Panasia Aluminium (China) Limited v Attorney-General of the Commonwealth

JUDGE: NICHOLAS J DATE OF ORDER: 19 september 2013 WHERE MADE: SYDNEY

1. In so far as it applies to the applicants, and purports to vary the dumping duty and countervailing duty notices published on 28 October 2010 so as to impose different variable factors under s 269ZZM(3)(b) of the Customs Act 1901 (Cth), the decision of the Attorney-General of the Commonwealth made on 22 August 2011 and published on 27 August 2011 be set aside (with effect from the date the decision was made).
2. The proceeding be otherwise dismissed.
3. No order as to costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1653 of 2011

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1869 of 2011

BETWEEN: TAI SHAN CITY KAM KIU ALUMINIUM EXTRUSION CO LIMITED

CHIEF EXECUTIVE OFFICER OF THE AUSTRALIAN CUSTOMS AND BORDER PROTECTION SERVICE

JUDGE: NICHOLAS J DATE: 19 september 2013 PLACE: SYDNEY

REASONS FOR JUDGMENT (Revised from Transcript) 1 My reasons for decision given on 30 August 2013 contain a detailed explanation of the background to these proceedings and the issues raised for consideration (see Panasia Aluminium (China) Limited v Attorney-General of the Commonwealth [2013] FCA 870). The parties to the proceedings have agreed upon the appropriate form of substantive final orders in both NSD 1653 of 2011 (1653) and NSD 1869 of 2011 (1869). There is, however, a dispute between the applicants and the respondents in proceeding 1869 as to the appropriate form of costs order. 2 The applicants in proceeding 1869 (Kam Kiu) contend that the respondents should pay the whole of its costs of the proceeding, or if not the whole then half of those costs. The respondents contend that Kam Kiu should pay half of the respondents' costs or, if not, that each party bear its own costs. Before referring to some of the matters that I consider most relevant to the resolution of this question, it is appropriate to refer to a number of authorities which conveniently summarise the principles governing the exercise of the Court's discretion in relation to costs under s 43 of the Federal Court of Australia Act 1976 (Cth). 3 In EMI Songs Australia Pty Ltd v Larrikin Music Publishing Pty Ltd [2011] FCAFC 92 the Full Court was concerned with the question of the costs of an appeal and, in particular, a cross-appeal that raised a number of issues for consideration by the Full Court. The cross-appeal succeeded in some, but not all, respects. The Full Court considered what an appropriate costs order was in respect of a cross-appeal in such circumstances. The Full Court stated at [9]: Costs are in the discretion of the Court (Federal Court of Australia Act 1976 (Cth) s 43). The discretion is broad but is to be exercised judicially. The fundamental purpose of the discretion is to compensate the successful party, not to punish the unsuccessful party. The furtherance of the goal of compensation means that, in general, a successful party will obtain an order for costs in its favour (Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at [65]-[68]). However, "a successful party who has failed on certain issues may not only be deprived of the costs of those issues but may be ordered as well to pay the other party's costs of them…" (Hughes v Western Australian Cricket Association (Inc) (1986) ATPR 40-748 at 48,136). If apportionment of costs is appropriate, the object is not mathematical precision (Dodds Family Investments Pty Ltd (formerly Solar Tint Pty Ltd) v Lane Industries Pty Ltd (1993) 26 IPR 261 at 272) but a result that best reflects the interests of justice in the overall circumstances of the case. 4 The last of the decisions referred to in that paragraph (Dodds) is another decision of the Full Court in which reference was also made to the well-known statement by Toohey J in Hughes v Western Australian Cricket Association (Inc) (1986) ATPR 40-748 at 48,136. Toohey J said: 1. Ordinarily, costs follow the event and a successful litigant receives his costs in the absence of special circumstances justifying some other order. … 2. Where a litigant has succeeded only upon a portion of his claim, the circumstances may make it reasonable that he bear the expense of litigating that portion upon which he has failed. … 3. A successful party who has failed on certain issues may not only be deprived of the costs of those issues but may be ordered as well to pay the other party's costs of them. In this sense, "issue" does not mean a precise issue in the technical pleading sense but any disputed question of fact or of law. … (citations omitted) 5 The Full Court in Dodds added that these principles should be read subject to the further consideration that justice may not be served if parties are dissuaded by the risks of attracting unfavourable cost orders from canvassing all issues which might be material to the decision in the case. 6 I do not accept Kam Kiu's contention that the respondents should pay the whole of its costs of the 1869 proceeding. Nor am I persuaded that it is appropriate that Kam Kiu receive a substantial proportion of such costs. My reasons are as follows. 7 First, Kam Kiu challenged a series of administrative decisions, some of which were made by the Chief Executive Officer of Customs and some of which were made by the Attorney-General. As explained in the principal judgment, the challenge to a number of the decisions raised in the 1869 proceeding was commenced out of time. Various points were argued against the possibility that the extension of time required to enable Kam Kiu to raise such challenges would be granted. Ultimately, the extension of time sought was refused for reasons explained in the principal judgment. I readily accept that the principal decision that was the subject of the Kam Kiu's challenge is the decision which ultimately has been set aside. Nevertheless, it is important to recognise that the order setting aside that decision was made consequent upon Kam Kiu's success on what was a narrow point of statutory construction. 8 Secondly, while Kam Kiu was successful in obtaining an order setting aside the principal decision, I rejected the majority of the grounds upon which it relied. A number of these grounds raised discrete questions which occupied substantial hearing time and which no doubt also occupied substantial time and effort on the part of the respondents' legal representatives in preparing for the hearing, including preparing written submissions. Principal among these issues is that which was identified in the judgment as issue B1 concerning the meaning of the expression "public body". Kam Kiu was also unsuccessful in relation to issues A1, A2, B2, C1, F1 and H1. Further, it was largely unsuccessful on issue G1, which raised a number of arguments relating to procedural deficiencies with the reinvestigation. 9 I am mindful that Kam Kiu was successful in setting aside the principal decision which resulted in the imposition of anti-dumping measures. But against this must be weighed the fact that many of the arguments raised by Kam Kiu were unsuccessful and that the one and only point upon which it was successful turned, as I have mentioned, on a single issue of statutory construction related to the power of the Attorney-General to impose anti-dumping measures on a differentiated basis (issue G2). 10 I am also mindful that Kam Kiu did not run or adopt every argument that was advanced by the applicants in the 1653 proceeding and that, with respect to a number of significant issues, the burden of presenting the argument was primarily borne by the applicants in the 1653 proceeding. Even so, many of the arguments that were raised by the applicants in the 1653 proceeding were raised and argued for the benefit of all the applicants and were expressly adopted by Kam Kiu. 11 As the authorities make clear, it is not possible to exercise the discretion in a matter of this kind in any mathematically precise way. Doing the best I can based upon my own observations of the amount of attention that was devoted to the issues upon which Kam Kiu succeeded compared to those upon which it failed, I think it is an appropriate case in which there should be no order as to the costs of the proceeding. This will have the result that each party is, in effect, left to bear its own costs. That is the order that I think best serves the interests of justice. 12 I will therefore make the substantive orders in the agreed terms and further order that there be no order as to costs in proceeding 1869. 13 Orders accordingly. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholas.