Kenso Marketing (M) SDN BHD v Chief Executive Officer of Customs

Federal Court of Australia (Full Court)|2011-03-01|Before: Honourable Keane CJ, Gordon JJ, Keane CJ

Solicitor for the Applicant: Mason Sier Turnbull

Solicitor for the First Respondent: Australian Government Solicitor

Counsel for the Second Respondent: Mr RM Niall SC with Ms K Beattie

Kenso Marketing (M) SDN BHD v Chief Executive Officer of Customs [2011] FCAFC 26 CORRIGENDUM 1 In paragraph 14 of the Reasons for Judgment, in the second sentence, the word "animation" should read "amination". 2 In paragraph 15 of the Reasons for Judgment, DP McPherson in Kenso Marketing (M) SDN BHD and Chief Executive Officer of Customs and Nufarm Australia Limited (Party Joined) [2008] AATA 42 at [5] and [6] is quoted. In the first paragraph, in the second sentence of this quote, the word "animation" should read "amination". In the second paragraph, in the fourth sentence of this quote, the word "animation" should read "amination". 3 Paragraph 16 of the Reasons for Judgment, in the third sentence, the word "animation" should read "amination". I certify that the preceding three (3) numbered paragraphs are a true copy of the Corrigendum to the Reasons for Judgment herein of the Honourable Keane CJ, Downes and Gordon JJ.

Associate: Dated: 17 March 2011 IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 557 of 2010

JUDGES: KEANE CJ, DOWNES AND GORDON JJ DATE OF ORDER: 1 MARCH 2011 WHERE MADE: MELBOURNE

Both appeals be dismissed with costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website.

IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 557 of 2010

JUDGES: KEANE CJ, DOWNES AND GORDON JJ DATE: 1 MARCH 2011 PLACE: MELBOURNE

THE COURT: 1 This appeal concerns two decisions of the Administrative Appeals Tribunal (the Tribunal). Each decision deals with a different aspect of an application made by Kenso Marketing (M) SDN BHD (Kenso), to the Chief Executive of Customs for a Tariff Concession Order (TCO) which permits the importation of prescribed goods at a reduced rate of duty. Kenso's application for a TCO was made under Part XVA of the Customs Act 1901 (the Act). The goods, the subject of Kenso's application, were described as: HERBICIDES, having a basis of glyphosate as the active ingredient with a strength of 360 g/l (grams per litre) or greater OR 360 g/kg (grams per kilo) or greater. 2 The application was made on 11 January 2006. It was opposed by two objectors, Autopak Formulas Pty Ltd (Autopak), and Nufarm Australia Limited (Nufarm). Nufarm produces a herbicide in Australia from imported glyphosate acid: the product is known as Roundup. It is sold by Nufarm in cartons of 4 x 5 litre containers. 3 Kenso's application was refused by a delegate of the Chief Executive of Customs and the delegate's decision was affirmed, following an internal review, on the basis that there were substitutable goods produced in Australia in the ordinary course of business. Roundup was one of the substitutable goods. 4 The applicant appealed to the Tribunal. Nufarm, but not Autopak, was joined as a party to the proceedings before the Tribunal. Nufarm is a respondent to the appeal to this Court. 5 The Tribunal affirmed the decision of the delegate. The Tribunal delivered two decisions, the first on 15 January 2008, and the second on 16 June 2010, which was made the subject of a confidentiality order under s 35 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). 6 Kenso now appeals to this Court under s 44(1) of the AAT Act. Such an appeal lies only "on a question of law". 7 We propose to set out the legislative framework within which the Tribunal's decisions were made before referring to the Tribunal's decisions. We will then discuss the arguments agitated in this Court.

THE LEGISLATION 8 Under s 269P(3) of the Act, the Chief Executive Officer is required to make a TCO if satisfied that an application satisfies "the core criteria". Section 269C of the Act specifies that an application is taken to meet the core criteria if "… on the day on which the application was lodged, no substitutable goods were produced in Australia in the ordinary course of business." 9 Section 269B defines the phrase "substitutable goods" as: goods produced in Australia that are put, or are capable of being put, to a use that corresponds with a use (including a design use) to which the goods the subject of the application or of the TCO can be put. 10 Section 269D of the Act defines the phrase "produced in Australia" as follows: 269D Interpretation - goods produced in Australia (1) For the purposes of this Part, goods, other than unmanufactured raw products, are taken to be produced in Australia if: (a) the goods are wholly or partly manufactured in Australia; and (b) not less than ¼ of the factory or works costs of the goods is represented by the sum of: (i) the value of Australian labour; and (ii) the value of Australian materials; and (iii) the factory overhead expenses incurred in Australia in respect of the goods. (2) For the purposes of this Part, goods are to be taken to have been partly manufactured in Australia if at least one substantial process in the manufacture of the goods was carried out in Australia. (3) Without limiting the meaning of the expression substantial process in the manufacture of the goods, any of the following operations or any combination of those operations does not constitute such a process: (a) operations to preserve goods during transportation or storage; (b) operations to improve the packing or labelling or marketable quality of goods; (c) operations to prepare goods for shipment; (d) simple assembly operations; (e) operations to mix goods where the resulting product does not have different properties from those of the goods that have been mixed. … 11 Section 269E of the Act provides relevantly: 269E Interpretation - the ordinary course of business (1) For the purposes of this Part, other than section 269Q, goods (other than madetoorder capital equipment) that are substitutable goods in relation to goods the subject of a TCO application are taken to be produced in Australia in the ordinary course of business if: (a) they have been produced in Australia in the 2 years before the application was lodged; or (b) they have been produced, and are held in stock, in Australia; or (c) they are produced in Australia on an intermittent basis and have been so produced in the 5 years before the application was lodged; and a producer in Australia is prepared to accept an order to supply them. …

THE ISSUES BEFORE THE TRIBUNAL 12 The Tribunal noted, at [7] of the reasons for its first decision, that there was "no doubt" that the herbicide produced by Nufarm can be used as a substitute for the herbicide produced by Kenso. The issue in contention before the Tribunal concerned the phrase "produced in Australia" in s 269C of the Act. 13 In addressing the issue whether the herbicide produced by Nufarm was "produced in Australia", the Tribunal was required to address two questions: first, whether "at least one substantial process in the manufacture" of Nufarm's goods was "carried out in Australia" as required by s 269D(2); and secondly, whether the test relating to the value of the Australian component of factory or works costs in s 269D(1)(b) was satisfied. The parties were agreed that, for reasons of convenience, the questions should be determined in this order. In the end, each question was answered in the affirmative by the Tribunal.

The Tribunal's first decision: was a substantial process of manufacture carried out in Australia? 14 In its first decision of 15 January 2008, the Tribunal found that Nufarm's two-step process was necessary to make the glyphosate acid which it imported suitable for use as a herbicide. Roundup is the product of two processes: first, a process of animation, a chemical reaction between glyphosate acid and monoisopropylamine to produce glyphosate isopropylamine salt; and secondly, a process of amalgamation, or formulation with a surfactant so that the solution will adhere to weeds long enough to kill them. Thus Nufarm's two-step process is necessary to produce a good which has a practical use as a herbicide: Roundup has a practical use as a herbicide, glyphosate acid does not. 15 The Tribunal outlined Nufarm's method of production at [5] and [6] of the reasons for the first decision: In Australia there are basically two steps in producing glyphosate herbicides. The first is an animation process by which the glyphosate acid (also known as "glyphosate technical" or "glyphosate wet cake") is combined with mono-isopropylamine (MIPA) to form glyphosate isopropylamine salt. The acid itself used to be manufactured in Australia by Monsanto until its patent expired. Since about 2002 all glyphosate acid used in producing herbicides in this country has been imported. That is so, of both Nufarm and the applicant Kenso. The second step in producing the herbicide is to formulate the glyphosate isopropylamine salt by diluting it with water and blending it with a surfactant to provide a glyphosate isopropylamine formulation of the desired concentration measured in grams per litre. A surfactant is a surface active agent, whose function is to facilitate movement of the salt through the target plant and into its root system. Its action has been compared to that of a detergent. Of the two steps, the first (the animation process) is the critical one for the purposes of determining this application. 16 Kenso's arguments were grounded in the proposition that glyphosate acid is "as much a herbicide as is the resulting product" (Tribunal's decision, at [12]). The Tribunal rejected this proposition. The Tribunal considered first, that Kenso's argument ignored the animation step in the process which produces a chemical reaction which turns acid into salt; and secondly, that the amalgamation process is necessary to transform the herbicidal potential of the salt into an actual plant killing agent. The Tribunal said at [14] - [15]: Successful poisonings have, however, always depended upon having access to the prospective victim. Without it, poison is innocuous. To say that the resulting product is simply a herbicide like the initial glyphosate acid is, however, to engage in a high level of abstraction that does nothing to resolve the practical question raised in ss 269D or 269D(3)(e). On the applicant's view of the herbicidal qualities, the essential properties of the glyphosate, both before and after the amination and formulation process, are the same. That is why, says the applicant, they are commonly described as glyphosate herbicides. The difficulty is that this ignores the whole purpose of the production process, which is aimed at making the acid usable. There is no functional utility in a herbicide that, whatever its toxic potential, cannot without more kill weeds. In ordinary language, it cannot legitimately be termed a herbicide. It becomes necessary to look more closely at the incidents and effects of the process that takes place in converting glysophate acid to an effective plant killer. [sic] As mentioned, the first step is to produce glyphosate salt by diluting the acid with water and neutralising with an organic base. Monoisopropylamine is the base commonly used for this purpose. It is highly volatile and must be introduced into the acid from beneath the surface or it vaporises and pollutes the atmosphere. The process is exothermic and must be controlled to keep it below 65°C. The chemical reaction that ensues produces a new chemical compound (glyphosate-isopropylamine salt) having a different molecular structure with different physical and chemical properties. After being formulated with a surfactant and introducing a dye, the resulting herbicide is ready for use. 17 Attention then shifted to whether this process could be described as "substantial". In addition to the evidence that the process of formulation or amalgamation to produce a product usable as a herbicide, the Tribunal accepted the undisputed evidence of the chemical differences between the individual ingredients and their amalgamated product in reaching the conclusion that Nufarm's process was a process of "manufacture" within the meaning of s 269D(2) of the Act (at [19]). In this regard, the Tribunal said, at [21]: [T]he question whether under s 269D(2) a process in the manufacture of goods is "substantial" depends on the significance or importance of its contribution to the making of a new or different thing. What s 269D(2) calls for is at least one substantial process "in" the manufacture of the goods in Australia. In doing so, it may perhaps invite a comparison with other activities carried out in making the goods. The chemical conversion of the glyphosate acid, and its consequences for the production of the effective herbicide, are sufficient to enable it to qualify as "substantial" in the manufacture of glyphosate herbicide. (Emphasis in original.) 18 Accordingly, the Tribunal found the processes used by Nufarm in the manufacture of its goods occurred wholly or partly in Australia.

The Tribunal's second decision: was the test relating to factory or works costs satisfied? 19 It then became necessary for the Tribunal to address the question whether not less than 25 per cent of the factory or works costs of Roundup were represented by the sum of the value of Australian labour, materials, and factory overhead expenses incurred in Australia in respect of the goods. 20 At the hearing in relation to the second decision on 16 June 2010, Kenso sought the production by Nufarm of certain documents relating to the importation by Nufarm of raw materials used in its herbicide manufacturing process. The Tribunal decided not to compel production of these documents. Further, during the hearing in relation to the second decision, counsel for Kenso sought to put documents previously obtained from Nufarm to Mr Duggan, a witness called by Nufarm, to prove the quantum of factory or works costs of the goods attributable to Australian labour and materials. The Tribunal upheld Nufarm's objection to this course. We shall refer to this decision in more detail in due course. 21 Nufarm relied upon a breakdown of the costs of Roundup to demonstrate that it satisfied the "factory or works costs" test. There were several categories of materials and inputs used in producing Roundup and readying the product for sale and delivery, including the cost of cartons for containers of herbicide, "pallet pads" which were used to assist in the transportation of the finished product, labels and booklets. These particulars were deleted from the Tribunal's second decision by a confidentiality order. 22 Kenso argued that some of the inputs relied upon by Nufarm went beyond the meaning of the words "factory or works costs" in s 269D(1)(b). The Tribunal rejected this argument, holding (at [23], [25] - [27] and [29] - [30]): Nufarm adopted an approach of calculating its total labour and allowable overhead costs for one of its factories (which produces glyphosate herbicides at the lowest unit cost of its production facilities in Australia) and determined a per litre cost of production of glyphosate herbicides generally and applied that cost to the production cost of Roundup 360. Nufarm's evidence, which we accept, is that this is an accurate method of calculating the production cost of Roundup 360. … That leaves the remaining question of whether all of the itemised categories of cost referred to in the table above are properly included in the concept of 'the factory or works costs of the goods' contemplated by s 269D. The concept of 'factory or works costs of the goods' is not defined in the Act. Authorities suggest that these words bear their ordinary and commonsense meaning. They are not words which have an acquired legal or technical meaning, and that 'factory or works costs of the goods' means all actual costs incurred in the transformation of material into finished goods, including packaging and labeling [sic] costs. We take the view that the concept focuses on finished goods and looks to the cost of getting the inputs to those goods to the point where they are ready for the usual kind of sale by the manufacturer or producer of those goods. Selling, marketing and associated overhead and administration costs are not to be included. … The finished goods in question here need to be contained in an appropriate container, and need labels and other information given their inherent toxic nature. We see no reason for excluding the costs contended for by Nufarm. We are of the view that, with the possible exception of the pallet pads, which in any event would not alter the conclusion to be reached, all of the costs contended for by Nufarm ought be included in the calculation of the 'factory or works costs of the goods'. (Footnotes and confidential table omitted.)

THE ISSUES BEFORE THIS COURT 23 In its appeal to this Court, Kenso submits that: 1. The Tribunal misconstrued s 269D(2) of the Act; 2. the Tribunal erred by denying procedural fairness to Kenso when it refused to require the production of documents; 3. the Tribunal erred by denying procedural fairness when it disallowed the use of documents disclosed by Nufarm when cross-examining that party's witness; 4. the Tribunal misconstrued the expression "factory or works costs" in s 269D(1)(b) of the Act. 24 We turn now to consider the arguments which address these issues.

The construction of s 269D(2) of the Act. 25 Kenso submitted that s 269D(2), construed purposively, is intended to describe a process that results in the production of a wholly new good. So much may be accepted; but Kenso goes further and argues that because glyphosate acid is described as a herbicide, Nufarm's process in Australia to produce Roundup which is also a herbicide, does not produce a wholly new good because Roundup is not a good of a "different essential character" from glyphosate acid. Kenso argues that this approach is supported by the Second Reading Speech and the Explanatory Memorandum to the Customs Legislation (Tariff Concessions and Anti-Dumping) Amendment Bill 1992 which added Pt XVA to the Act. 26 The comprehensive and clear statement by the Tribunal of its reasons for its first decision means that it is possible to be brief in dealing with this argument. It may be said immediately that it is doubtful whether this argument raises a question of law in that the question whether Nufarm's manufacturing process is a "substantial process in the manufacture of the goods" is in truth a question of fact (Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 286-289). However that may be, the Tribunal did not err in its understanding of Nufarm's processes of manufacture. The suggestion that the salt produced by the chemical reaction of an acid and an alkali is essentially the same as the acid does not commend itself to commonsense; and, in a context in which the use to which goods may be put is of central concern, the Tribunal was also correct in holding that a product which is actually used to kill weeds is indisputably different from a product which does not. Thus, on the undisputed evidence, the decision of the Tribunal was correct. 27 It may also be said that Kenso's assertion that the "essential character" of the goods is decisive of the application of s 269D(2) of the Act calls to mind concepts which were in vogue at the University of Paris during the residence of St Thomas Aquinas. These concepts find no place in the language of Pt XVA of the Act or, for that matter, in the Second Reading Speech or the Explanatory Memorandum. 28 Kenso's first submission must be rejected.

Procedural Fairness 29 Kenso submits that it was denied procedural fairness in the two respects set out above. Both these contentions concern the second of the Tribunal's decisions. It is, therefore, convenient to consider Kenso's contentions in relation to both these points together. In order to understand these contentions, it is necessary to refer to the procedural history of the matter in some detail. 30 On 18 July 2008, Kenso sought the issue of a summons to Nufarm to produce a large number of documents relating to Nufarm's costs of production of Roundup (the First Summons). Nufarm made a number of such documents available to Kenso, but Kenso pressed the Tribunal to produce further documents. 31 On 11 August 2008, the Tribunal declined to grant leave to issue the summons but directed that Nufarm produce documents for examination by Kenso's accountant and his assistants; they were authorised to take copies of documents. 32 On 11 May 2009, after some further unresolved skirmishing in relation to the production of documents by Nufarm, Kenso was invited by Nufarm to seek further directions in relation to the production of documents by Nufarm. 33 On 24 June 2009, a direction, expressed to be made "By Consent", was given by the Tribunal that "on or before 11 September 2009, the parties are to … (c) lodge and serve a tender bundle comprising all documents which either party seeks to use in cross-examining or to tender at hearing" (the Consent Direction). The direction to file a tender bundle was consistent with the statutory requirement, under s 269SHA(5) of the Act, that no less than 28 days before the hearing date, any document on which a party to the proceeding intends to rely must be filed and served unless the Tribunal makes an order permitting otherwise. 34 On 16 July 2009, Kenso asked Nufarm for "copies of the executed agreement, memorandum of understanding, instrument or any other document that form the legal basis upon which Nufarm is appointed the exclusive distributor of Roundup products by Monsanto" (the Monsanto Agreement). Nufarm did not comply with this request. 35 On 20 August 2009, Kenso renewed its request for the Monsanto Agreement and foreshadowed "an application to the Tribunal for a summons to produce the relevant documents". 36 On 26 August 2009, there was a further directions hearing before the Tribunal at which Kenso did not seek production of the Monsanto Agreement or any associated documents. At this hearing, the parties were again directed to lodge and serve a tender bundle comprising all documents which either party sought to use in cross-examination or to tender at the hearing (the Subsequent Direction). This was to occur on or before 15 October 2009. 37 The hearing before the Tribunal in relation to the second issue was scheduled to commence on 12 April 2010. Kenso gave the document to Monsanto (the Proposed Summons) at 4:35 pm on 6 April 2010, that is to say two working days before the commencement of the directions hearing, seeking production of documents relating to the association between Nufarm and Monsanto regarding the production of Roundup. 38 On 12 April 2010, the Tribunal heard argument as to whether it should issue the Proposed Summons. It declined to do so. When a like application was heard on 11 August 2008, the Tribunal, constituted by Deputy President McPherson, did not doubt its power to issue the summons under s 40(1A) of the AAT Act, but took the view that to accede to Kenso's application would have been "inconsistent with the spirit of s 2A of the AAT Act, which enjoins a review mechanism that is to be not only fair and just but '… economical, informal and quick'". It may readily be inferred that the same view informed the decision of 12 April 2010. 39 It should also be said that Kenso had provided a statement of its contentions in which it had not advanced any suggestion the Monsanto documents might have been relevant. It was said on Kenso's behalf that it was entitled to seek disclosure of documents which might have shown that the ex-Australian input costs were artificially inflated. Kenso's statement of its contentions gave no hint of such a case. It was said that Kenso could not responsibly have alleged such a case because knowledge of the relevant facts was entirely with Nufarm. Such a suggestion is quite unpersuasive, particularly given that Kenso is itself a participant in the trade and would be able to assess whether the costs attributed by Nufarm to the inputs of Roundup (of which Kenso was aware from its inspections of Nufarm's records) were in line with the market. 40 So far as the Proposed Summons is concerned, Kenso had ample opportunity to pursue the documents in question, but it did not do so. Indeed, it seems that it did not do so advisedly. Kenso's representatives had inspected the documents produced by Nufarm and thereafter adverted to the possibility of obtaining inspection of documents relating to the Monsanto Agreement but eschewed the opportunity to do so in circumstances where it should have been appreciated that any documents to be relied upon by Kenso were required to be included in the bundle of documents. 41 Whether or not the Tribunal should issue the Proposed Summons was a matter for the discretion of the Tribunal under s 40(1A) of the AAT Act. Having regard to the opportunity which Kenso had enjoyed to seek inspection of the documents in question, the absence of any satisfactory explanation for its apparent decision not to do so, and the absence of any demonstration that the documents were relevant to the issues for decision, it is difficult to see how the Tribunal's discretion could possibly have been exercised in Kenso's favour, much less that the Tribunal fell into an error of law, in declining to do so. 42 The directions which had been made by the Tribunal in relation to the contents of the bundle of documents for use by the Tribunal at the hearing were not obeyed by Kenso. It is said that this was not deliberate on the part of Kenso or its advisers. However that may be, it is apparent that Kenso pursued a strategy which unnecessarily put it at odds with the Tribunal's directions. As the matter was explained to this Court, the cross-examination of Mr Duggan was directed to putting some of Nufarm's financial documents into evidence after first "closing the gates"; but it is apparent that the documents in question could have been put into evidence for what they were worth if they were relevant, even without cross-examining Mr Duggan. It is not apparent to this Court that they would have had the additional effect of destroying Mr Duggan's credibility. Part of this Court's difficulty in that regard is that the documents in question were not made part of the record to permit reference to them on appeal. 43 As to the disallowance of the use of Nufarm's documents by Kenso's counsel while cross-examining Mr Duggan, the refusal of Kenso's application does not mean that Kenso was denied a reasonable opportunity to present its case. Once again, it is not possible to discern with confidence the relevance of the documents in question, but on the assumption that they related to Nufarm's costs of materials, it is not apparent that they were apt to falsify Mr Duggan's evidence as to Nufarm's costs of input materials or to impeach Mr Duggan's credibility. 44 Section 33(1) of the AAT Act confirms the breadth of the Tribunal's discretion and the importance of expedition in the conduct of proceedings. It is in the following terms: 33 Procedure of Tribunal (1) In a proceeding before the Tribunal: (a) the procedure of the Tribunal is, subject to this Act and the regulations and to any other enactment, within the discretion of the Tribunal; (b) the proceeding shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and a proper consideration of the matters before the Tribunal permit; and (c) the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate. 45 Section 39 of the AAT Act requires that a party be given a "reasonable opportunity to present his or her case". It is well settled by authority that s 39 does not require the Tribunal to ensure that "a party takes the best advantage of the opportunity to which he [or she] is entitled." (Sullivan v Department of Transport (1978) 20 ALR 323 at 343; Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at 611; De Simone v Commissioner of Taxation [2009] FCAFC 181 at [15] - [18]). 46 The Consent Direction and the Subsequent Direction were authorised by s 25(4A) of the AAT Act which provides: Tribunal may determine scope of review (4A) The Tribunal may determine the scope of the review of a decision by limiting the questions of fact, the evidence and the issues that it considers. 47 Until oral argument in this Court, no one suggested that the authority conferred by s 25(4A) of the AAT Act had been wrongly exercised in relation to either the Consent Direction or the Subsequent Direction. 48 As the procedural history which we have set out shows, Kenso had ample opportunity to prepare and present its case. Any deficit in that case did not result from a denial of procedural fairness, but from the failure by Kenso and its advisers over the months before the Tribunal hearing to comply with directions, the propriety of which they never disputed even as they failed to obey them.

The Construction of s 269D(1)(b) of the Act. 49 Kenso submits that the Tribunal erred in failing to appreciate that the substitutable good was the product, Roundup, and that the "factory or works costs" were the costs of manufacture of that product excluding the items referred to above. 50 Once again, it may be doubted whether Kenso's submission raises a question of law in relation to the decision of the Tribunal. In any event, there is an air of unreality about Kenso's argument under this heading. The goods which the Act contemplates as substitutable for Kenso's product are goods which can be "supplied", that is, put into the stream of commerce. The notion that s 269D is speaking of goods packaged and labelled ready for supply to others who may use them is confirmed by s 269B, which speaks of "substitutable goods" as goods "… that are put, or are capable of being put, to a use …", and by s 269E(1), which refers to the production of goods that are produced and "held in stock" in a context where the ordinary course of business is established if the producer is "prepared to accept an order to supply them". Moreover, it must be appreciated that the "factory or works costs" referred to in s 269D(1)(b) are "costs of the goods"; not, as Kenso's argument would have it, "costs necessarily incurred exclusively in the manufacture of the goods". 51 We cannot accept that the Tribunal misconstrued s 269D(1)(b). It was open to the Tribunal to conclude that the costs of cartons, labels, and associated booklets are costs of the goods as goods to be put to use as a herbicide. It is unnecessary to decide whether pallet pads qualify: their exclusion could make no difference to the outcome of the case.

CONCLUSION AND ORDERS 52 Both appeals should be dismissed with costs. I certify that the preceding fifty two (52) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Keane and Justices Downes & Gordon.

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