Downer Utilities Australia Pty Ltd v Commissioner of the Anti-Dumping Commission

Applicable Statutory Regime 31 Before consideration of the first issue concerning the competence of the ADJR Act application, it is necessary to make the following observations about the applicable statutory regime: (1) First, subject to an exercise of the power to approve a "form" of application pursuant to s 269SMS (it was not clear to the Court whether this power had or had not been exercised), the only formal requirement expressed in s 269W is that the information must be "in writing". (2) Secondly, some of the information required in an application for assessment is objectively prescribed, such as the specification of a "statement of the amount" by which it is contended that excess interim duty was paid or of the "normal value and the export price of goods". Other categories of information, however, require an applicant to undertake a more evaluative task of determining what information to supply. Ascertaining when evidence will be "sufficient" for the purposes of s 269W(1A) is an example of such a category. There may even also be differences of opinion about what constitutes a "full description of the goods" for the purposes of s 269W(1)(a). The presence of these more evaluative categories of information is significant. (3) Thirdly, s 269YA was inserted into the Act following the decision of this Court in Amcor Packaging (Australia) Pty Ltd v Chief Executive Officer of Customs (2002) 123 FCR 42. In that case, an application for assessment had been summarily dismissed by the Chief Executive Officer of Customs (the "CEO") because it did not provide information to establish the claimed normal values or export prices of the goods as required by s 269W(1)(c) of the Act. The CEO also contended that the application had been made out of time. Jacobson J decided that no such power to dismiss then existed in the Act. His Honour said at 55 [123]: In my opinion, the division of functions between the CEO and the Minister is inconsistent with the existence of any power of the CEO to summarily dismiss an application without considering its merits. A power to recommend cannot import with it a power to dismiss summarily. (4) Fourthly, both parties were of the view that the purpose and function of s 269YA is to give the Commissioner a power to screen applications for compliance with ss 269V and 269W. I note that the Explanatory Memorandum which accompanied the Customs Legislation Amendment Bill (No.2) 2002 (Cth), which introduced s 269YA, makes the following statement: If an application for an assessment of duty payable on goods is not made within the time allowed (6 months from when the goods were entered for home consumption), subsection 269Y(4) provides that the interim duty paid on those goods is taken to be the duty payable. If an application is rejected or the examination of it terminated, subsection 269Y(4) has effect as if the application had not been lodged. Therefore, if an importer makes an application (which is rejected), and he or she does not make a further application within the 6 month period, the interim duty paid on those goods will be taken to be the duty payable (paragraph 269YA(5)(c)). (Emphasis added.) (5) Fifthly, and notwithstanding the presence of the word "must" in s 269YA(2), both sides were of the view that the Commissioner did not have a duty to reject an application in every case of non-compliance with the requirements of s 269W. Rather, that duty only arose upon the Commissioner attaining the required state of satisfaction that an application did "not contain everything it must contain under subsections 269W(1) and (1A)". Where, however, that state of satisfaction is formed and an application is duly rejected, it was accepted that the role of the court is limited to judicial review of the formation of that state of satisfaction: Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353. (6) Sixthly, it also seemed to be accepted by the parties that during the 20-day period prescribed by s 269YA(2), there may occur a moment or period of time at which defects or non-compliance with s 269W may be perceived by an officer or officers of the ADC before the attainment of the required state of satisfaction. By reason of the inference I have made here about the state of knowledge of the ADC before making the rejection decision, in my view, there was an opportunity, during the 20-day period, to warn Downer about potential shortcomings in its application before reaching the state of satisfaction required by s 269YA(2). (7) Seventhly, there was a dispute about whether Downer could have completed or perfected its application for assessment after the expiration of the six-month period prescribed by s 269V but within the 20-day period referred to in s 269YA. The Commissioner submitted that an application which complied with s 269W needed to be lodged within the six-month period. In that respect, the Commissioner highlighted the very specific way in which the date for lodgement is identified in s 269W(2A) and (3). He submitted that if an importer were to be allowed to perfect an application after the six-month period, that would undermine that time limitation; it would, practically speaking, in this case, allow for a different and extended period of time of six months and 16 days. The Commissioner also relied upon the passage from the Dumping and Subsidy Manual set out above at [27] which refers to applications being made before the end of the six-month period. I respectfully disagree with the Commissioner's submission notwithstanding its very skilful presentation by his senior counsel. For one thing, the Dumping and Subsidy Manual expressly refers to an ability to supply additional information within the 20-day period. More significantly, the six-month period in s 269V is not expressed as a limitation on anything other than the lodgement of an application. There was no dispute before me that what Downer had lodged was such an "application". In that respect, in my view, it would be incorrect to distinguish between "valid" and "invalid" applications by reference to compliance or non-compliance with s 269W. Section 269YA assumes that a non-compliant application is nonetheless an "application" to be then rejected. Moreover, an application, for the purposes of s 269V, is a statutory written request to do something, namely an assessment of liability. Purported compliance with s 269W and lodgement within the applicable six-month period are all that is necessary for an application to comply with s 269V. Thereafter, actual compliance with s 269W will determine whether or not an occasion will arise for the Commissioner to attain the state of satisfaction relevantly required by s 269YA(2). If that state of satisfaction is not formed, the investigative process contemplated by s 269X must commence. That process includes the obtaining of further information from third parties (s 269X(2)(a)) and from the importer (s 269X(2)(b) and (3)). The possible need for the obtaining of further information is also contemplated expressly by s 269W(1A)(b)(ii) which refers to a commitment that someone else will give the Commissioner evidence within 30 days after lodgement (see also s 269YA(3)). In my view, given this statutory architecture, it makes no sense to conclude that there is no capacity to give further information which may address a deficiency within the 20-day period. There is no express provision to that effect, and nothing which would justify it by implication. Given the arguably harsh result which follows from a failure to make a compliant application (as to which see below), I think that Parliament did not intend that an importer was to have no remedy if, following the expiration of the six-month period, but before the finalisation of the 20-day period, a deficiency was discovered which could be remedied. That is especially so given the presence in s 269W of information requirements which are evaluative in nature. There may be differences of opinion held about how to comply with these aspects of s 269W which are reasonably held. These could be remedied by sensible dialogue during the 20-day period between the importer and the ADC. I shall return to this issue. (8) Eighthly, the consequence of rejecting an application made pursuant to s 269V is that, for the purposes of s 269Y(4), the importer is deemed to have made no application for assessment at all (s 269YA(5)(c)). I was told that this would result in the importer being unable to challenge in any way the excessiveness of any interim duty paid. That is because of the fiction created by s 269Y(4)(e) whereby the interim duty paid "is taken to be the duty payable". During the six-month period prescribed by s 269V it may be possible to cure that outcome by making fresh applications for assessment. But where that period has expired, as here, and excessive interim duty has been paid (as alleged by Downer), the importer has no remedy. In my view that is a harsh outcome for non-compliance with what is only a statutory request for assessment. That is especially so if the non-compliance is trivial or could easily have been corrected. The two errors identified here are, I find, of that kind. The ADC could easily have aggregated the figures to calculate the excess interim duty which Downer claimed to have paid. It would have taken a matter of minutes. The ADC also knew about the first consignment. It was very small. It could easily have been added to the necessary calculation or could have been raised quickly with Mr Wilkinson. On the facts of this case, the outcome is also potentially harsh for another reason. Downer contends that the interim duty it paid was much higher than the correct amount payable. For the first consignment it paid duty equal to about 97% of the value of the goods. For the other four consignments it paid duty equal to about 82% of the value of the goods imported. If Downer is right, the Commonwealth will retain interim duty greatly in excess of what was correctly payable under the Dumping Duty Act simply because of two deficiencies which, in my opinion, were of no great moment. This attribute of the statutory scheme is relevant to the identification of the content of procedural fairness. (9) Ninthly, there are three features of the function and purpose of the Panel that should be noted. (a) The first is that by reason of s 269ZZUA(5), in deciding whether to affirm or revoke a rejection decision, the Panel must have regard only to information that was before the Commissioner when the decision was made (subject to limited exceptions in ss 269ZZRA(2) and 269ZZRB(2), which were not invoked here). This limitation on the powers of the Panel ordinarily precludes it from being able to undertake a full de novo re-hearing of the Commissioner's decision. Thus, here, Downer could not have perfected its application for assessment before the Panel by supplying the information said to be missing. What, in such circumstances, is the Panel to do, if the failure to adduce information was exacerbated by a breach of procedural fairness? In my view, a Panel should revoke a rejection decision where there has been a material breach of procedural fairness by the Commissioner in making his decision. That is because a decision made in breach of procedural fairness would not be authorised by s 269YA thus obliging the Panel to revoke it: see Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 353 ALR 600 at [94] per Edelman J. I shall return to this attribute of the statutory scheme when considering the second issue. (b) Secondly, by reason of s 269ZZV, a decision of the Panel has effect as if it had been made by the Commissioner. In Inglewood Olive Processors Ltd v Chief Executive Officer of Customs (2004) 82 ALD 545, judicial review was sought of decisions made both by the CEO and a Trade Measures Review Officer. Like the Panel here, the function and purpose of the Review Officer was to affirm or revoke the decision of the CEO. Stone J decided that it was misconceived to seek review of both the CEO's decision and that of the Review Officer. Her Honour said at 552-553 [15]: As noted in [1] this application is brought both under the ADJR Act and the Judiciary Act and seeks review of the decisions of the CEO and the Review Officer. In my view this approach is misconceived. Subject to a provision for rejection in s 269ZZR, which is not presently relevant, s 269ZZT provides that the Review Officer must decide an application for review by affirming or revoking that decision. In this case the Review Officer has affirmed the CEO's decision to terminate the investigation and, pursuant to s 269ZZV, the Review Officer's decision takes effect as if it had been made by the CEO. In other words, the Review Officer's decision has superseded the CEO's decision. For that reason it is the Review Officer's decision not the CEO's decision that is reviewable by this Court and if the Review Officer's decision is not affected by reviewable error there is no basis on which this Court may interfere with the CEO's decision. Nevertheless, for the reason given in [9] it is necessary in the course of this review to consider the CEO's decision. On appeal, Stone J's conclusion was upheld ([2005] FCAFC 101). Kiefel (as her Honour then was), Weinberg and Edmonds JJ said at [34]: So far as the CEO's decision is concerned, the primary judge concluded, correctly in our view, that s269ZZV had the consequence that the CEO's decision was superseded by the Review Officer's decision and, if the Review Officer's decision is not affected by reviewable error, there is no basis on which this Court may interfere with the CEO's decision. It follows, that the issue for determination here is whether the Panel's decision, and not that of the Commissioner, was relevantly affected by an error of law. That is because the Panel's decision superseded that of the Commissioner. That would include an error arising from the failure to revoke a decision made by the Commissioner in breach of the rules of procedural fairness. (c) Thirdly, s 269ZZQA is noteworthy. It confers a power on the Panel to reject an application for review of a Commissioner's decision if the Panel is not satisfied that the application contains a statement that sets out reasonable grounds for the reviewable decision not being correct or preferable. However, the Panel cannot reject such an application unless it first gives the applicant an opportunity to amend the statement within 30 days. The presence of such a provision is relevant to the determination of any obligation of procedural fairness in this matter.

The First Issue - Jurisdiction 32 The first issue for consideration is whether this Court has jurisdiction under the ADJR Act. The parties, for this purpose, focused on the decision of the Commissioner. Downer argued that the rejection decision was necessarily anterior to the process of making, or leading up to the making of, an assessment. That is because, it submitted, the first step leading up to the making of an assessment is the acceptance of the application for assessment, which, in turn triggers the process governed by ss 269X and 269Y. Rejection of the application here preceded the commencement of that process. In that respect, Downer observed that decisions covered by para (e) of Sch 1 to the ADJR Act are usually the subject of a separate objection and appeal process, such as that found in Pt IVC of the Taxation Administration Act 1953 (Cth). That explains why they are excluded from judicial review under the ADJR Act. In contrast, here, there is no equivalent objection and appeal regime to challenge a rejection decision made under s 269YA, other than review by the Panel. It relied upon the following passage from the decision of the Full Court of this Court in Deputy Commissioner of Taxation v Clarke and Kann (1984) 1 FCR 322 at 325: It is inappropriate to attempt to define the boundary between those decisions which are and those which are not "decisions leading up to" the making of an assessment. However, a decision does not lead to the making of assessment merely because it precedes the making of an assessment or because its purpose is to enable or facilitate the making of any assessment which may be made. A decision is not a decision leading up to the making of an assessment unless the making of an assessment has followed or will follow from the decision. See also Intervest Corporation Pty Ltd v Commissioner of Taxation (1984) 3 FCR 591; Hadfield Finance Pty Ltd v Federal Commissioner of Taxation (1988) 14 ALD 795. 33 In Meredith v Commissioner of Taxation (2002) 125 FCR 308, Lee and Cooper JJ drew a distinction between the Commissioner of Taxation's administration and assessment functions, with only the latter being subject to exclusion under para (e) of Sch 1. Thus, at 318-319 [36] their Honours said: The correctness of the decision in Intervest Corporation came up for consideration in a Full Court of this Court (Woodward, Jenkinson and Foster JJ) in Hadfield Finance Pty Ltd v Federal Commissioner of Taxation (1988) 79 ALR 249. The case also involved a decision of the Commissioner to refuse a request made by the taxpayer under s 105AA of the ITAA for a determination of a further period in which it might pay dividends for the purpose of making a sufficient distribution. In the judgment of Foster J, agreed in by the other members of the Court, his Honour declined to find that the decision in Intervest Corporation was wrongly decided, and found that it was correct and in accord with the reasoning of the Full Court in Clarke and Kann, and of Ellicott J at first instance in Tooheys Ltd v Minister for Business and Consumer Affairs (1981) 54 FLR 421, and on appeal to a Full Court of this Court in Minister for Industry and Commerce v Tooheys Ltd (1982) 60 FLR 325. The reasoning adopted by the Full Court in Hadfield Finance to hold that the decision in Intervest Corporation was correct, involved the drawing by the Full Court of a clear distinction between the Commissioner's administrative functions and his assessment functions, with the latter category only being subject to the exclusion from review rendered by the operation of s 3(1) of the ADJR Act and cl (e) of the First Schedule to it. (Emphasis added.) 34 The Commissioner contended that the process of making, or leading up to the making of, an assessment started here at an earlier point than that contended for by Downer. The Commissioner submitted that the process of assessment commenced with the making of the application for assessment under s 269V. I am inclined to agree with that submission. 35 However, the decision I must focus on, for reasons already given, is that of the Panel which affirmed the Commissioner's rejection decision. In my view, that is not a decision which forms part of the process of making, or leading up to the making of, any assessment. Rather, it is a separate process of limited statutory review of a step which may have been part of the process of making, or leading up to the making of, an assessment. That process of review, may indirectly lead to a re-starting of a process of assessment if the Panel were to revoke a rejection decision made by the Commissioner. If so, and even then, I would consider that such a Panel decision would be too remotely connected with the process of assessment and any resulting assessment for the purposes of para (e). Certainly, where the Panel affirms a rejection decision, there is no nexus with any process of assessment. Nor, is the Panel's decision a decision "disallowing objections to assessments or calculations of tax, charge or duty, or decisions amending, or refusing to amend, assessments or calculations of tax, charge or duty". A decision of this kind assumes the existence of an assessment or calculation of tax to be reviewed. Here, there was neither an assessment nor a calculation of tax by the Commissioner or the Panel. It follows that the Panel's decision is not excluded from review by para (e) of Sch 1 to the ADJR Act.

The Second Issue - Procedural Fairness 36 A person is not entitled to challenge an administrative decision on natural justice or other grounds where there has been a comprehensive appeal or review which has "cured" any defect touching the earlier decision: Deloitte Touche Tohmatsu v Australian Securities Commission (1995) 54 FCR 562 at 577-578 per Lindgren J. However, here there was no opportunity to "cure" any defect in Downer's application under s 269V before the Panel. That is because the Panel was limited to a consideration of the information that was before the Commissioner (s 269ZZUA(5)); I was told that the limited exceptions to that rule did not apply here (ss 269ZZRA(2) and 269ZZRB(2)). Nonetheless, when presented with a decision to review which is infected with an incurable breach of procedural fairness, the Panel has authority or power to review it. Its power or authority is premised on the existence of a decision in fact made in purported compliance with ss 269YA and 269ZZN(d) of the Act: Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 2 ALD 1; Plaintiff M174/2016; Calvin v Carr (1979) 1 NSWLR 1. However, where, as here, the Panel cannot "cure" procedural defects and cannot obtain any new information, even on a limited basis (cf Pt 7AA of the Migration Act 1958 (Cth) (the "Migration Act")), when presented with a decision corrupted by a breach of procedural fairness, the Panel should revoke it pursuant to s 269ZZUA(1)(b). Parliament could not have intended to have enacted a statutory scheme in which such an error could be made and then stand without any remedy because of the limited functions and powers of the Panel. As Edelman J observed in Plaintiff M174/2016 at [94] in relation to the Immigration Assessment Authority's review of a decision made by a delegate who had allegedly failed to comply with s 57(2) of the Migration Act: The Minister submitted that any failure by the delegate to afford procedural fairness was irrelevant because the Authority's decision "superseded" that of the delegate so as to render nugatory any jurisdictional error by the delegate. But Parliament will rarely be taken to contradict itself by (i) requiring a step to be taken as a matter of law, while at the same time (ii) authorising the decision maker not to comply with that step or authorising a process which incorporated that lack of compliance. Therefore, unless the contrary legislative intention were plain, Pt 7AA of the Migration Act is unlikely to be construed in a manner requiring the Authority to make a decision by a process that relied upon, or incorporated, a jurisdictional error by the delegate. Put another way, having proscribed conduct as a jurisdictional error by the delegate it is unlikely that Parliament would be taken to have intended that the error be relied upon by the Authority. (Footnote omitted.) In my view, Edelman J's reasons apply aptly to the Panel's decision here. As Megarry J (as his Lordship then was) once said, albeit in a different context, in Leary v National Union of Vehicle Builders [1971] Ch 34 at 49: If the rules and the law combine to give the member the right to a fair trial and the right of appeal, why should he be told that he ought to be satisfied with an unjust trial and a fair appeal? 37 It follows that the Panel will err in law if it fails to revoke a decision made which is infected with an incurable breach of the rules of procedural fairness and that breach is relevantly material: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 359 ALR 1. 38 Both parties agreed that there was an obligation on the Commissioner to observe the rules of procedural fairness. But there was a dispute over the content of that obligation. The starting point is the following passage from the judgment of the High Court in Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180 at 205 [75]: … it must now be taken to be settled that procedural fairness is implied as a condition of the exercise of a statutory power through the application of a common law principle of statutory interpretation. The common law principle, sufficiently stated for present purposes, is that a statute conferring a power the exercise of which is apt to affect an interest of an individual is presumed to confer that power on condition that the power is exercised in a manner that affords procedural fairness to that individual. The presumption operates unless clearly displaced by the particular statutory scheme. 39 The parties agree that the relevant provision and its statutory context inform here the content of a duty to provide procedural fairness. It was also agreed that statements made to a person by a decision-making body may also inform that content. In Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1, Gleeson CJ observed at 9 [24]-[25] The applicant rests his case upon the proposition that, if an administrative decision-maker states to a person affected an intention to take a certain procedural step, and fails to do so without warning the person affected of the change of intention, then the result is procedural unfairness warranting certiorari and prohibition. Such a proposition is far too broad. There are undoubtedly circumstances in which the failure of an administrative decision-maker to adhere to a statement of intention as to the procedure to be followed will result in unfairness and will justify judicial intervention to quash the decision; but for the present applicant to succeed it would be necessary to conclude that such a result will follow in all circumstances. That cannot be correct. To begin with, it overlooks the discretionary nature of the remedies of certiorari and prohibition. And, in any event, it requires the concept of legitimate expectation to carry more weight than it will bear. If such a proposition were accepted, it would elevate judicial review of administrative action to a level of high and arid technicality. (Footnote omitted.) 40 After considering the advice of the Privy Council in Attorney-General (Hong Kong) v Ng Yuen Shiu [1983] 2 AC 629, Gleeson CJ said at 12 [33]: The decision of the Privy Council stands for the proposition that, when a public authority promises that a particular procedure will be followed in making a decision, fairness may require that the public authority be held to its promise. That was the basis on which it was explained by Dawson J in Attorney-General (NSW) v Quin [(1990) 170 CLR 1 at 56-57]. Expectations created by a decision-maker may affect the practical content of the requirements of fairness in a particular case. (Footnotes omitted.) Whether a departure from a stated representation will sound in procedural fairness turns on whether there has been material unfairness. Thus, Gleeson CJ said relevantly at 12-13 [34]: … it is clear that the content of the requirements of fairness may be affected by what is said or done during the process of decision-making, and by developments in the course of that process, including representations made as to the procedure to be followed. So, for example, if a decision-maker informs a person affected that he or she will hear further argument upon a certain point, and then delivers a decision without doing so, it may be easy to demonstrate that unfairness is involved. But what must be demonstrated is unfairness, not merely departure from a representation. Not every departure from a stated intention necessarily involves unfairness, even if it defeats an expectation. In some contexts, the existence of a legitimate expectation may enliven an obligation to extend procedural fairness. In a context such as the present, where there is already an obligation to extend procedural fairness, the creation of an expectation may bear upon the practical content of that obligation. But it does not supplant the obligation. The ultimate question remains whether there has been unfairness; not whether an expectation has been disappointed. (Footnote omitted and emphasis added.) To similar effect, McHugh and Gummow JJ said at 34 [105]: But the failure to meet that expectation does not reasonably found a case of denial of natural justice. The notion of legitimate expectation serves only to focus attention on the content of the requirement of natural justice in this particular case. The ends sought to be attained by the requirement of natural justice may be variously identified. But at least in a case such as this the concern is with the fairness of the procedure adopted rather than the fairness of the outcome. It is with the decision-making process not the decision, as Lord Brightman put it. What is delivered by the requirement of natural justice is the right to a hearing, a technical expression in law, before action is taken. (Footnote omitted.) 41 Downer did not contend that this was a case where the Commissioner was under a duty to inquire about the completion of the application: cf Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22 at 39 [49] per Nettle J. Rather, as I understood it, the breach of procedural fairness was said to be a failure on the part of the Commissioner to give Downer the opportunity to supply all the necessary information in accordance with s 269W, either by 2 January 2018, or sometime within the 20-day period following lodgement of the application and Mr Wilkinson's telephone call of 29 December 2017. The call was important to Downer's case. It is worth setting out the evidence about it in more detail. Mr Wilkinson's unchallenged evidence was as follows: As I was aware that I was not able to use the auto sum function in the Spreadsheet to calculate the total interim duties overpaid, on or around 29 December 2017 I called the ADC to ensure that the Duty Assessment Application had been received and that all necessary information for the ADC to make an assessment had been included. I was informed by the ADC that, due to the Christmas and New Year period, there was no one available to discuss the Duty Assessment Application. As already mentioned, no one from the ADC contacted Mr Wilkinson. 42 The Commissioner submitted that the law did not require any officer of the ADC to give Downer the opportunity to complete the application for assessment. His reasons were as follows: (1) First, whilst it was accepted that statements made by a decision-making body, here the ADC, may inform the content of procedural fairness, such statements could not override any statutory constraints: see Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 at 207-211 per Gummow J. (2) Secondly, the Act did not expressly mandate the giving of the opportunity sought. This was to be contrasted with the information gathering powers in s 269X, and with, I note, the power to reject applications for review by the Panel as set out in s 269ZZQA, where there is an express requirement to give an applicant an opportunity to amend its application within a prescribed time period. There is a similar provision in s 269ZZG, which pertains to the Panel's review of Ministerial decisions. The lack of any similar provision in s 269YA is perhaps telling. It possibly supports an inference that Parliament did not intend to make the Commissioner subject to a duty of the kind asserted by Downer. Rather, it was open to me to find, it was submitted, that the correct statutory scheme is that importers have six months within which to lodge a compliant application, and within that period, may repeatedly do so until they get it right. (3) Thirdly, an obligation to give an opportunity to correct a non-compliant application was inconsistent with the imperative language of s 269W and its use of the words "must … contain". It was also inconsistent with the imperative language of s 269YA(2) and its use of the phrase "must reject the application if the Commissioner is satisfied within 20 days after it is lodged that it does not contain everything it must contain". Having formed the required state of satisfaction, the Commissioner must do one thing and one thing only: he must reject the application. (4) Fourthly, it was said that s 269YA was a tool for screening applications and no more. In that respect, the 20-day period imposed a degree of urgency that pointed against any need to give an applicant an opportunity for correction. (5) Fifthly, the Commissioner contended that Downer could not show that it had suffered any practical injustice. Downer had left it to the last minute to lodge the application just before the commencement of a long weekend. That left only 2 January 2018 as the last day to make any correction. Thereafter, it was submitted, the application could not be "perfected" because of the expiration of the six-month period imposed by s 269V. I have, however, already rejected that construction of the statutory scheme. In my view, the application could have been corrected at any time during the 20-day period. (6) Finally, the foregoing was said to be consistent with the "usual common law position" that a decision-maker need not expose his or her provisional views for comment by the person affected by the exercise of power. As French CJ and Kiefel J (as her Honour then was) said in Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at 599 [9]: … Procedural fairness requires a decision-maker to identify for the person affected any critical issue not apparent from the nature of the decision or the terms of the statutory power. The decision-maker must also advise of any adverse conclusion which would not obviously be open on the known material. However, a decision-maker is not otherwise required to expose his or her thought processes or provisional views for comment before making the decision. That is not to say that the Tribunal cannot or should not, in the exercise of its discretion, invite an applicant for review to make supplementary submissions in relation to apparent inconsistencies, contradictions or weaknesses in his or her case which have been identified by the Tribunal. Indeed it may be that such an invitation, once issued, amounts to a binding indication by the Tribunal that the review process will not be concluded until the applicant has had an opportunity to respond. But an invitation to comment on perceived inconsistencies and contradictions is not an invitation under s 424A. The Tribunal's letter of 11 April 2008, despite its phrasing, was not sent pursuant to the obligation imposed by that section. Part of the reasoning in the Federal Court depended upon the incorrect view that it was such an invitation. (Footnotes omitted.) 43 I respectfully disagree with the Commissioner's submission, again presented with commendable force by his senior counsel, for the following reasons: (1) First, express words were not required to impose a duty on the Commissioner to give Downer an opportunity to render a compliant application for assessment. Nor does the presence elsewhere of express obligation to seek information, or to seek amendments to an application for review, necessarily deny the existence of an obligation to give Downer an opportunity to correct its application in the particular circumstances of this case. (2) Secondly, the Dumping and Subsidy Manual told importers that the ADC would advise the applicant of deficiencies in an application related to compliance with s 269W(1A). Contrary to the Commissioner's contention, this representation was not limited to just that subsection. The Dumping and Subsidy Manual stated, more generally, that applications had to be lodged in a timely manner "so that the Commission has sufficient time to identify problems with information that was provided". It then states that "this procedure" will avoid the possibility of not having time "to remedy the shortcomings". In my view, the Dumping and Subsidy Manual is a representation to importers that there is a process whereby the ADC identifies "problems" in an application which are then communicated to an importer "to remedy the shortcomings". These representations are not limited to s 269W(1A). Nor are they inconsistent with the statutory scheme. They necessarily inform the content of procedural fairness here. Moreover, I find that the Commissioner had the power to give Downer the opportunity of correction whether impliedly, or by reason of s 269SMG of the Act, which is in these terms: The Commissioner has the power to do all things necessary or convenient to be done for or in connection with the performance of his or her functions. In my view, the representations in the Dumping and Subsidy Manual were authorised by the foregoing provision. It follows that shortcomings in an application for assessment are capable of being remedied during the six-month period and possibly also by making fresh applications for assessment during that period. However, for reasons I have already given, the ability to correct an application also subsists during the 20-day period prescribed by s 269YA. There is nothing about the statutory scheme which might suggest otherwise. Consistently with the Dumping and Subsidy Manual, the application here stated that if the ADC needed further information concerning s 269W(1A), it should contact Mr Wilkinson's firm. This never happened. More significantly, Mr Wilkinson sought to engage the ADC by telephone. The failure to respond to his request was unfair in the sense mandated by Lam at 12-13 [34]. It was no mere departure, without more, from a representation made. The failure to respond was unfair precisely because it denied Downer the opportunity of obtaining a refund of overpaid interim duty. It was also unfair because it was inconsistent with the ADC's publicly stated procedure for addressing shortcomings contained within an application for assessment. In the circumstances of this case, procedural fairness required the ADC to follow that procedure. They should have returned Mr Wilkinson's telephone call. (3) Thirdly, compounding that unfairness here is the fact that the ADC was the cause of one of the deficiencies identified. I find that the software error, which prevented the operation of the auto sum feature in the ADC spreadsheet, together with the boxes containing the words "DO NOT COMPLETE THIS AREA", frustrated Mr Wilkinson's ability to comply with s 269W. The Panel's conclusion that the amount of overpaid interim duty could have been expressed elsewhere is no answer to that criticism. That is because Mr Wilkinson was attempting to follow the ADC's own form. (4) Fourthly, further compounding the unfairness here is the fact that the two deficiencies in the application were minor and could very easily have been corrected. Mr Wilkinson's evidence was that he could have responded "promptly" and "immediately" if he had been given notice of the problems ultimately identified by the ADC. In addition, I find that the ADC could very easily have aggregated the figures itself to identify the claimed excess of interim duty paid, and, for that purpose, have also very easily added the small amounts arising from the first consignment, which I find it had knowledge of. Neither step would have prejudiced the Commissioner in the correct and ultimate calculation of liability. It did not do these simple things. Instead, it sought to take advantage of these matters. (5) Fifthly, the common law principle derived from SZGUR is not applicable. Downer did not seek to be told about the Commissioner's thought-making processes. Rather, this is a case, at least with respect to the first consignment which Mr Wilkinson had no knowledge of, where the Commissioner was under a duty to advise of the "adverse conclusion" which would flow if the application were not amended or supplemented to take account of that consignment. The Commissioner knew about it; but Mr Wilkinson did not. (6) Sixthly, whilst not directly in issue in this proceeding, an importer's requirement to supply information which calls for an evaluative judgment to be formed, such as in s 269W(1A), supports the existence in a given case, of an obligation on the ADC to give an importer an opportunity to correct or supplement its application within the 20-day period. That is because, in matters that are more a matter for judgment, the risk of disagreement about, for example, whether "sufficient evidence" was given, is all the greater. 44 For the foregoing reasons, I am satisfied that this is a case where there was more than a mere departure from a stated intention contained in the Dumping and Subsidy Manual. The departures were unfair in the circumstances of this case. Those circumstances included the representations in the Dumping and Subsidy Manual, the deficiencies in the spreadsheet supplied by the ADC, the telephone call made by Mr Wilkinson, and the relatively minor nature of the defects which were said to render the application non-compliant with s 269W. In these circumstances, procedural fairness required the ADC to contact Mr Wilkinson to give Downer the opportunity to correct its application. The failure to do so was productive of practical injustice because, I find, the deficiencies could have been cured on 2 January 2018 and also within the 20-day period. The breach of procedural fairness was thus material in nature: Minister for Immigration and Border Protection v SZMTA (2019) 163 ALD 38. It was material because it prevented Downer from having its actual liability to duty assessed, which in turn has denied Downer from being paid a significant refund, on the assumption of the correctness of Downer's margin calculation. 45 It follows that the Panel erred in law in not revoking the Commissioner's decision. That error was jurisdictional in nature because it resulted in practical injustice in the way explained above.

The Third Issue - Error of Law 46 Downer submitted that there were two errors of law that were made by the Commissioner and by the Panel. For reasons already given, it is the Panel's decision which is important. As it happens, and relevantly, Downer contended that the Panel made two errors of law which replicated errors made by the Commissioner. The two errors said to have been made were: (1) The finding that there had been a breach of s 269W(1)(a) because the first consignment was not included as part of the "full description of the goods". This was misconceived, it was submitted, because the Commissioner and the Panel failed to apply the maxim de minimus non curat lex (the "Maxim"). The first consignment was so "trifling" such that its non-inclusion should have been ignored. (2) The finding that there had been a breach of s 269W(1)(e) because the application for assessment did not specify the amount of excess interim duty paid. This was misconceived because, again, the Commissioner and the Panel were bound to apply the same Maxim, or by reason of the application of the principle of "substantial compliance". The application substantially complied with s 259W(1)(e) because it contained nearly all of the data needed to calculate the required amount. 47 Whether it should be concluded that the Maxim or that of substantial compliance should be implied into an applicable statutory scheme is a question of statutory construction. As Hill J observed in Farnell Electronic Components Pty Ltd v Collector of Customs (1996) 72 FCR 125 at 127: … there are many references in texts and cases to the de minimis rule as a rule of construction. F.A.R Bennion. Statutory Interpretation: A Code (2nd ed, 1992), p 780 refers to there being a general rule of statutory interpretation that: "unless the contrary intention appears, an enactment by implication imports the principle of the maxim de minimis non curat lex (the law does not concern itself with trifling matters)." Similarly, Halsbury's Law of England (4th ed, 1995), Vol 44(1), par 1441, under the title "Statutory Interpretation" says: "De Minimis Principle. Unless the contrary intention appears, an enactment by implication imports the principle of legal policy expressed in the maxim de minimis non curat lex (the law does not concern itself with trifling matters); so if an enactment is expressed to apply to matters of a certain description it will not apply where the description is satisfied only to a very small extent." (See also H Broom, A Selection of Legal Maxims (9th ed, 1924), pp 100- 102.) The principle has been applied, either expressly or by implication, in a wide variety of situations where a trivial failure to comply with a specific condition has been ignored. Practically speaking, there is probably little difference here between the doctrine of "substantial compliance" and the Maxim. The former doctrine is found expressed in s 25C of the Acts Interpretation Act 1901 (Cth) which applies only to forms. However, I accept that the potential reach of the doctrine is broader and would apply to any document with mandated contents, so long as the applicable statutory provision supported its application either expressly or impliedly: Quinney v United Stevedoring Pty Ltd [1957] VR 484 at 489 per Pape J. 48 I received written submissions from both parties concerning the decision of the High Court in Wingadee Shire Council v Willis (1910) 11 CLR 123. That case concerned s 144 of the Local Government Act 1906 (NSW) which provided, in summary, that rates were payable on the expiration of the time fixed in a notice to be served on the owner of land, not being less than 30 days after service. A notice was served on a taxpayer which stated that the amount was due and payable on the expiration of 30 days from service of the notice but then incorrectly stated: "The day on which such rates will be due and payable will therefore be 28th October 1907". The correct date was 29 October 1907. It was argued that the notice was thus invalid. The argument was rejected. Isaacs J (as his Honour then was) said at 144: I think the notice given was substantially accurate. The reference to 28th October was self-explanatory as a mere calculation which, though perhaps one day short of accuracy, did not vitiate the main and mandatory portion of the notice. The mistake was evident, and could safely be ignored and corrected by the recipient. As in the analogous rating cases of Ormerod v. Chadwick and R. v. Stretfield, in which very similar questions were raised, it is a case of falsa demonstratio quae non nocet. (Footnotes omitted and emphasis added.) The Latin maxim falsa demonstratio non nocet roughly means that a false description does not vitiate a document. See also Griffith CJ at 131, Barton J at 140 and Higgins J at 147-148. Downer contended that its assessment application was "substantially accurate" to use the language of Isaacs J. 49 The Commissioner distinguished the decision on the basis that the mistake in the rates notice was otiose. The notice correctly disclosed that the rates were payable within 30 days in any event. The defects in the application for assessment here were not, it was said, of this kind. They were defects of omission, which could only be overcome through the provision of the required information. 50 Downer accepted that the facts and circumstances in Wingadee were different from those here. However, it submitted that the expression of substantial compliance in the decision of Isaacs J reflected a broader principle which, following the decision in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, was to be expressed here in the following way: did Parliament intend that a failure to include information in an application require a conclusion that that application "does not contain everything it must contain" under s 269W for the purposes of s 269YA(2)? See also City of Port Adelaide Enfield v Minister for Transport and Urban Planning (1999) 73 SASR 22. 51 There are two contextual issues which bear upon Downer's submissions: (1) First, the Dumping Duty Act and the Act are revenue laws. The Dumping Duty Act imposes liabilities which are final in nature, subject to any review by a court. The obligation is to pay the liability imposed, and not one dollar more or less. The Maxim and principle relied upon by Downer here, could never be applied to the discharge of a final liability to pay duty. That being so, it might be thought to be unlikely that either that Maxim or principle could apply to any anterior step leading to the ascertainment of that liability, such as here, the application for an assessment made under s 269V which may result in the calculation of a liability to pay duty. Compliance with s 269W takes place when each of its applicable requirements is engaged and addressed. When this takes place, the application will contain "everything it must" for the purposes of s 269YA(2). (2) Secondly, and in contrast, s 269W describes the content of what is to be contained in a statutory request, and no more. Imprecision may be of no moment in such an application precisely because of the subsequent investigation the Commissioner must undertake by reason of s 269X of the Act. An application for assessment may be replete with incorrect claims, but these will not bind the Commissioner or govern the recommendations to be made to the Minister. 52 The Commissioner emphasised that the scheme of the legislation was to require all consignments made within "the particular importation period" to be part of the application for assessment. According to the second reading speech which introduced the Customs Legislation (Anti-Dumping Amendments) Bill 1992 (Cth) (which led to the insertion of s 269W), the requirement for an application to cover all consignments for a period was to reduce the possibility of such applications being lodged on a selective basis, and only in respect of those consignments where a repayment was likely. The exclusion of the first consignment, whilst very small in number, would, it was said, undermine that statutory purpose. 53 The Commissioner also submitted that the language of ss 269W and 269YA(2) necessarily precluded the application of the Maxim or the principle of substantial compliance. The Commissioner emphasised the following language: the phrases "must … contain" and "a full description of the goods … in each consignment" (emphasis added); there must be "a statement of the amount" by which interim duty was overpaid; and there will be non-compliance if the application does not contain "everything it must contain" under s 269W. This language was, it was said, uncompromising and required definitive and exhaustive answers. 54 The use of language such as the word "must" may not, however, add much to the debate here. In the context of a form or request, the use of that word does not exclude the possibility of substantial compliance being sufficient. As the High Court observed in Adams v Lambert (2006) 228 CLR 409 in relation to a misdescription in a Bankruptcy Notice at 420 [29]: … Furthermore, as noted earlier, the fact that the requirement is expressed by the use of the term "must" is not conclusive. How otherwise might a requirement as to form be expressed? (Footnote omitted.) 55 I make the following observations about ss 269W and 269YA(2): (1) First, the main concern of s 269W(1) is the disclosure of numbers to the Commissioner arising from opinions of the importer based upon sufficient evidence. Each of paras (b) to (e) of s 269W(1) of the Act requires the provision of statements of amounts. It is inevitable that the amounts disclosed may be incorrect. But the representation in an application for assessment of incorrect amounts and incorrect opinions about value, without more, would not render that application non-compliant with s 269W. That is because the legislative scheme provides for the Commissioner to ascertain provisionally the correct figures pursuant to s 269X. (2) Secondly, I respectfully accept the Commissioner's contention that there is no room for an application of the Maxim or the principle of substantial compliance in construing s 269W. There can be no room, in a revenue enactment, for the ascertainment of liability that is anything other than precisely correct. Near enough is not good enough. That being so, the same rigour must be applied at all stages of the assessment process, including the application for assessment. In other words, I find that Parliament did intend that substantial compliance with s 269W would be insufficient. If a taxpayer only substantially complies with s 269W, it may well result in an application of s 269YA(2). Having said that, compliance and accuracy are not one and the same thing. For an application to contain "everything it must" the applicant must address fully each of the elements listed in subs (1) to (1B) of s 269W. It must be able to identify clearly where each of those elements is addressed in the application. For the purpose of s 269YA, the Commissioner's task is to ensure that there has been this degree of compliance. He does not at this stage check the accuracy of the figures disclosed. That takes place later pursuant to s 269X. Hence, an application may be compliant with s 269W yet feature some numerical inaccuracies; in those circumstances, the filtering force of s 269YA would not be brought to bear. There may, however, be instances where the numerical inaccuracies are attended by more fundamental deficiencies in the application which would warrant an application of s 269YA(2). 56 Here, if it matters, I think that Downer's application probably complied with s 269W(1)(a) of the Act: a "full description" of the goods was given. Assuming that the first consignment was a sample of that which followed, the "full description of the goods" imported in the first consignment was the same as the goods described in the application Downer submitted. In other words, there would be nothing about the goods in the first consignment that differed from the goods imported subsequently. In describing the goods consigned, s 269W(1)(a) imposes no requirement that each consignment be separately identified and described where the full description of the goods in each consignment is identical. The concern of that paragraph is with the nature of the goods imported and not the number of goods imported. Here, neither the Panel nor the Commissioner took issue with Downer's description of the goods imported in the four consignments as set out at [23] above. 57 Downer's application, however, did not comply with s 269W(1)(e) of the Act. There was no "statement of the amount" of excessive duty. The statement did disclose the interim dumping and countervailing duty paid on each of the four consignments, as well as the duty payable. But there was not a statement of a single amount, or a formula or equation that could express a single amount, of the excess duty claimed. And that is so, even though the spreadsheet obtained from the ADC website frustrated compliance with s 269W. The language of ss 269W and 269YA(2), nonetheless, leaves no room for any other conclusion. The remedy for that frustration however, is, I find, in the breach of procedural fairness. 58 For the foregoing reasons, because the applicant succeeded in relation to the second issue, the decision of the Panel will have to be set aside. I will give the parties 14 days within which to provide agreed orders, or failing that, submissions (of no more than four pages) setting out what orders each side contends should be made. I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Steward.