Submissions of the Minister and the Court's conclusions
50 Senior Counsel for the Minister made the preliminary submission that the exercise of the powers conferred upon the Minister by s 269TG of the Act (extracted in [1] above) depends on the Minister's satisfaction that dumping has occurred, and has caused, or is in the process of causing, material injury, and further that it is that state of satisfaction that enlivens the Minister's statutory powers, and not the objective existence of any underlying set of facts that might be independently established. Thus the Court's concern in terms of principle, in undertaking judicial review of a decision made under s 269TG of the Act, is whether the Minister has reached his or her state of satisfaction on the right questions, and otherwise according to law, and not whether, as an issue of fact, dumping has occurred and caused material injury to an Australian industry. Therefore the task of making findings about the causes of material injury is one for the Minister and not for the Court, and involves "essentially a practical exercise", to cite the dictum from Swan Portland Cement applied in Enichem in the passage extracted at [49] above. As was said by Burchett J in Mullins Wheels Pty Ltd v Minister for Customs and Consumer Affairs (1999) 166 ALR 449 at 457:
"The proposition, that the finding of a causal link between a dumping that is shown and a material injury to the Australian industry that is shown is very much a practical exercise, is in accordance with general statements of principle to which the High Court of Australia has consistently adhered for a long time."
51 Reference was next made to the Minister's letter of 19 August 1999 to the Trade Measures Review Officer (the material parts whereof relating in particular to Polyweave have been reproduced in [34] above), and pointed out that the same were couched in terms which made it clear that she was thereby rejecting criticisms of the reasoning of the Trade Measures Report No 1 advanced by the Trade Measures Review Officer of the Attorney-General's Department, being the criticisms set out in the document dated 7 May 1999 reproduced in [31] above, and accepting the response of the ACS contained in its Minute Paper of 30 July 1999 extracted in [33] above. Thereafter the Minister confirmed or ratified her previous decision to make the declarations pursuant to subsections (1) and (2) of section 269TG, which are set out in [30] above. Senior Counsel summarised the essence of the factual findings of the Trade Measures Report No 1, and of the subsequent ACS confirmation thereof by the Minute Paper, as follows:
(i) Amoco, the sole Australian manufacturer of primary carpet backing, had been forced to lower its prices in order to avoid losing sales;
(ii) One of the two major purchasers (Hirst) had agreed to continue (indeed increase) its purchases from Amoco on the footing that it would pay the same prices as the other major purchaser (Shaw);
(iii) Shaw (like other customers) regarded price as the most important factor in its purchasing decisions (assuming the competing products met its needs in terms of specification and quality), and thus took account of prevailing competitive prices when making its decisions;
(iv) the prices of imported backing were therefore an important factor in determining the prices which Shaw (and in consequence Hirst) was prepared to pay Amoco;
(v) a significant proportion of the imported backing was found by Customs to have been sold at dumped prices;
(vi) depression of Amoco's prices had therefore occurred because of the dumping of imported backing;
(vii) that depression amounted to "price injury" which was "material"; and
(viii) all of the exporters who were found to have engaged in dumping had contributed to this injury.
In so doing, Senior Counsel accepted on behalf of the Minister that subs 269TG(1) required the Minister to be satisfied as to the existence of a causal link, being a satisfaction which she was entitled however to adopt in the light of the circumstances set out in (i) to (viii) above. In so doing, whilst rejecting the suggestion of the Applicant that the presence of the words "caused by" and "occurred because of" (see again the extract of the subsection in [1] above) demanded some element pointing to the need for a more direct link, Senior Counsel for the Minister contended that if anything, those two statutory concepts of causation, when read together, implied something less than merely "caused by". For what it may ultimately matter, I think that s 269TG merely imposes two links in the statutory chain of causation, rather than a single link, but that it nevertheless speaks in terms of "causal link". In any event, I think that the Minister's approach, rather than that of the Applicant, is assisted by the authorities cited in [42] above.
52 The Minister's foregoing summary of the findings of the Trade Measures Report No 1 accurately reflects in my opinion the more detailed summary of those findings, which I have set out at length from [7] to [22] above. As that summary demonstrates, what happened against the background of evolution of the rationalisation of the Australian market for carpets was the expansion in size of the operations of the largest Australian carpet manufacturers Shaw and Hirst to a situation of market dominance shared between them in the order of 70 of the total carpet market, and as a consequence, an increase in their respective market strengths or powers to require so-called "world's best price" or "world competitive price" for the supply of carpet backing fabric from Amoco for assembly in their carpets. Shaw initiated that process of price demands upon Amoco, and Hirst thereafter required of Amoco that Hirst receive similar pricing advantage to that being extended to Shaw, in return for Hirst's patronage of Amoco. The "world's best price" or "world competitive price" for carpet backing fabric translated in reality into, and was reflected in, the price levels which were attributable to the product being dumped in Australia by each of the five overseas exporters, including Polyweave. Responding to the respective price demands of Shaw and Hirst as the major carpet manufacturers in Australia effectively compelled Amoco to reduce its selling price of carpet backing fabric to each of them at levels which occasioned to Amoco reductions in its profit levels, and hence so-called "price injury". The equivalence of "world best price" or "world competitive price", as charged by those overseas based exporters, represented export prices for carpet backing fabric less than "the amount of the normal value of those goods" within s 269TG(1)(a) of the Act.
53 Whilst it may have been open to Amoco to decline the demands of Shaw and Hirst for "world's best price" or "world competitive price", the euphemisms for the Australian dumped price, by confining the outlets for its manufactured product to the so-called second tier manufacturers, that course would have been hardly a realistic trading option in the pressured and uncertain world of relatively free market choice, in circumstances where the main volume of business was represented by the dominance of Shaw and Hirst. Inherent in the reasoning of the ACS was that conclusion. Putting the ACS findings another way, whilst in the ebb and flow of competitive business, Amoco was able to maintain the approximate volume of its merchandising operations by the course it took, it found itself compelled to do so at pricing levels dictated by the dumped prices of the overseas suppliers for product readily available in the Australian market, which necessarily involved in turn a decline in the price, and consequently in the profit margin, obtainable by Amoco for its local product. The assertion of the Applicant recorded in [49] above that "any price problems were because of Shaw and Hirst, so that any injury wasn't caused by the importers either individually or as a whole", fails to come to terms with the critical theme of the Trade Measures Report No 1 that it was the dumped prices which enabled Shaw, and as a consequence Hirst, to make its demands of Amoco for supply at the so-called "world best prices" or "world competitive price", the euphemistic description in reality of dumped prices brought about by the export activities of the five exporters including Polyweave. In terms of causation, the circumstances of causation were comparable to those in Enichem described in [49] above.
54 The Applicant conceded that the market prices of carpet backing fabric in Australia at the material times, except of course the product merchandised by Amoco as the sole Australian manufacturer of that product, constituted dumped prices. It was in that context that the Applicant sought to contend that it was not the cause of Amoco's "price injury" or loss of profitability, being a contention contrary to the finding made by the Minister upon the footing of the ACS reports and submissions. Whether the adoption by the Minister of that finding might have been in truth right or wrong it is not to the point; the finding was reached by the ACS as a consequence of a "practical exercise" which it undertook by way of a lengthy investigation (the expression "practical exercise" being postulated in dictum in Swan Portland Cement Ltd v Minister for Small Business and Customs (1991) 28 FCR 135 at 144 forming in part the passages from Enichem which I have extracted in [49] above).
55 It was in my opinion plainly open to the Minister as decision-maker to accept the factual findings and implement the consequential recommendations of the Trade Measures Report No 1 of the ACS, not just concerning material injury by way of loss of profit sustained by Amoco caused by the dumping activities inter alia of Polyweave, but also to recognise the likelihood of those dumping activities continuing, as found in that Report and summarised in [25-26] above. In so doing, the Minister was entitled to approach the task on hand "as a practical exercise" (see again the passages in Enichem and Mullins extracted in [49-50] above). Consequently it was open to the Minister, according to the law of administrative review, to accept and implement the recommendations of the Trade Measures Report No 1 enumerated in [28-29] above. Nor is there any sound reason according to the law of administrative review why it was not open to the Minister to reject the subsequent submissions of the Trade Measures Review Officer of the Attorney-General's Department, to which I have made extensive reference in [31-32] above, after having first given consideration thereto, albeit in the light of the subsequent report of the ACS which has been extracted at [33] above. The Minister's communication extracted at [34] above demonstrates the giving of such consideration.
56 Senior Counsel for the Minister has specifically addressed, in terms of those paragraphs of subs 5(1) and (2) of the ADJR Act relied upon by the Applicant, the submissions of the Applicant, which I will record and in relation to which I will express my conclusions.
57 First as to the "no evidence" ground of review the subject of ss 5(1)(h) and 5(3)(a) of the ADJR Act, the Minister has correctly observed that when s 5(3)(a) speaks of a matter being "established", it means that the matter is required to be established to the satisfaction of the Minister as decision-maker, and that the matter here involved was whether "material injury" had occurred or was occurring "because of" the dumping of goods in Australia: see subs 269TG(1) extracted at [1] above. The material placed before the Minister, for the purpose of making her initial decision to impose or not to impose measures, was the Trade Measures Report No. 1 and its appendices, the responsibility for preparation whereof having been imposed upon the Chief Executive Officer of Customs pursuant to s 269TEA of the Act (extracted at [6] above and see also s 269TE, which imposes upon that Officer the obligation to have regard to the same considerations as the Minister). The Report concluded that material injury had occurred, which had been caused by the dumping of goods including those of the Applicant, and set out the reasoning that led to those conclusions, including in broad terms the sources of information upon which that reasoning process was based. The Report was therefore "material" from which the Minister could reasonably conclude that the "matter" of causation of material injury was established, and accordingly the ground of review provided for in s 5(1)(h) and s 5(3)(a) was not made out. The Minister referred in the foregoing context specifically to Chapter 7 of the Report, which I have summarised in [19-26] above, and to the principle that where a report deals with all the issues required to be addressed, the decision-maker who receives the same is, generally speaking, not required to go beyond it: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 30-31 (Gibbs CJ), 46 (Mason J) and 65-66 (Deane J). In any event, it was contended that the Applicant's submissions related only to the sufficiency of the material upon which the ACS conclusions, underlying its recommendations to the Minister, were based. If there was any other evidence suggesting different conclusions, that would not have assisted the Applicant in principle in establishing the "no evidence" ground for review. In my opinion, the foregoing submission of the Minister is sound.
58 Secondly as to the s 5(1)(f) ground for review, which as I have earlier indicated entered the debates below, albeit not pleaded in the S/C, the Minister referred to the discussion of the Chief Justice in Bond at 358, which I have extracted in [46] above, and submitted that there was material before the Minister in the form of the Trade Measures Report No 1 which was capable of supporting the conclusions to which the Minister came. I think that the Minister was correct in his contention that the Applicant's complaint was that the reasoning which the Minister accepted was illogical.
59 Thirdly as to the s 5(1)(e) ground for review, in combination with the s 5(2)(a) and s 5(2)(b) grounds, which the Minister suggested might be seen as species of irrationality, in that they allege a miscarriage in the decision maker's thought processes (see Judicial Review of Administrative Action (Aronson and Dyer) (2nd ed 2000) (Ch 6)), the Minister submitted that the essence of these grounds of review was an alleged failure by the Minister to address the question or questions which the legislation requires to be addressed, in the sense of "jurisdictional error" (Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 at [82] (McHugh, Gummow and Hayne JJ) (Gleeson CJ agreeing), and further that the same could not be used as a cover for challenging the factual correctness of a decision (Mendoza v Minister for Immigration, Local Government and Ethnic Affairs) (1991) 31 FCR 405 at 420). All that apart, the Minister submitted that the Applicant's present attack was directed to the Minister's conclusion as to causation, which is essentially an issue of fact, and precisely the issue which ss 269TG(1)(b) and (2)(b) of the Act require the Minister to consider, and I was referred in that context concerning causation to Bennett v Minister of Community Welfare (1992) 176 CLR 408 at 412 (Mason CJ, Deane and Toohey JJ). In my opinion, at least the latter submission is correct, and it is unnecessary for me to resolve the former. The weight to be given to evidence, and the conclusions to be drawn from it, were matters for the Minister, not for the Court. In the present case, what the Minister was bound to consider was whether the conceded conduct in the nature of dumping had caused, or threatened to cause, "material injury" to the Australian industry, and in forming her opinion on the factual question of causation, it cannot be correctly said that the Minister was bound to take into account, or to give weight to, any particular evidentiary material. Moreover I should add that the Applicant did not appear to specify what were the irrelevant considerations which the Minister supposedly took into account for the purposes of s 5(2)(a) of the ADJR Act. Its complaint was rather about the way in which the Minister dealt with the issues required to be addressed by s 269TG of the Act.
60 Fourthly as to "unreasonableness", whether within s 5(2)(g) of the ADJR Act or the common law Wednesbury principle, the Applicant's allegation was that unreasonableness had occurred, not in the bringing to bear of factors in the exercise of a discretion, but in the formation of a state of satisfaction which formed the precondition for a discretion to arise. I was referred by the Minister to the following passage in the joint judgment of Gleeson CJ and McHugh J in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [40]:
"Someone who disagrees strongly with someone else's process of reasoning on an issue of fact may express such disagreement by describing the reasoning as 'illogical' or 'unreasonable', or even 'so unreasonable that no reasonable person could adopt it'. If these are merely emphatic ways of saying that the reasoning is wrong, then they may have no particular legal consequence."
and where approved was then extended to dictum of Lord Brightman in Puhlhofer v Hillingdon London Borough Council [1986] AC 484 at 518.
61 The application must be dismissed.