Dalian Steelforce Hi-Tech Co Ltd v Minister for Home Affairs of The Commonwealth of Australia

CHIEF EXECUTIVE OFFICER, AUSTRALIAN CUSTOMS AND BORDER PROTECTION SERVICE

JUDGE: NICHOLAS J DATE: 31 October 2012 PLACE: SYDNEY

BACKGROUND 1 The interlocutory application now before me was filed by the respondents on 18 September 2012. It is the vehicle by which the respondents have raised for consideration the application of s 10(2)(b)(ii) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) and the question whether the proceeding brought against them by the applicants should be dismissed or stayed on discretionary grounds pursuant to either s 10(2)(b)(ii) or s 16(1) of the ADJR Act. 2 The principal relief sought by the respondents in their interlocutory application are orders that: 1. Pursuant to r 30.01(1) of the Federal Court Rules 2011 (the Rules), the Court determine, as a preliminary issue, the question of whether the proceedings should be dismissed on discretionary grounds pursuant to ss 10(2)(b)(ii) and/or 16(1) of the ADJR Act. 2. Pursuant to r 30.02(b) of the Rules, the proceeding be dismissed, with costs. 3. In the alternative to paragraphs 1 and 2 above, pursuant to r 26.01(d) of the Rules, the proceeding be dismissed, with costs, as an abuse of the process of the Court. 3 The respondents also sought, in the alternative to the above, an order adjourning the proceeding and vacating the provisional hearing date already set aside, pending the outcome of the review notified by the Trade Measures Review Officer (TMRO) on 12 September 2012. 4 A directions hearing was held soon after the interlocutory application was filed. At that directions hearing, the applicants indicated that they wished to argue that the matters raised by the interlocutory application should not be determined in advance of the final hearing by way of separate question, but that they were willing to fully argue the separate question at the hearing of the interlocutory application against the possibility that I might determine that it was appropriate to resolve the issues raised by the respondents by way of separate question. 5 Accordingly, I have heard argument on the respondents' interlocutory application including, in particular, whether or not there ought to be any separate question. I have also heard argument on the separate question itself including whether or not the applicants' proceeding should be dismissed. 6 I propose to determine as a separate question whether or not the proceeding commenced by the applicant should be dismissed on discretionary grounds pursuant to s 10(2)(b)(ii) or s 16(1) of the ADJR Act. I explain in these reasons why I propose to answer the separate question in the applicants' favour and why I propose to refuse the orders referred to in paragraphs 1-3 of the interlocutory application. I also explain why I propose to vacate the provisional hearing date.

THE RELEVANT DECISIONS 7 By their originating application for judicial review filed on 31 July 2012 the applicants seek judicial review of three decisions. The first two were decisions of the first respondent (the Minister) made on 12 June 2012 and published on 3 July 2012. They are: the Minister's decision to accept the recommendations of the second respondent (the CEO) and to publish a notice under s 269TG(1) and (2) of the Customs Act 1901 (Cth) (the Customs Act) in relation to certain hollow structural sections (HSS) exported from China; the Minister's decision to accept the recommendations of the CEO and to publish a notice under s 269TJ(2) of the Customs Act in relation to HSS exported from China. 8 Both of the Minister's decisions were based upon recommendations of the CEO in a report to the Minister (the Report). The applicants also seek judicial review of the CEO's decision to make the recommendations referred to in the Report.

ADMINISTRATIVE REVIEW 9 The first applicant also lodged on 2 August 2012 an application (the TMRO application) with the TMRO for review of the Minister's decisions of 12 June 2012 under s 269ZZA(1)(a) of the Customs Act. Applications for review were also lodged under s 269ZZA(1)(a) by at least six other parties. On 12 September 2012, the TMRO published a notice under s 269ZZI of the Customs Act indicating that he intended to conduct a review of the Minister's decisions.

THE ISSUES IN THE PRINCIPAL PROCEEDING 10 Apart from the issues raised by the separate question, there are eight other issues arising in the proceeding. According to an agreed statement of issues (the agreed issues) the following issues will need to be determined should the proceeding continue to a full hearing: 1. Whether the Respondents erred in construing or applying s.269TAC(2)(a) of the Customs Act 1901 (Cth) (Customs Act) by finding that there was a situation in the Chinese HSS market such that sales in that market were not suitable for use and could not be used in determining normal value. 2. Whether the Respondents erred in construing or applying reg.180(2) of the Customs Regulations 1926 (Cth) (Customs Regulations) by finding that the costs incurred by HSS Manufacturers in China for hot-rolled coil steel and narrow strip steel did not reasonably reflect competitive market costs. 3. Whether the Respondents erred in construing or applying reg.181A(3) of the Customs Regulations by deciding to use the average net profit from domestic sales made in the ordinary course of trade by other selected cooperating exporters from China in determining the profit on the First Applicant's sales for the purposes of s.269TAC(2)(c)(ii) of the Customs Act. 4. Whether the Respondents erred in construing or applying the term "public body" in s.269T of the Customs Act by finding that Chinese State-invested enterprises (SIEs) which produce HRC and narrow strip are public bodies. 5. Whether the Respondents misconstrued the definition of "subsidy" in s.269T of the Customs Act by finding that the alleged provision by SIEs of HRC and narrow strip for less than adequate remuneration amounted to a "financial contribution ... by a public body ... that is made in connection with the production, manufacture or export of goods". 6. Whether the Respondents misconstrued s.269TAAC of the Customs Act by finding that Program 20 was specific so as to amount to a countervailable subsidy. 7. Whether the Respondents erred in construing or applying s.269TACC(4) and (5) of the Customs Act by finding that an external benchmark could be used to determine the adequacy of the remuneration received by manufacturers of HRC and narrow strip in China. 8. Whether the Respondents erred in construing or applying s.269TACC(4) or (5) of the Customs Act by finding that a weighted average "basket" of costs incurred by verified selecting cooperating HSS exporters was an external benchmark suitable for determining the adequacy of the remuneration received by manufacturers of HRC and narrow strip in China.

HEARING DATE 11 The first directions hearing in this proceeding was held on 30 August 2012. At that stage, the TMRO application had been lodged, but the TMRO was yet to publish a notice under s 269ZZI. I fixed the proceedings for hearing on 26 November 2012 provisionally. I noted at the time that this was a "highly conditional fixture". While the possibility of the hearing date being vacated or adjourned because the proceeding was brought prematurely was raised at the directions hearing, it was not until the respondents' interlocutory application was filed that it became apparent that the respondents would seek to terminate the proceeding in advance of the final hearing.

THE ADJR ACT 12 The respondents rely upon s 10(2)(b)(ii) and s 16(1) of the ADJR Act. Pursuant to s 10(2)(b)(ii), the Court may, in its discretion, refuse to grant an application for review of a decision under the relevant provisions of the ADJR Act for the reason that: … adequate provision is made by any law other than this Act under which the applicant is entitled to seek review by the court, by another court, or by another tribunal, authority or person, of that decision, conduct or failure. Section 10(3) provides that a "review" includes: … a review by way of re-consideration, re-hearing, appeal, the grant of an injunction or of a prerogative or statutory writ or the making of a declaratory or other order. 13 Section 16(1) specifies the types of order that the Court may, in its discretion, make in a proceeding for review under the ADJR Act in respect of a reviewable decision. It is not necessary to set out the types of order that may be made. They include, of course, an order quashing or setting aside the relevant decision. Such orders are sought by the applicants in this proceeding.

THE RELEVANT STATUTORY SCHEME 14 It is necessary to explain the nature of the review process set in motion by the TMRO application lodged by the first applicant on 2 August 2012. The relevant provisions are contained in Div 9 of Pt XVB, which is headed "Review by Review Officer". Subdivision B (ss 269ZZA-269ZZM) of Div 9, Pt XVB which is headed "Review of Ministerial Decisions" is specifically concerned with the review of decisions by the Minister to publish dumping duty notices or countervailing duty notices under the provisions of the Customs Act. 15 Section 269ZZF provides that an applicant seeking a review under Subdiv B must establish to the satisfaction of the TMRO that there are reasonable grounds to warrant the re-investigation of the findings specified in the application for review. The TMRO must reject the application for review in certain circumstances: see s 269ZZG (failure to provide sufficient particulars) and s 269ZZH (failure to provide a summary of confidential information). 16 Section 269ZZI requires the TMRO to publish a notice in a newspaper circulating in each State and Territory indicating that the TMRO proposes to conduct a review. Section 269ZZJ provides that interested parties may make submissions within 30 days of the publication of the notice. 17 Section 269ZZK requires the TMRO to make a report to the Minister recommending that the Minister affirm the Minister's previous decision or recommending that the Minister direct the CEO to re-investigate a finding or findings that formed the basis of the Minister's earlier decision. The TMRO's report must be made at least 30 days, but not more than 60 days, after public notification of the review. 18 The TMRO is required, if he or she is of the view that the finding or findings should be affirmed, to recommend that the Minister affirm the earlier decision. If the TMRO recommends that a finding or findings be re-investigated, the TMRO's report must set out the relevant finding or findings. The TMRO's report must also set out the reasons for the TMRO's recommendations. 19 In carrying out the review the TMRO must only have regard to information which the CEO had regard, or was required to have regard, when making findings set out in the CEO's report to the Minister under s 269TEA. 20 Sections 269ZZL and 269ZZM establish the procedures to be followed after the Minister receives the report of the TMRO (referred to in those provisions as "the Review Officer"). They relevantly provide: 269ZZL: (1) If: (a) the Minister receives a recommendation by the Review Officer to affirm a reviewable decision; or (b) the Minister does not accept a recommendation by the Review Officer to require the CEO to reinvestigate a finding or findings that formed the basis of the reviewable decision; the Minister must, by public notice, affirm the reviewable decision. (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). (2A) The Minister must do the things that the Minister is required to do under subsection (1) or (2) within: (a) 30 days after receiving the recommendation; or (b) if the Minister considers there are special circumstances that prevent the doing of those things within that period - such longer period as the Minister considers appropriate. (2B) If paragraph (2A)(b) applies, the Minister must give public notice of the longer period. (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. 269ZZM: (1) After receiving a report by the CEO in respect of a reinvestigation under subsection 269ZZL(3), the Minister must: (a) affirm the reviewable decision concerned; or (b) revoke that decision and substitute a new decision. (1A) The Minister must make a decision under subsection (1) within: (a) 30 days after receiving the report; or (b) if the Minister considers there are special circumstances that prevent the decision being made within that period - such longer period as the Minister considers appropriate. (1B) If paragraph (1A)(b) applies, the Minister must give public notice of the longer period. (2) The Minister's decision under subsection (1) takes effect from the time specified by the Minister. (3) Without limiting subsection (1), the Minister may, under that subsection: (a) publish a dumping duty notice or countervailing duty notice; or (b) vary a dumping duty notice or countervailing duty notice; or (c) revoke a dumping duty notice or countervailing duty notice and substitute another dumping duty notice or countervailing duty notice (as the case requires). (4) The Minister must give public notice of his or her decision. … 21 The effect of ss 269ZZL and 269ZZM may be summarised as follows: (1) The TMRO may recommend to the Minister that the earlier decision be affirmed. Alternatively, the TMRO may recommend to the Minister that the CEO re-investigate a finding or findings that formed the basis of the earlier decision. The report to the Minister containing the TMRO's recommendations must set out the TMRO's reasons. (2) If the TMRO recommends to the Minister that the earlier decision be affirmed then the Minister must affirm the decision. If the TMRO recommends to the Minister that the CEO investigate a finding or findings made by the CEO that formed the basis of the earlier decision, then the Minister must require the CEO to make a further investigation of the relevant finding or findings. The Minister must give public notice indicating his acceptance of a recommendation from the TMRO that the CEO re-investigate a finding or findings. (3) The Minister must, unless he or she considers that there are special circumstances that prevent the Minister from doing so, either affirm the earlier decision or require the CEO to re-investigate within 30 days after receiving the TMRO's recommendations. If the Minister considers that special circumstances exist that prevent the Minister affirming the earlier decision or requiring the CEO to re-investigate within that period then the Minister must give public notice of the longer period required for that purpose. (4) If the Minister requires the CEO to make a further investigation then the Minister must require the CEO to report the results of the CEO's further investigation within a specified time. The Minister must by public notice indicate his acceptance of the TMRO's recommendation and particulars of what is required of the CEO. (5) The CEO must conduct the further investigation and report to the Minister in accordance with the Minister's requirements. If the CEO is of the view that any finding the subject of his or her re-investigation should be affirmed then the CEO's report must affirm such findings. The CEO's report must also set out any new finding or findings that the CEO made as a result of the re-investigation, and the evidence or other material on which they are based, together with reasons for the CEO's decision. (6) After receiving the CEO's report the Minister must affirm the Minister's earlier decision or revoke it and substitute a new decision. The Minister may decide to publish a new notice, vary an existing notice, or revoke a notice and substitute a new notice in its place. The Minister's decision takes effect from a time specified by the Minister. (7) The Minister must, unless he or she considers that there are special circumstances that prevent him or her from doing so, act on the CEO's report within 30 days of its receipt. (8) If the Minister considers that there are special circumstances preventing the Minister from making a decision within 30 days after receipt of the CEO's report then the Minister must give public notice of the longer period required for that purpose. 22 Section 269ZZM(6) is concerned with the refund of interim duty paid in circumstances where the Minister revokes or varies a dumping duty notice or a countervailing duty notice with effect from a date before the Minister's decision. A person who has paid interim duty may apply under Div 3 of Pt VIII of the Act for a refund of any excess paid. It is common ground that neither s 269ZZM(6) nor any other provision of the Customs Act would permit a person to recover anything by way of compensation for lost sales in such circumstances.

THE PARTIES' SUBMISSIONS 23 I begin with the parties' submissions in relation to the power of the Court under s 10(2)(b)(ii) and s 16(1) of the ADJR Act to refuse the relief sought by the applicants in the principal proceeding on discretionary grounds. The applicants submitted that the Court did not have power to refuse the relief sought by the applicants in this case under either s 10(2)(b)(ii) or s 16(1). They submitted that a Pt XVB Review was neither a review nor an adequate review for the purposes of s 10(2)(b)(ii). They further submitted that if a Pt XVB Review was not a review or an adequate review for the purposes of s 10(2)(b)(ii), then the Court would lack the power to refuse relief under s 16(1). 24 As to s 10(2)(b)(ii), the respondents submitted that the discretion provided for under that provision is enlivened in this case. They submit that the review provided for in Pt XVB, Div 9, Subdiv B (Pt XVB Review) is both a review, and an adequate review, for the purposes of s 10(2)(b)(ii). Such a review involves, according to the respondents, a reconsideration of the kind referred to in s 10(3). 25 So far as s 16(1) of the ADJR Act is concerned, the respondents submitted that the Court has a power to refuse any of the relief referred to in s 16(1) on discretionary grounds, that the principles which entitle a Court to withhold discretionary relief under the general law remain applicable, and that the Court's power to withhold relief in accordance with those principles is not diminished by the presence of s 10(2)(b)(ii). 26 In support of their submissions the respondents referred to several authorities including the Full Court decision in Swan Portland Cement Ltd v Comptroller-General of Customs (1989) 25 FCR 523 (Morling, Pincus and O'Loughlin JJ). There is a passage in the Full Court decision which deals specifically with s 10(2)(b)(ii) of the ADJR Act as it applied to a decision by the Comptroller under s 269TC(1)(c) of the Customs Act as it then stood. The particular passage relied upon by the respondents was as follows (at 529-530): Prima facie, the appellant is entitled to have the decision set aside. The respondents' counsel argues, however, that in the exercise of the Court's discretion under s 10(2)(b)(ii) of the Judicial Review Act, the application should be dismissed. That provision, which appears to have been little used, empowers the Court to refuse an application of this sort for the reason: "that adequate provision is made by any law other than this Act under which the applicant is entitled to seek a review by the Court, by another court, or by another tribunal, authority or person, of that decision, conduct or failure." The learned primary judge pointed out that the legislation provided "its own method of review", referring to an applicant's right to go to the Anti-Dumping Authority referred to above. His Honour also remarked that, "it should not be thought that it is always appropriate to bring a matter of this kind before the Court". We agree and express the view that in many, (perhaps most) circumstances, the Court's proper response to an application of this particular sort should not be to embark upon a full hearing, but rather to exercise the discretion under s 10(2)(b)(ii) adversely to the applicant. Their Honours went on to explain why they did not think it appropriate to disturb the primary judge's exercise of the discretion in the circumstances of that case. 27 The respondents placed considerable emphasis upon the suggestion in Swan Portland Cement that in many, if not most, circumstances the Court should not embark upon a full hearing of an application for judicial review, but should first exercise its discretion under s 10(2)(b)(ii) of the Act to dismiss the proceeding where merits review was available to the applicant. 28 The respondents not only submitted that an order should be made under s 10(2)(b)(ii) as a matter of discretion, but also that the principal proceeding was an abuse of process and that an order dismissing the proceeding should be made under s 10(2)(b)(ii) on that basis. In particular, they submitted that it is an abuse of process for the applicants to have commenced and to maintain the principal proceeding at the same time as they were seeking to have the Minister's decisions re-considered pursuant to Pt XVB of the Act. They referred to the general inconvenience and potential embarrassment that might arise in circumstances where the applicants are at the same time seeking judicial review of the Minister's decisions under the ADJR Act and merits review of the same decisions under Pt XVB of the Act. 29 The applicants submitted that it was not inappropriate for them to bring a proceeding for judicial review of the Minister's decisions whilst also seeking to have such decisions re-considered by the Minister pursuant to Pt XVB of the Act. They argued that their case is that the Minister acted unlawfully in reaching the decisions in issue, and that they are entitled to have his decisions quashed even though they are simultaneously seeking to have such decisions reviewed under Pt XVB of the Act. 30 Recognising that it may be necessary or at least desirable for the applicants to amend their claims should the Minister re-affirm his earlier decisions, or substitute different decisions in their place, an undertaking was proffered by the applicants the effect of which, if accepted, would be to prevent them from raising different grounds to those already specified in the application for judicial review filed on 31 July 2012 in connection with any challenge to any further decision by the Minister arising out of the Pt XVB review. The object of the proffered undertaking is to ensure that any re-casting of the proceeding to take account of any further decision by the Minister does not disrupt the hearing should it take place on the date which has been provisionally fixed.

CONSIDERATION 31 The argument that a Pt XVB review is not a "review" for the purposes of s 10(2)(b)(ii) and s 10(3) finds some support in the judgment of Burchett J in Colpitts v Australian Telecommunications Commission (1986) 9 FCR 52. In that case, Burchett J was concerned with the question whether certain regulations made pursuant to the Telecommunications Act 1975 (Cth) (the Telecom Act) provided for a "review" of the Australian Telecommunications Commission's decision to retire Mr Colpitts from service within the meaning of that term as used in s 56(2) of the Telecom Act. Thus, his Honour was not directly concerned with the proper construction of s 10(2)(b)(ii) of the ADJR Act, but with the proper construction of s 56(2) of the Telecom Act. However, in construing s 56(2), his Honour remarked (at 62) that both the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) and the ADJR Act "… use the word 'review' in a sense involving the independent exercise of powers directly affecting the decision reviewed." While his Honour did not refer expressly to s 10(2)(b)(ii) of the ADJR Act, I think it is apparent from what his Honour said on the subject that he would have understood the word "review" as used in s 10(2)(b)(ii) and s 10(3) to refer to a review by an independent authority with power to alter the result. 32 The respondents submitted that Burchett J's observations may be disregarded because his Honour was reversed on appeal: see Australian Telecommunications Commission v Colpitts (1986) 12 FCR 395 (Toohey, Fisher and Jackson JJ). I do not think this follows. It is apparent that the Full Court took a different view to his Honour as to what was intended by the use of the word "review" in s 56(2) of the Telecom Act. Toohey J referred to previous authority which made the point that "review" is not a precise term: Woss v Jacobsen (1985) 11 FCR 243 per Toohey J at 252 and per Davies J at 259 citing Bannister v See (1982) 42 ALR 78 at 81 per Toohey J. But I do not think Toohey J disagreed with what Burchett J said obiter in relation to the use of the word "review" in both the AAT Act and the ADJR Act. On the contrary, his Honour appears to have accepted what Burchett J said on that topic. 33 More directly on point are the observations of Davies J in Bragg v Secretary, Department of Employment, Education and Training (1995) 59 FCR 31 where his Honour said (at 33): The "review" that s 10(2)(b)(ii) contemplates should, as Burchett J described it in Colpitts v Australian Telecommunications Commission (1986) 9 FCR 52 at 62, be a review involving "an independent exercise of powers directly affecting the decision reviewed". His Honour went on to hold that the appeal procedure with which he was concerned was a review for the purposes of s 10(2)(b)(ii) of the ADJR Act. He also found that it was an adequate review for the purposes of s 10(2)(b)(ii). 34 I do not accept the applicants' submission that the TMRO is not independent of the Minister. However, the question whether the TMRO exercises powers directly affecting the decisions which the applicants wish to have reviewed is more difficult. 35 The Minister must affirm his or her earlier decision if the TMRO recommends that this be done. In these circumstances, the TMRO will have exercised powers directly affecting the earlier decision, but that is of no comfort to a person who disputes the validity of the earlier decision. If the TMRO recommends that findings be re-investigated by the CEO then the Minister must require the CEO to carry out a re-investigation. But it still remains open to the CEO to affirm the findings that the CEO previously made. 36 Importantly, the Minister is not required to act in accordance with any recommendation of the TMRO beyond either affirming the earlier decision or requiring the CEO to conduct a re-investigation. Nor does the TMRO have any further role to play in the review process should the Minister decide to require the CEO to carry out a re-investigation. 37 It seems to me, in light of the authorities to which I have referred, that the review of the decisions in issue in this case provided for by Pt XVB is not a review of the kind referred to in s 10(2)(b)(ii) of the ADJR Act. The description of the review process adopted by Burchett J in Colpitts (at 62) - which he likened to an "appeal from Caesar to Caesar" - is not apt to describe the review process available to the applicants under Pt XVB in this case. Nevertheless, it still falls short of what Davies J in Bragg considered necessary to enliven the discretion under s 10(2)(b)(ii). 38 It follows that the discretion arising under s 10(2)(b)(ii) is not enlivened in this case, and I do not have power to dismiss or stay the applicants' proceedings on discretionary grounds pursuant to that provision. 39 This brings me to s 16 of the ADJR Act. In Kamha v Australian Prudential Regulation Authority (2005) 147 FCR 516 (Emmett, Allsop and Graham JJ) considered whether it was open to a Court considering an application for judicial review under the ADJR Act to refuse relief on the basis that the applicant had an alternative remedy by way of full merits review of the decision in question pursuant to s 63 of the Insurance Act 1973 (Cth). The distinguishing feature of Kamha was not that the alternative remedy was something less than a "review" for the purposes of s 10(2)(b)(ii), but that a further administrative step needed to be taken before the review process could be engaged by the applicant. On the question of the relationship between s 10(2)(b)(ii) and s 16 the Full Court said (at [87]): The grant of relief under the ADJR Act is discretionary. That is consistent with the principles concerning the grant of relief under the prerogative writs. There was a discretion for a court to refuse prerogative relief where an alternative remedy was available. That principle is also the origin of the express discretion conferred by s 10(2)(b). Nevertheless, that express discretion does not derogate from the general discretion arising under s 16. Section 16 undoubtedly reserves a discretion to the Court as to whether to grant relief in a particular case. While s 10(2)(b) is directed to the specific circumstance where adequate provision is made by another law for an applicant to seek review of a decision and giving rise to an express discretion to refuse relief, the absence of engagement of that provision does not preclude the exercise of the residual discretion conferred on the Court by s 16. 40 The proceeding was remitted by the Full Court to the primary judge (Gyles J) to consider how the discretion should be exercised: Kamha v Australian Prudential Regulation Authority (2007) 98 ALD 49. Gyles J subsequently dismissed the proceeding on the basis that the applicant had a suitable alternative remedy by way of full merits review. In coming to that conclusion, his Honour observed (at para [8]) first, that the judicial discretion under s 16 is at large even when a case for relief is made out, and secondly, that there are no mandatory criteria governing its exercise. 41 In the present case there is a review of a limited kind available to the applicants. That there is not a full merits review is partly explained, perhaps, by the nature of the decisions made by the Minister which may have an impact across whole industries and large parts of the national economy. The respondents made the point that the fact that a Pt XVB review leads to a reconsideration by the original decision maker (ie. the Minister) does not detract from its adequacy as a scheme of review, but merely reflects the discretionary nature of the decision made by him. 42 In my view, the fact that the Pt XVB review leads to a reconsideration by the Minister does detract from the scheme of review. This is a feature that distinguishes a Pt XVB review from the scheme of review under consideration in Swan Portland Cement and Du Pont (Australia) v Comptroller-General of Customs (1993) 30 ALD 829 (Heerey J) where the particular decisions in issue were open to full merits review by the Anti-Dumping Authority established by the (since repealed) Anti-Dumping Authority Act 1988 (Cth). Here, the review is limited to what is, in substance, a review by the CEO of his or her own findings and a re-consideration by the Minister which takes place in light of the CEO's review. 43 Even so, in an appropriate case, the broad discretion arising under s 16(1) of the Act would entitle the Court to refuse substantive relief in respect of a decision made by the Minister under s 269TG or s 269TJ of the Act in a proceeding under the ADJR Act in circumstances where the applicant was at the same time seeking review of such decisions pursuant to Pt XVB of the Act. Whether the Court should exercise its discretion under s 16(1) against an applicant in such a case would depend upon all the circumstances. It seems to me that questions of timing will usually be of considerable significance. If the evidence indicated that a re-consideration of the Minister's decision as part of a Pt XVB review instigated by the applicant was imminent, then this would be relevant in deciding whether or not relief should be withheld. The nature of the issues raised in the proceeding for judicial review are also likely to be significant because many of the questions of law arising in proceedings concerned with decisions to which Pt XVB applies involve questions of mixed fact and law that are of a quite technical and complex nature. 44 In the present case the Pt XVB review process has been engaged by the applicants and numerous other parties. The time frames within which the Pt XVB review must take place require the TMRO to make a recommendation to the Minister within 60 days of publication of the notification of the review unless the Minister allows additional time due to special circumstances. Ordinarily, the TMRO would be expected to provide his recommendation to the Minister in this case by no later than 12 November 2012. In these circumstances, there is a distinct possibility that the TMRO will have made his recommendation by that date. This could, theoretically at least, enable the hearing of this proceeding to take place on the dates that have been provisionally fixed. 45 In the present case I am not satisfied that it is appropriate to dismiss this proceeding pursuant to s 16(1) merely because the applicants have also instigated a review pursuant to Pt XVB of the Act. Any embarrassment or inconvenience that might be suffered by the respondents as a result of having to participate in proceedings for judicial review and a Pt XVB review of the Minister's decisions is just as easily overcome in the present case by adjourning the proceeding until sometime after the Minister has made a decision under s 269ZZL of the Act. 46 In the circumstances, I do not propose to confirm the provisional fixture given that the Pt XVB review is proceeding in accordance with the statutory scheme. In particular, it would not be appropriate to pre-empt the TMRO's decision by confirming the provisional fixture in the expectation that the TMRO will make a recommendation that the earlier decisions be affirmed or to proceed to a final hearing before the Pt XVB review has been given a reasonable opportunity to produce an outcome. 47 The position might be different if the earlier decisions were said to have been affected by a lack of procedural fairness or if they raised what might be called pure questions of law. In this case, the applicants do not assert that there has been any lack of procedural fairness, and although the application for judicial review and the agreed issues postulate questions of law, most of these involve questions of mixed fact and law that are technical and complex. 48 Assuming that the TMRO does not recommend that the Minister's decisions be affirmed or that the Minister does not accept a recommendation by the TMRO that the Minister require the CEO to re-investigate, then the Minister's decisions will eventually be affirmed, revoked or varied by the Minister after he has had the opportunity to consider the CEO's report. This does not mean that the hearing of the proceeding must be delayed until that occurs. Particularly in circumstances where one significant step in the process (the preparation of the CEO's report) need not be completed within any specified time frame, it would not be appropriate to adopt such a rigid approach. But I do not think it appropriate to bring the matter on for final hearing at this stage when there is a real prospect that the Court will be required to review further decisions of the Minister made after a re-investigation conducted in accordance with Pt XVB of the Act. Given that the applicants have initiated the Pt XVB review, it seems to me the process should be given a reasonable opportunity to bear fruit and without either the CEO or the Minister having to give attention to this proceeding and the Pt XVB review at the same time.

DISPOSITION 49 Accordingly, I am not satisfied that it is appropriate to dismiss the proceeding pursuant to either s 10(2)(b)(ii) or s 16(1) of the ADJR Act. Nor am I satisfied that the applicants have engaged in an abuse of process in commencing this proceeding while at the same time seeking to have the Minister's decisions reviewed pursuant to Pt XVB of the Act. However, it does not follow that the hearing should proceed on 26 November 2012. For the reasons set out above, I propose to vacate the provisional fixture and list the proceeding for further directions at 9.30am on 26 November 2012. I will hear from the parties on the costs of the interlocutory application at that time. 50 My orders will be: 1. The following questions be determined as a preliminary issue pursuant to r 30.01(1) of the Federal Court Rules 2011: (a) Should this proceeding be dismissed on discretionary grounds pursuant to s 10(2)(b)(ii) of the ADJR Act? (b) Should this proceeding be dismissed on discretionary grounds pursuant to s 16(1) of the ADJR Act? 2. The question in paragraph 1(a) above is answered, "No." 3. The question in paragraph 1(b) above is answered, "No." 4. The provisional hearing date is vacated. 5. The procedural orders numbered 2, 4, 5, 6, 7 and 8 made on 10 September 2012 are set aside. 6. The proceeding is listed for directions at 9.30am on 26 November 2012. I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholas.