Pilkington (Australia) Ltd v The Anti-Dumping Authority & Anor [1995] FCA 507

IN THE FEDERAL COURT OF AUSTRALIA) ) NEW SOUTH WALES REGISTRY ) No. G 672 of 1994 ) GENERAL DIVISION ) ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: PILKINGTON (AUSTRALIA) LIMITED Appellant AND: THE ANTI-DUMPING AUTHORITY First Respondent THE MINISTER OF STATE FOR SCIENCE AND SMALL BUSINESS Second Respondent COURT: LOCKHART, LEE & BEAZLEY JJ. DATE: 20 JULY 1995 PLACE: SYDNEY

MINUTE OF ORDER THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. There be no order as to the costs of any party of the proceeding at first instance or on appeal.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA) ) NEW SOUTH WALES REGISTRY ) No. G 672 of 1994 ) GENERAL DIVISION ) ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: PILKINGTON (AUSTRALIA) LIMITED Appellant AND: THE ANTI-DUMPING AUTHORITY First Respondent THE MINISTER OF STATE FOR SCIENCE AND SMALL BUSINESS Second Respondent COURT: LOCKHART, LEE & BEAZLEY JJ. DATE: 20 JULY 1995

REASONS FOR JUDGMENT THE COURT: On 7 April 1995 we delivered our reasons for judgment in this matter, Lockhart and Beazley JJ. publishing joint reasons and Lee J. publishing his reasons. For the reasons which were given in our judgments we said that we proposed to uphold the appeal in so far as it related to the exports from Indonesia, but otherwise to dismiss the appeal. We said also that we would not make orders on 7 April 1995 but would do so when the parties had filed and served written submissions in relation to the relief which ought to be granted by the Court. Written submissions have been received by the Court from the appellant and the respondents. We have considered them and examined the question of relief for ourselves. The question of the appropriate orders to make is not an easy one. The application of the appellant which commenced this proceeding under the ADJR Act sought orders to review "the decision" of the Anti-Dumping Authority pursuant to s. 7 of the Anti-Dumping Authority Act 1988 "to determine the export price for clear float glass exported to Australia from Indonesia purportedly pursuant to para. 269TAB(1)(a) of the Customs Act 1901" and the "decision" of the Minister "to adopt and implement [that] determination of export price". The function of the Anti-Dumping Authority under s. 7 of the Anti-Dumping Authority Act was to consider the question referred to it by the Comptroller of Customs, namely, whether the publication of the dumping duty notice sought in respect of the goods the subject of the application was justified. Section 7(1) of the Anti-Dumping Authority Act instructs the Authority to hold an inquiry and give a report to the Minister - (a) recommending whether any such notice should be published and the extent of any duties that are, or should be payable, under the Anti-Dumping Act; (b) in particular, recommending whether the Minister ought to be satisfied as to the matters in respect of which the Minister is required to be satisfied before such a notice can be published; and (c) give all reasons for any recommendations. The Authority's report to the Minister (Report No. 81, 10 September 1992) recommended that the Minister - (a) take anti-dumping action against exports of glass from Indonesia by Asahimas; (b) sign an instrument under s. 269TAC(2)(c) of the Customs Act to establish normal values; (c) sign instruments under s. 269TG of the Customs Act declaring that s. 8 of the Customs Tariff (Anti-Dumping) Act 1975 applies to exports of clear float glass from Indonesia; (d) sign an instrument under s. 8(5) of the Customs Tariff (Anti-Dumping) Act declaring that the dumping duty be ascertained by reference to the lower of the full dumping duty or the amount necessary to increase the export price to the non-injurious free on-board price. On 15 October 1992 the Minister made and published a declaration pursuant to s. 269TG(1) of the Customs Act; a declaration pursuant to s. 269TG(2) of the Customs Act; determined normal values pursuant to s. 269TAC(2)(c) of the Customs Act for goods exported to Australia from Indonesia by Asahimas for the calendar years 1991 and 1992 and published notice of that determination; and made a direction and published notice of the amount of dumping duty to be imposed pursuant to s. 8(5) of the Customs Tariff (Anti-Dumping) Act. The last direction and notice seems a little odd. Section 8(5) of the Customs Tariff (Anti-Dumping) Act requires the Minister by signed notice to direct that the element of interim dumping duty in respect of particular goods be ascertained, if interim duty is payable in respect of those goods. The notice published by the Minister on 15 October 1992 is not such a direction. Pursuant to s. 8 of the Customs Tariff (Anti-Dumping) Act (sub-ss. (2) and (6)), dumping duty is payable on goods by virtue of a notice under ss. 269TG(1) and 269TG(2) of the Customs Act and is calculated in the manner set out in s. 8(6). Pursuant to s. 8(3) an interim dumping duty is payable, pending final assessment of the dumping duty payable, on the goods the subject of a notice under s. 269TG(1) or (2) of the Customs Act. Whether the applicable provision is subsection (5) or (6) of s. 8 the Minister is required to ascertain the export price of the goods concerned. However, there is no provision for the Minister to give notice of the ascertainment of that export price. Returning to the "decisions" of the Authority and the Minister sought to be reviewed by the appellant, none of the actual decisions of these parties is contested, namely, the recommendation to the Minister to take anti-dumping action against exports of glass from Indonesia by Asahimas; the recommendation that the Minister establish normal values under s. 269TAC(2)(c) of the Customs Act; the recommendation that the Minister make a declaration under s. 269TG(1) and (2) that dumping duty applies to exports of clear float glass from Indonesia, and the decisions by the Minister to implement those recommendations. The manner of calculating the export price under s. 269TAB(1) of the Customs Act in the Authority's report may have been conduct leading to the making of a decision and reviewable under s. 6 of the ADJR Act but, as mentioned above, it was not the appellant's case that the actual decisions of the Authority were flawed by reason of that treatment. In particular, there is no attack upon the determination of normal value effected by the Minister under s. 269TAC(2)(c) of the Customs Act. Asahimas and Asahi Glass are no longer parties to the application and do not contend that the Minister incorrectly ascertained export prices in calculating the amount of dumping duty to be imposed pursuant to s. 8(2) and (5) or (6) of the Customs Tariff (Anti-Dumping) Act. The only decisions made by the Authority and the Minister that were based upon a consideration of export price were the respective decisions that anti-dumping action should be taken. No attack is made on those decisions. Furthermore, the calculation of normal value has been reviewed and at least one fresh decision has been made on that matter. No attack has been made upon that process. The review was carried out under s. 269TAD of the Customs Act. (See Powerlift (Nissan) Pty Ltd v Minister for Small Business, Construction and Customs (1993) 40 FCR 332.) Section 269TAD of the Customs Act was repealed on 1 January 1993 by s. 6 of the Customs legislation (Anti-Dumping Amendments) 1992, but s. 17 of that Act provides that s. 269TAD continues to apply to dumping notices published before the date of repeal of that section. In the circumstances the only appropriate order is that the appeal be dismissed. Notwithstanding that no specific orders are made by the Court, the reasons of the Court will assist the Minister properly to ascertain export prices for the purpose of the Customs Tariff (Anti-Dumping) Act. As to costs, in our opinion each party should bear its or his own costs of the proceeding at first instance and of this appeal. The appropriate order for costs is that there be no order as to the costs of any party of the proceeding at first instance or of the appeal. I certify that this and the preceding six (6) pages are a true copy of the reasons for judgment herein of the Court . Associate Dated: 20 July 1995 Counsel for the Applicant: Mr Walker SC with Mr Speakman Solicitors for the Applicant: Messrs C.G. Gillis & Co. Counsel for the Respondents: Mr Robertson with Ms Abadee Solicitors for the Respondents: Australian Government Solicitor Date of Hearing: 22 February 1995 Date of Judgment: 20 July 1995