CUSTOMS - anti-dumping measures - review of existing measures - continuation of anti-dumping measures - appropriate orders to be made
Source
Original judgment source is linked above.
Catchwords
CUSTOMS - anti-dumping measures - review of existing measures - continuation of anti-dumping measures - appropriate orders to be made
Judgment (10 paragraphs)
[1]
The Application Made and Grounds Resolved - A Difficulty Emerges?
The starting point for any consideration as to the orders to be made on appeal in the continuation proceeding must inevitably commence with the Grounds identified in the Application for an Order of Review that was resolved by the primary Judge, the orders then made and the orders now sought on appeal.
The Grounds advanced a case that the decisions under review:
involved various "errors of law" in the misconstruction of provisions of Division 6A of Part XVB of the Customs Act 1901 (Cth) and (specifically) a misconstruction of ss 269ZHF, 269ZHG, and also in the misconstruction of s 269TAE(2B) within Division 1;
were "not authorised"; and
were an "improper exercise of power" by reason of a failure to take into account relevant considerations and by reason of the taking into account of an irrelevant consideration.
These were the Grounds resolved by the primary Judge. The orders made by the primary Judge on 12 August 2009 to give effect to his reasons were relevantly as follows:
In so far as they relate to the applicant, the recommendations made to the first respondent by the second respondent in Trade Measures Report 137 on or about 20 August 2008 under section 269ZHF(1) of the Customs Act 1901 (Cth) be set aside.
The declaration dated 27 August 2008 made by the first respondent under section 269ZHG(1) of the Customs Act 1901 (Cth) and published by notice dated 3 September 2008 be set aside in so far as they relate to the applicant.
The first and second respondents pay the applicant's costs.
The Notice of Appeal as filed in the continuation proceeding sought the following orders:
The appeal be allowed.
The orders made on 12 August 2009 be set aside and in lieu thereof it be ordered that the application to the court be dismissed with costs.
The respondent pay the appellants' costs of the appeal.
The arguments advanced on appeal were substantially the same arguments as were advanced before the primary Judge. The appellable error was said to be the primary Judge's rejection of the submissions repeated on appeal. Based upon those submissions, the decision on appeal in respect to the continuation proceeding was that there was no vitiating error in either the recommendations made to the Minister or the Minister's decision as made in August 2008.
Difficulty emerged, however, by reason of the fact that this Court reached a contrary conclusion to the primary Judge in respect to the continuation proceeding. Notwithstanding the orders sought on appeal by the Appellant Minister and the Appellant Chief Executive Officer of Customs, namely that the orders made by the primary Judge should be set aside and the Application dismissed, no submission was advanced during the hearing of the appeal as to whether any error in the review proceeding would vitiate the recommendation and declaration as made in the continuation proceeding.
Although it may have been the reasons for decision of this Court as published on 13 July 2010 that highlighted the difficulty that has emerged, it remains surprising that no submission was directed to this prospect during the hearing of the appeal. It is to be expected that that was the occasion when such submissions should have been advanced. An opportunity to make submissions as to the appropriate orders to give effect to reasons for decision previously published should not be treated by the parties as an opportunity to make submissions which should have been advanced when the appeal itself was heard.
Whether or not the parties should previously have advanced submissions directed to the difficulty that has emerged may, however, presently be left to one side. The difficulty now confronting the Court (and the parties) is to make a choice between:
simply making such orders as would normally follow from a resolution of the Grounds advanced before the primary Judge and the resolution of those issues advanced on appeal - being, in the case of an appeal being allowed, orders allowing the appeal and setting aside the orders made by the primary Judge; or
making orders which address the effect (if any) of the invalidity of the May 2008 recommendation and the June 2008 Ministerial decision upon the later recommendation and declaration in August 2008.
In the absence of any prejudice to any of the parties, it is considered that the preferable course is to pursue the second of these two choices. Such a course is authorised by ss 22 and 23 of the Federal Court of Australia Act 1976 (Cth). No question of procedural unfairness or prejudice arises as a result of this Court now so proceeding. Subsequent to the publication of reasons for decision on 13 July 2010, directions were made to facilitate the parties having an opportunity to identify the issues arising from those reasons and an opportunity to file written submissions. The effect (if any) of the May and June 2008 decisions upon the subsequent August 2008 decisions involves:
an analysis of the recommendation made in August 2008 and the decision made by the Appellant Minister later that same month; and
the resolution of a discrete question of law or (possibly) a limited number of questions of law.
It has not been suggested that the resolution of the question or questions of law involves any further evidence which could potentially have been adduced before the primary Judge or this Court on appeal.
In making this choice it is recognised that a considerable indulgence is extended to the parties in allowing them to now advance submissions which should have been advanced during the course of the hearing of the appeals. It is also recognised that in making this choice an argument is now being advanced which was not advanced for resolution by the primary Judge and that this Court on appeal is thereby deprived of the not inconsiderable benefit of the primary Judge's reasons and decision. Great care should be exercised before allowing parties such an indulgence lest this Court on appeal be transformed into a de facto Court of first instance. But such is the inevitable consequence of any appellate court allowing a new argument to be advanced that has not previously been considered. A party should normally be bound by both the manner in which it runs its case at first instance and the manner in which it advances its case on appeal. All arguments sought to be resolved should normally be advanced initially at first instance. During the hearing of an appeal, all arguments relevant to the orders on appeal should then be advanced. No course should be encouraged whereby parties are extended the benefit of reasons for decision and the indulgence of then advancing further submissions under the guise of addressing the form of orders to be made.
[2]
The August 2008 Recommendation and Decision
The recommendation made in August 2008 was that contained in Trade Measures Report No. 137. The Summary within that Report stated in part:
The CEO recommends that the Minister take steps to secure the continuation of the anti-dumping measures applying to exports of LLDPE from Thailand.
The Report also set forth an exposition of "Current anti-dumping measures" and there recorded:
… On 3 July 2008, the Minister published a notice declaring that from that date the dumping duty notice had effect as if different variable factors had been fixed.
A cross-reference was made at that point to Trade Measures Report No. 134. The period of the inquiry addressed in Trade Measures Report No. 137 was from 1 January to 31 December 2007. The Report then addressed "Dumping Since the Measures Were Imposed". When expressing its "Conclusion on likelihood of material injury", the Report stated:
Customs considers that it is likely that dumped imports from Thailand would cause material injury to the Australian industry if the measures expired.
The formal recommendation made to the Minister was:
Recommendation
Customs recommends that you:
• accept the recommendation in Trade Measures Report No. 137 to continue anti-dumping measures applying to LLDPE exported from Thailand;
• accept the recommendation in Trade Measures Report No. 137 not to continue anti-dumping measures applying to LLDPE exported from Korea; and
• sign and return the attached legal instrument to Customs before 12 November 2008 to give effect to your decision.
Customs will then provide you with a further legal instrument to sign to continue the measures before they expire on 3 December 2008.
The recommendation with respect to Korea assumed no relevance to the present appeals and may presently be disregarded.
Trade Measures Report No. 137 does not make unambiguously clear which "anti-dumping measures" were to be continued. The period of inquiry being reviewed by Customs ended on 31 December 2007 and the review of "dumping since the measures were imposed" addressed dumping during the period of the review. However, Trade Measures Report No. 137 (properly construed) contained a recommendation that the "anti-dumping measures" which were to be continued were those expressly set forth in that part of its Report that dealt with "Current anti-dumping measures". That was a reference to the dumping duty notice incorporating the different variable factors recommended in Trade Measures Report No. 134.
The decision of the Minister in August 2008 recorded his acceptance of the recommendations made and continued as follows:
Accordingly, I declare that I have decided to:
• take steps to secure the continuation of anti-dumping measures currently applying to LLDPE exported to Australia from Thailand; and
• not take steps to secure the continuation of anti-dumping measures currently applying to LLDPE exported to Australia from Korea.
The decision of the Minister, it will be noted, differs in terms from the recommendation made - a difference previously not the subject of either oral or written submissions during the course of the hearing of the appeal. The Minister's decision expressly incorporates a reference to continue "anti-dumping measures currently applying". Perhaps not surprisingly, the Minister thereby understood Trade Measures Report No. 137 to incorporate a reference to the recommendations previously made in May 2008 and his earlier decision in June 2008.
The decision made by the Minister in August 2008 is open to no construction other than a decision to continue the anti-dumping measures on exports from Thailand and that the anti-dumping measures which were to be continued were those which incorporated the revised "variable factors" which had previously been the subject of recommendation in May 2008 and to which he had agreed in June 2008.
The Grounds set forth in the Application for an Order of Review in the continuation proceeding involved no contention that the Minister's decision made in August 2008 would be open to review by reason of any legal error that may have been contained within the earlier recommendation and decision. Given the interrelationship between Trade Measures Reports 134 and 137 and the two Ministerial decisions, such an omission is inexplicable. Indeed, no real or satisfactory explanation has even now been advanced.
Whatever may be the explanation, the issue that has now been identified is to be resolved.
The Appellant Minister's submission was stated in his written submissions filed on 29 July 2010 as follows:
A question has arisen to what further order should be made, in circumstances where:
3.1. the decision of the Minister to continue anti-dumping measures under s 269ZHG of the Customs Act 1901 has been held to be free from relevant error; but
3.2. as a result of the orders made in the review proceedings the relevant dumping duty notice had effect on the basis of the variable factors ascertained at an earlier time rather than the variable factors as ascertained in the review.
The Full Court has held, after argument, that the Appellants were entitled to use in the continuation decision the facts and figures they did: see FCAFC at [113]-[115] upholding the Appellants' ground of appeal 4. The Appellants therefore submit that, while the matter in 3.2 above affects the content of the measures as continued, it does not deprive the continuation decision of legal efficacy. That decision has been challenged and, after full argument, found to be valid. As is implicit in those findings, the continuation inquiry involved a distinct analysis and one which did not depend upon the specific variable factors in operation at the time of that inquiry. It is therefore to be given effect and the measures did not expire on 3 December 2008 but continued applying the 2004 variable factors.
The order of the Court should reflect that position. Accordingly the orders of Rares J which had the effect of setting aside the continuation decision should themselves be set aside.
The appropriateness of advancing a submission that there has been "full argument" when the difficulty now being addressed has never previously been canvassed may be left to one side. The Minister's submission that any order should reflect a result that "the measures did not expire on 3 December 2008 but continued applying the 2004 variable factors" is, however, rejected. To accept that submission would be for this Court itself to make a decision in substitution for that made by the Minister. The Minister in August 2008 made a decision continuing anti-dumping measures, those measures incorporating the variable factors the subject of his decision in June 2008 and measures presumably considered by the Minister to have been lawfully imposed. If the June 2008 decision is vitiated by legal error, as determined by both the primary Judge and this Court, it is difficult to see how any order can now be made in substitution for the decisions made by the Minister. His earlier decision has been set aside. What order the Minister may have made in August 2008 had he directed attention to the continuation of the anti-dumping measures previously in place remains unknown.
For the Minister to advance a submission that an order should be made "reflecting" a decision not in fact made by the Minister would effectively be a decision of this Court in substitution for that made by the repository of the power and would not appear to be a decision made "in accordance with law". It is certainly not an order that would fit comfortably within s 16(1)(b) or (c) of the Administrative Decisions (Judicial Review) Act 1977 (Cth). Indeed, to make such an order would seem to trespass beyond the role of judicial review and plunge into the pool of merits review. Although it is correct to observe that Trade Measures Report No. 137 was directed to an inquiry period ending in December 2007, the recommendation made by the Chief Executive Officer of Customs was a recommendation which took into account Trade Measures Report No. 134. Indeed, the taking into account of that Report has been held to be a relevant consideration; the contrary argument that Trade Measures Report No. 134 was an irrelevant consideration was rejected: [2010] FCAFC 86 at [109] to [114]. For this Court to make an order in substitution for the decision made by the Minister and without the benefit of a recommendation of the Chief Executive Officer of Customs would also seem to be the making of a decision contrary to the legislative regime administered by the Minister.
The simple fact is that the Minister thought he was continuing anti-dumping measures which had been originally lawfully imposed in 2003 and as later varied following a 2004 review. They were again later varied in June 2008 - but the June 2008 decision of the Minister has been found to be vitiated by legal error. The orders made by the primary Judge in the review proceeding included orders that the recommendations made in Trade Measures Report No. 134 and the declaration and public notice made by the Minister in June 2008 were set aside. The anti-dumping measures previously in force, namely those in force before the purported change to the variable factors in 2008, were not sought to be continued by the Minister. There has been no decision by the Minister to continue the anti-dumping measures as were originally imposed. The measures as sought to be put in place in June 2008 have been set aside.
[3]
The Orders To Be Made
Having afforded the parties an opportunity to make submissions as to the appropriate orders to be now made, it is considered that the orders to be made in the continuation proceeding should reflect the fact that:
the decision made by the Minister in August 2008 was a decision to continue the anti-dumping measures on LLDPE exported from Thailand, incorporating the variable factors as determined in June 2008;
no decision has been made by the Minister to continue the anti-dumping measures as originally imposed in 2003, and as later varied following the review in 2004, and which have now expired;
contrary to the decision of the primary Judge, the Grounds as advanced in the Application for an Order of Review do not expose any legal error in the continuation proceeding;
and the fact that:
the primary Judge was in error, with respect, in setting aside the recommendation of the Chief Executive Officer and the declaration of the Minister in August 2008 on the basis of the Grounds advanced for consideration.
The making of orders reflecting such conclusions would self-evidently not have the consequence of continuing the anti-dumping measures previously in force prior to the June 2008 decision.
The utility of making any order in the continuation proceeding may be doubted. However, the appeal has been heard and resolved - based upon the submissions then advanced. Whether any argument would have prevailed that the August 2008 recommendations and the Ministerial decision would have been vitiated if a conclusion were reached that the June 2008 decision was itself vitiated by legal error, was an argument not advanced during the hearing of the appeal.
The appropriate order in the continuation proceeding in such circumstances is that the appeal should be allowed and Orders 2, 3 and 4 as made by the primary Judge be set aside.
Neither the Appellants nor the Respondent sought declaratory relief as to which anti-dumping measures were (or were not) now in place. In the absence of any such relief being sought, it is inappropriate for this Court to now make any orders other than those necessary to give effect to the reasons as published on 13 July 2010.
[4]
Costs
In the reasons for decision published on 13 July 2010, it was envisaged that the appropriate order should be that there be no order for costs in either appeal: [2010] FCAFC 86 at [138]. Given the ultimate mixed success on appeal, it is not considered that either party should have an order for costs in its favour in respect to the proceedings before the primary Judge. The orders for costs made by His Honour should thus be set aside.
[5]
ORDERS
The Orders of the Court are:
In NSD 960 of 2009:
The appeal is dismissed.
Order 4 as made by Rares J on 12 August 2009 is set aside.
There be no order as to costs.
In NSD 959 of 2009:
The appeal is allowed.
Orders 2, 3 and 4 as made by Rares J on 12 August 2009 are set aside.
There be no order as to costs.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Bennett and Flick.
[6]
Associate:
Dated: 2 September 2010
IN THE FEDERAL COURT OF AUSTRALIA
DISTRICT REGISTRY
[7]
MINISTER OF STATE FOR HOME AFFAIRS
BETWEEN: First Appellant
CHIEF EXECUTIVE OFFICER OF CUSTOMS
Second Appellant
AND: SIAM POLYETHYLENE CO LTD
Respondent
[8]
IN THE FEDERAL COURT OF AUSTRALIA
DISTRICT REGISTRY
NSD 959 of 2009
[9]
MINISTER OF STATE FOR HOME AFFAIRS
BETWEEN: First Appellant
CHIEF EXECUTIVE OFFICER OF CUSTOMS
Second Appellant
AND: SIAM POLYETHYLENE CO LTD
Respondent
[10]
REASONS FOR JUDGMENT
GRAHAM J
The appeals in NSD 960 of 2009 and NSD 959 of 2009 were heard together. Graham and Flick JJ were of the opinion that the appeal in the review proceeding should be dismissed and the appeal in the continuation proceeding allowed (see Minister of State for Home Affairs v Siam Polyethylene Co Ltd [2010] FCAFC 86 at [30], [133] and [135]). Bennett J agreed with their Honours' conclusions and the orders that were proposed (at [1]).
At [136] Graham and Flick JJ said:
'Given the interrelationship between the two Reports … and the subsequent declarations made by the Minister, the parties may wish to give consideration to whether any further orders should be made other than that the former appeal should be dismissed and the latter allowed.'
The formal orders of the Court made on 13 July 2010 were as follows:
In proceeding NSD 960 of 2009:
'THE COURT ORDERS THAT:
Proceeding NSD 960 of 2009 is stood over to 27 July 2010 at 9:30 am with a view to then making orders disposing of the appeal and any order in respect of the costs before the primary Judge. Any written submissions on costs before the primary Judge to be filed by 23 July 2010.'
In proceeding NSD 959 of 2009:
'THE COURT ORDERS THAT:
Proceeding NSD 959 of 2009 is stood over to 27 July 2010 at 9:30 am with a view to then making orders disposing of the appeal and any order in respect of the costs before the primary Judge. Any written submissions on costs before the primary Judge to be filed by 23 July 2010.'
A revised timetable was thereafter set for the filing of written submissions and further consideration of the appropriate orders.
In proceedings NSD 960 of 2009 there is no relevant disagreement between the parties as to the appropriate orders. In the circumstances the orders that should, in my opinion, be made are:
'1. Order 4 of the orders made by Rares J on 12 August 2009 in proceedings NSD 1194 of 2008 be set aside.
The appeal be otherwise dismissed, with no order as to costs.'
In relation to proceedings NSD 959 of 2009 there is some measure of agreement between the parties. However, the respondent contends that orders 2 and 3 as made by Rares J on 12 August 2009 should not be set aside whereas the appellants submit that those orders should be set aside. In addition the appellants propose that an order be made dismissing the application filed 1 October 2008.
The respondent draws attention to the fact that the Minister's declaration in relation to LLDPE exported to Australia from Thailand was expressed in the Minister's declaration of 27 August 2008 as follows:
'… I declare that I have decided to:
take steps to secure the continuation of anti-dumping measures currently applying to LLDPE exported to Australia from Thailand; …'
The respondent gives emphasis to the words 'currently applying' and argues that the anti-dumping measures that were current at the time of the Minister's Continuation Decision were those contained in the dumping duty notice as amended by the declaration of the Minister's Review Decision.
The appellants submit that the anti-dumping measures were continued applying the 2004 variable factors. The respondent accepts that the orders of the primary judge in the review proceedings 'took the dumping duty notice back to how it stood before the [Minister's] Review Decision'. However, the respondent submits that the Minister did not purport to continue the measures applying the 2004 variable factors and accordingly nothing was lawfully continued.
No declaratory or other relief has been sought in proceedings NSD 959 of 2009. The grounds on which the respondent succeeded before the primary judge in the continuation proceedings having been rejected on appeal, the orders made by the primary judge on 12 August 2009 cannot stand.
It is inappropriate in these proceedings to address the question of whether or not 'the measures currently applying to LLDPE exported to Australia from Thailand' should be construed as a reference to 'the measures currently lawfully applying to LLDPE exported to Australia form Thailand'. The proper construction of the Minister's declaration is not a matter for determination in the review proceedings the subject of the current appeal.
In my opinion orders 2 and 3 of the orders made by Rares J on 12 August 2009 in proceedings NSD 1557 of 2008 should be set aside.
It is inappropriate on the hearing of this appeal to determine the effect of the Minister's Continuation Decision in circumstances where it has been held that the recommendations in Trade Measures Report No. 134 and the declaration and public notice thereof in that case were properly set aside by the primary judge.
In my opinion orders should be made in proceedings NSD 959 of 2009 as follows:
'1. The appeal be allowed.
Orders 2, 3 and 4 of the orders made by Rares J on 12 August 2009 in proceedings NSD 1557 of 2008 be set aside.
In lieu of the said orders, the application filed 1 October 2008 be dismissed.
There be no order as to costs.'
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.
Parties
Applicant/Plaintiff:
Minister of State for Home Affairs
Respondent/Defendant:
Siam Polyethylene Co Ltd
Legislation Cited (4)
(Cth), Part XVB Customs Tariff (Anti-Dumping) Act 1975(Cth)
The matter presently before the Court is the making of orders to give effect to the prior resolution of two appeals.
The background to both appeals was the imposition in 2003 of anti-dumping measures imposed in respect to the export from Thailand of a product described as linear low density polyethylene ("LLDPE"). Any dumping duty notice once published continues in force for five years, unless revoked before the end of that period: Customs Act 1901 (Cth), s 269TM(1).
The background to both appeals also includes an application to review those measures which was initiated in November 2007 and an application made in February 2008 for the continuation of the anti-dumping measures then in place.
Subject to any decision to the contrary, it is common ground that the anti-dumping measures previously imposed were due to expire on 3 December 2008.
One appeal concerned a challenge to a recommendation made on 5 May 2008 by the Chief Executive Officer of Customs to the Minister. The recommendation was that an anti-dumping notice was to take effect as if different variable factors had been fixed in respect to the exported goods the subject of the review. The recommendation was contained within Trade Measures Report No. 134. A challenge was also made to the decision of the Minister made on 23 June 2008 to accept that recommendation. The primary Judge upheld the challenge and set aside the Minister's decision: Siam Polyethylene Co Ltd v Minister of State for Home Affairs [2009] FCA 837. This proceeding became known as "the review proceeding".
The appeal against that decision was unsuccessful: Minister of State for Home Affairs v Siam Polyethylene Co Ltd [2010] FCAFC 86 at [1] per Bennett J; at [133] per Graham and Flick JJ.
The second appeal concerned a challenge to a recommendation made on 20 August 2008 by the Chief Executive Officer of Customs to the Minister to take steps to secure the continuation of anti-dumping measures in respect of exports from Thailand. This recommendation was contained within Trade Measures Report No. 137. A challenge was also made to the decision of the Minister on 27 August 2008 to accept that recommendation. The primary Judge also upheld those challenges and set aside the recommendations and the Minister's declaration: Siam Polyethylene Co Ltd v Minister of State for Home Affairs (No 2) [2009] FCA 838. This proceeding became known as "the continuation proceeding".
The appeal against that decision was successful: Minister of State for Home Affairs v Siam Polyethylene Co Ltd [2010] FCAFC 86 at [1] per Bennett J; at [135] per Graham and Flick JJ. It should, perhaps, be noted that the Notice of Appeal filed in this proceeding purported to appeal from "the whole of the judgment … given on 12 August 2009". The simple fact is that there was no such judgment. Judgment was given on 7 August 2009. The orders were made on 12 August 2010 but nothing presently turns on this error. The error, indeed, only emerged when attention was focussed upon the precise terms of the orders to be now made in this proceeding.
Given the interrelationship between the recommendations made and the two decisions of the Minister, it was considered prudent when delivering judgment in these appeals, which were heard together, on 13 July 2010 to permit the parties a further opportunity to make submissions as to the appropriate orders to be made to dispose of the two appeals.
The matter was thereafter listed for mention on 23 July 2010 and directions were then made for the filing of submissions. The matter was stood over to 11 August 2010 for the purpose of hearing further oral submissions on the form of orders to be made. On that occasion it emerged that a further opportunity had to be extended to the parties to file yet further written submissions. Those further submissions were filed and the parties were then content to have the outstanding issues resolved on the basis of the submissions filed.
There is agreement between the parties that it is appropriate to make an order dismissing the appeal in the review proceeding. It is also agreed that Order 4 of the orders made in that proceeding by the primary Judge on 12 August 2009 should be set aside.
A divergence of views, perhaps not surprisingly, emerged between the parties in respect to the continuation proceeding.