CONGA FOODS PTY. LIMITED v. CHIEF EXECUTIVE OFFICER OF CUSTOMS [1999] NSWCA 237

Court of Appeal (NSW)|1999-04-01|Before: Meagher JA, Handley JA, Powell JA, Simpson J, Barwick CJ, Menzies J, Gibbs J, Black CJ, Lockhart J

New South Wales Court of Appeal CITATION : CONGA FOODS PTY. LIMITED v. CHIEF EXECUTIVE OFFICER OF CUSTOMS [1999] NSWCA 237 FILE NUMBER(S) : CA 40114/98 HEARING DATE(S) : 1 April 1999 JUDGMENT DATE : 30 August 1999

PARTIES : CONGA FOODS PTY. LIMITED (Appellant) CHIEF EXECUTIVE OFFICER OF CUSTOMS (Respondent) JUDGMENT OF : Meagher JA at 1; Handley JA at 2; Powell JA at 3

LOWER COURT JURISDICTION : Supreme Court - Common Law Division LOWER COURT FILE NUMBER(S) : CLD 21418/96 LOWER COURT JUDICIAL OFFICER : Simpson J

COUNSEL : A. Robertson SC (Appellant) S.J. Gageler (Respondent) SOLICITORS : Baker and McKenzie (Appellant) Australian Government Solicitor (Respondent) CATCHWORDS : CUSTOMS AND EXCISE - Duty - Anti-dumping duty - Countervailing duty ACTS CITED : Customs Act 1901 (Cth) Customs Tariff (Anti-Dumping) Act 1975 (Cth) CASES CITED: Carmody v. F.C. Lovelock Pty. Limited (1970) 123 CLR 1 Carter Holt Harvey Manufacturing Group Pty. Limited v. Comptroller-General of Customs (1996) 128 FLR 96 DECISION : Appeal allowed.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40114/98 CLD 21418/96

MEAGHER JA HANDLEY JA POWELL JA

CONGA FOODS PTY. LIMITED v. CHIEF EXECUTIVE OFFICER OF CUSTOMS

3 POWELL JA: Reduced to their most simple form, the questions which arise for determination on this appeal from a Judgment delivered, and verdict found, by Simpson J on 13 February 1998, in proceedings brought by the Respondent to recover from the Appellant what were claimed to be duties of Customs payable by it, are:

whether dumping duties imposed pursuant to the provisions of s. 269TG of the Customs Act 1901 ("the Customs Act") and 8 of the Customs Tariff (Anti-Dumping) Act 1975 ("the Anti-Dumping Act") and countervailing duties imposed pursuant to the provisions of s.269TJ of the Customs Act and s. 10 of the Anti-Dumping Act qualify as duties for the purposes of s.165 of the Customs Act; and

if so, whether, in the circumstances which I will later record, the duties of Customs which the Respondent sought to recover in the proceedings are to be regarded as duties which were short levied and, thus, not recoverable by the Respondent from the Appellant. 4 Customs duties are duties (or taxes) imposed upon the importation of goods into Australia (see Carmody v. F. C. Lovelock Pty. Limited (1970) 123 CLR 1, 7-8 per Barwick CJ; 12 per Menzies J; 26 per Gibbs J (as he then was) ("Carmody"). Each of dumping duty (Anti-Dumping Act s.8(3)) and countervailing duty (Anti-Dumping Act s. 10(3)) is a special duty of Customs. In the joint Judgment which they delivered in Minister for Small Business Construction and Customs & Ors. v. La Doria Di Diodata Ferraiolli S.p.a. Federal Court of Australia (Full Court) 10 February 1994 (unreported)("La Doria") Black CJ and Lockhart J wrote: "21. An antidumping duty is an extra import duty imposed on imported goods in a sum equal to the amount by which the amount of the export price of the goods (i.e. what they are sold for in Australia) is less than the amount of the normal value of the goods (i.e. what they are sold for in the country where they are produced). Antidumping duties are imposed by the Minister gazetting a notice containing a declaration that s.8 of the Anti-Dumping Act is to apply to goods of a kind which have been, or will be, exported to Australia. The notice requires duties to be charged, collected, and paid on the goods, in effect making the exported goods less competitive on the Australian market. The amount of the dumping duty should not be greater than is necessary to prevent injury to the Australian market for those goods. 22. A countervailing duty is an extra import duty imposed on goods imported into Australia in a sum equal to the amount of the subsidy, bounty or other financial assistance paid to the producer of the goods in a foreign country. Countervailing duties in effect increase the price of importing the goods into Australia, making them less competitive on the Australian market. Countervailing duties should not be of a greater amount than is necessary to prevent injury to the Australian market for the goods in question."

5 While it is the Anti-Dumping Act which makes provision for the imposition of dumping duties and countervailing duties, the imposition of such duties in any particular case depends upon there first having been taken certain steps provided for in the Customs Act, and the rate or rates of such duties to be imposed in any particular case are to be determined in accordance with the provisions of the Customs Act. 6 It is convenient, here, to set out such of the provisions of the Customs Act and the Anti-Dumping Act, as they were in April 1992 - the relevance of which date will later appear - as bear upon the questions which arise for determination in the present case. 7 Customs Act 1901 "4(1) In this Act except where otherwise clearly intended: ……… 'Duty' means duty of Customs ……… 'Owner' in respect of goods includes any person (other than an officer of Customs) being or holding himself out to be the owner, importer, exporter, consignee, agent, or person possessed of, or beneficially interested in, or having any control of, or power of disposition over the goods. ……… 42.(1) The Customs shall have the right to require and take securities for compliance with this Act, for compliance with conditions or requirements to which the importation of exportation of goods is subject and generally for the protection of the revenue of the Customs, and pending the giving of the required security in relation to any goods subject to the control of the Customs may refuse to deliver the goods or to give any authority under section 71B to deal with the goods. ……… 71A(1) An import entry is a communication to Customs of information concerning goods … that are intended to be entered for home consumption … that is effected: (a) by document; or (b) except so far as goods intended to be entered for transhipment are concerned by computer. (2) A documentary import entry must (a) be made by the owner of the goods concerned; and (b) be communicated to Customs (i) by giving it to an officer doing duty in relation to entries under this Part; or (ii) by leaving it at a place that has been allocated for lodgment of import entries in a Customs Office; at the place in which the goods are to be delivered for home consumption … . 71B(1) Where an entry in respect of goods has been given or transmitted to Customs, Customs must give an import entry advice, by document or computer, in accordance with this section. (2) An import entry advice relating to goods entered by documentary import entry: (a) must be given to the owner of the goods or be made available for collection by leaving it at a place in a Customs office that has been allocated for collection of such advices; and (b) must contain: (i) a statement to the effect that, subject to payment of any designated amount, the goods will be cleared for home consumption … ……… (4) Where: (a) an import entry advice is given or transmitted under this section; and (b) a payment of any amount specified in the advice is made; Customs must: (c) if the advice was given under subsection (2) - give the person to whom the advice was given an authority, in writing, to take the goods into home consumption … ……… 153 All duties shall constitute Crown debts charged upon the goods in respect of which the same are payable and payable by the owner of the goods and recoverable at any time in any court of competent jurisdiction by proceedings in the name of the Collector. ……… 165 (1) When any duty has been short levied … the person who should have paid the amount short levied … shall pay the amount short levied … on demand being made by the Comptroller within twelve months from the date of the short levy… ……… 269T (1) In this Part, unless the contrary intention appears: ……… 'countervailing duty' means duty, other than interim countervailing duty: (a) that is payable on goods under section 10 of the Anti-Dumping Act because of a declaration under subsection 269TJ(1) or (2) of this Act; or ……… 'dumping duty' means a duty payable on goods under section 8 or 9 of the Anti-Dumping Act. ……… 269TAB(1) For the purposes of this Part, the export price of any goods exported to Australia is: (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. ……… 269TAC. (1) Subject to this section, for the purposes of this Part the normal value of any goods exported to Australia is the price paid for like goods 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 or if like goods are not so sold by the exporter, by other sellers of like goods. (2) Subject to this section, where the Minister: (a) is satisfied that: ……… (ii) by reason that the situation in the relevant market is such that sales in that market that would otherwise be relevant for the purpose of determining a price under subsection (1) are not suitable for use in determining such a price; the normal value of goods exported to Australia cannot be ascertained 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: (A) such amounts as the Minister determines would be the delivery charges and other costs necessarily incurred in that sale; and (B) subject to subsection (13), an amount calculated in accordance with such rate, if any, as the Minister determines would be the rate of profit on that sale; or ……… 269TG (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 causing or producing like goods has been or is being caused or is threatened, … the Minister may, by notice published in the Gazette, declare that section 8 of (the Anti-Dumping Act) applies to those goods. (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 … the Minister may, by notice published in the Gazette (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 Anti-Dumping Act applies to like goods; (c) that are exported to Australia after the date of publication of the notice or such later date as is specified in the notice; and (d) the amount of the export price of which is less than the amount of their normal value. ……… 269TJ (1) Subject to section 269 TN, where the Minister is satisfied, as to any goods that have been exported to Australia, that: (a) in the country of origin or the country of export of the goods, there has been paid or granted, directly or indirectly, upon the production, manufacture, carriage or export of those goods a subsidy, bounty, reduction or remission of freight or other financial assistance; and (b) because of that: (i) material injury to an Australian industry producing like goods has been or is being caused or is threatened … ……… the Minister may, by notice published in the Gazette, declare that section 10 of (the Anti-Dumping Act) applies to those goods. (2) Where the Minister is satisfied, as to goods of any kind that: (a) there has been paid or granted, directly or indirectly upon the production, manufacture, carriage or export of like goods that have already been exported to Australia, and there may be paid or granted, directly or indirectly, upon the production, manufacture, carriage or export of like goods that may be exported to Australia in the future, a subsidy, bounty, reduction or remission of freight or other financial assistance; and (b) because of that, material injury to an Australian industry has been or is being caused or threatened … ; the Minister may, by notice published in the Gazette (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 Anti-Dumping Act applies to like goods: (c) that are exported to Australia after the date of publication of the notice or such later date as is specified in the notice; and (d) on the production, manufacture, carriage or export of which a subsidy, bounty, reduction or remission of freight or other financial assistance is paid or granted. ………"

Customs Tariff (Anti-Dumping) Act 1975 "6. The Customs Act 1901 (in this Act referred to as the Customs Act) is incorporated and shall be read as one with this Act.

"7. Duties of Customs are imposed in accordance with this Act. ………

(3) There shall be charged, collected and paid on goods to which this section applies, by virtue of a declaration under subsection 269TG (1) or (2) of the Customs Act, a special duty of Customs, to be known as dumping duty. (4) Subject to subsection (5), the dumping duty in respect of goods is a sum equal to the amount by which the amount of the export price of the goods is less than the amount of the normal value of the goods. ……… (5) The Minister may, by notice in writing signed by the Minister, direct that the dumping duty in respect of goods is an amount to be ascertained by reference to the value, or to the weight or other measure of quantity, of the goods less the amount, if any, by which that amount exceeds the dumping duty that would be payable in respect of the goods under subsection (4), and the notice has effect accordingly. ……… (6) A notice under subsection (5) applies to goods entered for home consumption on or after a date specified in the notice, which may be a date earlier than the date of publication of the notice but shall not be a date on or before a date on which an earlier notice under the subsection applied to the goods. ……… 10. (3) There shall be charged, collected and paid on goods to which this section applies, by virtue of a declaration under subsection 269TJ (1), (2) … of the Customs Act, a special duty of Customs, to be known as countervailing duty. (4) Subject to subsection (5), the countervailing duty in respect of goods is: (a) in the case of countervailing duty in respect of goods to which this section applies by virtue of a declaration under subsection 269TJ (1), (2) …of the Customs Act - a sum equal to the amount of the subsidy, bounty, reduction or remission of freight or other financial assistance that has been paid or granted, directly or indirectly, upon the production, manufacture, carriage or export of the goods; ……… (5) The Minister may, by notice in writing signed by the Minister, direct that the countervailing duty in respect of goods is an amount to be ascertained by reference to the value, or to the weight or other measure of quantity, of the goods less the amount, if any, by which that amount exceeds the countervailing duty that would be payable in respect of the goods under subsection (4), and the notice has effect accordingly. ……… (6) A notice under subsection (5) applies to goods entered for home consumption after a date specified in the notice, which may be a date earlier than the date of publication of the notice but shall not be a date on or before a date on which an earlier notice under that subsection applied to the goods. ………" 8 Following inquiries initially by the Australian Customs Service and then by the Anti-Dumping Authority ("the Authority"), the Authority, in April 1992, reported its findings to the then Minister of State for Small Business, Construction and Customs, the responsible Minister, and recommended to the Minister that he take anti-dumping action against, and impose countervailing duties on, exports of canned tomatoes from Italy. At the same time, the Authority reported that sales in Italy were "not suitable for use" in assessing normal values under s.269TAC(1) of the Customs Act and assessed "normal values" under s.269TAC(2)(c) of the Customs Act. 9 The Minister then adopted the recommendations of the Authority and, so it seems, caused to be published in the Commonwealth of Australia Gazette four notices, each bearing date 21 April 1992, the first (BAB 34), ("the Dumping Declaration") declaring that s.8 of the Anti-Dumping Act applied to canned tomatoes exported from Italy to Australia after the date of publication of the notice; the second (BAB 35), ("the Countervailing Declaration") declaring that s.10 of the Anti-Dumping Act applied to canned tomatoes exported from Italy to Australia after the date of the publication of the notice; the third (BAB 37-38), ("the Determination of Value") determining, for the purposes of s.269TAC(2)(c) of the Customs Act, that the normal value of canned tomatoes exported to Australia by La Doria was the sum set out in the notice and the fourth (not reproduced in the papers which are before the Court) ("the Calculation Direction") directing. for the purposes of ss (5), 10(5) of the Anti-Dumping Act the manner in which dumping duty and countervailing duty were to be calculated. 10 Thereafter, La Doria commenced proceedings in the Federal Court of Australia ("the Federal Court") seeking to have the decisions and recommendations of the Authority to the Minister, and the decisions, determination and direction by the Minister in relation to the imposition of dumping and countervailing duties, set aside. 11 Those proceedings came before Lee J in the first instance. As best as one can judge it, the principal attack made by La Doria upon the recommendations made by the Authority and upon the decisions, declarations, determination and direction made by the Minister in reliance upon those representations, was that it had not been established that the circumstances were such as to justify a departure from the provisions of s.269TAC(1) of the Customs Act and a resort to s.269TAC(2)(a)(ii). While seeking to rebut that attack, the Minister nonetheless conceded - for reasons upon which it is unnecessary to enter - that the direction which he had made pursuant to s.8(5) and 10(5) of the Anti-Dumping Act as to the amount of dumping duty and countervailing duty in respect of canned tomatoes exported from Italy to Australia should be set aside. Lee J, however, in a judgment delivered on 11 June 1993, held that, in the circumstances, no departure from the provisions of s.269TAC(1) of the Customs Act was warranted and, accordingly, made orders:

setting aside the Authority's recommendations to the Minister that he make declarations and give directions pursuant to the provisions of s.269TG(1), (2) and s.269TJ(1), (2) of the Customs Act;

setting aside the decisions and declarations made by the Minister pursuant to s.269TG(1), (2) and s. 269TJ(1), (2) of the Customs Act, that ss. 8, 10 of the Anti-Dumping Act applied to canned tomatoes exported from Italy to Australia; and

setting aside the decision and directions of the Minister made pursuant to ss. 8(5), 10(5) of the Anti-Dumping Act as to the amount of dumping duty and countervailing duty payable in respect of canned tomatoes exported from Italy to Australia;

that the matter be remitted to the Minister and the Authority to be determined according to law. 12 From that decision, the Minister and the Authority appealed to the Full Court of the Federal Court which Court delivered Judgment on 10 February 1994. The approach of that Court to the principal question is sufficiently reflected in the following paragraphs of the joint Judgment of Black CJ and Lockhart J: "40. To justify the imposition of dumping duties under s.269TG of the Customs Act and countervailing duties under s. 269TJ there must be a causal link between the material injury to the relevant Australian industry and the dumping of goods; but the establishment of that link is essentially a question of fact for the decision maker under s.269TG and s.269TJ with respect to the existence of the causal link between subsidization and material injury: ICI Operations Pty. Limited v. Fraser (1992) 34 FCR 564 at 572. 41. In our opinion the Authority was entitled to rely and rely solely on the fact that the payment of production aid had distorted domestic selling prices in Italy to the extent that canned tomatoes had been consistently sold at prices which were less than the production costs of the Italian canners. ……… 47 We do not discern error on the part of the Authority or later the Minister in reaching the conclusions which are impugned in this case, except as to the absence of a finding of the extent to which the subsidy was reflected in the export price of canned tomatoes, a matter which goes to the amount of dumping and countervailing duties payable. We respectfully differ from the primary judge on this essential question in this case."

ordered that Orders 1 and 2 made by Lee J be set aside;

ordered that Order 3 made by Lee J be confirmed; and

ordered that Order 4 made by Lee J be set aside and that in lieu thereof it be ordered that the matter be remitted to the Minister and the Authority for the purposing of determining, pursuant to ss. 8(5) and 10(5) of the Anti-Dumping Act, the amount of dumping duty and countervailing duty payable in respect of canned tomatoes exported from Italy to Australia pursuant to the decisions and directions of the Minister made on 21 April 1992. 14 The nett result thus was that, while each of the dumping declaration and the countervailing declaration was reinstated, between 10 February 1994 and 18 May 1994 - the relevance of which latter date will shortly appear, there was no operative direction by the Minister as to the manner of calculating, in any particular case, the amount of dumping and countervailing duties. 15 After the delivery of the Judgment of the Full Federal Court, the Authority held a further inquiry for the purpose of making recommendations to the Minister so that a further direction could be given, pursuant to ss.8(5), 10(5) of the Anti-Dumping Act, as to the manner of calculating amount of dumping duty and countervailing duty payable pursuant to the Dumping Declaration and the Countervailing Declaration, the report of that inquiry being forwarded by the Authority to the Minister in May 1994. 16 The Minister, having adopted those recommendations, caused to be published in the Commonwealth of Australia Gazette of 18 May 1994 a "direction on the amount of duty payable pursuant to sub-sections 8(5) and 10(5)" ("the New Calculation Direction") (BAB 36) providing for the manner in which and the amounts of dumping duty and countervailing duty payable in respect of canned tomatoes exported from Italy to Australia should be calculated. It is not necessary here to record the detail of that direction, it being sufficient to note that it provided that "this notice applies to goods imported after 10 February 1994". 17 Although it would appear (RAB 6) that, after the publication of the New Calculation Direction, the Authority, following a request by La Doria that an inquiry be held pursuant to the provisions of s.7(3) of the Anti-Dumping Authority Act 1988 into whether the Minister should revoke the Dumping Declaration, the Authority did hold such an inquiry, its recommendation - which was accepted by the Minister - was that the Dumping Declaration and Countervailing Declaration remain in place. It is said (RAB 6) that recommendation, and the Minister's acceptance of it, have not since been challenged. 18 The Agreed Statement of Facts which was tendered on the hearing before Simpson J contains the following (inter alia) (BAB 32-33): "6. Between 11 February 1994 and 17 May 1994 the Defendant made three importations of the goods. Customs duty was paid on the said importations but at the time of the said importations no duty (sic) or countervailing duty was paid or demanded. The customs entry numbers and amounts of unpaid dumping duty and countervailing duty in respect of the three importations were as follows: Entry No. Unpaid Dumping and Countervailing Duty IS.4074.1007N $ 1,501.85 IS.4112.1640A 4,287.20 IS.4112.1605M 8,162.31 TOTAL: $13,951.32 7. In respect of each of the three importations: (i) the Defendant made an import entry pursuant to s.71A(1) of the Customs Act which correctly disclosed the details of the goods being imported. (ii) the Australian Customs Service gave an import entry advice pursuant to sub-s.71B(1) of the Act which provided for an amount of duty to be paid for the goods to be cleared for home consumption. (iii) the amount of duty so advised by the Australian Customs Service was paid by the Defendant. (iv) the goods were imported by the Defendant in compliance with the import entry process set out in and provided for by the Customs legislation including the Customs Act, the Customs Regulations and any relevant instrument made under that Act or those regulations and that process was followed. 8. On 19 February 1996 the Plaintiff made a demand on the Defendant for payment of dumping duty and countervailing duty on the importations of the goods occurring between 11 February 1994 and 17 May 1994. 9. The Defendant has not paid to the Plaintiff the amount of $13,951.32 referred to in paragraph 5 (sic) above."

19 The proceedings appear to have been commenced in November 1996, when there was filed in the Commercial Division of the Court a Summons, (RAB 1-11) given proceeding No. 50261 of 1996, in which Summons the Respondent sought an order that the Appellant pay to the Plaintiff as a Crown debt within the meaning of s.153 of the Customs Act a sum which it is now accepted was incorrectly calculated. In the Summons, the Respondent identified as the issues which were likely to arise in the proceedings the following (RAB 4):

whether the (Respondent) was barred from recovering duties of Customs by operation of s.165 of the Act;

whether there had been any short levy of duty within the meaning of s.165 of the Act;

whether s. 165 of the Act had any application to the circumstances the subject of the proceedings.

20 At some time thereafter, the proceedings were transferred from the Commercial Division to the Common Law Division of the Court where they were given proceeding No. 21418 of 1996. 21 The proceedings came on for hearing before Simpson J on 9 February 1998, the hearing proceeding on the basis of the Agreed Statement of Facts and the agreed documents. At that time there appear also to have been prepared and made available to her Honour written outlines of submissions on behalf of the Respondent (BAB 1-7) and on behalf of the Appellant (BAB 8-11). 22 Reduced to their most simple form, the Respondent's submissions involved the following propositions:

s.165 of the Customs Act had no operation because the unpaid dumping duty and unpaid countervailing duty sought to be recovered in the proceedings had not been "short levied";

the fact that the Appellant complied with the ordinary import entry process and paid ordinary Customs Duty on the goods was irrelevant;

the dumping duty and countervailing duty sought to be recovered in the proceedings had not been previously "levied" within the meaning of s.165 of the Customs Act - the term "levy" refers to the assessment or collection of duty (reference being made to the Shorter Oxford English Dictionary 3 Ed vol. 1 p.1204; the Macquarie Dictionary 2 Ed 1019). There was no attempt by the Respondent to assess or collect dumping or countervailing duty before the demand was made on 19 February 1996;

further, or in the alternative, the amount of dumping duty and countervailing duty sought to be recovered in the proceedings was not previously "short levied" within the meaning of s.165. The amount was not payable at the time of importation. It became payable only on and from the publication of the New Calculation Direction.

23 Reduced to their most simple form, the Appellant's submissions involved the following propositions:

notwithstanding that dumping duties and countervailing duties are special duties and additional to ordinary duties of Customs, dumping duties and countervailing duties, being taxes imposed upon the importation of goods into Australia are, nonetheless, still duties of Customs ( Carmody supra );

although, in Carmody supra , the High Court denied the application of s.165 of the Customs Act to the facts then under consideration, that decision did not deny the application of s.165 of the Customs Act to the facts under consideration in the present proceedings; the basis of the High Court's decision in this respect was that s.165, in referring to short levy refers to the case where duty, which was exigible at the date of payment, was not paid in full; it does not have any application to a case where a special duty, was imposed subsequent to the payment of the ordinary duty;

in the present case, there being in existence at the date of import, a valid dumping declaration and a valid countervailing declaration, the goods were subject to dumping duty and countervailing duty at the time when they were entered for home consumption;

in the circumstances, the goods having been imported by the Appellant in compliance with the appropriate process and import duty having been assessed and paid, s. 165 of the Customs Act operates to preclude the Respondent from recovering duty in respect of the goods, it being immaterial that no assessment of dumping duty or countervailing duty was made at the time of entry ( Carter Holt Harvey Manufacturing Group Pty. Limited v. Comptroller-General of Customs (1996) 128 FLR 96 (" Carter Holt ")

24 In her Judgment, Simpson J, after referring to the decision of the High Court in Carmody continued (RAB 23-24): "A distinction is to be drawn between the circumstances that appertained in Carmody and those of the present case. In Carmody , at the time of importation, there was no applicable notice equivalent to a s.269TG notice and therefore no exigible duty. It is by the Minister's notice, published in the Gazette, that s.8 and/or s.10 are brought into play and the duty is thereby imposed. Thus, at the time of importation in Carmody , no duty was exigible; at the time of the importation in the present case, by reason of the s.269TG and TJ declarations, both dumping and countervailing duties were exigible. At the time of importation, there being no valid sub-s (5) direction, the amount of duty payable was, in each case, quantifiable under sub-section (4). Carmody is, therefore, as counsel acknowledged, useful only because it makes plain that special duties of the Customs are 'special and additional' duties separate from ordinary Customs duty. The distinction between Carmody and the present case is a significant one. It highlights precisely the argument advanced on behalf of the defendant. It emerges clearly from two sentences in the Judgment of Gibbs J: 'Clearly section 165 in referring to short levy, refers to the case where duty which was exigible at the date of payment was not paid in full. It does not have any application to the present case, where a special duty was imposed subsequent to the payment of the ordinary duty' (p. 25)"

(It should be noted, here, that, in his oral submissions on the hearing before Simpson J, counsel for the Respondent accepted (BAB 20) that dumping duty and countervailing duty became payable on the goods after importation by reason of the notices under ss. 8(5), 10(5) although the amount sought to be recovered in the proceedings was not capable of being calculated until the making and publication of the new calculation direction. To this might be added the fact that, on the hearing of the appeal, counsel for the Respondent accepted (T.20) that the effect of ss. 8(4), 10(4) of the Anti-Dumping Act was that, in the absence of a then operative direction under ss.8(5), 10(5), an amount of dumping duty and countervailing duty could still have been calculated and levied, albeit that he asserted that proceeding on that basis would have been contrary to the scheme of the legislation.) 25 After the paragraph in her Judgment to which I have just referred, and after a reference to the submissions of counsel for the Appellant which were based upon the decision of the Queensland Court of Appeal in Carter Holt Simpson J continued (RAB 24-26): "That case, too, can be distinguished. It was concerned with ordinary duty (sic) of Customs. There was no question of special duties. It was the very duty the subject of the later demand that was the subject of the assessment resulting in a nil levy. That is not this case. Here, Customs duty, but not special duty, was levied. What is now sought to be recovered is special customs duty, never previously levied. The question now to be determined is whether, when Customs duty was levied at the time of import, the failure of the Customs authorities to levy an amount attributable to dumping duty and countervailing duty constituted a short levy of the duty payable. That really raises the question whether the words 'any duty' in s.165 are to be taken as referring to the total duty (or to all duties) exigible at the time duty is levied, or whether the words recognise the different classes of duty and are to be read distributively. In my opinion, the words 'any duty' were intended to distribute the reference so as to acknowledge that different classes of duty may be levied. If this were not so, there would have been no need for the word 'any' to have been included in the section. The special duties of Customs are discrete duties, separate and distinct from the duty otherwise imposed by the Customs Act. The inclusion of the adjective 'any' before 'duty' in my view, concludes the issue against the defendant. While 'ordinary' duties of Customs were levied at importation, no attempt was made to levy any amount (or a nil amount) with respect to either of the special duties of Customs applicable. That is quite different to (sic) the situation in Carter Holt , where the earlier assessment of the very duty later demanded resulted in a nil levy. Section 165 cannot apply unless there has been a levy of the particular duty that is the subject of the demand. There cannot be a 'short levy' until there has been a levy. There was no levy of the duty now sought to be recovered and, accordingly, there was no short levy. Section 165 does not apply. I have hesitated in coming to this view because of the passage in the Judgment of Gibbs J in Carmody already extracted. I do not think, in the first sentence, his Honour was intending to lay down a rule that, where a particular class of duty is exigible at the date on which any other duty is paid, and whether or not an assessment of the amount of that duty is made, duty is taken to have been levied in relation to that class of duty. His Honour was there making the point that s.165 could have no application where, at the time of importation, no duty of the class later demanded was exigible. I am of the view that in relation to the two special duties of Customs no duty was levied, there was therefore no short levy, s. 165(1) has no application, s. 153 applies, and the plaintiff is entitled to the amount claimed."

26 From her Honour's Judgment the Appellant appealed, the grounds of appeal taken in the Notice of Appeal (RAB 28-29) being that her Honour erred:

in holding that dumping duty and countervailing duty were special duties of Customs which were discrete duties, separate and distinct from the duties otherwise imposed by the Customs Act and therefore there had been no relevant levy;

in failing to hold that as not all of the Customs duties which could have been demanded at the time of importation were in fact demanded there was a short levy of duty within the meaning of s.165 of the Customs Act;

in distinguishing the decision of the Queensland Court of Appeal in Carter Holt on the basis that that decision was concerned with ordinary duties of Customs whereas the present case dealt with special duties of Customs;

in failing to hold that because of the provisions of s.165 of the Customs Act the amounts claimed by the Respondent could not be recovered having been the subject of a demand more than 12 months after the date of importation. 27 When the appeal came on for hearing Mr. A. Robertson SC appeared for the Appellant and Mr. S.J. Gageler appeared for the Respondent, their submissions being in substance the same as those which they had advanced on the hearing before Simpson J. However, after the conclusion of the hearing, Mr. Gageler delivered to the Court Supplementary Submissions on the meaning to be attributed to the phrase "any duty" appearing in s.165 of the Customs Act, in which submissions he drew attention to the fact that, when the Customs Act first received the Royal assent in 1901, s.165, which was in substance identical with s.165(1) which I have set out above was included in Part VIII of the Act which Part was entitled "The Duties", and, in Division 1 of which Part, which was entitled "The Payment and Computation of Duties Generally", s. 132 provided for import duties, while s. 133 provided for export duties. 28 The reference in the Respondent's Supplementary Submissions to some of the legislative history makes it convenient, here to record, some further matters of legislative history, they being:

as is apparent from what I have earlier noted, s.165(1) of the Customs Act is in substance the same as what was s.165 of the Act at the time of its receiving the Royal assent in October 1901. In Customs Law and Regulations (1904) - which book, so it has been said ( Sargood Brothers v. The Commonwealth (1910) 11 CLR 258, 272 per Griffith CJ) ) "was of a semi-official character" - Dr. H.M.P. Wollaston the then Permanent Head of the Department of Trade and Customs and Comptroller-General of Customs who was also the draftsman of the Customs Act 1901 (T.7) wrote in the notes to s.165 the following (inter alia): "The liability to duty may be enforced notwithstanding any erroneous construction of law or regulations may have enabled the importer to pass his goods through the Customs House without such payment. This section applies only to cases where the Customs have short levied, i.e., made a mistake and charged less duty than was properly due. It does not refer to cases where duty has been short paid from any other cause, such as fraud or careless misdescription on the part of the importer. Such cases are covered by s.153 (which see) and are not affected by this section, which was inserted in order to protect a person from being called on to pay money at any subsequent date which had not been short-collected through any fault of theirs but through that of the Department. It would be unjust on an importer if the Customs claimed from him, for instance, years after he had sold the goods."

although the Commonwealth Parliament legislated to deal with (inter alia) dumping as early as 1906 (Australian Industries Preservation Act 1906) so far as I have been able to ascertain, the Parliament did not legislate so as to provide for the imposition of dumping duties until 1921 (Customs Tariff (Industries Preservation) Act 1921), the procedure provided by s. 4 of that Act for the imposition of "dumping duty" being similar to that provided for by s. 269TG of the Customs Act and s.8 of the Anti-Dumping Act. The validity of the Customs Tariff (Industries Preservation) Act 1921 was challenged, unsuccessfully, in Nott Bros. & Co. Limited v. Barkley (1925) 36 CLR 20 . For present purposes, it is sufficient to note that the Customs Tariff (Industries Preservation) Act contained the following (inter alia) provisions: "2. The Customs Act 1901-1920 shall be incorporated and read as one with this Act. ……… 4.(2) Upon the publication of the notice there shall be charged, collected and paid to the use of the King for the purposes of the Commonwealth, on those goods imported into Australia a special duty (in this section referred to as 'the dumping duty'). (3) The amount of the dumping duty in each case shall be the sum which represents the difference between the fair market value of the goods at the time of shipment and the export price. ……… 16. Where at the time of the entry for home consumption of any goods dutiable under this Act, the duty payable under this Act was not paid, the Collector may at any time call upon the importer to pay the duty, and the importer shall pay the importer accordingly."

(The Act also provided for other forms of duty, they being "dumping below cost duty" (s. 5), "dumping consignment duty" (s. 6), "dumping freight duty" (s. 7), "exchange special duty" (s.8), "dumping preference duty" (s. 9) and "dumped materials duty" (s. 10)).

The Customs Tariff (Industries Preservation) Act 1921 together with the Acts which had amended it meantime, were repealed by the Customs Tariff (Dumping and Subsidies) Act 1961 ("the Dumping and Subsidies Act") the provisions of which and the particular actions taken pursuant to them were the subject of the decision of the High Court in Carmody . The Dumping and Subsidies Act, which imposed (inter alia) both dumping duty and countervailing duty did so by adopting a practice similar to that which had been provided for in the Customs Tariff (Industries Preservation) Act 1921. For present purposes, it is sufficient to note the following (inter alia) provisions of the Dumping and Subsidies Act: "5. The Customs Act 1901-1960 is incorporated and shall be read as one with this Act. 6. Duties of customs are imposed in accordance with this Act. 7.(2) Upon the publication of a notice under this section, there shall be charged, collected and paid to the use of the Queen for the purposes of the Commonwealth, on goods specified in the notice imported into Australia, a special duty (in this section referred to as 'the dumping duty'). (3) The amount of the dumping duty in respect of any goods is a sum equal to the amount by which the export price of the goods is less than the normal value of the goods at the date of exportation. ……… 9.(2) Upon the publication of a notice under this section there shall be charged, collected and paid to the use of the Queen for the purposes of the Commonwealth, on goods specified in the notice imported into Australia, a special duty (in this section referred to as 'the countervailing duty'). (3) The amount of the countervailing duty in respect of any goods is a sum equal to the amount of the subsidy, bounty, reduction or remission of freight or other financial assistance that the Minister is satisfied has been paid or granted, directly or indirectly, upon the production, manufacture, carriage or export of the goods. ……… 14. The several duties imposed by this Act shall be separately charged, notwithstanding that more than one duty applies to any particular goods. ……… 18. The special duties payable under this Act are in addition to such other duties of Customs (if any) as are payable under any other Act." (The Dumping and Subsidies Act did not contain any provision in the same terms as, or in terms similar to, those contained in s.16 of the Customs Tariff (Industries Preservation) Act 1921.)

The Anti-Dumping Act, when passed in 1975, contained a provision (s. 13) which limited the circumstances in which the Minister could cause a notice to be published under ss. 8(1), 10(1), of the Act (the then equivalent of ss. 269TG, 269TJ of the Customs Act) in respect of goods that had been entered for home consumption. Section 13, having been amended - albeit in a respect which is not relevant to the questions now under consideration - in 1981, this section was repealed in 1989. The substance of what had been s.13 of the Anti-Dumping Act is reproduced in s.269TN of the Customs Act which, together with the provisions of (inter alia) ss 269 TAB, 269TAC, 269TG and 269TJ were added to the Customs Act at the same time as ss. 4(1) ("export price"), 5 ("normal value"), 8(1), 10(1) and 13 of the Anti-Dumping Act were repealed. As was the case with the Dumping and Subsidies Act, the Anti-Dumping Act did not contain any provision in the same or similar terms to those contained in s.16 of the Customs Tariff (Industries Preservation) Act 1921. 29 The passages from Simpson J's Judgment which I have set out above would tend to indicate that there were two elements in her reasoning which led to the conclusion that the provisions of s.165 of the Customs Act did not, in the circumstances of the present case, operate to bar recovery by the Respondent of the amounts claimed, those elements being:

that since dumping duty and countervailing duty are special and additional duties of Customs, they do not fall within the words "any duty" appearing in s. 165(1) of the Customs Act;

that, in any event, the circumstances of the present case did not disclose that "any duty (had) been short levied" since: (a) the words "any duty" needed to be read distributively; (b) for there to be a levy there needed to be, at least, an assessment of whether duty was exigible and, if the result of that assessment were that duty was exigible, a demand for the payment of duty; and (c) in the present case there was no assessment of, nor any demand for the payment of, either dumping duty or countervailing duty. 30 I regret that I am unable to share Simpson J's views in respect of these matters. 31 Let it be accepted that dumping duties and countervailing duties are "special duties" (ss. 8, 10 Anti-Dumping Act) which are to be charged separately (s. 16 Anti-Dumping Act) and are payable in addition to such other duties of Customs as are payable under any other Act (s.21 Anti-Dumping Act), the facts remain:

that dumping duties and countervailing duties are still duties of Customs;

as I have earlier recorded, s. 6 of the Anti-Dumping Act provides that the Customs Act "is incorporated and shall be read as one with" the Anti-Dumping Act;

as I have also earlier recorded, s.4(1) of the Customs Act provides that in that Act, "except where otherwise clearly intended … 'duty' means duty of Customs";

both s. 153 - which Simpson J regards as applicable to, and authorises proceedings to recover, both dumping duty and countervailing duty - and s.165 of the Customs Act appear in Part VIII - The Duties of the Customs Act, s.153 appearing in Division 1 - The Payment and Computation of Duties generally and s. 165 appearing in Division 3 - Deposits, Abatements, Remissions, Refunds and Rebates of Duties;

quite apart from the general rule of statutory construction that, in the absence of some context indicating a contrary intention, the same meaning is to be given to the same words appearing in different parts of an Act of Parliament, the provisions of s.4(1) of the Customs Act dictate that that approach is to be adopted in construing the provisions of that Act unless "otherwise clearly intended". I am unable to discern anything in the provisions of the Customs Act which would demonstrate that it was clearly intended that the word "duties" in s.153 of the Act should have a different meaning from the word "duty" appearing in s.165 of the Act. 32 Even if one accepts that the phrase "any duty" appearing in s.165 of the Customs Act is to be read distributively, it does not, in my view, follow that, before the special duties can, in any case, be said to have been "short levied" there must, at the least, have been made, and issued, a separate assessment, and, still less, that there must have been made a separate demand for the payment of each special duty in a sum less than the sum correctly exigible. The starting point, in respect of this matter, so it seems to me, is Division 4 - The Entry, Unshipment, Landing and Examination of Goods of Part IV - The Importation of Goods of the Customs Act. Division 4 of Part IV of the Customs Act commences with s.68 which provides that it applies to (inter alia) goods that are imported into Australia (s.68(1)(a)) and, further, that the owner of goods - which description, as I have earlier recorded, includes the importer of goods - may, prior to the arrival of the goods (s.68(2)), or, if not then doing so, must, on the arrival of the goods (s.68(3)), enter the goods for home consumption, for warehousing or for trans-shipment. As I have previously recorded, s.71A provides for the manner of making of an import entry and s.71B then imposes on Customs a duty to give "an import entry advice", which "import entry advice" must contain (ss.71B(2). 71B(3)) a statement to the effect that, subject to payment of any designated amount, the goods will be cleared for home consumption, warehousing, or transshipment, or, a statement that the goods are directed for further examination. Section 42 of the Customs Act, which forms part of Part III - Customs Control Examination and Securities Generally, as I have earlier recorded, provides that the Customs shall have the right to require and take securities for compliance with the Act, for compliance with conditions or requirements to which the importation or exportation of goods is subject and generally for the protection of the revenue of the Customs, and, pending the giving of the required security in relation to any goods subject to the control of the Customs, may refuse to deliver the goods or to give any authority under s.71B to deal with the goods. The result of all this, as it seems to me, is that the role of Customs, when presented with an import entry is, at the least, to determine whether the goods the subject of that import entry are subject to any, and, if so, what, duties of Customs; if it be possible, to determine the amount of each of such duties as may be exigible in respect of the goods; if be not possible at the time to determine the amount of any such duty, to determine in what amount security for the payment of those duties, when later calculated, should be taken; to include in the import entry advice issued, if it has been possible to determine the amount of all such duties as may be exigible, a statement of the amount of each such duty required to be paid and, if it has not been possible so to do, a statement of the amounts then to be paid and a statement of the amount required to be paid by way of security for the other amounts later to be calculated. This process, so it seems to me, involves both an assessment and a levy of duty and if, through no fault of an importer, the Customs fails to determine that goods are subject to one or more forms of duty, or fails correctly to determine the amount of such duties as may properly be payable, or fails to provide for the taking of security for such duties as may then be payable, but may then not be capable of being calculated, then, so it seems to me, the result is that there has been a short levy. 33 Since it would appear that, in the present case, the Customs, without any fault on the part of the Appellant, either, failed to determine that the goods were subject to dumping duty and countervailing duty, or, failed to require the provision of security for the payment of dumping duty and countervailing duty when later calculated, then, as it seems to me, the present case is to be regarded as one in which duty has been short levied. This fact, however, would not have precluded the Customs seeking later to recover the appropriate amount of dumping duty and countervailing duty as there was still adequate time - of which it did not avail itself - after the publication in the Gazette of the New Calculation Direction within which demand for payment could have been made and, if need be, action for recovery commenced. 34 I would therefore propose the following formal Orders:

ORDER that the verdict found and Judgment entered in favour of the Respondent be set aside.

ORDER that the Respondent pay the Appellant's costs of the proceedings and of the appeal. ******

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