case_text: the Federal Magistrates Court attention centred upon whether the words "continues to" ought to be afforded the meaning given to those same words in another clause of Sch 2 to the Regulations by Allsop J (as his Honour then was) in Rao v Minister for Immigration and Multicultural Affairs [2001] FCA 1755 ( Rao's Case)or that which commended itself to a Full Court in Xiang v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 81 ALD 301 ( Xiang's Case) in respect of like words in yet another clause in Sch 2 to the Regulations. In the result, the learned Federal Magistrate considered that contextual similarities as between the words as used in cl 845 and as used in the provisions considered in Rao's Case favoured following the construction of "continues to" adopted in that case rather than, as the Appellant had submitted, that given to those same words by the Full Court in Xiang's Case The following passage from Xiang's Case, which was cited by the learned Federal Magistrate, sets out the views of the Full Court with respect to the meaning of the words "continues to", as well as that earlier voiced by Allsop J in Rao's Case: [8] The tribunal also fell into error in the meaning it placed on the word "continues" in subcl 806.221 of the Regulations. According to the tribunal it means that a visa applicant must do more than establish that he or she is a special need relative at the time of application and at the time of decision. It also requires the applicant to satisfy this definition throughout the entire intervening period, or at least for a substantial part of that period. According to the tribunal "[t]o hold otherwise would deny any use or purpose to the inclusion of the word 'continues' in the regulations". Although not the subject of complaint, it should be noted that the tribunal said that unless an applicant was a special need relative during the period between the time of the application and the time of decision, the applicant would not satisfy subcl 806.213 of the Regulations. Even if the tribunal were correct in its construction (which it is not, for reasons soon to be explained), it was wrong to hold that this would result in a failure to satisfy subcl 806.213. It could only lead the tribunal to the conclusion that the visa applicant had failed to satisfy subcl 806.221, namely the criteria at the time of decision, and not that she had failed to do so at the time of the application. [9] Returning to the meaning of the word "continues" in subcl 806.221, that meaning cannot be considered in isolation. Its meaning must be gathered from the context. The context is that a visa applicant must be a "special need relative" both at the time of application, and at the time of decision, to satisfy that criteria. It will be remembered that a special need relative is defined as a relative who is willing and able to provide the requisite assistance to an Australian or New Zealand citizen or resident. The first point to note is that the word to be construed is the verb "continues" and not the adjective "continuing". Second, it is plain that the word "continues" is not concerned with any activity on the part of the visa applicant, but rather with the applicant's status; a status which has a temporal condition. [10] Finally, the question whether the applicant meets the criteria at the time of application and at the time of decision is determined at the time of decision. Relevantly, the question is whether the applicant was (at the time of application) and still is (at the time of decision) a "special need relative". That is to say, the applicant "continues" that status if the applicant still is a "special need relative" at a particular time; that time being when the decision is made. Possibly the draftsman assumed that a person who was a "special need relative" at the time of the application and continues to satisfy that condition on the day of decision would be a "special need relative" throughout the intervening period. But, whatever may be the assumption, there is no legal requirement that this be so. This conclusion is probably inconsistent with the decision in Rao v Minister for Immigration and Multicultural Affairs [2001] FCA 1755.There on a slightly differently worded regulation Allsop J decided that the word "continues" was not intended to limit the enquiry whether the visa applicant in that case had satisfied the relevant criteria at the time of the decision. On the other hand, the judgment in that case may be supported because the word "continues" was used in a different context. This issue need not be resolved. The relevant visa class considered in Xiang's Case is evident from the passage quoted. The "slightly differently worded regulation" considered by Allsop J in Rao's Case was that part of the Regulations which governed eligibility for the Student (Temporary) (Class TU Subclass 560) visa sought by the visa applicant in that case. One condition to which that applicant's existing visa was subject was condition 8105, which prescribed that the holder must not engage in work in Australia (other than in relation to her course of study or training) for more than 20 hours per week during any week when the institution at which the holder was studying was in session. Within Subclass 560, cl 560.21 set out the criteria to be satisfied at the time of application. Subclause 560.22 set out the criteria to be satisfied at the time of decision. Subclause 560.213 provided: If the application is made in Australia, the applicant has complied substantially with the conditions to which the visa (if any) held, or last held, by the applicant is, or was, subject. In turn, cl 560.227 provided: If the application is made in Australia, the applicant continues to satisfy the criterion in cl560.213. [Emphasis added] There was a finding of fact at tribunal level in Rao's Case that, in the interval between date of application and date of decision, the visa applicant had consistently breached the working hours limitation.


case_outcome: applied

case_text: Repatriation Commission v Warren (2008) 167 FCR 511 ( Warren's Case), Lindgren and Bennett JJ (with whom in this regard I agreed) comprehensively summarised the effect of earlier authorities bearing upon the question as to whether an External Merits Review Tribunal commits legal error by not considering an issue even if it is not raised or the subject of challenge by the parties to the review proceeding before it. Their Honours stated (para 78): The following principles, which we take to be established, must be understood against the background that the tribunal under consideration, like the Tribunal here, is required to "review" a primary decision, is given all the powers and discretions that were conferred on the original decision-maker, is not bound by the rules of evidence, is required to proceed with little formality and technicality, and is, of course, bound to apply the provisions of the relevant statute, even if there is no challenge by the parties: The general rule that a litigant is bound by, and accordingly is entitled to act on, admissions and concessions does not automatically apply, although cases concerned with the exercise of judicial power may be of assistance ( Kuswardana at 194 per Bowen CJ). A party to the proceeding is not necessarily precluded from arguing on "appeal" matters that were conceded before the tribunal. Whether the party is so precluded depends on the nature of the matter conceded, its conduct of its case, whether the concession represented an agreement by the parties as to the facts to be decided and other relevant circumstances ( Kuswardana at 195 per Bowen CJ and at 199 per Fox J). Where a concession is made, there must be some difficulty in finding an "error of law" when the contrary of the concession is raised for the first time in this Court ( Federal Commissioner of Taxation v Raptis (1989) 20 ATR 1262 at 1267 per Gummow J). A tribunal does not err in law in failing to regard as material a fact which counsel failed in submissions to contend was material ( Federal Commissioner of Taxation v Perkins (1993) 26 ATR 8 at 10 per Davies J). There is a difference between factual matters not canvassed before the tribunal and a new issue relating to the validity of a regulation ( Tefonu Pty Ltd v Insurance and Superannuation Commissioner [1993] FCA 412 ; (1993) 44 FCR 361 at 367 per Beazley J). Even though the parties may be ' able, in practical terms, to narrow the issues by concession ... even a concession does not permit the [t]ribunal to avoid its duty as an administrative decision-maker to make the correct or preferable decision ... on all relevant aspects of the matter before it ' ( Peacock v Repatriation Commission (2007) 161 FCR 256 at [23]); A concession ' does, however, permit the decision-maker to reach the correct or preferable decision by reference to the concession as well as to its findings on disputed questions ' ( Peacock at[23]; and see Comcare v Fiedler [2001] FCA 1810 ; (2001) 115 FCR 328 at 337 338). The Court will more readily permit a matter to be raised for the first time in this Court on an appeal from a tribunal where: (a) the matter is a pure question of law, such as a question as to the validity of a regulation ( Kuswardana at 195; Tefonu at 367) or a question as to whether the tribunal had applied the correct standard of proof on the true construction and application of legislation ( Ferriday at 527 528 per Lee J); (b) the matter goes to a misapprehension that was shared by the parties before the tribunal and therefore by the tribunal itself ( Perpetual Trustee Co (Canberra) Ltd v Commissioner for ACT Revenue [1994] FCA 1150 ; (1994) 50 FCR 405 at 418-419 per Wilcox J) such as a shared misapprehension as to the applicable law (cf Thomas at 120 per Beazley J); or (c) the matter goes to a condition precedent to the availability of a power, the exercise of which will have a serious impact on the individual ( Kuswardana ) . [Full internal case references and citations omitted] Of the propositions summarised in the passage quoted from Warren's case, the present is but an example of a case where a Tribunal has not erred in law by failing to regard as material a fact which the representative of a party before it failed in submissions to contend was material. A finding by the Tribunal that each of the businesses nominated on the visa application form by the Appellant as a "main business" was indeed a "main business" necessarily, in the circumstances, carried with it a finding, a "satisfaction", that each business, factually, met the definition of "qualifying business".


case_outcome: distinguished

case_text: seems from the learned Federal Magistrate's reasons for judgment that, in the course of oral submissions, the Appellant also advanced a case, which was not revealed by the grounds of judicial review that it had specified, that the Tribunal had erred by failing to consider whether each of the "main businesses" was a "qualifying business". The learned Federal Magistrate noted (reasons for judgment, para 51) that neither party had put before the Tribunal matters relevant to establishing a "qualifying business" which was a subject "taken as said". His Honour then opined (reasons for judgment, para 52), by reference to Saffron v Societe Miniere Cafrika [1958] HCA 50 ; (1958) 100 CLR 231 ( Saffron's Case ), "The matter never having been put in issue before this time cannot now be raised". On the appeal to this Court, the Appellant's submission was that the Tribunal had erred because it did not properly turn its mind to the question of whether the two businesses specified on the visa application form were "qualifying businesses" as defined by reg 1.03 of the Regulations. It was submitted that only by so doing could the Tribunal properly have determined that those businesses were separate "main businesses" for the purposes of reg 1.1(2) of the Regulations. From this it was said to follow that the rejection of United's business as a "main business" was erroneous because it did not violate the regulatory prohibition against the nomination of more than two "main businesses". In turn, the learned Federal Magistrate was said to have fallen into error by failing to hold that the identified alleged error on the part of the Tribunal was jurisdictional. The learned Federal Magistrate was also submitted erroneously to have concluded that, because the question of whether the originally specified main businesses were qualifying businesses had not been raised before the Tribunal, it could not be raised as a jurisdictional error ground before the Federal Magistrates Court. The Appellant submitted that "the failure of the Tribunal to even turn its mind to the question of whether the main businesses nominated on the visa application form were 'qualifying businesses', was a fundamental failure to understand the task before it". The Appellant contended that the reference by the learned Magistrate to Saffron 's Case was inapt. With respect, I agree.


case_outcome: considered

case_text: pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth), I am presently exercising the appellate jurisdiction of the Court, I consider that I am bound by any decision given in the appellate jurisdiction by a Full Court of this Court which is in point: NAKG of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1600 at [48] per Jacobson J; S ZBPQ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 568 at [5] per Hely J.


case_text: the Federal Magistrates Court attention centred upon whether the words "continues to" ought to be afforded the meaning given to those same words in another clause of Sch 2 to the Regulations by Allsop J (as his Honour then was) in Rao v Minister for Immigration and Multicultural Affairs [2001] FCA 1755 ( Rao's Case)or that which commended itself to a Full Court in Xiang v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 81 ALD 301 ( Xiang's Case) in respect of like words in yet another clause in Sch 2 to the Regulations. In the result, the learned Federal Magistrate considered that contextual similarities as between the words as used in cl 845 and as used in the provisions considered in Rao's Case favoured following the construction of "continues to" adopted in that case rather than, as the Appellant had submitted, that given to those same words by the Full Court in Xiang's Case The learned Federal Magistrate was keenly aware of the authority of a decision of a Full Court of this Court, if in point, as the following passage reveals. I cite it not only to highlight this but also because it evidences a correct understanding by his Honour of the language actually employed in cl 845.221 and the essence of why his Honour preferred the meaning given to the words "continues to" in Rao's Case: [75] It follows that for the decision in Xiang to be binding the context in which the word "continues" is used has to be materially similar to the context in that case. In my view for reasons which follow the context in which the word "continues" appears in clause 845.221 is not similar to the context to which the word appeared in clause 806.221. Though His Honour's use of the word "continuous" both before and after this passage was unfortunate, this passage is pivotal in his reasons for judgment. Noting this, and reading the reasons as a whole, I am not persuaded that the erroneous references to "continuous" were material to his Honour's interpretative conclusion. What was material was the learned Federal Magistrate's apprehension that it had been recognised in Xiang's Case that the meaning to give to the word "continues" may depend on whether it was used in relation to a status or an activity. It was because his Honour considered that it was used in the latter context that he concluded that, in this regard, there had been no error made by the Tribunal. The requirement for a duality of satisfaction by a visa applicant of particular criteria at both the time of application and the time of decision is not unique to cl 845, nor even to those considered in Xiang's Case and Rao's Case. It is a feature which permeates the Regulations. It is a further permeating feature that the verb "continues" is employed so as to require satisfaction on the part of the administrative decision maker at the time of decision that a visa applicant "continues to" satisfy nominated criteria which were first required to be satisfied at the time of application. Against this background, it is highly unlikely, in my opinion, that it was intended by the Governor-General-in-Council when making and amending the Regulations that the meaning, as opposed to the effect in context, of "continues to" would vary throughout those regulations.


case_outcome: followed

case_text: The only remaining question is one in relation to costs. I have been referred to the decision of Burchett J in One-Tel v Commissioner of Taxation [2000] FCA 270 ; (2000) 101 FCR 548 which was followed by Weinberg J in Australian Consumer & Competition Commission v Contact Plus Group Pty Ltd (in liq) [2006] FCA 396. I think the principles in that case are applicable in this matter. The general principle is, of course, that costs should follow the outcome, and the outcome in this case is that the applicant was successful and has achieved the result for which the proceedings were instituted.


case_title: Australian Consumer & Competition Commission v Contact Plus Group Pty Ltd (in liq) [2006] FCA 396


case_outcome: discussed

case_text: am of opinion that the present circumstances are similar to those in SPP Nemo [1998] FCA 1627 at pp 23-24 and that Report 134 did not provide any basis for the Minister to form any view on the issues of material injury or any causative effect of Siam's dumping on Qenos. The mathematical calculations contained in the confidential material proceeded upon the unfounded assumption that the non-injurious price had been fixed by reference to the earlier examination of the minimum level of pricing necessary to eliminate or prevent actual material injury to Qenos or its threat or recurrence. Mere price competition, by itself, even from dumped product, was insufficient because of s 269TAE(2A)(d). One purpose of price competition is to win customers from a competitor, as Gleeson CJ and Callinan J observed in Boral Besser Masonry Ltd v Australia Competition and Consumer Commission [2003] HCA 5 ; (2003) 215 CLR 374 at 411 [86] - [87] , and, in that sense, a purpose of competitive conduct is to damage a competitor. The relevant injury for s 269TACA(a) is that caused or likely to be caused by the dumping; that is by the sales of imported product into Australia at a level of price sufficient to cause or threaten material injury to Qenos' business or its recurrence. That was not addressed in Report 134. The Report itself demonstrated that there was no immediate past or current injury. There was no suggestion in the Report of any imminent or foreseeable change to the current position that had been reached in the competitive and growing market, it had found, in which prices and costs were increasing. The absence of any analysis of the questions of material injury, causation or how the non-injurious price was set consistently with the requirements of s 269TACA(a) give rise to the inference, that I draw, that the Minister had no good reason for making the declaration complained of so far as it affected Siam: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56 ; (2003) 216 CLR 212 at 224 [39] - [40] per Gleeson CJ, Gummow and Heydon JJ.


case_outcome: cited

case_text: under s 269ZDB(1)(a) the Minister's discretion as to what information, in addition to the report of the CEO, is relevant to making a declaration, is not absolute. First, in the chapeau to s 269ZDB(1) the Parliament reinforced that the declaration is "for the purposes of this Act and the Dumping Duty Act ". Secondly, s 269ZDA(3) prescribes criteria that the CEO must consider in preparing his or her report to the Minister under s 269ZDA(5). While s 269ZDA(3)(b) is in similarly broad terms to s 269ZDB(1) in permitting the CEO to have regard to any other matter that he or she considers to be relevant to the review, the CEO's consideration cannot be at large. There must be a reasonable connection between what information the Minister (under s 269ZDB(1)), or matter the CEO (under s 269ZDA(3)(b)), considers relevant and the function each performs in the statutory process. Each must act in good faith and cannot be capricious or arbitrary in considering information or a matter to be relevant. It may be difficult to show, the more so in the case of the Minister, that the discretion miscarried where the selection of what the Minister or CEO considered to be relevant was or involved a matter of policy or opinion: cf Buck v Bavone [1976] HCA 24 ; (1976) 135 CLR 110 at 118-119 per Gibbs J; Wu Shan Liang 185 CLR at 275-276 per Brennan CJ, Toohey, McHugh and Gummow JJ.


case_text: treaties should be interpreted uniformly by States party: LK v Director General, Department of Community Services (2009) 253 ALR 202 at 213 [36] per French CJ, Gummow, Hayne, Heydon and Kiefel JJ. The starting point for the process of construction of the Act, is found in the words that the Parliament has chosen. The terms of the implementation agreement, or other international convention, are an aid to construction of domestic legislation enacted by the Parliament: see Chiropedic Bedding Pty Ltd v Radburg Pty Ltd [2008] FCAFC 142 ; (2008) 170 FCR 560 at 568-570 [32] - [41] per French, Rares and Besanko JJ. International treaties should be interpreted uniformly by contracting States. But where a convention deliberately leaves a term undefined in a context that reflects the intention of the States party to treat its application as a question of pure fact, the use of that term in domestic legislation will not require the domestic court to apply decisions involving that term in other jurisdictions as determinations of law rather than fact: LK v Director General 253 ALR at 213 [36] per French CJ, Gummow, Hayne, Heydon and Kiefel JJ. Thus, decisions of the WTO Appellate Body and a panel of the WTO Dispute Settlement Body, on the construction of the implementation agreement cannot be determinative of the construction of the Act and the Dumping Duty Act . The latter have been framed with the intention to give effect to the implementation agreement in a particular manner crafted by the Parliament in its own words. The task of the Court is to construe the words of the statutes, but nonetheless to have regard to the context provided by the implementation agreement and decisions of other jurisdictions, where relevant, that may shed light on the intention of the Parliament: see too Chiropedic Bedding (2008) 170 FCR at 568-569 [32]-[36] per French, Rares and Besanko JJ.


case_text: an increase was not a revocation. It was a new, substantive impost on Siam's product, made after a period of competition in the market at prices, involving dumping, that had not been found to injure or threaten Quenos' strongly performing business. Where a decision-maker must consider matters prescribed by law, generally, he or she cannot jettison or ignore some of those factors or give them cursory consideration only in order to put them to one side: East Australian Pipeline Pty Ltd v Australian Competition and Consumer Commission [2007] HCA 44 ; (2007) 233 CLR 229 at 244 [52] per Gleeson CJ, Heydon and Crennan JJ; Telstra 107 ALD at 502 [107]. As Gummow and Hayne JJ, in concurring observed ( East Australian Pipeline 233 CLR at 256 [102]): "It was not enough for the ACCC to say in its final determination that it had considered those matters in the sense of having looked at but discarded them." It is not enough for a decision-maker to give cursory consideration only to put to one side matters which the statute requires him or her to consider: East Australian Pipeline 223 CLR at 244 [52] per Gleeson CJ, Heydonn and Crennan JJ, see also Gummow and Hayne JJ at 256 [102]; Telstra 107 ALD at 501-503 at [103]-[112].


case_text: respondents argued that the use of the economic concept of unsuppressed selling price "... is virtually always used to establish the non-injurious price and has also been endorsed by this Court: Expo-Trade Pty Ltd v Minister for Justice and Customs [2003] FCA 1421 ; (2003) 134 FCR 189 at 206". They contended that having decided not to revoke the existing measures, the respondents decided to change the variable factors based on "... the most current information available". I reject that argument. The report failed to identify why, or give any reason for finding that, the non-injurious price was set at the level it was for Siam. In essence, the Report simply assumed that once it had found dumping, material injury was either caused or threatened by the dumping. That appears from the statements in the Report referring to the fact that Dow and Siam made a submission for revocation on 17 January 2008, 5 days later than the 40 days allowed for submissions after the initial advertisement in s 269ZC(7)(d). After this, Customs visited Siam in Thailand in February 2008 and obtained all information from it that was required. Yet the Report said the following in relation to what was in the statement of essential facts: "However, Customs notes that dumping is another relevant factor. Customs found that exports to Australia by [Siam] over the review period were at dumped prices. As the issue of revocation was only raised when the review was significantly advanced, Customs was unable to evaluate and form a view on all other factors relevant to whether the measures should be revoked ." (emphasis added) Similarly, the final assessment in the Report asserted that Customs' "examination of the factors relevant to revocation would have been more extensive" had Dow and Siam indicated earlier that this was sought.


case_title: Foster v Minister for Customs and Justice [2000] HCA 38 ; (2000) 200 CLR 442

case_text: is significant that the decision-maker here was the Minister. The statutory scheme seeks to give effect to Australia's international obligations. In authorising the Minister to consider any other information that he or she considers relevant, in addition to requiring the Minister to consider the report of the CEO, the Parliament intended in s 269ZDB(1)(a) to confer a broad discretion on the Minister. In the exercise of a ministerial discretion due allowance may have to be given to a Minister of the Crown to take into account broader policy considerations that may be relevant, as Mason J explained in his classic judgment in Peko Wallsend 162 CLR at 42. The subject matter, scope and purpose of the statutory power provide a context in which to assess the duties it imposes on the decision-maker in any particular situation: cf Foster v Minister for Customs [2000] HCA 38 ; (2000) 200 CLR 442 at 452 [22] - [23] per Gleeson CJ and McHugh J, Gaudron and Hayne JJ agreeing with their Honours at 454 [32]; Telstra 107 ALD at 503 [112] per myself.


case_text: purpose of the anti-dumping measures, identified in s 269TG(2) is to address material injury and threatened material injury to the Australian industry producing like goods to those which are being sold at dumped prices in the Australian market, caused or likely to be caused by the dumping. That requires the decision-maker to have some objectively identified basis for concluding that the dumping has been, or is causing, or is threatening to cause, the relevant material injury after excluding the operation of any other cause of such injury or threat (s 269TAE(2A)). But, although a quantitative assessment is involved, the authorities have made clear that this is essentially a practical exercise and material injury to an industry may be identified even though precise quantification of the injury is not possible. What is material injury will depend on the circumstances of the particular case and may vary from industry to industry and from time to time: ICI Australia Operations Pty Ltd v Fraser [1992] FCA 120 ; (1992) 34 FCR 564 at 577-578 per Black CJ, Neaves and von Doussa JJ; see too Swan Portland Cement Ltd v Minister for Small Business and Customs [1991] FCA 49 ; (1991) 28 FCR 135 at 144-145 per Lockhart J; Schaefer Waste Technology Sdn Bhd v Chief Executive Officer, Australian Customs Service [2006] FCA 1644 ; (2006) 156 FCR 94 at 115-116 [147] - [149] per Jacobson J and the authorities he collected there. I am of opinion that the consideration of the essential matters of material injury, threat recurrence and causation had to be considered on a review in order to determine, among other things, how to set a non-injurious price, whether or not an affected person argued for revocation. Where the Australian industry has suffered, or is likely to suffer, detriment from a number of causes, the Minister must first quantitatively (but as part of a practical exercise), separate the detriment caused or threatened by factors other than the dumping of the exported goods. Only then can the Minister determine whether he or she is satisfied that the dumping itself has caused, is causing or is threatening to cause material injury to the Australian industry: ICI Australia 34 FCR at 572, 576, 577-578 per Black CJ, Neaves and von Doussa JJ. The absence of a reasoned explanation of how the Minister was entitled to change the variable factors, including the non-injurious price, relating to exports of the product to Australia by Siam was not addressed by the respondents' argument. The selection of the figures for these variable factors in the confidential sections of Report 134 had not been explained. Rather those figures were mere assertions that appeared to be contrary to the express findings in the Report of the operation of the market and the increasing strength of Qenos. The aim of Art 11.1 of the implementation agreement is to ensure that anti-dumping duty "... shall remain in force only so long as and to the extent necessary to counteract dumping which is causing injury". That aim is reflected in s 269TACA(a)'s requirements for setting a non-injurious price. The necessity for such a price to be set for Siam at the level it was by the Minister's declaration was not explained in the Report.


case_title: LK v Director General, Department of Community Services (2009) 253 ALR 202


case_text: the declaration is made under s 269ZDB(1), the Minister must consider, or have regard to, the most up to date information available. The Act requires the Minister to form a judgment about the current circumstances and future consequences of the importation of the relevant goods. This is so for the following reasons. First, the review is intended to consider the impact of changed circumstances in a market affected by the operation of a notice under s 269TG(2) (whether in its original or a varied form) (s 269SM(5)). That requires consideration of the current circumstances that formed the basis for the review identified by ss 269ZA(1)(b) and 269ZC(2)(b), namely a change in a variable factor or the current absence of justification for the Minister to take any relevant anti-dumping measure. Secondly, it is a general principle that an administrative decision-maker is required to make his or her decision on the most current material available to the decision-maker: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 at 44-45 per Mason J (with whom Gibbs CJ at 30 and Dawson J at 71 agreed on this issue); SZJTQ v Minister for Immigration and Citizenship (2008) 172 FCR 563 at 571-572 [27]-[32] where I discussed this principle. The test applied by the CEO and the Minister


case_text: the whole of the reasons in the Report as fairly and generously as I can in favour of the administrative decision-maker ( Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ), I am nonetheless driven to conclude that these last quoted words encapsulated the CEO's, and the Minister's, approach to, or the test that was applied in, making the determination under s 269ZDB(1)(a). That is, the Minister did not make a positive decision that if the measures were revoked the dumping found, first, would occur in circumstances where Qenos would, or would be likely, to suffer any material injury or, secondly, that the dumping would, or would be likely, to cause that material injury. Here, all the prices for the product had increased so that the previous calculations and bases upon which anti-dumping duty had been fixed had no relevance to the current trading of the product in Australia. In addition, Report 134 found Qenos' business relating to the product had performed strongly in the review period and the volume of dumped goods was small relative to total imports and the Australian market as a whole. The CEO had concluded that all the dumped goods (of which Siam's were only a part) "... had a limited effect on Australian industry selling prices in the review period". This must be read in light of the express admission in the respondents' defence that there was no evidence or other material before either of them of any injury to Qenos caused by Siam's eports. The Correct Test Yet, under s 269ZDB(1)(a) the Minister's discretion as to what information, in addition to the report of the CEO, is relevant to making a declaration, is not absolute. First, in the chapeau to s 269ZDB(1) the Parliament reinforced that the declaration is "for the purposes of this Act and the Dumping Duty Act ". Secondly, s 269ZDA(3) prescribes criteria that the CEO must consider in preparing his or her report to the Minister under s 269ZDA(5). While s 269ZDA(3)(b) is in similarly broad terms to s 269ZDB(1) in permitting the CEO to have regard to any other matter that he or she considers to be relevant to the review, the CEO's consideration cannot be at large. There must be a reasonable connection between what information the Minister (under s 269ZDB(1)), or matter the CEO (under s 269ZDA(3)(b)), considers relevant and the function each performs in the statutory process. Each must act in good faith and cannot be capricious or arbitrary in considering information or a matter to be relevant. It may be difficult to show, the more so in the case of the Minister, that the discretion miscarried where the selection of what the Minister or CEO considered to be relevant was or involved a matter of policy or opinion: cf Buck v Bavone [1976] HCA 24 ; (1976) 135 CLR 110 at 118-119 per Gibbs J; Wu Shan Liang 185 CLR at 275-276 per Brennan CJ, Toohey, McHugh and Gummow JJ.


case_text: the Parliament has enacted Pt XVB to deal with the subject matter of the implementation agreement, the legislation must be interpreted and applied, so far as its language permits, so that it is in conformity, and not in conflict, with Australia's international obligations. Where the language of a statute is ambiguous, the Court should favour a construction consistent with the international instrument and the obligations which it imposes over another possible construction of that legislation. The meaning of obligations in an international instrument, such as the implementation agreement, must be ascertained by giving primacy to the text of the instrument as well as considering its context, objects and purposes. And, an international instrument is interpreted in a more liberal manner than ordinarily when a court construes exclusively domestic legislation: Pilkington (Australia) Ltd v Minister for Justice and Customs [2002] FCAFC 423 ; (2002) 127 FCR 92 at 100 [25] - [26] per Mansfield, Conti and Allsop JJ.


case_text: CEO had to make a recommendation based on a report that correctly addressed the criteria upon which the Minister could made a declaration affecting an existing notice for the purposes of the Act and the Dumping Duty Act under s 269ZDB(1). Central to the purposes of the Act and the Dumping Duty Act was the present and likely future impact on the Australian industry of importation of the relevant goods at the time of the review. Here, there was no suggestion that Siam's dumping had caused any injury to Qenos in the review period. One question for the Minister to consider was whether he was satisfied that importation of the dumped product by Siam had caused, was then causing or threatening to cause material injury to the Australian industry as s 269TG(2)(b) required. The Minister (and the CEO in preparing the report under s 269ZDA(1)) had first, to take into account the criteria in s 269TG(2) and, secondly, to give weight to his or her conclusions on those criteria, as fundamental elements in making a declaration under s 269ZDB(1). In that way, the initial justification for the s 269TG(2) declaration would be revisited by the Minister having regard to the up-to-date information ascertained in the review process under Div 5 of Pt XVB and the purposes of the Act and the Dumping Duty Act would be addressed appropriately by him in making the relevant choice in a declaration under s 269ZDB(1)(a): R v Hunt; Ex parte Sean Investments Pty Ltd [1979] HCA 32 ; (1979) 180 CLR 322 at 329 per Mason J (with whom Gibbs J agreed); Telstra Corporation Ltd v Australian Competition and Consumer Commission (2008) 107 ALD 474 at 501-503 [103]-[112] where I discussed the principles.


case_title: Re Minister for Immigration and Multicultural Indigenous Affairs; Ex parte Palme [2003] HCA 56 ; (2003) 216 CLR 212

case_text: relevant injury for s 269TACA(a) is that caused or likely to be caused by the dumping; that is by the sales of imported product into Australia at a level of price sufficient to cause or threaten material injury to Qenos' business or its recurrence. That was not addressed in Report 134. The Report itself demonstrated that there was no immediate past or current injury. There was no suggestion in the Report of any imminent or foreseeable change to the current position that had been reached in the competitive and growing market, it had found, in which prices and costs were increasing. The absence of any analysis of the questions of material injury, causation or how the non-injurious price was set consistently with the requirements of s 269TACA(a) give rise to the inference, that I draw, that the Minister had no good reason for making the declaration complained of so far as it affected Siam: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56 ; (2003) 216 CLR 212 at 224 [39] - [40] per Gleeson CJ, Gummow and Heydon JJ.


case_text: purpose of the anti-dumping measures, identified in s 269TG(2) is to address material injury and threatened material injury to the Australian industry producing like goods to those which are being sold at dumped prices in the Australian market, caused or likely to be caused by the dumping. That requires the decision-maker to have some objectively identified basis for concluding that the dumping has been, or is causing, or is threatening to cause, the relevant material injury after excluding the operation of any other cause of such injury or threat (s 269TAE(2A)). But, although a quantitative assessment is involved, the authorities have made clear that this is essentially a practical exercise and material injury to an industry may be identified even though precise quantification of the injury is not possible. What is material injury will depend on the circumstances of the particular case and may vary from industry to industry and from time to time: ICI Australia Operations Pty Ltd v Fraser [1992] FCA 120 ; (1992) 34 FCR 564 at 577-578 per Black CJ, Neaves and von Doussa JJ; see too Swan Portland Cement Ltd v Minister for Small Business and Customs [1991] FCA 49 ; (1991) 28 FCR 135 at 144-145 per Lockhart J; Schaefer Waste Technology Sdn Bhd v Chief Executive Officer, Australian Customs Service [2006] FCA 1644 ; (2006) 156 FCR 94 at 115-116 [147] - [149] per Jacobson J and the authorities he collected there.


case_text: non-injurious price had to be calculated by reference to the question of material injury, an assessment of its extent and the establishment of the causal link between dumping and the injury: cp SPP Nemo SA Comercial Exportadora v Minister of State for Small Business and Consumer Affairs [1998] FCA 1627 per Drummond, North and Mansfield JJ (15 December 1998 unreported) at pp 23-24. Their Honours were there dealing with the provisions of the Act before amendments were made in 1998. Even so, I consider that the present statutory scheme, like its predecessor, required the decision-maker to consider the question of material injury in setting the non-injurious price and to give a reasoning process that justified the conclusions on both subjects (injury and price): cp SPP Nemo [1998] FCA 1627 at p 24. This is reinforced by s 269TACA(a) which required the setting of a non-injurious price for goods the subject of a notice under s 269TG(2) to be "the minimum price necessary ... to prevent the injury [or] the recurrence of the injury; ... referred to in ..." s 269TG(2)(b). The requirements of s 269TACA(a) remain constant (although the manner of addressing material injury may vary for the reasons I have explained above) whether the non-injurious price is that initially set when the notice is given under s 269TG(2), or is affected by a declaration under s 269ZDB(1)(a). I am of opinion that the present circumstances are similar to those in SPP Nemo [1998] FCA 1627 at pp 23-24 and that Report 134 did not provide any basis for the Minister to form any view on the issues of material injury or any causative effect of Siam's dumping on Qenos. The mathematical calculations contained in the confidential material proceeded upon the unfounded assumption that the non-injurious price had been fixed by reference to the earlier examination of the minimum level of pricing necessary to eliminate or prevent actual material injury to Qenos or its threat or recurrence. Mere price competition, by itself, even from dumped product, was insufficient because of s 269TAE(2A)(d). One purpose of price competition is to win customers from a competitor, as Gleeson CJ and Callinan J observed in Boral Besser Masonry Ltd v Australia Competition and Consumer Commission [2003] HCA 5 ; (2003) 215 CLR 374 at 411 [86] - [87] , and, in that sense, a purpose of competitive conduct is to damage a competitor.


case_title: Swan Portland Cement Ltd v Minister for Small Business and Customs [1991] FCA 49 ; (1991) 28 FCR 135


case_title: SZJTQ v Minister for Immigration (2008) 172 FCR 563


case_text: CEO had to make a recommendation based on a report that correctly addressed the criteria upon which the Minister could made a declaration affecting an existing notice for the purposes of the Act and the Dumping Duty Act under s 269ZDB(1). Central to the purposes of the Act and the Dumping Duty Act was the present and likely future impact on the Australian industry of importation of the relevant goods at the time of the review. Here, there was no suggestion that Siam's dumping had caused any injury to Qenos in the review period. One question for the Minister to consider was whether he was satisfied that importation of the dumped product by Siam had caused, was then causing or threatening to cause material injury to the Australian industry as s 269TG(2)(b) required. The Minister (and the CEO in preparing the report under s 269ZDA(1)) had first, to take into account the criteria in s 269TG(2) and, secondly, to give weight to his or her conclusions on those criteria, as fundamental elements in making a declaration under s 269ZDB(1). In that way, the initial justification for the s 269TG(2) declaration would be revisited by the Minister having regard to the up-to-date information ascertained in the review process under Div 5 of Pt XVB and the purposes of the Act and the Dumping Duty Act would be addressed appropriately by him in making the relevant choice in a declaration under s 269ZDB(1)(a): R v Hunt; Ex parte Sean Investments Pty Ltd [1979] HCA 32 ; (1979) 180 CLR 322 at 329 per Mason J (with whom Gibbs J agreed); Telstra Corporation Ltd v Australian Competition and Consumer Commission (2008) 107 ALD 474 at 501-503 [103]-[112] where I discussed the principles. It is significant that the decision-maker here was the Minister. The statutory scheme seeks to give effect to Australia's international obligations. In authorising the Minister to consider any other information that he or she considers relevant, in addition to requiring the Minister to consider the report of the CEO, the Parliament intended in s 269ZDB(1)(a) to confer a broad discretion on the Minister. In the exercise of a ministerial discretion due allowance may have to be given to a Minister of the Crown to take into account broader policy considerations that may be relevant, as Mason J explained in his classic judgment in Peko Wallsend 162 CLR at 42. The subject matter, scope and purpose of the statutory power provide a context in which to assess the duties it imposes on the decision-maker in any particular situation: cf Foster v Minister for Customs [2000] HCA 38 ; (2000) 200 CLR 442 at 452 [22] - [23] per Gleeson CJ and McHugh J, Gaudron and Hayne JJ agreeing with their Honours at 454 [32]; Telstra 107 ALD at 503 [112] per myself. Such an increase was not a revocation. It was a new, substantive impost on Siam's product, made after a period of competition in the market at prices, involving dumping, that had not been found to injure or threaten Quenos' strongly performing business. Where a decision-maker must consider matters prescribed by law, generally, he or she cannot jettison or ignore some of those factors or give them cursory consideration only in order to put them to one side: East Australian Pipeline Pty Ltd v Australian Competition and Consumer Commission [2007] HCA 44 ; (2007) 233 CLR 229 at 244 [52] per Gleeson CJ, Heydon and Crennan JJ; Telstra 107 ALD at 502 [107]. As Gummow and Hayne JJ, in concurring observed ( East Australian Pipeline 233 CLR at 256 [102]): "It was not enough for the ACCC to say in its final determination that it had considered those matters in the sense of having looked at but discarded them." I am satisfied that at the time he made the declaration the Minister (and the CEO) did not consider or have regard to the likelihood of whether, if the notice were revoked, Siam's dumping threatened to cause material injury to Qenos. The consideration of this question was a matter to which fundamental weight had to be given in arriving at a decision to make a declaration: see Telstra 107 ALD at 501-503 [103]-[112]; ss 269ZC(2)(b), 269ZD(2)(a)(i), 269ZDA(3)(a)(i), 269TG(2) and 269ZDB(1). The purposes of the Act and the Dumping Duty Act involved the legitimate, principled and limited imposition of dumping duty, in accordance with the tests in those Acts, to perform Australia's obligations (to the extent that the Parliament gave these effect in that legislation) under the implementation agreement. Accordingly, I am of opinion that, in the circumstances, the test applied by the CEO and the Minister that they be satisfied "that dumping would not cause material injury if the measures were revoked" was not open to them. That was a jurisdictional error. In Report 134, the CEO asserted that Customs had examined the Australian market for the product to test whether the Australian industry's selling prices were affected by dumping. Its conclusion was that "... the dumped goods had a limited effect on Australian industry selling prices in the review period". The Report selected those selling prices as the unsuppressed selling price. It then used that unsuppressed selling price to calculate the non-injurious price. It is not enough for a decision-maker to give cursory consideration only to put to one side matters which the statute requires him or her to consider: East Australian Pipeline 223 CLR at 244 [52] per Gleeson CJ, Heydonn and Crennan JJ, see also Gummow and Hayne JJ at 256 [102]; Telstra 107 ALD at 501-503 at [103]-[112].


case_text: WTO panel determined that the mere fact that no present dumping is occurring at the time of a review under Art 11.2 does not entail the consequence that anti-dumping measures must be revoked: United States Anti-Dumping Duty on Dynamic Random Access Memory Semi Conductors (DRAMS) of one Megabit or above from Korea (Report of the Panel 99-0256) at [6.24], [6.32]-[6.33]. The panel pointed out that Art 11.2 envisaged the local decision-maker enquiring "... whether the injury would be likely to continue or recur if the duty were removed or varied" (panel's emphasis). The WTO panel continued DRAMS (99-0256) at [6.28]: "In conducting an Article 11.2 injury review, an investigating authority may examine the causal link between injury and dumped imports. If, in the context of a review of such a causal link, the only injury under examination is injury that may recur following revocation ( i.e. , future rather than present injury), an investigating authority must necessarily be examining whether that future injury would be caused by dumping with a commensurately prospective timeframe." Construction of Div 5 of Pt XVB of the Act's requirements on a review In s 269SM(1) the Parliament identified that Pt XVB dealt with the taking of anti-dumping measures in respect of goods whose importation into Australia involved a dumping of those goods "... that injures, or threatens to injure, Australian industry". The Dumping Duty Act , likewise, imposed a duty, once a notice had been published under s 269TG(2), equal to the difference between the normal value of the dumped goods and their export price. Evidently, the purpose of that rate of duty was to increase the price in Australia of the imported goods to a level where that importation did not injure or threaten to injure the Australian industry. And ss 269SM(5), 269ZA(1), 269ZC(1) and (2) provided that Div 5 of Pt XVB gave a right to review that was conditioned on a demonstration by an applicant for review that there appeared to be reasonable grounds for asserting a change in circumstances that was material enough, if made out, to warrant a change (including revocation) of an existing notice. The filter provided in ss 269ZA(1)(b) and 269ZC(1) and (2) was that an applicant for review must, first, put forward a case for a review satisfying the statutory criteria and, secondly, the CEO must consider whether there are currently reasonable grounds for the assertion of changes to a relevant variable factor or that, had the existing anti-dumping measures not been taken, the Minister would not be entitled to take such measures. The level of satisfaction of the CEO, at this point, was directed to there being sufficient in the application to justify investigation. The WTO Appellate Body decisions recognised that in a review, no single prescriptive test or methodology necessarily would apply. The considerations in each review will need to address the facts and circumstances of the particular anti-dumping measures that are in place in the context of the current market and other factors: Oil Country Tubular Goods (AB-2004-4) at [283]-[294]; US Corrosion Resistant Steel (AB-2003-5) at [113]-[115]. Nonetheless, Art 11.1 identifies the key issue in a review as being the necessity to impose the anti-dumping duty "... to counteract dumping which is causing injury" (in the sense of actual or threatened injury). Here, the only injury that could be under examination (given the respondents' admission that in the review period there was no evidence or other material before them that any injury to Qenos was caused by Siam's exports) must have been the threat of future injury that could be based on the likelihood of a recurrence of past injury: see too the WTO panel decision in DRAMS (99-0256) at [6.28].


case_text: WTO Appellate Body decided that it is necessary for a decision-maker, on a review under Art 11.3 of the implementation agreement, to make a determination concerning injury (i.e. whether injury is being, has been or is threatened to be caused) based on positive evidence and on an objective examination of the same nature as Art 3.1 required: Oil Country Tubular Goods (AB-2004-4) at [284] see too at [177]-[181] and the WTO Appellate Body decision in United States Sunset Review of Anti-Dumping Duties on Corrosion-Resistant Carbon Steel Flat Products from Japan (AB-2003-5) at [110]-[113]. Although those decisions concerned a sunset review, they were based on a consideration of Art 11 as a whole, that being the article governing all reviews. Divisions 5 and 6A of Pt XVB the Act express the Parliament's manner of giving effect to the review processes contemplated by Art 11 of the implementation agreement. Of course, the nature of the inquiry on a sunset review under s 269ZHB(1) in Div 6A can be affected by the more extensive time frame of at least nine months in which it may occur as compared with the more limited period of 110 or 155 days for a review under s 269ZC(7)(c) Div 5 of Pt XVB.


case_text: respondents argued that the Appellate Body of the World Trade Organisation had rejected Siam's construction of the relevant test on a review as requiring the Minister to be satisfied positively that, in the absence of measures, there would be dumping and that the dumping was causing or had caused material injury or that such injury was threatened in United States Sunset Reviews of Anti-Dumping Measures on Oil Country Tubular Goods from Argentina (AB-2004-4) at [271]-[285]. The respondents argued that read fairly, the wrong test had not been applied and that, in terms, Customs had applied the correct test in its statement (quoted above). "Customs interprets the test for revocation as whether, in the hypothetical situation of measures not being in place, there would now be grounds to impose the measures. In other words, if the measures were removed, is it likely that the exporter or exporters would cause material injury to the Australian industry?" The respondents also argued that because a notice is intended to remain in force for five years pursuant to s 269TM(1), it would not be appropriate to construe the power to make a declaration on a review as turning merely on the absence of the material injury or dumping, since, in the proceeding 12 months, exporters may have been inhibited in their behaviour or taken action to remove the appearance of the threat. In Oil Country Tubular Goods (AB-2004-4) at [177], [276]-[285] the WTO Appellate Body analysed the differing processes applicable in the initial decision to impose measures and the issues involved, at that stage, in determining whether there was an injury (including a threatened injury) under Art 3 and the subsequent decision in a "sunset review" to continue measures at the end of the initial five year period contemplated in Art 11.3 and in ss 269TM(1) and Div 6A of Pt XVB (Siam's related case involves a "sunset review" Siam Polyethylene Co Ltd v Minister of State for Home Affairs (No 2) [2009] FCA 838). The WTO Appellate Body concluded that in a sunset review Art 11.3 did not require that injury and likelihood of injury be determined again in accordance with Art 3. It found that for the purpose of determining that there was a likelihood of injury on a review, a decision-maker did not have to undertake all of the analyses required by Art 3 in order for the decision-maker to have a "sufficient factual basis" to arrive at a "reasoned conclusion" permitting a decision to continue measures at the end of the five year period: Oil Country Tubular Goods (AB-2004-4) at [280]-[283]. The WTO Appellate Body continued: "284 This is not to say, however, that in a sunset review determination, an investigating authority is never required to examine any of the factors listed in the paragraphs of Article 3. Certain of the analyses mandated by Article 3 and necessarily relevant in an original investigation may prove to be probative, or possibly even required, in order for an investigating authority in a sunset review to arrive at a "reasoned conclusion". In this respect, we are of the view that the fundamental requirement of Article 3.1 that an injury determination be based on "positive evidence" and an "objective examination" would be equally relevant to likelihood determinations under Article 11.3 . It seems to us that factors such as the volume, price effects, and the impact on the domestic industry of dumped imports, taking into account the conditions of competition, may be relevant to varying degrees in a given likelihood-of-injury determination. An investigating authority may also, in its own judgement, consider other factors contained in Article 3 when making a likelihood-of-injury determination. But the necessity of conducting such an analysis in a given case results from the requirement imposed by Article 11.3 —not Article 3—that a likelihood-of-injury determination rest on a "sufficient factual basis" that allows the agency to draw "reasoned and adequate conclusions"." (emphasis added) The WTO Appellate Body decided that it is necessary for a decision-maker, on a review under Art 11.3 of the implementation agreement, to make a determination concerning injury (i.e. whether injury is being, has been or is threatened to be caused) based on positive evidence and on an objective examination of the same nature as Art 3.1 required: Oil Country Tubular Goods (AB-2004-4) at [284] see too at [177]-[181] and the WTO Appellate Body decision in United States Sunset Review of Anti-Dumping Duties on Corrosion-Resistant Carbon Steel Flat Products from Japan (AB-2003-5) at [110]-[113]. Although those decisions concerned a sunset review, they were based on a consideration of Art 11 as a whole, that being the article governing all reviews. Divisions 5 and 6A of Pt XVB the Act express the Parliament's manner of giving effect to the review processes contemplated by Art 11 of the implementation agreement. Of course, the nature of the inquiry on a sunset review under s 269ZHB(1) in Div 6A can be affected by the more extensive time frame of at least nine months in which it may occur as compared with the more limited period of 110 or 155 days for a review under s 269ZC(7)(c) Div 5 of Pt XVB. The WTO Appellate Body decisions recognised that in a review, no single prescriptive test or methodology necessarily would apply. The considerations in each review will need to address the facts and circumstances of the particular anti-dumping measures that are in place in the context of the current market and other factors: Oil Country Tubular Goods (AB-2004-4) at [283]-[294]; US Corrosion Resistant Steel (AB-2003-5) at [113]-[115]. Nonetheless, Art 11.1 identifies the key issue in a review as being the necessity to impose the anti-dumping duty "... to counteract dumping which is causing injury" (in the sense of actual or threatened injury). Here, the only injury that could be under examination (given the respondents' admission that in the review period there was no evidence or other material before them that any injury to Qenos was caused by Siam's exports) must have been the threat of future injury that could be based on the likelihood of a recurrence of past injury: see too the WTO panel decision in DRAMS (99-0256) at [6.28]. As the WTO Appellate Body concluded in Oil Country Tubular Goods (AB-2004-4) at [284], a determination of injury on a review requires positive evidence and an objective examination. Here, Report 134 made no finding of any actual or threatened injury caused or likely to be caused by Siam's dumping. Instead, it simply asserted that on the available evidence the CEO could not be satisfied that dumping by Siam would not cause material injury if the measures were revoked. These concepts are reflected in ss 269TG(2)(b) and 269TAE(2A) and (2B) and in the WTO Appellate Body's analysis of the interaction of the review provisions in Art 11 with the initial imposition provisions in Art 3: Oil Country Tubular Goods (AB-22004-4) at [284] and especially at [180] where they said: "The plain meaning of the terms "review" and "determine" in Article 11.3, therefore, compel an investigating authority in a sunset review to undertake an examination, on the basis of positive evidence, of the likelihood of continuation or recurrence of dumping and injury. In drawing conclusions from that examination, the investigating authority must arrive at a reasoned determination resting on a sufficient factual basis; it may not rely on assumptions or conjecture." The CEO and the Minister had to consider whether any material injury to Qenos had been, or was being caused, or threatened by the dumping in determining whether to declare that s 8 of the Dumping Duty Act applied to Siam's exports of the product pursuant to the power to issue a notice under s 269TG(2), or vary an existing declaration under s 269ZDB. Because the three factors are necessary to be considered, dumping, injury and causation, the latter two cannot be presupposed merely by establishing the existence of the practice of dumping. Indeed, s 269TAE(2A) prohibits such presupposition. And, Customs identified the very difficulty which this process of presupposition entailed. It noted that Qenos had performed strongly in a market where some dumping was observed but the volume of dumped goods was small relative to both total imports (bearing in mind that Qenos had been found by Customs to have had a larger market share than all of the imports combined).


case_text: In C7 Pty Ltd v Foxtel Management Pty Ltd [2001] FCA 1864 at [17] (" C7 Pty Ltd ") Gyles J considered an application under O 15A r 6 and observed: '... I have not limited myself to considering evidence which is in a form which would be strictly admissible at a final trial. During the hearing I ruled that press reports and other hearsay material were not necessarily excluded on that account. The issue against which the admissibility of evidence is to be tested is whether there is reasonable cause to believe that the applicant may have the right to obtain relief. This does not tender an issue of fact in the usual way.' 7 I agree with this statement as to the issue and its character. His Honour's observation that the task of the Court on an application for preliminary discovery " does not tender an issue of fact in the usual way " assists in the characterisation of the application. Because it is directed to the grounds of the applicant's belief , the application does not call for and is not directed to making a determination of fact or entitlement on a final basis. It is therefore not appropriate to strictly apply the laws of evidence as if the application for preliminary discovery involved a final hearing of the issues in the prospective substantive application. 18 In C7 Pty Ltd , Gyles J had to consider whether, on an application under O 15A r 6, evidence was required to be in a form admissible at a final trial. His Honour rejected that approach and said that in order to satisfy the requirements of O 15A r 6, evidence could be lead in the form of press reports and other hearsay material. His Honour said at [17] that " the proceeding is, in essence, interlocutory ".


case_text: In a later decision in Kennedy v Wallace 208 ALR 424, Gyles J decided that a determination of a claim for legal professional privilege was a final resolution of a dispute or controversy between the parties, and was therefore final in nature. This is perhaps not surprising because there is authority that legal professional privilege is in the nature of a substantive right: see Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49 ; (2002) 192 ALR 561 at 564-565. At 454, his Honour referred to the decisions in London Economics , Levis and in particular the passage in Malouf , cited by Tibra on this application and quoted above, concerning the relaxation of the hearsay rule,. His Honour noted that this was a guarded statement unnecessary to resolve the evidentiary question for the purpose of the point being considered in that case.


case_text: There are instances of s 190(3) being invoked. In Williams Advanced Materials Inc. v Target Technology Co. LLC (2004) 63 IPR 645 at 647-648, s 190(3)(b) was applied by Bennett J with some brief discussion of the provision. In Sony Entertainment (Australia) Limited v Smith 64 IPR 18 at 30, Jacobson J also applied the provision. The Family Court of Australia has on occasion, pursuant to its Practice Direction No. 2 of 2006, waived the rules of evidence in cases concerning custody of children: see Waterhouse v Shelley [2007] FamCA 541 ; Jakiemiec v Buckingham [2007] FamCA 542. The provision is discussed by Santow J in Edmunds-Jones Pty Ltd v Australian Women's Hockey Association Inc [1999] NSWSC 285 at [19] - [29] , where his Honour dispensed with the hearsay rule in order to admit evidence which " could rationally affect the assessment of the probability of the existence of a fact in issue " (see [9]).


case_text: The general principles concerning preliminary discovery were conveniently summarised by Hely J in St George Bank Ltd v Rabo Australia Ltd (2004) 211 ALR 147 at 153-154. An application for preliminary discovery under O 15A r 6 requires the Court to determine whether the applicant has reasonable cause to believe that it has a right to obtain relief from the prospective respondent. In making this determination, the Court need not make any findings of fact. Although the Court will require some evidence to conduct its objective assessment of the applicant's 'reasonable cause to believe', some things, such as the exact nature and significance of the evidence, may be left to surmise or conjecture: see John Holland Services Pty Ltd v Terranora Group Management Pty Ltd [2004] FCA 679 at [14] ; see also George v Rockett [1990] HCA 26 ; (1990) 170 CLR 104 at 115-116.


case_title: Hooper v Kirella (1999) FCR 1

case_text: An important decision in considering the nature of an application under O 15A is the decision of the Full Federal Court in Hooper v Kirella Pty Ltd [1999] FCA 1584 ; (1999) 96 FCR 1, in which the constitutional validity of O 15A was challenged on the ground that it did not give rise to a federal 'matter'. The argument raised on the challenge was that there is no federal 'matter' decided on an O 15A application because it does not finally determine a dispute. On this question, the Full Court decided that there was a 'matter' which established the jurisdiction of the Court to apply O 15A. Their Honours that the proceeding which would determine the rights of the parties was the substantive action in respect of which the preliminary discovery application was brought. The 'matter' was the underlying substantive claim, and not the ancillary application for preliminary discovery. Being ancillary, the preliminary discovery decision was deemed to be within the scope of the substantive 'matter'. This treatment of the preliminary discovery application provides support for the conclusion that, when determining whether a preliminary discovery application is interlocutory or final, it is the substantive rights of the parties in the prospective action to which attention must be directed when considering whether the determination finally resolves those rights. This is consistent with the view in the present case that, since preliminary discovery is ancillary in nature and part of the larger dispute, no substantive rights are finally determined until a decision is made in the contemplated substantive application. This conclusion is consistent with that of Graham J in Telstra Corporation Ltd v Minister for Communications, Information Technology and the Arts (No. 3) [2007] FCA 1567 at [70] .


case_title: Jakiemiec v Buckingham [2007] FamCA 542


case_text: The other authority relied on by Lindgren J was John Fairfax & Sons Ltd v Cojuangco [1988] HCA 54 ; (1988) 165 CLR 346 (" John Fairfax "). In that case, the High Court considered the same Supreme Court rule as that considered in Stewart in the context of a proposed defamation action in relation to what was known as the 'newspaper rule'; that is, the common law practice that courts would normally refuse to make an order which would compel a newspaper company to disclose its sources prior to commencement of an action. The Court said at 356: 'The newspaper rule is not capable of applying directly to proceedings under Pt 3 , r. 1. The respondent to an application ... is not, as such, a defendant in a defamation action. Such an application is not an interlocutory proceeding in such an action .' (Emphasis added.) 14 The reasoning in John Fairfax related to a rule different to O 15A r 6. The reasoning does not assist in the present case because the Court limited its statement to an observation that an application for preliminary discovery is not an interlocutory proceeding in a defamation action ; which it plainly is not and could not be. This observation does not mean that the determination must be treated as a binding determination of an application for preliminary discovery which finally settles the rights of the parties.


case_title: John Holland Services Pty Ltd v Terranora Group Management Pty Ltd [2004] FCA 679


case_text: Counsel for Tibra referred to the decision of Kendell v Moraitis (unreported, Supreme Court of New South Wales, Hunt CJ, 18 December 1991), in which Hunt CJ found that the circumstances in that case did not invite undue hardship or delay warranting the exercise of the discretion to admit hearsay evidence. In this case, the delay and expense involved in adducing evidence admissible on a final hearing basis at this stage is clearly significant. Quite apart from the relatively simple task of providing the original source code, expense and delay would accrue while confidentiality orders are drafted and executed to take account of the special sensitivity which production of the source code would entail. The increase in costs and time are unnecessary at this early stage of the proceedings. An application for preliminary discovery is a procedure intended to facilitate the administration of justice by allowing an applicant to decide whether to commence the proceedings. It is not appropriate at this early stage for evidence to be exhaustively adduced and tested so that findings of facts can be made on a final basis. 26 Accordingly, even if, contrary to my finding, an application for preliminary discovery is a final hearing, I consider that as a proper exercise of the Court's discretion the strict rules of evidence should be waived in relation to this application under s 190(3)(b) of the Act . 27 For these reasons, I rule that Tibra's objections to the evidence filed for Optiver are not sustained on the above grounds. I order that the matter be stood over until Optiver's application for preliminary discovery is to be heard, on a date which is to be fixed by the parties with my associate. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin. Associate: Dated: 12 October 2007 Counsel for the Applicant: Mr R Cobden SC and Mr P Flynn Solicitor for the Applicant: Mallesons Stephen Jaques Counsel for the Respondent: Mr A Bannon SC and Mr A Lang Solicitor for the Respondent: McCabe Terrill Lawyers Date of Hearing: 3 October 2007 Date of Judgment: 12 October 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1560.html


case_title: Kennedy v Wallace [2004] FCA 332


case_text: There are a number of other more recent decisions directly in point to the effect that applications for pre-action discovery under O 15A r 3 and O 15A r 6 are interlocutory and not final. In London Economics (Aust) Pty Ltd v Frontier Economics Pty Ltd [1999] FCA 932 at [19] (" London Economics "), Finkelstein J expressly disagreed with the reasoning of Lindgren J in Levis and referred to a number of decisions of intermediate appellate courts to which Lindgren J had not been referred and which held that applications under rules of courts equivalent of O 15A are interlocutory in nature. His Honour referred in particular to the decision of the Victorian Full Court in The Herald and Weekly Times Ltd v The Guide Dog Owners' and Friends' Association [1990] VR 451. In that case, O'Bryan J at 455 considered that an order for preliminary discovery was interlocutory because it did not finally determine the rights of the parties in the litigation. Marks J agreed that the order was interlocutory, and required leave to bring the appeal. His Honour reasoned at 461-462 that: '... the order was clearly interlocutory, not necessarily because there may technically be power to entertain an application to vary or vacate it, but because the rights of the respondents to the discovery sought have not yet been fully exercised. The order merely set in motion an investigation by examination of documents and persons whether certain information exists and if so, what it is. ... The order was merely the first step. It did not preclude further orders limiting or extending the scope of the investigation which the rule permits.' 19 In a later decision in Kennedy v Wallace 208 ALR 424, Gyles J decided that a determination of a claim for legal professional privilege was a final resolution of a dispute or controversy between the parties, and was therefore final in nature. This is perhaps not surprising because there is authority that legal professional privilege is in the nature of a substantive right: see Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49 ; (2002) 192 ALR 561 at 564-565. At 454, his Honour referred to the decisions in London Economics , Levis and in particular the passage in Malouf , cited by Tibra on this application and quoted above, concerning the relaxation of the hearsay rule,. His Honour noted that this was a guarded statement unnecessary to resolve the evidentiary question for the purpose of the point being considered in that case.


case_title: Malouf v Malouf [1999] FCA 710

case_text: The issue which the Court must address on preliminary discovery is whether circumstances exist which support a conclusion that the applicant has a 'reasonable cause to believe': see Malouf v Malouf [1999] FCA 710 at [16] ; Quanta Software International Pty Ltd v Computer Management Services Pty Ltd (2000) 175 ALR 536 at 541-542. It is not for the Court at the stage of preliminary discovery to determine finally the detail or weight of the evidence on which the applicant's belief is founded. That is a matter for the final hearing, when evidence is fully adduced and tested in cross-examination, after all interlocutory procedures have been undertaken and full discovery given.


case_text: In Malouf v Malouf [1999] FCA 284 ; (1999) 86 FCR 134 (" Malouf "), the Full Federal Court held that an order on an application for pre-trial discovery under O 15A r 6 is interlocutory in nature, and that leave to appeal is required. The Full Court proceeded to observe at 143: 'It is not difficult to find good reason for allowing relaxation of the hearsay rule in a narrower category of cases that that in which the right of appeal is truncated by a requirement for leave. The latter requirement merely places the parties in the hands of the Court. Relaxation of the hearsay rule may substantially affect the outcome of the proceedings or the way in which they are conducted.' 17 The respondents suggest that this remark indicates that the Court considered that, for example, in relation to a preliminary discovery application, a more rigid approach should be taken to the relaxation of the strict rules of evidence. The above observation by their Honours was unnecessary to the decision. It is tentative and speculative in nature, and in my view does not assist in the determination of the present question as to whether the application is interlocutory or final in nature.


case_text: Tibra advances three broad objections to Optiver's evidence, each of which arises out of the proposition that the evidence must be in a form which is admissible on a final hearing because an application under O 15A r 6 finally determines the rights of the parties in so far as it resolves the discovery issue, and therefore is not interlocutory but final. The objections are: (i) all references to the source code of Optiver's automated securities trading software are inadmissible because they are not substantiated by evidence proving Optiver's copyright in the source code, which can only be done by tendering the source code itself; (ii) all references to actions undertaken or comments made by other people are inadmissible hearsay evidence; and (iii) all references to the beliefs of the deponents of the affidavits are inadmissible opinion evidence in the sense discussed by Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 ; (2001) 52 NSWLR 705 (" Makita "). 4 In my view, Tibra's objections should be rejected for three reasons. The first is because the task for the Court on an application under O 15A r 6 is not to determine questions of fact on a final binding basis, but rather to determine whether the applicant has reasonable cause to believe that it has or may have a cause of action against the respondent, and if so to decide whether it will commence proceedings . It is not to decide whether a reasonable cause of action actually exists or whether the claim will ultimately succeed. The second reason is that such an application is interlocutory in nature, and therefore the rules of evidence do not apply in with the same rigidity as they would apply on a final hearing. Thirdly, this is an appropriate case for the application of s 190(3)(b) of the Evidence Act 1995 (Cth) ("the Act "), which allows the Court to dispense with the rules of evidence where they might otherwise cause undue expense or delay. 8 An applicant may base a 'reasonable cause to believe' on a range of considerations, evidence of which may not be admissible on a final hearing but which may be sufficient to ground his or her belief for the purposes of O 15A r 6. For example, if a solicitor reviews the material surrounding a case and advises his or her client that a reasonable cause of action exists, this examination together with other evidence of a hearsay nature may be sufficient to ground the requisite belief. If a computer scientist expresses an opinion that a prospective respondent could only have achieved certain operational standards by copying or appropriating software from an applicant, this may also suffice as a ground for a belief sufficient to satisfy O 15A r 6 in the absence of strict compliance with all the principles canvassed in Makita .


case_outcome: referred to

case_text: The background to these proceedings is summarised briefly in my earlier judgment: see Optiver Australia Pty Ltd v Tibra Trading Pty Ltd [2007] FCA 1348 at [3] - [4] . I do not propose to repeat that information in these reasons.


case_title: Quanta Software International Pty Ltd v Computer Management Services Pty Ltd (2000) 175 ALR 536


case_text: In order to ascertain whether an application is final or interlocutory, the test is whether the determination of that application finally disposes of the rights of the parties: Sanofi v Parke & Davis Pty Ltd (No 1) [1982] HCA 9 ; (1982) 149 CLR 147 at 152. In the present case there is a question whether the rights referred to are the substantive rights on the final hearing of the prospective action which may be instituted or the rights affected by an order under O 15A to produce documents.


case_title: Sony Entertainment (Australia) Limited v Smith [2005] FCA 228


case_title: St George Bank Ltd v Rabo Australia Ltd (2004) 211 ALR 147


case_title: Stewart v Miller (1979) 2 NSWLR 128

case_text: His Honour referred to the decision of Sheppard J in Stewart v Miller (1979) 2 NSWLR 128 (" Stewart "). That case concerned a rule of the Supreme Court of New South Wales relating to preliminary discovery, and does not appear to have enlivened the question of admissibility of evidence on preliminary discovery applications. His Honour's reasons do not address any arguments whether such an application would be final or interlocutory. Although his Honour observed that the application for preliminary discovery was of a final nature, his Honour did not give any reasons for his conclusion that the decision was final. In that case, his Honour was concerned with the question of the Court's jurisdiction to set aside an ex parte order which his Honour considered should not have been made 13 The other authority relied on by Lindgren J was John Fairfax & Sons Ltd v Cojuangco [1988] HCA 54 ; (1988) 165 CLR 346 (" John Fairfax "). In that case, the High Court considered the same Supreme Court rule as that considered in Stewart in the context of a proposed defamation action in relation to what was known as the 'newspaper rule'; that is, the common law practice that courts would normally refuse to make an order which would compel a newspaper company to disclose its sources prior to commencement of an action. The Court said at 356: 'The newspaper rule is not capable of applying directly to proceedings under Pt 3 , r. 1. The respondent to an application ... is not, as such, a defendant in a defamation action. Such an application is not an interlocutory proceeding in such an action .' (Emphasis added.)


case_title: Telstra Corporation Ltd v Minister for Communications, Information Technology and the Arts (No. 3) [2007] FCA 1567


case_title: The Herald and Weekly Times Ltd v The Guide Dog Owners & Friends Association [1990] VR 451

case_text: There are a number of other more recent decisions directly in point to the effect that applications for pre-action discovery under O 15A r 3 and O 15A r 6 are interlocutory and not final. In London Economics (Aust) Pty Ltd v Frontier Economics Pty Ltd [1999] FCA 932 at [19] (" London Economics "), Finkelstein J expressly disagreed with the reasoning of Lindgren J in Levis and referred to a number of decisions of intermediate appellate courts to which Lindgren J had not been referred and which held that applications under rules of courts equivalent of O 15A are interlocutory in nature. His Honour referred in particular to the decision of the Victorian Full Court in The Herald and Weekly Times Ltd v The Guide Dog Owners' and Friends' Association [1990] VR 451. In that case, O'Bryan J at 455 considered that an order for preliminary discovery was interlocutory because it did not finally determine the rights of the parties in the litigation. Marks J agreed that the order was interlocutory, and required leave to bring the appeal. His Honour reasoned at 461-462 that: '... the order was clearly interlocutory, not necessarily because there may technically be power to entertain an application to vary or vacate it, but because the rights of the respondents to the discovery sought have not yet been fully exercised. The order merely set in motion an investigation by examination of documents and persons whether certain information exists and if so, what it is. ... The order was merely the first step. It did not preclude further orders limiting or extending the scope of the investigation which the rule permits.'


case_title: Waterhouse v Shelley [2007] FamCA 541


case_title: Williams Advanced Materials Inc. v Target Technology Co. LLC (2004) 63 IPR 645


case_text: Order 35A rule 3 (2)(c) of the Federal Court Rules is predicated upon an event of default of a kind prescribed in O 35A r 2(2), and contemplates that judgment may be given against a respondent for relief to which "the applicant appears entitled on the statement of claim" and which the Court is satisfied it has "power to grant". In determining the relief, O 35A permits regard to be had to the "face of the statement of claim"; no evidence need be adduced to prove the factual contentions; allegations of fact in the statement of claim are deemed admitted: Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd [2007] FCAFC 146 at [42] ; Wu v Avin Operations Pty Ltd [2006] FCA 36 at [57] ; Macquarie Bank Ltd v Seagle [2005] FCA 1239 ; (2005) 146 FCR 400. The findings set out at paragraphs 4(b) and 6(b) above constitute events of default pursuant to O 35A r 2(2)(b). The findings set out at paragraphs 5(b) and 7(b) above constitute events of default pursuant to O 35A r 2(2)(a).


case_text: To similar effect, Kiefel J's analysis of the effect of Order 35A, at first instance, in Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd (2006) 236 ALR 665 at [46], appears to assume implicitly that notice of the default judgment proceedings is not necessary unless the relief ultimately being sought is different to that expressed in the statement of claim. Her Honour indicated that the touchstone ought to be fairness in the conduct of litigation, with what is required potentially differing from case to case. 18 I have found that the eighty-third and ninety-second respondents have been served with the originating process and have made no, or no proper, effort, to respond to the Court's processes. No injustice would be occasioned by entering default judgment against them. 21 Older precedent reflects a certain reluctance to grant declaratory relief in the absence of facts found on evidence. Contemporary authority in this court reflects a strong disinclination to follow those earlier decisions. In Dataline , Kiefel J, reviewed much of that earlier authority. Her Honour observed at [57]-[59]: The question is whether declarations should be made on deemed admissions, given that there has been no adjudication by the court on the facts and the declarations may give the impression that there has. The power to grant declarations (s 21 Federal Court of Australia Act 1976 (Cth)) is unconfined. Order 35A itself imposes no constraints upon the relief sought. Refusals to make declarations in cases of default are based upon a practice, not a rule of law. The practice is one of long standing and might be seen as derived from views about litigation which pre-date more recent concerns expressed by the courts as to the costs of unnecessary litigation, the management of cases and efficiency overall. Views expressed in older cases may not take account of the increase in the use made of declaratory orders in developing areas of law which may involve matters of public interest (emphasis added). A caution with respect to the use of older authority is made in the White Book Service 2003 to the English Civil Procedure Rules 1998 (40.20.2). It may no longer be correct to have a practice which operates as a prohibition in every case of default and preferable to consider the circumstances pertaining to the particular case and the purpose and effect of the declaration ... Cases such as this, involving the protection of consumers, are of public interest. Declarations are often utilised in such cases to identify for the public what conduct constitutes a contravention and to make apparent that it is considered to warrant an order recognising its seriousness (emphasis added). It is however important that there be no misunderstanding as to the basis upon which they are made. This could be overcome by a statement, preceding the declarations, that orders are made 'upon admissions which [the respondent in question] is taken to have made, consequent upon non-compliance with orders of the court'.


case_text: To similar effect is the judgment of Mansfield J in Bank of Kuwait and the Middle East v The Ship MV "Mawashi Al Gasseem" (No 2) [2007] FCA 815 , which was, like Dataline , a case where judgment was given on the basis of deemed admissions under O 35A. Having noted the historical reluctance to base declarations on admissions, his Honour went on to approve and adopt the statements of Kiefel J in Dataline and to exercise his discretion to make declarations on the basis of those deemed admissions, at [13]-[16]. 23 Accordingly I propose to make the declarations sought, predicated by a statement that they are made on the basis of deemed admissions.


case_text: In British American Tobacco Australasia Limited v The Person Identified by the Australian Customs Service as "Gory Sabar" [2007] FCA 1417 , an application was made for judgment under Order 35A. It appears that this application may have been made by a notice of motion, which was made returnable instanter , and Stone J made orders 'pursuant to Order 19 rule 2(2)(d) that service of this Notice of Motion be dispensed with'. These orders were made despite the fact that neither of the respondents had filed a notice of appearance, or had appeared before the Court at any stage. 16 Stone J went on to find that the respondents were in default under O 35A r 2(2)(a) and 2(2)(c), and proceeded to enter judgment against them, notwithstanding that there was no evidence that they were aware of the hearing seeking default judgment. Notice of that hearing had not been personally served, as Order 19, r 4 would have required, if not dispensed with.


case_title: Hadgkiss v Aldin [2007] FCA 2068

case_text: I have earlier delivered judgment in relation to all of the other respondents in these proceedings: Hadgkiss v Aldin [2007] FCA 2068. The reasons for judgment here should be read together with those other reasons for judgment, which provide the relevant background, both factually and legally, to the disposition of the two motions before the Court. 2 The Notices of Motion seek orders pursuant to Order 35A of the Federal Court Rules . The Notices of Motion are in respect of Robert Peter Alivojvodic, Bruce James Allsopp, Brett Harold Andrews and Alex Ian Cromb, respectively the second, third, eighty-third and ninety-second respondents ("the defaulters"). I have had the benefit of very detailed and helpful written submissions from which I have drawn, in compiling these reasons. 3 Orders of the following kind are sought against the defaulters: (a) a declaration that each of the four defaulters engaged in unlawful industrial action in contravention of s 38 of the Building and Construction Industry Improvement Act 2005 (Cth) (BCII Act) during the period 24 February 2006 to 3 March 2006 inclusive (the Period); (b) an order imposing a pecuniary penalty on each of the four defaulters pursuant to s 49(1)(a) of the BCII Act for engaging in unlawful industrial action during the Period; (c) an order suspending part of the pecuniary penalty in each case pursuant to the general power under s49(1)(c) of the BCII Act; (d) an order pursuant to s 49(5) of the BCII Act that the pecuniary penalties imposed be paid to the Commonwealth; and in respect of each of the second and third respondents: (e) a declaration that each of the second and third respondents breached the order made by the Australian Industrial Relations Commission on 6 December 2005 known as the New Metro Rail City Project Leighton Kumagai Joint Venture Industrial Action Order December 2005 (s 127 Order) by engaging in industrial action during the Period (f) an order imposing pecuniary penalties on the second and third respondents under s 178 of the WR Act for breach of the s 127 Order during the Period; (g) an order pursuant to s 356 of the WR Act that the penalty imposed on the second and third respondents be paid to the Commonwealth; and in respect of each of the four defaulters: (h) an order that each of the respondents pay the applicant's costs in the sum of $5,000, in respect of costs of the Notice of Motion for default judgment against each of them. 19 I have in these proceedings previously made declarations in relation to the other respondents by reference to Statements of Agreed Facts: Hadgkiss v Aldin [2007] FCA 2068. 20 The defaulters are deemed to have made admissions of the facts pleaded in the Statement of Claim. Declaratory relief as against the defaulters in those circumstances is not materially different to the position of the other respondents who are signatories to the Statements of Agreed Facts. 24 I propose that, for the same reasons, the same penalties be imposed on each of the defaulters, as was imposed in relation to the main body of respondents identified in Schedule 2 to my earlier reasons: Hadgkiss v Aldin [2007] FCA 2068. 25 Accordingly I will impose the following penalties: (a) in respect of each of the defaulters, for the deemed admitted contraventions of s 38 of the BCII Act, a penalty of $9,000 of which $3,000 should be payable within 45 days and the balance of $6,000 suspended for six months, to be paid only if the respondent further contravenes the BCII Act or the WR Act during the period of the suspension; and (b) in respect of the second and third respondents for the further deemed admitted breaches of the s 127 order, an additional penalty of $1000 of which $250 should be payable within 45 days and the balance of $750 suspended for six months, upon similar terms. 26 Costs ought follow the event. Although the WR Act is a no costs jurisdiction, there is no such provision in the BCII Act. Agreement was reached with the primary group of respondents who admitted contraventions that there would be no order as to costs. No such agreement has been reached with these respondents. The defaulters have failed to either file an appearance or a defence in the proceedings and the applicant has incurred additional legal costs as a result.


case_title: Macquarie Bank Ltd v Seagle [2005] FCA 1239 ; (2005) 146 FCR 400


case_title: Wu v Avin Operations Pty Ltd [2006] FCA 36


case_text: The appellant did not argue this ground. Further, neither the Tribunal nor Scarlett FM considered the principles of non-refoulement for the reason that it had not been determined that the appellant satisfied the criterion for refugee status under the Act. Accordingly, this claim cannot succeed. If, by virtue of it, the appellant is seeking a review on the merits, this is not appropriate in judicial review. The role of the Court in an appeal such as this was stated succinctly by Mason J (as he then was) in Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others [1986] HCA 40 ; (1986) 162 CLR 24 at 40- 41, where His Honour said: 'The limited role of a Court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of a Court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned: Wednesbury Corporation [41].' 19 Scarlett FM did not rely upon or refer to such authority in reaching his decision. Further there is no basis for such submission. The decision only becomes relevant in circumstances in which an appellant has nominated a migration agent or other adviser. This was not the case in these proceedings, and the decision in Makhu is irrelevant.


case_text: The Court observes that there is no statutory obligation upon the Tribunal to provide legal advice or to refer applicants to a migration service. Further, Scarlett FM noted that the appellant confirmed that she had sought and received advice from a solicitor on the Tribunal's Legal Advice Panel. The appellant retained Mr Deng as her legal and migration adviser, and is critical of the service she was provided in relation to her migration matters. However, misconduct on the part of a migration agent does not give rise to a reviewable error of law: see Minister for Immigration and Multicultural Affairs v SZFDE [2006] FCAFC 142. 25 In light of the extension of time granted to the appellant to enable her to prepare further written submissions, and the fact that she has had since at least 4 October 2006, the date on which she was informed of the hearing date of her appeal, to avail herself of legal advice, I do not consider a further extension of time or another hearing is warranted. 26 I can find no error in the decision of Scarlett FM or the Tribunal, and accordingly the appeal must be dismissed.


case_text: The respondent in the proceeding ("ANZ") seeks by motion an order that the statement of claim of the applicant ("ACCC") be struck out pursuant to Order 11, r 16(b) of the Federal Court Rules on the footing that the pleading has a tendency to cause prejudice or embarrassment as it fails to plead as required by Order 11, r 2(a) material facts necessary for the purpose of formulating a complete cause of action said to arise under ss 45(2)(a)(ii) and 45 (2)(b)(ii) of the Trade Practices Act 1974 (Cth) ("the Act "), having regard to s 45A of the Act . Thus, inconsistent with established principle, the pleading fails to define, it is said, the issues with sufficient clarity to enable the respondent to understand and have the opportunity to meet the case made against it and further, the pleading asserts conclusions unsupported by material facts. As to those principles, see: Dare v Pulham [1982] HCA 70 ; (1982) 148 CLR 658 at 664; Mitanis v Pioneer Concrete (Vic) Pty Ltd [1997] ATPR 41-591 at 44, 151; Bruce v Odhams Press Ltd [1936] 1 KB 697 at 712-713; and Trade Practices Commission v David Jones (Australia) Pty Ltd [1985] FCA 228 ; (1985) 7 FCR 109 at 114-5.


case_title: Mitanis v Pioneer Concrete (Vic) Pty Ltd [1997] ATPR 41-591


case_title: Bruce v Odhams Press Ltd [1936] 1 KB 697


case_title: Trade Practices Commission v David Jones (Australia) Pty Ltd [1985] FCA 228 ; (1985) 7 FCR 109


case_text: However, where a demonstrated failure to plead material facts gives rise to no real confusion or gives rise to no issue of substantive principle, the Court will be restrained in the exercise of the strike-out power. Not all conclusionary pleadings will be struck out. Whether a pleading ought to be struck out will depend upon whether the facts have been pleaded at too great a level of generality or at too high a level of abstraction ( HECEC Australia Pty Ltd v Hydro-Electric Corp [1999] FCA 822 ; State of Queensland v Pioneer Concrete (Qld) Pty Ltd [1999] ATPR 41-691 at 42, 828-9; Charlie Carter Pty Ltd v The Shop, Distributive and Allied Employees' Association (WA) (1987) 13 FCR 413 ; and Kernel Holdings Pty Ltd v Rothmans of Pall Mall (Australia) Pty Ltd [1991] FCA 557). The authorities governing the exercise of the discretion to strike out a pleading are usefully assembled by Weinberg J in McKellar v Container Terminal Management Services Ltd [1999] FCA 1101 ; (1999) 165 ALR 409 at 415-421; adopted by Tracey J in Auskay International Manufacturing & Trade Pty Ltd v Qantas Airways Ltd [2008] FCA 1458 ; and as Tracey J notes, applied in Australian Automotive Repairers' Association (Political Action Committee) Inc. v NRMA Insurance Ltd [2002] FCA 1568 at [14] - [17] ; Australian Wool Innovation Ltd v Newkirk [2005] FCA 290 ; [2005] ATPR 42-053 at 42, 669-42, 670. It is not necessary to restate comprehensively the content of those well understood principles.


case_title: State of Queensland v Pioneer Concrete (Qld) Pty Ltd [1999] ATPR 41-691


case_title: Charlie Carter Pty Ltd v The Shop, Distributive and Allied Employees' Association (WA) (1987) 13 FCR 413