139 Dr Flick sought to overcome this difficulty by referring to the decision of Burchett J in GTE (Aust) Pty Ltd v Brown ("Brown's case") (1986) 14 FCR 309 at 337. He submitted that this was authority for the proposition that a statement of essential facts which omitted material facts known to the CEO must create a materially inaccurate impression to the Minister which was reviewable under ss 5(2)(a) and 5(2)(g) of the ADJR Act.
140 However, Brown's case was decided under a different statutory scheme to that which is now applicable. The observations to which Dr Flick pointed have no application to the provisions of s 269TDAA in their present form.
141 To the extent that Dr Flick's submissions rested upon the proposition that the CEO is required to expose his or her reasoning in advance of the provision of the report to the Minister under s 269TEA, this would be contrary to well-established authority; Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591-592. See also Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212.
ISSUE 2 - Satisfaction of causal link
142 One of Schaefer's principal grounds of complaint was that the primary findings of fact in the Trade Measures Report could not, as a matter of law, support the finding that the price of the goods caused material injury to an Australian industry; see ss 269TEA(1)(d) and 269TG(1).
143 The substance of this ground is that it was not open to the CEO to find that price was causative. This was because in each of the tenders the effect of what was said was that price was relevant but that other factors, in particular quality, were also important.
144 The gravamen of this ground is that that the CEO asked himself the wrong question, either by applying the wrong legal test of causation or by failing to distinguish between the price effect of the successful tenders and the other non-price factors.
145 Schaefer went on to contend that the substance of what the councils told Customs about causation was that price was merely relevant and that quality was often the determining factor. Thus, Schaefer submitted that the finding of causation is so much against the weight of evidence as to be irrational, unreasonable or perverse. I will deal with that ground separately under Issue 6. I will deal with the question of whether there was material non-disclosure under Issue 4.
146 The subject matter of the enquiry which the CEO/Minister must make under s 269TAE(1), read with s 269TG(1), is material injury to an Australian industry that is causally connected to, "by reason of" or "because of", dumping; see ICI Australia Operations Pty Ltd v Fraser (1992) 34 FCR 564 at 571.
147 The test for causation of material injury was said by Lockhart J in Swan Portland Cement Ltd v Minister for Small Business and Customs (1991) 28 FCR 135 at 144 to be "essentially a practical exercise". His Honour said that its purpose is to achieve the objective of determining whether, viewed as a whole, the relevant Australian industry is suffering material injury from the dumping.
148 This test was applied by the Full Court in Fraser and by other Full Courts in Enichem Anic Srl v Anti-Dumping Authority (1992) 39 FCR 458 at 470 and Minister for Small Business, Construction and Customs v La Doria di Diodata Ferraiolli SPA (1994) 33 ALD 35 at 48. It has also been applied by single judges; see Mullins Wheels Pty Ltd v Minister for Customs and Consumer Affairs (1999) 166 ALR 449 at [18], [21]; N.V. Beaulieu Real v Minister for Justice and Customs ("N.V. Beaulieu Real") [2002] FCA 467 at [50]; affirmed on appeal [2002] FCAFC 339.
149 Moreover, the authorities referred to in the previous paragraphs establish that the determination is one of fact and degree; see eg Mullins at [20], Swan at 145.
150 In determining whether the CEO applied these principles it is necessary to return to the detail of the Trade Measures Report.
151 In Chapter 7 of the Report the CEO considers the Australian market for MGBs. He arrives to the view that MGBs are a commodity and that while product factors could be decisive in the outcome of a tender, this is only within a very narrow price band. This is an important finding which informed the exercise of practical judgment on the issue of causation.
152 In Chapter 8, the CEO found that the export price of Schaefer's MGBs was less than the normal price and that the dumping margin was 6.21%.
153 The CEO goes on in Chapter 9 to consider the claims made by Nylex and Sulo. Significantly, in the introduction to Chapter 9, the CEO states that for the Minister to impose dumping duties he must be satisfied that dumping is causing material injury to an Australian industry.
154 This statement, and others in similar terms, suggest that the CEO did indeed address the correct question.
155 Chapter 9 is an important part of the Report because it contains the details of the five contracts and a summary of the salient information about the factors taken into account in awarding the tenders to Schaefer. I set out those observations at [80]-[85] above.
156 It is true that in recording its observations and preliminary findings about those contracts, price was said to be the most important factor only in relation to the Canterbury Council. In all the others, price was said to be important or relevant but other factors were also said to be important.
157 However, I do not think it is a question of parsing and analysing these passages to criticise what may be thought to be contestable fact finding. Subject to any questions of unreasonableness or perversity, it was a matter for the CEO as to what weight he was to give to the various considerations to be taken into account; Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 41-42.
158 The findings in Chapters 7, 8 and 9 of the Trade Measures Report pave the way for a consideration of the question of causation which is dealt with in Chapter 10. That chapter opens by stating that it considers whether there is a "causal link" between the dumped MGBs and the injury suffered by the Australian industry and whether the injury is material. This is a further clear statement of the question which the CEO was required to address.
159 The chapter contains findings of material injury including the loss of approximately 213,000 units representing 8% of the total market, as well as price depression of about 8% in the market for 120 litre MGBs.
160 As it was required to do so by s 269TAE(2A), Customs considered whether injury to the Australian industry was caused by factors other than the exportation of the goods at dumped prices. In considering that question, the CEO made the findings which I have set out at [97] about the relevance of non-price factors in the tender process.
161 The effect of these findings is that in relation to each of the tenders, non-price factors played a part in the decision to accept Schaefer's tender; but they were not sufficient to explain why the tenders were awarded to Schaefer; price was not only a factor but a key or pivotal factor. But for Schaefer's tender price being affected by dumping, the likelihood was that at least some of the five tenders would have been awarded to the Australian industry.
162 These findings seem to me to reflect the practical exercise in decision making contemplated by the test stated by Lockhart J in Swan which I referred to at [147] above. Whilst different minds may have come to different views on the preliminary findings as to the relevance of non-price factors, the determination is, as I have said, one of fact for the decision-maker. In making this determination, the CEO proceeded on the basis that factors other than price were given different prominence by different councils but that tenders were to be evaluated within a narrow price band. That was a question of fact for the CEO.
163 The balance of Chapter 10 consists largely of a consideration of Schaefer's submissions, in particular customer preferences. I have set out the findings of the Report at [100] above. That passage and the conclusions which I have set out at [102] again show the necessary application of the test of causation.
164 In my opinion, this ground of review fails.
ISSUE 3 - whether the Report contravened s 269TEA
165 Section 269TEA(5) of the Act is in similar terms to s 430(1)(c) and (d) of the Migration Act 1958 (Cth). Thus, the CEO is only required to set out in the report to the Minister the findings which he did make; he is not required to set out findings additional to those which he actually made. What is required is the material findings of fact which the CEO actually made and upon which he based his recommendation; see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [67]-[68].
166 The CEO is required by s 269TEA(5)(b) of the Act to provide particulars of the evidence relied on in support of the findings. But it is not necessary for him to refer to every piece of evidence put before him; the Court will infer that matters not mentioned were not considered to be material; see Yusuf at [69]; see also Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [46].
167 In my view the analysis of the Trade Measures Report which I have set out at [151] to [163] demonstrates that the Report complied with the provisions of s 269TEA(5).
168 The effect of Schaefer's submission was that the Trade Measures Report failed to comply with the subsection because it omitted to make findings on other matters which would have pointed against a recommendation of causation of material injury. These included statements made by contractors that there were factors other than price which were decisive.
169 However, Schaefer's approach to construction is contrary to that which is laid down by the High Court in Yusuf. The Report contains the findings the CEO did make on these facts. He is not required to go further. He is required only to make recommendations and set out his material findings on which the recommendations were based. He is not required to provide the Minister with competing interpretations of the evidence so as to allow the Minister to make the ultimate decision.
170 That is not the scheme of Part XVB. What is required is the CEO's recommendation and findings. The Minister is not bound to accept the recommendation. He or she is required to reach the state of satisfaction as to whether dumping caused material injury as provided in s 269TG.
ISSUE 4 - Non-disclosure of material facts
171 The effect of this ground, as argued by Schaefer, is that the finding of causation cannot be supported because the CEO did not disclose material facts known to him as to the reasons why the tenders were successful. Alternatively, it was submitted that, in light of the primary materials, the CEO's findings as to the importance of price were stated in a misleading way.
172 Underlying this ground is Schaefer's contention that the information in the site visit reports and, in particular, the confidential versions of them, as well as the various confidential file notes, contained material which was inconsistent with the finding of causation. Schaefer therefore contended that it was deprived of the opportunity to comment on this information, which was not known to it.
173 Schaefer's contention is best illustrated by reference to Coffs Coast. The summary of the information contained in the SEF, as I set out above at [84] to [85], does not refer to the contractor's stated unwillingness to deal with relevant members of the Australian industry. Nor is this information disclosed in the public version of the site visit report. It appears only in the confidential version of that report.
174 Customs must have been aware of the information in the confidential site visit report and that information, if accepted, points squarely against a finding that price was a causative factor. Hence, Schaefer submits that it was deprived of the opportunity to comment on the information because it was not disclosed in the SEF or the public file.
175 The question of whether the CEO is required to disclose that information turns upon the proper construction and application of s 269ZJ of the Act.
176 Mr Gageler, for the respondents, relied in particular upon s 269ZJ(4). That sub-section provides that if oral information is given to the CEO by a person, the CEO must not take the information into account unless it is subsequently reduced to writing, either by the person or the CEO, and thereby becomes available as part of the public record, subject to considerations of confidentiality.
177 Thus, the effect of Mr Gageler's submission was that I should infer that the comments about the contractor's unwillingness to deal with other suppliers was either not taken into account by the CEO or, alternatively, that the information was ultimately not considered sufficient to outweigh the evidence in relation to price.
178 Dr Flick submitted that s 269ZJ(4) does not apply to information provided to the CEO on a confidential basis. His argument focused upon the words in the sub-section "subject to considerations of confidentiality."
179 Thus, Dr Flick submitted that the reasons given by a council or a contractor, which were provided to the CEO on a confidential basis, did not fall within s 269ZJ(4). Accordingly, he contended that the CEO was not precluded by that sub-section from taking the confidential material into account.
180 On the approach taken by Dr Flick, I would find that the CEO took into account the confidential reasons provided by Coffs (and the other contractors) without disclosing to Schaefer the content of the confidential material which pointed against a finding of causation.
181 It is true that the apparent purpose of s 269ZJ is to give effect to the policy of transparency which underlies the statutory scheme in Part XVB of the Act. Thus, the CEO's recommendation should ordinarily to be made only by reference to that which is available on the public record. This enables interested parties to defend their interests; see Article VI of the Implementation Agreement for the Uruguay Round of GATT; see also Pilkington at [22], [23] and [28].
182 However, I do not accept Dr Flick's submission as to the proper construction of s 269ZJ(4). The flaw in his argument is that it fails to take into account the provisions of s 269ZJ(2) and (3) which make special provision for the inclusion of some details of the confidential information to be placed on the public record.
183 Section 269ZJ(2) provides that a person giving information to the CEO that is claimed to be confidential must ensure that a summary of that information is given to the CEO for inclusion in the public record. The summary must contain sufficient detail to allow a reasonable understanding of the substance of the information and is to be given in a way that does not breach confidentiality.
184 Importantly, s 269ZJ(3) contains an exception to this requirement. It states that a person is not required to give a summary of the information under s 269ZJ(2) if the person satisfies the CEO that a summary cannot be given to allow a reasonable understanding of the substance of the information.
185 It is possible that s 269ZJ(2) was breached in relation to Coffs because the public version of the site visit report contains no details of the contractor's unwillingness to deal with other manufacturers.
186 However, that point was not argued by Schaefer. If it had been, the CEO may have pointed to the exception in s 269ZJ(3). That was a matter on which the CEO may have wished to call evidence. Without a specific claim of breach of s 269ZJ(2), the CEO had no reason to address that evidentiary question.
187 Although I have rejected Dr Flick's proposed construction of s 269ZJ(4), it does not necessarily follow that I must accept Mr Gageler's submission that the confidential information was not taken into account. This is because the information in the confidential site visit report for Coffs went directly to the central question that the CEO was required to address, namely the issue of causation.
188 Accordingly, to say that the CEO was precluded from taking, or did not take, into account the reasons given by the Coffs contractor in the confidential report, would be to conclude that he ignored a piece of information pointing directly against a finding of causation.
189 In any event, even if that is what happened in the present case, I do not think it would give rise to a valid complaint of failure to take into account relevant circumstances. This is because the outer boundaries of relevant circumstances do not encompass a failure to grapple with a competing body of evidence, provided that all integers of the claim are addressed. Thus, in the present case the complaint would be reduced to errant fact finding; Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 at [79]; NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2005) 219 ALR 27 at [55]-[57].
190 However, that is a different question from that which is raised under the issue of non-disclosure. In the absence of a claim of breach of s 269ZJ(2), I cannot say that the CEO was bound to disclose, or to cause disclosure of, the information in the Coffs confidential site visit report. Nor can I say that he failed to take it into account.
191 Indeed, it seems to me that there are indications in the SEF and the Report, in particular in the passage I have set out at [97], that the CEO did have regard to the information in the confidential site visit report for Coffs, and indeed for the other councils.
192 This leaves open the possibility of other grounds of review, in particular perversity and unreasonableness, which I will consider under Issue 6.
193 I do not need to address in any detail the question of non-disclosure of information for the other councils but I will do so briefly.
194 Everything that I have said about Coffs applies equally to Bega. I do not need to add any further observations or findings for that council.
195 As to Eurobodalla, no question of non-disclosure arises. This is because the public version of the site visit report, set out above at [126], states in plain terms that the contractor advised that price was not a major factor.
196 For Canterbury, there was nothing in the confidential file notes which pointed against the CEO's finding. Indeed, the confidential material would have supported the finding because it showed that price was weighted as the most important factor.
197 For Ku-ring-gai, there was no site visit but the contractor provided written answers to Customs' questions. There was nothing in the answers to those questions which could be characterised as a statement that the contractor selected Schaefer for reasons other than price, with the possible exception of a preference for the configuration of the Schaefer handle. However, this did not point so strongly against price as a decisive factor as to require disclosure.
198 Finally, as to Schaefer's submission that the CEO's findings as to price were stated in a misleading way, I will deal with that submission under Issues 6 and 7.
ISSUE 5 - failure to conduct an investigation
199 The duty to hold an investigation under Part XVB does not impose upon Customs an obligation to itself investigate and ascertain all relevant facts; it is a duty to investigate within the statutory framework and the CEO is entitled to rely primarily on submissions received from interested parties; see C A Ford Pty Ltd v Comptroller-General of Customs (1993) 46 FCR 443 at 447 per Davies J.
200 That is not to say that the CEO's duty to investigate is limited entirely to a consideration of the application and the submission of interested parties. Clearly enough, the Act imposes a duty to carry out an investigation. There are numerous references to it; see for example ss 269TC(4)(e), 269TDAA(1) and 269TEA(1).
201 As may be expected, the Act does not direct the CEO as to how to conduct the investigation. It leaves to the CEO/Minister the task of reaching the necessary state of satisfaction having regard to the matters he or she may, or in certain instances must, take into account; ss 269TAE(1), 269TAE(2A), 269TE(2) and 269TG(1).
202 After holding an investigation, the CEO must make a recommendation as to whether the Minister ought to be satisfied of the necessary causal link; s 269TEA(1)(d). The question is one ultimately for the Minister having regard to the matters relevant to the determination of material injury and causation; see Fraser at 571.
203 It is true, as Hill J observed in Enichem at 469, that decision-making is a "function of the real world". His Honour pointed out that a decision-maker is not bound to investigate each avenue that may be suggested to him/her by an interested party; ultimately, the decision-maker must do the best he or she can on the material available after giving interested parties the right to be heard. Gummow and O'Connor JJ agreed with Hill J.
204 The observations of O'Connor J in Al Abdullatif Industrial Group Co Ltd v Minister for Justice and Customs [2000] FCA 758 at [22] are to the same effect. Her Honour pointed out that in many cases, an implied duty to investigate each avenue suggested by an interested party would make the statutory scheme unworkable.
205 It is plain from the passages of the Trade Measures Report which I have set out at [80]-[85], [97] and [100] that the CEO did investigate the relative significance of price to other factors and that he made findings as to the existence of the necessary causal link.
206 However, Schaefer submitted that the CEO breached the duty to investigate by failing to make further enquiries, in particular to ask further questions as to the relative significance of price to other factors.
207 The authorities confine the duty to investigate to rare and exceptional circumstances. It is limited to cases where it is obvious that material is readily available that is centrally relevant to the decision; see Prasad at 169-170; Minister for Immigration and Ethnic Affairs v Singh (1997) 74 FCR 553 at 558-559, 561; Luu v Renevier (1989) 91 ALR 39 at 50; Azzi v Minister for Immigration and Multicultural Affairs (2002) 120 FCR 48 at [102]-[112].
208 Given that the CEO did investigate the central question, the duty which Schaefer seeks to impose, namely a duty to ask further questions, does not fit neatly within the formulation expressed in Prasad and the other cases.
209 The difficulty was illustrated at a practical level because, apart from contending that there was a duty to ask further questions, Dr Flick was unable to formulate the particular questions which Customs ought to have asked. This is hardly surprising. Once it is determined that the decision-maker has asked himself/herself the correct question, how can the Court determine what particular questions the repository of the power ought to ask to complete the exercise of jurisdiction? To do so may well be to cross the limits of judicial intervention delineated by Brennan J in Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36.
210 But that is not to make immune from judicial intervention the CEO's decision as to the existence of a causal link. In my view, what really underlies Dr Flick's attack on the decision is that it was based on findings or inferences of fact that were not supported by probative material or logical grounds; see Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [145]; Re Minister For Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59.
211 Indeed, as the Full Court said in Luu v Renevier at 50, the underlying rationale for the duty to investigate is the ground of unreasonableness; see also Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 290.
212 I will therefore consider this in the next section of my judgment when addressing Issue 6.
ISSUE 6 - Unreasonableness
213 Schaefer's argument on the unreasonableness ground may be summarised as follows:
· The CEO had evidence from organisations that had purchased Schaefer's MGBs under the five relevant contracts to the effect that price was a factor in each decision, but it was not the only factor.
· The CEO could not make a finding about causation without knowing more about the relative importance of price to the other factors in each of the contracts.
· There was evidence from the purchasers in the Eurobodalla and Coffs Coast contracts that price was not the determinative factor. If the CEO had accepted this evidence, in particular for Coffs which comprised 50% of the volume of MGBs awarded to Schaefer, there was no rational basis for the finding of causation.
214 An alternative way in which the case was apparently put was that the finding of causation was so much against the weight of evidence as to be arbitrary, perverse or capricious; NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [130]-[135].
215 There are two separate strands to the argument. The first is that the information provided by some of the councils, eg Canterbury, pointed to price and non-price factors without differentiating between the relative importance of those factors. Thus, it was said to be irrational, perverse or unreasonable to make a finding of causation without knowing more about those factors.
216 The second strand is that for a number of the councils, most notably Eurobodalla and Coffs Coast, there was material in the site visit reports which clearly stated the contractor's view that price was not determinative. I will deal with this strand of the argument first.
217 Once again, the argument is best illustrated by reference to Coffs. As I have said, it is my opinion that the CEO did take into account the confidential material in the site visit report for the Coffs contractor. The question which then arises is whether it was irrational, perverse or unreasonable for the CEO not to accept the contractor's statements that factors other than price were determinative.
218 It seems to me that the CEO dealt with the contractor's evidence in the passage I have set out at [97]. His acknowledgment that "perceptions about quality and service were relevant", was sufficient to address the remarks made by the Coffs contractor as recorded in the confidential site visit report.
219 The CEO went on to find that, notwithstanding this evidence, it was clear to Customs that price was a "key factor". He was also satisfied that if the Malaysian MGBs had been offered at undumped prices, the Australian industry would have been more likely to be successful in competing against Schaefer for the tenders.
220 I do not consider that these findings were so unreasonable that no reasonable authority could have arrived at them; see Eshetu at [136]; Buck v Bavone (1976) 135 CLR 110 at 118-119.
221 The CEO was not bound to accept the contractor's statement. Of course, a different fact finder may have reached a different view. But, as Gummow J said in Eshetu at [137]:
… where the criterion of which the authority is required to be satisfied turns upon factual matters upon which reasonable minds could reasonably differ, it will be very difficult to show that no reasonable decision-maker could have arrived at the decision in question. It may be otherwise if the evidence which establishes or denies, or, with other matters, goes to establish or to deny, that the necessary criterion has been met was all one way.
222 I do not consider that the evidence was all one way. It was open for the CEO to find that, notwithstanding the contractor's stated views, the position would have been different if the MGBs were offered at undumped prices.
223 Dr Flick submitted that the omission of the confidential material from the SEF, the Report and the public site visit report for Coffs indicated perversity on the part of the CEO. He submitted that s 269ZJ(4) cannot be construed so as to confer upon Customs a power to select from the information which it has been told and to exclude from the public record other information of which it is aware.
224 However, in the absence of a specific claim of breach of s 269ZJ(2), I cannot accept that the omission shows perversity.
225 All of the findings I have made in relation to Coffs apply equally to Bega.
226 The position in relation to Eurobodalla is more straightforward. The public version of the site visit report stated in plain terms that the contractor said that price was not a major factor and that the contractor would have been prepared to pay more for the quality of the Schaefer MGBs. This was fairly summarised in the passage I have set out at [83].
227 Schaefer relied on this as evidence of perversity on the part of Customs and the CEO because it was submitted that this was clear evidence against a finding of causation.
228 But I do not consider that the CEO was bound to accept statements made by end users who have an interest in the market-price being as low as possible. Moreover, there was a degree of ex post facto rationalisation in the contractor's statement that it was prepared to pay more, rather than it being a contemporaneous record of the factors taken into account.
229 In any event, in the public record of the site visit report the contractor stated that Schaefer offered more flexible payment terms; see [126]. The terms upon which payment is made are plainly an aspect of price.
230 In light of that evidence, I can see nothing unreasonable, illogical or perverse in the CEO's conclusion that price was a key factor.
231 Schaefer further contended that the CEO took an inconsistent and irrational approach in comparing actual payment terms with those which are stated in the contract. However, I cannot see that there is anything unusual in looking at actual payment terms which disclosed that the price was in fact more generous than that which was offered in the contract.
232 It is true that Schaefer's actual payment terms were compared with the contractual terms offered by the Australian industry, without any adjustment. However, the Australian tenderers were unsuccessful. It was therefore not possible for the CEO to look at their actual terms of payment.
233 Ultimately, therefore, this was a matter of judgment for the CEO. As I have said, there can be no suggestion that he was not entitled to have regard to the actual, more generous, payment terms allowed by Schaefer.
234 I return then to the first strand of the argument, namely that it was unreasonable to make a finding of causation without knowing more about the relative importance of price to non-price factors.
235 It seems to me that the summaries in the SEF and the Trade Measures Report, set out above at [80]-[85], contain a fair summary of what was contained in the public file for Canterbury, Bega, Eurobodalla and Coffs.
236 For Ku-ring-gai, the contractor's answers to Customs' questions were apparently not placed on the public file. However, that information was not provided orally by the contractor, so that, at least on its face, there was no breach of s 269ZJ(4) in the CEO taking that material into account.
237 In any event, the substance of that information was made available to Schaefer in the SEF because it was recorded in the summary for Ku-ring-gai. The CEO was therefore required to take it into account in the Trade Measures Report; see s 269TEA(3)(iii).
238 An examination of the evidence before the CEO on the question of the relative significance of price and non-price factors shows that there was sufficient to support a finding of causation. This is because in each of the five contracts there was evidence from the contractor that price was a significant factor.
239 It is true that there was evidence the other way, as in the case of Eurobodalla. It is also true that there was evidence to the effect that non-price factors played a part in the decision of the contractor.
240 The weight that the CEO gave to the factors was ultimately a decision for him. The passages which I have set out at [97], [100] and [102] show that he considered and weighed the non-price factors (eg. quality and service) against price (including payment terms).
241 Different minds may well have come to different conclusions on the question of whether price was the key factor. But there is authority for the proposition that there was material to support the finding of causation in the present case.
242 So long as there is material to support a finding that price suppression and price depression were caused by importation of goods at dumped prices, so as to constitute material injury, that is sufficient to support a finding of causation; see N.V. Beaulieu Real at [48]-[60].
243 That test is satisfied here because there was evidence of price suppression, price depression and loss of profitability in the market; see [87], [89] and [95].
244 I do not consider that the practical exercise of judgment which is at the heart of the determination of causation required the CEO to make any further enquiries of the purchasers. There was evidence from all the purchasers that price was a factor. A decision "in the real world" did not require the CEO to administer a series of interrogatories to the purchasers as to the relative importance of each factor.
245 The passage which I have referred to several times, set out at [97], best illustrates the carrying out of the practical exercise. There was evidence which enabled Customs to conclude that price was a key factor. The weight to be given to the various factors was for the CEO to decide. The finding, that if the Malaysian MGBs had been offered at undumped prices the Australian industry would have been more successful, was open to the CEO. I do not consider that the finding was arbitrary or capricious.
246 Not only did all the purchasers indicate that price was a factor, in four of the five contracts, the lowest (unadjusted) price was successful. After readjustment of Schaefer's payment terms in the other contract, the CEO's analysis was that in all five contracts, Schaefer's bid was the lowest and was successful in each case.
247 Confidential appendix 5 to the Report shows the adjustment that the CEO made. It shows that Schaefer's actual payment terms were more generous than the terms specified in its contract, the evidence of which was referred to elsewhere. The purchaser obtained the reduced price offered under the contract for prompt payment notwithstanding that payment was actually made well outside the specified date.
248 A further ground of attack on the Trade Measures Report was the failure to accept the contractor's statement that the EN840 standard was a crucial factor in the selection of Schaefer for the Coffs Coast contract. The relevant passages of the Report are set out above at [91]-[92].
249 This was said to enliven a number of grounds of review including failure to investigate, failure to take into account relevant considerations and bias. It is convenient to deal with it under the heading of unreasonableness.
250 It is true that the Trade Measures Report acknowledges the contractor's statement in its response to the SEF, that EN840 was a crucial factor. It may seem surprising that there was no discussion of the EN840 standard in the site visit of 7 December 2005. But as the Report points out, the contractor was given an opportunity to consider a draft of the site visit report and made no comment about the failure to refer to the standard. This is supported by an email from the contractor dated 23 January 2006.
251 It is plain that Customs considered the claim of Schaefer and the contractor, in response to the SEF, that only Schaefer's MGBs met the EN840 standard. The Trade Measures Report said so in clear terms but went on to say that Customs was not satisfied that compliance with the standard was a determining factor for Coffs Coast.
252 There was evidence to support this finding. In its application for a dumping duty notice dated 21 September 2005, the Australian industry stated that both manufactured and imported MGBs are produced in accordance with the EN840 standard.
253 It was open to Customs to accept that evidence. That is precisely what it did in rejecting the claims of Schaefer and the contractor that EN840 was a determining factor. This is consistent with other findings in the Trade Measures Report that MGBs are commodities. Elsewhere the Report states that "MGBs have the same end-uses and are generally substitutable."
254 In my view it follows that there was nothing irrational, perverse or unreasonable in the finding.
ISSUE 7 - Bias
255 In order to make out a finding of actual bias, an applicant must demonstrate that the decision-maker was guilty of pre-judgment. He or she must be committed to a conclusion, and not open to a contrary view, whatever arguments or evidence may be presented; see Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 at [71]-[72]; SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [36].
256 An applicant bears a heavy onus; it will rarely be discharged by pointing solely to the reasons of the decision-maker or adverse fact finding; see SCAA at [36]-[38].
257 The test for reasonable apprehension of bias in curial proceedings is whether a "fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question" that is to be decided; see Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [27]. See also Antoun v The Queen (2006) 224 ALR 51 at [51]; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6].
258 For administrative proceedings, the test is expressed by reference to a hypothetical fair-minded lay person, properly informed of the nature of the proceeding, the matters that are in issue and the conduct which is said to give rise to the claimed apprehension of bias; se Ex parte H at [28].
259 The substance of Schaefer's claim of bias was that the five councils gave central information to Customs "which slipped off the table" and did not find its way into the SEF or Trade Measures Report.
260 Dr Flick pointed in particular to the statements made by the contractor for Coffs that whilst price was an issue, quality was the determining factor and there was a breakdown in the relationship with the relevant Australian supplier.
261 He also pointed to the clear statement made by the contractor for Eurobodalla Council that price was not a major factor.