at this stage.

253 As it has turned out, I have found the CEO’s original conclusion on one of the two

matters identified by the TMRO to be affected by jurisdictional error. By maintaining his

position in Report 204, the CEO perpetuated that jurisdictional error. Having examined the

TMRO recommendations, he had a choice whether to change his recommendations upon

further investigation. He chose not to and there was no denial of procedural fairness to

Holden in that process, but there was jurisdictional error.

254 The procedural fairness challenge to the CEO in respect of the reinvestigation must

fail. Accordingly, ground 5A must also fail.

CONCLUSION

255 The CEO misconstrued the terms “selected exporter” and “residual exporter” in s

269T of the Customs Act, as they operate in s 269TG. That misconstruction was adopted and

acted on by the Minister because he accepted the recommendation of the CEO as to dumping

margins for those entities the CEO identified as “selected non-cooperating exporters”, and

published notices under s 269TG using those margins. Although the TMRO identified an

error (and therefore his decision is not affected by the same misconstruction), on further

investigation, the CEO adhered to the position he had originally taken and, in Report 204,

recommended the same dumping margins, based again on the same group of “selected non-

cooperating exporters”, using again the lowest export price and the highest normal value so

as to produce a margin of 29.3%, and not considering that calculation to be affected by the

constraint imposed by s 269TG(3B).

256 Therefore, the CEO’s further recommendation in Report 204 suffered the same

misconstruction, which remained present in the dumping duty notices issued by the Minister.

257 Otherwise, Holden’s grounds of review are not made out. Directions will be made in

relation to the filing of proposed terms of order reflecting these reasons for decision. The

parties will also be given an opportunity to make short submissions on the question of costs,

should they choose to do so.

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I certify that the preceding two hundred and fifty-seven (257) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mortimer.

Associate:

Dated: 4 July 2014