FEDERAL COURT OF AUSTRALIA Mullins Wheels Pty Ltd v Minister for Customs & Consumer Affairs [1999] FCA 1232 CUSTOMS ) ANTI-DUMPING ) - meaning of "the cost of production or manufacture of the goods" in s 269TAC(2)(c) of the Customs Act – whether account had to be taken, as a "negative cost", of a rebate payable only on export – discussion of assessment of "normal values" and context of s 269TAC as involving "a consistent pattern of provisions" – conclusion that the statutory expression "cost of production or manufacture" refers to costs inherent in the operation of production or manufacture, without regard to rebates that are attributable to export – whether, if the rebate were taken into account, sub.(9) would require an adjustment to ensure the normal value was properly comparable to the export price – discussion of the European view of the law as an aid to the construction of the Australian provisions based on the same treaties – "material injury" – discussion of finding of a causal link between dumping and material injury as a practical exercise, to be undertaken in a common sense way, taking account of the purpose of the finding and the legal principle involved – concern of judicial review, not with legal niceties, but with whether the decision was infected in substance with an error of law. Customs Act 1901 (Cwth), ss 269TAC, 269TG Customs Tariff (Anti-Dumping) Act 1975 (Cwth) Anti-Dumping Authority Act 1988, ss 7, 11 GTE (Aust) Pty Ltd v Brown (1986) 14 FCR 309 applied Enichem Anic Srl v Anti-Dumping Authority (1992) 39 FCR 458 applied Metal Manufacturers Limited v The Comptroller-General of Customs (Moore J, unreported, 13 April 1995) followed Canon Inc. v Council of the European Communities [1988] ECR 5731 referred to ICI Australia Operations Pty Ltd v Fraser (1992) 34 FCR 564 applied Minister for Small Business, Construction and Customs v La Doria Diodata Ferraiolli SPA (1994) 33 ALD 35 applied Fitzgerald v Penn (1954) 91 CLR 268 applied Chappel v Hart (1998) 156 ALR 517 applied March v E & M H Stramare Pty Ltd (1991) 171 CLR 506 referred to Environment Agency (formerly National Rivers Authority) v Empress Car Co (Abertillery) Ltd [1998] 2 WLR 350 referred to Baxter Healthcare Pty Limited v Comptroller-General of Customs (1997) 72 FCR 467 referred to D & R Henderson (Mfg) Pty Ltd v Collector of Customs for the State of New South Wales (1974) 48 ALJR 132 at 135 applied Commonwealth v Human Rights and Equal Opportunity Commission (1998) 76 FCR 513 applied Nordland Papier AG v Anti-Dumping Authority [1999] FCA 10 applied MULLINS WHEELS PTY LTD v MINISTER FOR CUSTOMS AND CONSUMER AFFAIRS & ANOR NG 784 OF 1998 BURCHETT J SYDNEY 7 SEPTEMBER 1999 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NG 784 of 1998 BETWEEN: MULLINS WHEELS PTY LTD Applicant AND: MINISTER FOR CUSTOMS AND CONSUMER AFFAIRS First Respondent ANTI-DUMPING AUTHORITY Second Respondent JUDGE: BURCHETT J DATE OF ORDER: 7 SEPTEMBER 1999 WHERE MADE: SYDNEY THE COURT ORDERS THAT: The first respondent bring in, on a date to be fixed, short minutes of orders appropriate to be made in the light of these reasons. 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 DISTRICT REGISTRY NG 784 of 1998 BETWEEN: MULLINS WHEELS PTY LTD Applicant AND: MINISTER FOR CUSTOMS AND CONSUMER AFFAIRS First Respondent ANTI-DUMPING AUTHORITY Second Respondent JUDGE: BURCHETT J DATE: 7 SEPTEMBER 1999 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This is an application for judicial review of decisions made pursuant to the anti-dumping provisions of the Customs Act 1901 (as it stood prior to the amendments effected by Act No 79 of 1998) and the Customs Tariff (Anti-Dumping) Act 1975. The applicant imports truck wheel rims exported by Guestro Wheels from the Republic of South Africa, and during the relevant period it did so at what were found to have been dumping prices. The finding was made upon a complaint by Arrowcrest Group Pty Ltd, an Australian company which manufactures similar goods in Australia. 2 The questions of law argued relate to the construction of provisions of the Customs Act and the legality of the reasoning process adopted in a report of the then Anti-Dumping Authority sent to the Minister for Customs and Consumer Affairs on 22 May 1998 pursuant to s 7 of the (since repealed – by Act No 79 of 1998) Anti-Dumping Authority Act 1988. The first and second of these questions concern the assessment of normal values. The concept of the normal value of exported goods and the methods by which it may be measured and applied lie at the heart of any determination as to whether or not a dumping margin can be shown. By s 269TAC(1) of the Customs Act it is provided: "Subject to this section, for the purposes of this Part, the normal value of any goods exported to Australia is the price paid for like goods sold in the ordinary course of trade for home consumption in the country of export in sales that are arms length transactions by the exporter or, if like goods are not so sold by the exporter, by other sellers of like goods." This is the primary measure, but, as its terms indicate, it may not always be applicable. (In the interests of completeness, I should add that, where it is applicable, various adjustments may require to be made under subs. (8).) 3 For cases not suitable for determination under s 269TAC(1), succeeding subsections of s 269TAC provide ways of assessing normal values. Subsection (2) refers to cases where, in the absence of arms length transactions by the exporter, the Minister may be authorised to construct a normal value by alternative means. Subsection (2)(d), the application of which may be directed by the Minister, is one of these. It allows "the normal value of the goods" (that is, the goods in question exported to Australia) to be determined at "the price paid for like goods sold in the ordinary course of trade in arms length transactions for exportation from the country of export to a third country determined by the Minister to be an appropriate third country". There are qualifications provided by later subsections, to which it is unnecessary to refer. But where the Minister does not direct the application of paragraph (d), the normal value of the goods is generally fixed by paragraph (c) as being the sum of: "(i) such amount as the Minister determines to be the cost of production or manufacture of the goods in the country of export; and (ii) on the assumption that the goods, instead of being exported, had been sold for home consumption in the ordinary course of trade in the country of export – such amounts as the Minister determines would be the administrative, selling and general costs associated with the sale and, subject to sub-section (13), the profit on that sale". (Subsection (13) is irrelevant to any question in the present case.) 4 Subsections (4), (6) and (10) provide yet further measures for the cases to which they relate. 5 The present case is concerned with the utilization of subsection (2)(c), which is modified by subsections (5A), (5B) and (9). Of these, subsection (9) is important for present purposes. It provides: "Where the normal value of goods exported to Australia is to be ascertained in accordance with paragraph (2)(c) …, the Minister must make such adjustments, in determining the costs to be determined under that paragraph, as are necessary to ensure that the normal value so ascertained is properly comparable with the export price of those goods." 6 The first of the questions raised before me is most conveniently approached by way of a quotation from the report of the Anti-Dumping Authority. It stated: "In the absence of information relating to domestic sales, the Authority has determined normal values for Guestro under paragraph 269TAC(2)(c) of the Act using the costs to make and sell the goods plus a profit margin. In accordance with subsection 269TAC(9) of the Act, the Authority has adjusted the normal values so determined for differences between domestic and export sales in respect of credit terms, export packaging costs and FOB charges. The Authority has not made adjustments to normal values for Guestro for differences between domestic and export sales in respect of steel costs and export-related import credits as requested by Roger D. Simpson & Associates Pty Ltd on behalf of Guestro and Mullins. The Authority is aware that Guestro is able to avail itself of a rebate on steel purchases in South Africa provided that the goods made from the steel purchased are subsequently exported. The rebate is not payable on steel used in goods sold domestically in South Africa and proof of export is required by the steel supplier for the rebate to be payable. This arrangement exists to allow South African exporters of steel products to be competitive in world markets since the South African domestic price of steel is inflated by tariff protection in that market. In this case, the Authority has constructed normal values for Guestro under paragraph 269TAC(2)(c) of the Act. Adjustments to normal values so determined are made under subsection 269TAC(9) of the Act 'to ensure that the normal value so ascertained is properly comparable with the export price'. The evidence clearly shows that, were truck wheel rims to be sold by Guestro (or for that matter, by any other South African manufacturer) on the South African market, no rebate would be paid on purchases of South African steel used in the production of those rims. The rebate applies only to steel used in goods subsequently exported (i.e. export is a condition of the rebate) and, as mentioned earlier, proof of export is required for the rebate to be paid. The Authority has covered this ground extensively in an earlier inquiry (see ADA Report no. 112 of November 1993) where the issues raised were virtually identical. The following paragraphs from that report bear repeating since the Authority does not resile from the stance it took in that inquiry: The purpose of adjustments … is to eliminate such factors which bear differently on domestic and export sales and thus to allow a fair comparison of domestic and export prices. If that comparison shows that the export price is less than the domestic price, it may be fairly concluded that the goods are dumped. This cannot, however, be taken to mean that every factor bearing differently on the two prices must be eliminated by making an adjustment. In particular, a factor which cannot be so eliminated is the mere fact that one sale takes place on the domestic and the other on the export market. To adjust for this factor would destroy the whole basis of anti-dumping policy, since normal values so adjusted would always be identical to export prices. Prices, be they on the domestic or export markets, are determined (a) by the 'terms and circumstances' of particular sales, the taxes payable on them and so forth; and also (b) 'by the market', i.e. by the interaction of supply and demand in the market in question. Differences (as between the domestic and export markets) in the former must be eliminated before a test is made for dumping. Differences in the latter cannot be, or else dumping would never be found: such differences constitute dumping. To put the point in a different way, it cannot be the law's intention that one must adjust for differences in prices between the domestic and export markets which result from the fact that there are different prices on the domestic and export markets!" 7 The argument presented for the applicant is that the Authority's reasoning impermissibly attributes to the goods, in an assessment made under subs. (2)(c), a cost which would not be borne by the exported goods, but only by goods sold domestically in South Africa. Counsel's argument is that the cost referred to in paragraph (c)(i) is the cost of production or manufacture of the very goods exported, although they accept that the addition of administrative, selling and general costs associated with the sale of the goods and the profit on that sale must, by reason of the language of paragraph (c)(ii), be assessed on the assumption that the goods, instead of being exported, had been sold for home consumption in the ordinary course of trade in the country of export. Counsel for the respondents, on the other hand, contends that the Authority rightly excluded the rebate, which would only be payable on export, in assessing the cost of production or manufacture; and further contends that, if this were wrong, subs. (9) would, in any event, require an adjustment to be made to achieve the same result. 8 Although the language of subs. (2)(c)(i) does provide some assistance to the applicant's argument, that argument involves a jarring inconsistency. It is plain that the primary measure of normal value, contained in subs. (1), is intended to enable a comparison to be made between sales on the domestic market of the country of export, whether by the exporter or by other sellers of like goods, on the one hand, and the export prices under examination, on the other. Subsection (2)(c) is designed to provide an alternative way of arriving at the same result. It would not do so on the applicant's interpretation of it, but would unaccountably insert into the construct to be compared with the export price an adjustment forming an element of that export price itself (an aspect of its cost) which is entirely divorced from the domestic price. The other components of the construct (fixed by subpara. (c)(ii)) all relate to domestic sales, including costs of domestic sales, so the argument involves attributing to Parliament the intention to create a hybrid. No reason of logic or policy was advanced to justify this hybrid, or to explain the purpose of it. It is easy to see why radically different measures (prescribed in subsequent provisions of the section) have to be provided for cases where elements of the primary measure in subs. (1) cannot be ascertained, or particular circumstances call for some other comparison, but subs. (2)(c) (which applies, as is made clear by subs. (2)(a) and (b), if subs. (1) is inapplicable for practical reasons) provides an alternative way of pursuing in substance the comparison contemplated by the primary measure. On that basis, the suggested hybrid would make no sense. Subsection (2)(c)(i), it seems to me, means, by "cost of production or manufacture", all costs inherent in the operation of production or manufacture, without regard to rebates which are not attributable to that operation itself, but to the subsequent export of the goods. That is so notwithstanding that, for different purposes, the rebate might be styled a "negative cost". 9 This construction gives the provision a meaning in accord with its context, and preserves, within the section, what I called in GTE (Aust) Pty Ltd v Brown (1986) 14 FCR 309 at 335, a decision concerning the progenitor of the present section, "a consistent pattern of provisions". A similar consistency has been seen in the present s 269TAC, and particularly in s 269TAC(1) and (2). In Enichem Anic Srl v Anti-Dumping Authority (1992) 39 FCR 458, Hill J (with whom Gummow and O'Connor JJ agreed) said (at 467-468): "When one turns to s 269TAC it is evident that the general principle for determining the normal value of goods is to be found in subs (1) of that section. The assumption upon which that subsection is framed is that sales made by the exporter (if there be such sales) in its home country, if arms length, will be the best indication of the normal value of goods. However, as subs (2) makes clear, there will be cases where the prima facie position as set out in subs (1) will not give a true normal value of goods. … Counsel for the respondents submitted that s 269TAC established a hierarchy of measures of normal value of which the primary measure was s 269TAC (1). With this there can be little dispute." (Emphases original.) The cardinal conclusion, for present purposes, which arises from the structure of the section has been stated by Moore J, in terms which I respectfully adopt, in Metal Manufacturers Limited v The Comptroller-General of Customs (unreported, 13 April 1995): "It is plain that the value constructed under s 269TAC(2)(c) is to provide a price that would have emerged from the operation of s 269TAC(1) had there been goods sold in the ordinary course of trade for home consumption in arms length transactions. Similarly a price determined under s 269TAC(2)(d) involves sales with the same characteristics though in relation to export sales and not those for home consumption. It is also plain that the component costs identified in ss 269TAC(2)(c)(i) and (ii)(A) and (B), namely production costs, delivery charges and other sale costs and profit, are intended to give a composite figure that would be equivalent in its characteristics to a price emerging from the operation of s 269TAC(1)." 10 Upon the construction I have given to s 269TAC(2)(c)(i), and upon its findings of fact, the Authority was justified in leaving the rebate out of its calculation of costs. For it found the rebate was payable only on "proof of export". It was not an element of the cost inherent in production or manufacture, but arose, for the first time, as an incident of export. Export, of course, could not occur until after production and manufacture were complete. 11 But if the construction of paragraph (c)(i) that I have accepted is wrong, nevertheless, the actual result reached by the Authority still appears to me to be right. For a deduction from the cost of production made available only upon export would have to be adjusted under subs. (9). By virtue of this subsection, the Minister "must make such adjustments, in determining the costs to be determined under [paragraph (c)], as are necessary to ensure that the normal value so ascertained is properly comparable with the export price of those goods". The primary aim of s 269TAC, as is made clear by subs. (1), is to enable a comparison to be made between the export price and the price "in the ordinary course of trade for home consumption in the country of export". Approximations and indirect and substituted measures may become necessary, but this is the end to be kept steadily in view. Although paragraph (c) approaches the matter indirectly, for the practical reasons that are made clear in paragraphs (a) and (b), it is as true of paragraph (c) as it was of the regulation under consideration by the European Court of Justice in Canon Inc. v Council of the European Communities [1988] ECR 5731 at 5802 that "the purpose of constructing the normal value is to determine the selling price of a product as it would be if that product were sold in its country of origin or in the exporting country". 12 The Australian anti-dumping legislation is based on the well known GATT agreements, to which Australia has acceded: ICI Australia Operations Pty Ltd v Fraser (1992) 34 FCR 564 at 568; E J Cooper, Customs and Excise Law (1984) par 1306; J H Jackson and E A Vermulst (editors), Antidumping Law and Practice (1990) 227. Similarly, the European Community has adopted anti-dumping rules which are also based on the GATT agreements: J F Beseler and A N Williams, Anti-Dumping and Anti-Subsidy Law: The European Communities (1986) v. In the light of the background to the provisions with which I am concerned, if there were doubt about their proper interpretation, as I do not think there is, it would be permissible to obtain some guidance from the accepted interpretation of the European Community rules having their source in the same international treaties: ICI Australia Operations Pty Ltd v Fraser at 569; GTE (Aust) Pty Ltd v Brown at 334; D & R Henderson (Mfg) Pty Ltd v Collector of Customs for the State of New South Wales (1974) 48 ALJR 132 at 135; Commonwealth v Human Rights and Equal Opportunity Commission (1998) 76 FCR 513 at 521; Nordland Papier AG v Anti-Dumping Authority [1999] FCA 10 at paras 28-29. 13 Counsel for the applicant argued that to eliminate the rebate would not be to reach a normal value "properly comparable with the export price". In the course of their argument, they referred me to E.C. Anti-Dumping Law and Practice by Edwin Vermulst and Paul Waer (1996) at 187, where the learned authors say: "The constructed value consists of three components: the cost of production, a reasonable amount for [selling, administrative and other general expenses] and a reasonable amount for profits, all in the country of origin. The objective of the normal value based on constructed value is to approximate the price at which the exported product would have been sold in the domestic market of the producers under investigation. This has two consequences. First, as far as cost of manufacture is concerned, such cost should reflect the cost of the exported product. Secondly, as far as selling, administrative and other general expenses and profit are concerned, these should reflect the domestic [selling, administrative and other general expenses] and the domestic profit." Counsel drew my attention to an endnote to the proposition that cost of manufacture "should reflect the cost of the exported product". The endnote (at 256) includes the following: "The cost should include import and other duties paid on the raw materials … . However, in the netting back process, such duties will be deducted to the extent that they have been refunded on exported products (see 6.3.2, infra). In some cases, the Commission has used the cost of manufacture of similar domestic models and then made adjustments for physical differences between domestic and export models … . Although this approach would appear to be incorrect from a logical point of view because the question is what the price in the domestic market would have been of the exported product, the two approaches should normally lead to the same result." (Emphasis original.) Counsel suggested the deduction of duties "to the extent they have been refunded on exported products" showed that the special treatment of exported products was accepted by the learned authors, and was not a matter they considered should be the subject of an adjustment under a provision such as subs. (9). However, the reference in the endnote to "6.3.2, infra" is a reference to a section of the text at 215, dealing with import charges and indirect taxes, where Article VI:4 of the General Agreement on Tariffs and Trade (GATT) is cited: "No product of the territory of any contracting party imported into the territory of any other contracting party shall be subject to anti-dumping or countervailing duty by reason of the exemption of such product from duties or taxes borne by the like product when destined for consumption in the country of origin or exportation, or by reason of the refund of such duties or taxes." The failure to adjust for such a refund, being based on the obligations undertaken by a member of GATT, is no warrant for asserting that a rebate which has nothing to do with taxes or duties cannot be the subject of an adjustment. On the contrary, the whole of the reasoning of the passages I have cited strongly suggests that an adjustment under subs. (9) is required. It would certainly have been required if, as the learned authors say, "the question is what the price in the domestic market would have been of the exported product", since, in the domestic market, the exported product would not have received the benefit of the rebate. 14 The view expressed by Edwin Vermulst and Paul Waer is also supported by Beseler and Williams, op cit at 59: "Even when the materials are purchased on the open market, problems may still arise as they may be obtained at different prices, the lower price being for the production of goods destined for export. Similarly, it may be the practice to produce the exported goods on a more efficient production line at low cost than the plant used for the production of the domestic products. In such cases, it has to be borne in mind that the constructed value is a substitute for the domestic price, not the export price, and the costs to be taken are therefore those incurred for production destined for consumption in the country of origin." 15 It seems to me that the considerations which have led me to construe s 269TAC(2)(c) in the way that I have must, if I am wrong in that, lead to the conclusion that an adjustment is required under subs. (9) to eliminate the rebate in order to ensure that the normal value is properly comparable with the export price of the goods. Both roads lead to the same destination – the conclusion that the Authority did not err in law in leaving the rebate out of account in the calculation of the normal value of the goods. For, under s 11 of the Anti-Dumping Authority Act 1988, the Authority was required to decide the matter in the same way as the Minister must have decided it. 16 I turn to the second question, which may be dealt with much more quickly. Again, the problem is best approached by the quotation of a passage from the Authority's reasons, as follows: "The Authority also found that Guestro received a benefit from the South African Government in the form of an Import Rebate Credit Certificate (IRCC) in respect of its exports of the goods. Under the South African Government's Motor Vehicle Industry Plan, an exporter of motor vehicle components earns credits which allow duty-free import of certain motor vehicles and components. Guestro did not use the IRCCs itself but, rather, sold them to an importer for an agreed price. Guestro argued that the earnings from the sale of the IRCCs reduced the cost of production of the goods exported and an adjustment under subs. 269TAC(9) of the Act should be made to the normal value for these credits. The Authority is not satisfied that revenue received from the sale of IRCCs reduces the cost of producing the goods that gave rise to that benefit. Even if it were so satisfied, the abovementioned arguments in respect of differential steel prices apply equally in respect of the requested adjustment to Guestro's normal values for import credits." 17 The applicant argued that this reasoning is erroneous, but essentially the same considerations which led me to conclude that, if necessary, subs. (9) would deny the applicant the benefit of the steel rebate also lead me to conclude that the same provision does not permit the applicant to resort to the IRCCs. It cannot be said that the Authority was bound to find that adjustments had to be made in respect of the IRCCs on the basis that they were "necessary to ensure the normal value … is properly comparable with the export price of [the] goods". 18 The last question relates to the causation of material injury. The imposition of dumping duties requires a finding, amongst other things, of material injury to an Australian industry producing like goods: s 269TG. As was said in the joint judgment of Black CJ, Neaves and von Doussa JJ in ICI Australia Operations Pty Ltd v Fraser at 572: "The 'material injury' to an Australian industry contemplated by s 269TG (1) is material injury which is the consequence of the dumping of the goods that have been exported to Australia. Section 269TG is not concerned with detriment which the Australian industry under consideration may have suffered from causes other than dumping, for example, declining demand due to economic recession, industrial unrest, or insufficient raw materials to permit the achievement of anticipated production output. Where the Australian industry under consideration has suffered detriment from a number of causes, it will be necessary for the Minister to be satisfied that the industry has suffered detriment sufficient to meet the description 'material injury' within the meaning of the legislation in consequence of the dumping of goods that have been exported to Australia, and to quantitatively separate that material injury from detriment caused by other factors." In Minister for Small Business, Construction and Customs v La Doria Diodata Ferraiolli SPA (1994) 33 ALD 35 at 48, another Full Court observed that the conclusion "that the causal link between the dumping and the injury to the Australian industry had been established is very much a practical exercise". (I note that the report of this case misstates the name of the respondent.) 19 In the present case, the Authority stated its satisfaction "that dumped imports of truck wheel rims from South Africa have caused material injury to the Australian industry". It reached this conclusion after a quite detailed discussion of the material before it, in the course of which it stated that the Australian company manufacturing like goods (to which it referred as "Arrowcrest") had "suffered continuing substantial losses on its production and sale of truck wheel rims since its entry into that market in late 1995". It referred to the "prolonged period of intense price competition" between Arrowcrest and Mullins (as it called the applicant) which followed the entry of Arrowcrest into the market, and it referred also to an argument "that Arrowcrest had caused its own injury by cutting prices on its entry into the Australian market and that the company's pricing policies were responsible for its subsequent losses". However, the Authority concluded as to this: "The Authority considers that, regardless of which supplier cut prices first, price competition is a normal occurrence in any market and, in this case, would be reasonably expected of a new market entrant in pursuit of sales and market share. … As discussed above, the Authority is satisfied that at the time that Arrowcrest entered the Australian market for truck wheel rims in late 1995, the prevailing market price was determined predominantly by the selling prices of dumped imports from Canada and South Africa. Subsequent price reductions by both Arrowcrest and Mullins had those selling prices (of dumped imports) as their starting point. The ability of Mullins to continue to sell profitably in the face of steadily declining market prices was conferred by a combination of the high gross profits the company had been earning on sales of the goods under inquiry before Arrowcrest entered the market and the fact that the goods were dumped. … Selling prices of imports from South Africa were found at times to have undercut Arrowcrest's prices and the Australian industry has experienced substantial losses on its sales of straightledge style truck wheel rims throughout the inquiry period." 20 Counsel for the applicant correctly conceded that "the determination of material injury is essentially a question of fact". However, they contended that the Authority had misconceived its task "by failing to look to the proximate cause of Arrowcrest's injury". But I can see no indication of this. It seems to me the Authority answered the statutory question, as interpreted by the two Full Court decisions to which I have referred. 21 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. In Fitzgerald v Penn (1954) 91 CLR 268 at 277 the joint judgment of Dixon CJ, Fullagar and Kitto JJ affirmed, in the context of negligence, the appropriateness of "a sound common sense idea of what is meant by saying that one fact is a cause of another", and that the appropriate finding "is all ultimately a matter of common sense". As McHugh J pointed out in his dissenting judgment in Chappel v Hart (1998) 156 ALR 517 at 523, it was this judgment which was followed in March v E & M H Stramare Pty Ltd (1991) 171 CLR 506. But Chappel v Hart leaves no doubt that the common sense of which the High Court speaks is a sophisticated common sense, amenable to the influence of value judgments and policy considerations. As Gaudron J said (at 519): "Questions of causation are not answered in a legal vacuum. Rather, they are answered in the legal framework in which they arise." Gummow J elaborated this point when he referred (at 534) to the justice of a particular finding of causation, saying that, although the "but for" test generally establishes a sufficient causal connection, it "is not a comprehensive and exclusive criterion, and the results which are yielded by its application properly may be tempered by the making of value judgments and the infusion of policy considerations." His Honour went on to refer to the views expressed by Lord Hoffmann in Environment Agency (formerly National Rivers Authority) v Empress Car Co (Abertillery) Ltd [1998] 2 WLR 350, from which his Honour extracted the proposition that "'common sense' answers to questions of causation will differ according to the purpose for which the question is asked and the rule by which responsibility is being attributed". In my opinion, the Authority approached the question of causation, in the present case, in a common sense way that took appropriate account of the purpose for which its finding was made, and of the legal principle involved. 22 The applicant's final point depends upon a particular construction of one paragraph of the Authority's reasons. Having found that truck wheel rims from South Africa had been dumped "with weighted average dumping margins over the inquiry period of … 31 per cent (of the export price)" and that the Australian industry, the sole representative of which was Arrowcrest, had suffered material injury over the same period, the Authority referred (as I have already said) to the price cutting in which the competing parties engaged and to other factors that might have been thought to have influenced Arrowcrest's suffering of material injury, before arriving at its ultimate conclusion. In the course of the discussion, the Authority referred (in a passage I have already quoted) to the position at the time Arrowcrest entered the market in late 1995, when "the prevailing market price was determined predominantly by the selling prices of dumped imports". The passage continued: "Subsequent price reductions by both Arrowcrest and Mullins had those selling prices (of dumped imports) as their starting point. The ability of Mullins to continue to sell profitably in the face of steadily declining market prices was conferred by a combination of the high gross profits the company had been earning on sales of the goods under inquiry before Arrowcrest entered the market and the fact that the goods were dumped." Counsel fastened upon the reference to "the high gross profits the company had been earning on sales of the goods under inquiry before Arrowcrest entered the market", as introducing, they asserted, an irrelevant consideration. Counsel submitted the Authority erred "by taking into account the effect on Mullins' profitability of any dumping which may have occurred before Arrowcrest entered the market", a period outside the inquiry period which only commenced when Arrowcrest commenced sales of truck wheel rims in Australia. 23 But I think the argument proceeds on a misconstruction of the Authority's reasoning. It found that there was, when the period started, a prevailing market price determined predominantly by the selling prices of dumped imports. It then concluded that any price cutting competition necessarily took those prices as its starting point. There can be no quarrel with these propositions, unless on issues of fact with which the Court cannot be concerned. The impugned statement follows, with its reference to the "ability of Mullins to continue to sell profitably in the face of steadily declining market prices" as being "conferred by a combination of the high gross profits the company had been earning on sales of the goods under inquiry before Arrowcrest entered the market and the fact that the goods were dumped." This statement seems to me to be looking at profit margins over a period commencing with the entry of Arrowcrest into the market. That is the logic of the context, the previous sentence (the argument of which is being carried on) having referred to the starting point of the competition between Arrowcrest and Mullins. The proposition is not that Mullins had amassed profits (the amount of which is not even remotely suggested, and could not have been) during a period (the length of which is not guessed at, and again could not have been) of previous dumping. The proposition is that the selling prices, which were the starting point for competition, reflected the dumping that was in existence at that point in time. Since those prices, so underpinned, allowed a high gross profit, Mullins had the ability "to continue to sell profitably in the face of steadily declining market prices". In other words, it had room to move its prices downwards without incurring a loss. But the Authority found that it also had this ability because of "the fact that the goods were dumped". There was thus a combination of factors. In my opinion, the Authority's perception of this combination of factors does not involve any error of law. It would be a very pedantic analysis, and one that ignored the logic of the argument being presented by the Authority, that would see the expression "had been earning … before Arrowcrest entered the market" as involving a consideration of some undefined previous period; the Authority is plainly concerned just to set the scene at the commencement of the defined period which it was considering. I need hardly add that a pedantic approach is to be eschewed. Judicial review of administrative decisions "is not concerned with technical legal niceties, looseness of language, or infelicities of expression, but with whether a decision is infected in substance by some error of law": Baxter Healthcare Pty Limited v Comptroller-General of Customs (1997) 72 FCR 467 at 469. 24 Accordingly, the application should be dismissed. I direct the Minister to bring in, on a date to be fixed, appropriate short minutes to reflect the reasons of the Court. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Burchett. Associate: Dated: 7 September 1999 Counsel for the Applicant: Mr S Gageler and Mr G R Kennett Solicitors for the Applicant: Baker & McKenzie Counsel for the Respondents: Mr N C Hutley, SC Solicitor for the Respondents: Australian Government Solicitor Date of Hearing: 1 March 1999 Date of Judgment: 7 September 1999