INU! UUn .4 danstWuricis -JUDGMENT No. (!4 p81 IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY vIsTRICT REGISTRY ) ) ) ) No. ACT G 28 of 1986 ) ) ) GbuLXAL vIVEISLION BETWLEN: TREDEX AUSTRALIA PTY LTD Applicant AND: JOHN NCRHAN BUTTON (who 1s sued in his capacity as Minister of State for Industry, Technology and Commerce} Respondent MINUTE OF ORDLR JUDGE MAKING ORDER : WNeaves J. DATE OF ORDER : 13 November 1907 WHERE MADE : Canoerra THE COURT ORDERS THAT: l. The motion on behalf of the respondent, John Norman Button, notice of which was given on 1 June 1987 be dismissed. 2. The time within which an application by Tredex Australia Pty Ltd under the Administrative Decisions (Judicial Review) Act 1977 (Cth) for an Order of review in respect of the decision of John Norman Button, the Minister of State for Industry, Technology and Commerce, made on 9 April 1987 and notified to Tredex Australia Pty Ltd by letter dated 13 April 1987 may -be filed be extended up to and including 2U November 1987. 3. The costs of the proceedings before the Court on 5 June 1987, 3 July 1¥&87 and this day be reserved. 4. If the application referrea to in order 2 above be filed, that application ana the application under the said Act in proceeding No. ACT G 28 of 1946 be heard toyether. 5. Tredex Australia Pty Ltd file and serve not later than 18 December 1987 any affidavits on which it intends to rely. ve John Norman Button file and serve not later than 29 January 19¥8 any affidavits on which he intends to rely. 7. Treuex Australia Pty Ltu file and serve not later than lU February 1988 any affiuavits in reply. ue The matter be listed for further ulrections on 12 February 1988. 9. Each party have liberty to apply on two days' notice. Note: Settlement and entry of orders is dealt with in Order 30 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY ) ) No. ACT G 28 of 1986 ) ) ) GENERAL DCIVISION BETWErN: TREGLX AUSTRALIA PTY LTD Applicant AND: JOHN NCRMAN BUTTON (who is sued un his Capacity as Minister of state for Industry, Technology anc Commerce) Respondent CORAM: Neaves J. DATL: 13 Whovenper 1907 REASONS POR JUDGMENT The Court nas before 1t two motions on notice. The first 1s a motion on behalf of John Norman Button in his capacity as Minister of State for Industry, Technology and Commerce for an order that a proceeding (No. ACT G 28 of 1986) in which Tredex Australia Pty Ltd ("Tredex") 1s the applicant and the Minister is respondent and in which Tredex seeks an order of review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the Judicial Review Act") be dismissed generally pursuant to Order 20, rule 2 of the Federal Court Rules as disclosing no reasonable cause of action. The second 1s a motion on behalf of Treuex for an extension of time within which to bring a further proceeding ayainst the Minister under the Judicial Review Act. Although the notice of this motion 18 2. intituled in proceeding No. ACT G 28 of 1986, it is, in truth, a proceeding separate from that application though related to 1t in a way wnich will appear. Proccuading «0. AcT uw 245 or L¥'eY Was commenced Ly Tredex filing an application in the registry of tne Court on 29 May lyst. The application seeks an order of review in respect of a decision of the Minister, evidenced by a notice dated 3 January 1ys6 ana publishea in the Commonwealth of Australia Gazette on zZ2 January 19%6, declaring that s.4 of the Customs Tarifeé£ (Anti-Dumping) Act 1975 (Cth) ("the Anti-Dumping Act") applies to certain goods specified in the notice. Those gooes are — + uncoated woodfree printing and writing payers (1.e. containing not more than lv per cent mecnanical pulp), in reels and sheets classified within par.44.01.91 of Schedule 3 of the Customs Tariff Act 1982 (Cth); and + uncoated woodfree printing and writing papers cut to size and shape, classified within sub-item 48.15.9 of the said schedule, exported from South Africa prior to the date of publication of the notice and entered for home consumption on or after the date of such publication or within the period of four months last preceding the date of such publication. The notice recites that the Minister was satisfied in respect of the said goods that: "(a) the amount ot the export price of the goods 1s less than the amount ot the normal value of those goods; (b) by reason thereof - (1) material injury to an Australian industry has been or 1s beang caused or is threatened, or the establishment ot an Australian lmuustry has been or may be materially nindered; or (11) material injury to an Austraiian industry wouid or might nave been caused 1f£ security had not been taken under section 4&4 of the Customs Act 19uUl in respect of any duty that may become payable on those goous." The Minister objected to that application proceeding to a hearing on the ground that 1t was lodged out of time. The question raised by that objection was determined in the Minister's favour in a judgment of the Court delivered on 11 September 1966 (Tredex Australia Pty Ltd v. Button (1966) od A.L.k. 035). An application by Tredex for an extension of the time within which to lodge the application was, however, successful (ibid)). By virtue of sub-s.15(3) of the Anti-Dumping Act, a person enyaged in the business of importing into Australia goods of a particular kind may request the Minister to revoke a notice in force under s.8 relating to those goods oer goods of that kind. Where the Minister informs the person, 1n writing, that he does not propose to accede to the request, the person may request the Minister, in writing, to refer to the Industries Assistance Commission ("the Commission") for inquiry and report the question as to the existence of a fact or facts as to the existence of which, 1£ the notice were not in force, the Minister would be required to be satisfied before causing the notice to be published. Where the Minister receives such a reguest, he 1s required to refer the question to the Commission unless the question has previously been rererred (sub-s.lo(4)). Prior to 11 September 1980, when judgment upon the earlier apvlication was delivereu, Tredex had requested that a@ question concerniny two factual issues be referred to the Commission for inquiry and report. Those issues were said to relate, first to the method of ascertainment of the normal valuc of the yoods in question and, secondly, to the finding concerning material injury to an Australian industry. Notwithstanding the provisions of sub-s.15(4) of the Anti-Lumpging Act and the circumstance that the question had not previously been referred to the Commission, there had been no reference of the question to the Commission prior to 1l September 1986. However, on 15 September 1986 the Minister referred to the Commission for inguiry and report the questions - "(a) whether any of the goods exported to Australia from South Africa prior to the 22nd day of January 1986, being goods entered for home consumption on and after the 22nd day of January 1986 or within the period of four months last preceding the 22nd day of January 198b, have been exported to Australia at an export price which 1s less than the normal value in South Africa; and (b) whether, 1f£ the answer to (a) 1s affirmative, by reason thereot - (1) material injury to an Australian industry has been or 1s being Caused or 1s threatened or the estaplishment of an Australian industry has been or may be Materially hindereu, or (11) material injury to an Australian Incustry would or might nave been Cuused 1f Security hac not been taken under Section 42 of the Customs Act lyvl in respect of any uuty that may Lecome payable on tnose joous." The Commission held a public hearing on the reference following the receipt by 1t of written submissions by interested parties, 12ncluding Trecex, and on 15 December 193v submitted its report to the Minister. Page 32 of the Comnission's report records its findings as follows: "The Industries Assistance Commission finds that, in the period specified in the reference: (i) certain uncoatcd woodfree papers under reference were exporteu to Australia from South Africa at export prices which were less than the normal value in South Africa; (21) the importation of white Banks falling within paragraph 48.01.91 of the Customs Tariff, statistical code 308, caused and threatened material injury to the Australian industry producing white Banks 1n rolls or sheets; and (i12) anjury was not caused or threatened to the local industry producing white Bonds in rolls or sheets, or to any of the other goods under reference. The Commission also finds that material injury would or might have been caused to_- the Australian industry producing white Banks an rolls or sheets if securities had not been taken under Section 42 of the Customs Act 1901 in relation to imports of white Banks in rolls or sheets from South Africa." It 1s to ve noted that neither the Anti-Dumping Act nor the Industries Assistance Commission Act 1973 (Cth) expressly provides for what 1s to occur once the Commission has made its report. It may, perhaps, be implied that the Minister 1s under a uuty to consider the report and aeternine whether to act upon any findings or recommenuations made by the Commission. There 1s, certainly, no express ooligation placeu upon him to do so. Following receipt of the Commission's" report, submissions were put to the Ninister on pehalf of Tredex 'in Support of the proposition that "a positive fFinaing of dumping has been maintained once again on erroneous grounds". The Minister was agaln requested to revoke the notice published on 22 January 19d0. On 13 April 1987 a letter was sent to the solicitors for Tredex by an officer of the Department of Industry, Technology and Commerce in the following terms: "The Minister for Industry, Technology and Commerce, Senator John Button, has asked that I reply to your letter of 30 March 1987 concerning the Industries Assistance Commission report on certain uncoated woodfree paper from South Africa. Tne Minister has accepted the findings of the IAC other than the finding: *(111) injury was not causea or threatened to the local industry producing white bond in rolls or shects, or to any of the other goods under reference'. 7. A copy of the meaia release announcing the Minister's decision 1s enclosed for your information." It 1s unnecessary to set out the media release in full. It 1s suflLicicnt to note that 1t revoreed an announcement by tne 'linister on ¥ April lyo7 that dumping duties were to be retalned on the uncoatea woocfree pagers from South Africa specified in the notice publisheu on «<2 January 1986. to step had in the interim peen taken by Tredex 1n the proceeding No. ACT G 28 of 1986. However, after receipt on 15 April 1987 of the letter dated 13 April 1987, steps Were taken to list that proceeding for a directions hearing on 5 June 1987. On 1 June 1987 the notice of motion, to which I have referred, seeking an order that the proceeding be dismissed under Order 2U, rule 2 of the Federal Court Rules was filed on behalf of the Minister. The notice stated that the Court would be moved on 5 June 1987. In supporting the motion to dismiss the application 1n proceeding No. ACT G 28 of 1986, counsel for the Minister did not contend that the grounds set out in the application filed on 29 May 1986 had no substance or were not arguadle grounds. The essence of his submission was that the decision of the Minister evidenced by the notice published on 22 January 1980 was no longer the operative decision, 1t having been superceded by the decision made by the Minister on 9 April 1987 following upon his consideration of the report of the Commission upon the reference made to it by the Minister at the instance of Tredex. It was submitted that, in those circumstances, the earlier decision was not one that was susceptible of attack unger the Juaicial Review Act except collaterally as part of an attack upon the later Geclislion. Reliance was also placeu on the circumstance that Tregex haa not instituted proceedings under the Judicial Review Act for an oruer of review in respect of the later decision. Tredex opposed the making of the order sought, contending that its liability to pay duty umnder-~the Anti-Dumping Act derivea from the publication of the notice on 22 January 1966 anu not from any subsequent action taken by the Minister. The argument for Tredex went so far as to contend that the decision made by the Minister on 9 April 1987 was not capable of challenge under the Jucicial keview Act because, although 1t might have amounted to a decision, 1t was not a decision "under an enactment" within the meaning -of that expression 1n the Judicial Review Act, as the legislation gave operative effect only to the publication of a notice in the Commonwealth of Australia Gazette ang no such publication of the later decision had been made. The directions hearing in respect' of the application resulted in the discussion of a wider range of issues than those arising upon the motion on behalf of the flinaster. In particular, the question was discussed whether, 1n oruer to ensure that all relevant issues between the parties were properly before the Court, Tredex should file an application under the Judicial Review Act for an Oruer o£ review in respect of the decision ot which notice was ylven to Tredex by letter dated 13 April 197 and, as tac time within wnich such an application miyht be lodyed hac expired, an application tc extend such time to enable the substantive application to be brought. The matter was adjournea until 3 July 1987 to enable Tredex to consider what course 1t wished to follow. No decision was made at that time upon the Minister's motion for dismissal of the application in proceeding No. ACT G 28 of 1986, XN On 1d June 1987 Tredex filed in the registry of tne Court a notice of motion seeking an extension of time within which to lodge an application under the Judicial Review Act for an order of review in respect of the decision of the iMainaster made on 9 April 1987 and notified to Tredex by the letter dated 13 April 1987. The decision 1s described in the application as a decision purporting to affirm or, alternatively, not to revoke the decision of the Minister on 8 January 1986 under the Anti-Dumping Act. On the same day Tredex lodged in the registry a document in the form of the substantive application to be filed in the event of the extension of time being granted. The matter again came before the Court on 3 July 19387, Jor Treucx 1t waS ugair Luorilttes Lirat what the Hitedoter view on yv .prit Los? woe net Susee,ptivie cf toview Ghee tue sestleral weovaew Hcl en the youumu that what was sete Bee UNL LD ewe deh ET a CL, Wad nel ow ecCaston "Uruck ot eo wectment™. LOweved, 1s cee Lhat view wel. oglu tu ee re.Meuun il wiser tu auve oecute Ene Court we ec uitsation ebtes isl the valiuitt of taut ucerszion. It was 2urtacr suerlllou buat ever lc, Contror, ts rts ,rirar, seebisslon, wad wal uene CN 2 alt. ate «wot Ceviewaule under tne Jucicrsh Seview Act, Porcetncicss tae eectoton ¢ the winister to wich Clacct wus glven oy coe pueltculiur in tue Commonweoulte 2. Justrulau vairctte ol the notice uated v Yanuary Lyob remuinc. Cyerative, tne alinicter having taken no Ste, to reselne or var, the etfect wnich the tudlication vr that peticc hag uron the rights, liabilities anu antercste of 'True. dn clean circunstances, sce t bee ire] sugmission ran, it could net we said, In any sense relevant to the application ot Oruer ev, rale « of the Federal Court Rules, that the reusunable cause of action whicn Treuex had in flay lyse had cecome, because of suscrvening events, any ivss reasonable. Tne Submissions which had on the previous oceasion weth pul in Suy,~ort of the flinister's mution were ayain ulVdlilede In uy cpyinion these subrissicns are, in truth, wuifecteu to au Sltbutivn ciller Pe Lro. that to wile Ureer ev, rule ¢ or the Pourras Court wul.s is dlrecteu. what the Submissions amount to is that the earlier decision has been totally supersede. by tne later so that, even if there were grounds for relicf unuer the Judicial Review Act in relation to the varlicr uecisiuon, the case 1s a proper one for the Court, in the exercise of its ulscretion, to refuse any relicf on the vasis that such relief would be of no benefit to Treaex while the latcr uecision stands and, undeed, to decline to entertain the application. So far as the Minister's motion under Order 20, rule 2 of the Federal Court Rules is concerned, I accept the submissions put by counsel on behalf of Tredex. It would be a serious step to dismiss the proceeding at this interlocutory stage as disclosing no reasonable cause of action. It 1s a step which should only be taken in the clearest of cases and I do not propose to accede to the invitation to take it. Until revoked under the appropriate legislative provisions, or set aside as a result of review under the Judicial Review Act, the notice published on 22 January 1986 continues to be the source of the liability of Tredex to dumping duty in respect of the goods to which the notice relates. In my opinion, 1t would not be a proper exercise of the Court's discretion to exercise the power under Order 20, rule 2 to prevent Tredex having the decision evidenced by that notice reviewed under the Judicial Review Act. The motion on vehalt of the Minister notice of which was given on 1 June 1987 is, therefore, dismissed. ' vw " ah + a ws . eon vs ~ ¥ 12. lt was Ccuncerra py counsel for Tredex that, if what Uceerren wt 2 tli 'su7 was reviewable under the Judicial beVibew aCe, bow -,4ttcaticn for an order of review in Cee ee feet eel ven eel ur time. It was submitted that an ~sCePL eo oul thee 6 f wuld) be oyranted on tne following ay Ulan (4) tac ev lication for an order of review inS s4eStantial merit, (LU) the auount of dumping duty payable by Treuca LS large; (cs) to great the extension would not result zn uny prejudice to the Ministcr, he ,uvin, been aware at all times that Treucx auld not accéyt that 1t was liaple tu wey cumping duty on the goods; (!) there are no considcrations of public aatelest that tell against the granting ox tue extension. The aftiuavit cvidence placed before the Court in support of the application fur an extension of time satisfies me that the reason why an application under the Judicial Review Act in respect otf wnat was done on 9 April 1987 was not lodged within the tine prescribed by s.11(3) of that Act was becuusc of the view taken by Tredex's legal advisers that there was no "uecision under an enactment" in respect of WalCh ¢Cucn ar ay, lication could be made and, in any event, thet YTredex's leyal rights were fully protccted by the eulllcr u,vi-.cation. Whether they were correct in taking thal stung Io necu not stay to consider. The Minister opposed the granting of an extension of time to permit Tredex to file the application for an order of review in respect of the decision of 9 April 1987. No aryument was, however, addressed to the Court on whether what was done on that date was reviewable under the Judicial Review Act. In all the circumstances, I think this 1s a proper case in which to grant an appropriate extension of time so aS to enable the application in relation to the decision made by the Minister on 9 April 1987 to be filed. It was my understanding when the matter was last before the Court that the further application under the Judicial Review Act had been filed on 18 June 1987 so that an extension up to and including that date would be sufficient. However, an examination of the Court record indicates that the further application has not, in fact, been filed. I propose, therefore, to grant an extension of time to file the application up to and including 20 November 1987. Directions should now be given as to the further conduct of the proceedings. I order that, if the further application be filed, that application and the application in matter No. ACT G 23 of 1986 be heard together. I further order that Tredex file and serve not later than 18 December 1987 any affidavits on which 1t intends to rely, that the Minister file and serve not later than 29 January 1988 any affidavits on which he intends to rely, that Tredex file and serve not later than 1U February 1988 any affidavits in 14, reply and that the matter be listed for further directions on 12 February 1988. I order that the costs of the proceedings before the Court on 5 June 1987, 3 July 1987 and this day be reserved. I reserve to each party liberty to apply on two days' notice. I certify that this anc the preceding 13 pages are a true copy of the Reasons for Judgment herein of the Honourable Mr Justice Neaves. Associate Dated: 13 November 1987 Counsel for the Tredex : Mr B.T. Sully Q.C., Australia Pty Ltd Mr F.J. Purnell and Mr I.W. Nash Solicitors for Tredex Australia Pty Ltd : J.G. McMahon & Co. Counsel for the Minister : Mr C.M. Erskine Solicitor for the Minister : Australian Government Solicitor Dates of hearing : 5S June 1987, 3 July 1987