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					                   FEDERAL COURT OF AUSTRALIA

Expo-Trade Pty Ltd v Minister of State for Justice & Customs [2003] FCA 1421

CUSTOMS AND EXCISE – anti-dumping – application for review of recommendation of
Chief Executive Officer of Customs – application for review of decision of Minister of State
for Justice and Customs – where decision was to publish a dumping notice in respect of
ammonium nitrate exported to Australia – whether Estonia or Russia was the country of
export – country of origin – where no domestic market in alleged country of export – whether
ammonium nitrate subject to government price control – whether Minister prevented from
considering price of inputs in determining whether a price control situation exists –
calculation of “non-injurious price” – relevance of “end-user” or “end user” in determining
the unsuppressed selling price – relevance of “level of trade” – relevance of volume.

ADMINISTRATIVE LAW – natural justice – where there is a departure from an earlier
stated method of calculation in a customs manual – where applicant denied opportunity to
make submissions about method of calculation used.

WORDS AND PHRASES – ‘country of export’, ‘exporter’

Customs Act 1901(Cth) ss 269T, 269TAC, 269TACA, 269TACB, 269TG
Customs Tariff (Anti-Dumping) Act 1975 (Cth) s 8

Century Metals and Mining NL v Yeomans (1989) 40 FCR 564 cited
Companhia Votorantim de Cellulose e Papel v Anti-Dumping Authority (1996) 42 ALD 7
referred to
Companhia Votorantum de Celulose e Papel v Anti-Dumping Authority (1996) 71 FCR 80
referred to
GTE (Aust) Pty Ltd v Brown (1986) 14 FCR 309 cited
Haoucher v Minister for Immigration & Ethnic Affairs (1990) 169 CLR 648 cited
Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189
cited
Nordland Papier AG v Anti-Dumping Authority (1999) 93 FCR 454 referred to
Pilkington (Australia) Ltd v Minister of State for Justice and Customs (2002) 71 ALD 301
cited
Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 195 ALR 502
cited
Saraswati v The Queen (1991) 172 CLR 1 cited

EXPO-TRADE PTY LTD v MINISTER OF STATE FOR JUSTICE & CUSTOMS &
CHIEF EXECUTIVE OFFICER OF CUSTOMS

N 1256 of 2002

MOORE J
5 DECEMBER 2003
SYDNEY
                                                               GENERAL DISTRIBUTION
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY                                           N 1256 OF 2002

BETWEEN:                EXPO-TRADE PTY LTD
                        APPLICANT

AND:                    MINISTER OF STATE FOR JUSTICE & CUSTOMS
                        FIRST RESPONDENT

                        CHIEF EXECUTIVE OFFICER OF CUSTOMS
                        SECOND RESPONDENT


JUDGE:                  MOORE J
DATE OF ORDER:          5 DECEMBER 2003
WHERE MADE:             SYDNEY

THE COURT ORDERS THAT:

   1.      The application be dismissed.
   2.      The applicant pay the respondents’ costs.




Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
                                                                   GENERAL DISTRIBUTION
    IN THE FEDERAL COURT OF AUSTRALIA
    NEW SOUTH WALES DISTRICT REGISTRY                                           N 1256 OF 2002

    BETWEEN:                EXPO-TRADE PTY LTD
                            APPLICANT

    AND:                    MINISTER OF STATE FOR JUSTICE & CUSTOMS
                            FIRST RESPONDENT

                            CHIEF EXECUTIVE OFFICER OF CUSTOMS
                            SECOND RESPONDENT


    JUDGE:                  MOORE J
    DATE:                   5 DECEMBER 2003
    PLACE:                  SYDNEY


                                  REASONS FOR JUDGMENT

    Introduction

1          This is an application for judicial review of both a recommendation by the Chief
    Executive Officer of Customs (“the CEO”) and a decision of the Minister of State for Justice
    and Customs (“the Minister”) made under the Customs Act 1901 (Cth) (“the Act”). The
    application is made under the Judiciary Act 1903 (Cth) and as well as the Administrative
    Decisions (Judicial Review) Act 1977 (Cth). The applicant, Expo-Trade Pty Ltd (“Expo-
    Trade”), exported goods from Eastern Europe which took the form of bagged quantities of
    ammonium nitrate weighing, in total, 414 tonnes. It was sold to two Australian companies,
    PK Whitford Nominees Pty Ltd (“Whitford”) and Mirco Bros Pty Ltd (“Mirco”). The
    Minister’s decision was to accept a recommendation of the CEO (in a report dated 25 July
    2002 being Trade Measures Report No. 61 (“the second report”)) to declare under
    subs 269ZG(3) of the Act that, in effect, an earlier dumping notice (“the initial dumping
    notice”) applied to the bagged ammonium nitrate.


    The background

2          On 2 May 2000 an application was made by Australian producers of ammonium
    nitrate for the publication of a dumping duty notice in relation to ammonium nitrate exported
                                                  -2-

    to Australia from Russia. This application resulted in an investigation by the Australian
    Customs Service (“Customs”) into the allegation of dumping and the publication on 2 March
    2001 of Trade Measures Report No. 28 (“the first report”) in which the CEO recommended
    the publication of a notice. This led to the publication of the initial dumping notice on 24
    May 2001. The notice, in terms, applied to ammonium nitrate exported from the Russian
    Federation. In the first report, the focus of the investigation was on the use of ammonium
    nitrate in the production of bulk explosives used in the mining industry. It noted that 95
    percent of the ammonium nitrate consumed in Australia was used for that purpose. The
    report identified the consumers of the ammonium nitrate in that market as mining companies
    such as BHP Iron Ore, MIM Holdings Ltd, Rio Tinto and Robe River Mining Co Pty Ltd.
    One matter considered by Customs in the first report was whether ammonium nitrate sold in
    Russia was the subject of government price control. Customs concluded it was. This is
    relevant to one issue addressed later in these reasons.


3          One recommendation of the CEO in the first report was that anti-dumping action be
    taken in relation to future exports of ammonium nitrate from Russia. This was reflected in
    the initial dumping notice with the practical effect that it would apply to ammonium nitrate
    exported from Russia after the notice was published. This is why Customs levied interim
    dumping duty on the exports of ammonium nitrate to which these proceedings relate even
    though they did not enter Australia until sometime probably in early March 2002.


4          In a letter dated 28 March 2002, Roger D. Simpson & Associates Pty Ltd (“Simpson”)
    wrote to Customs seeking an accelerated review of the initial dumping notice under Div 6 of
    Part XVB of the Act. In the letter, Simpson described the application as being on behalf of
    Expo-Trade which was “a residual exporter of ammonium nitrate from Russia”.             The
    application was later advanced on behalf of NPK Trading Ltd (“NPK”) and the Russian
    manufacturer, Kemerovo JSC Azot (“Azot”). Late in the period in which Customs was
    considering the application for an accelerated review, Simpson wrote to Customs (on 12 July
    2002) asserting that the country of export of the bagged ammonium nitrate was Estonia and
    not Russia.


5          That application resulted in the second report and a dumping duty notice published on
    27 September 2002 (“the subsequent dumping notice”) with the practical effect that interim
    dumping duty was levied on the 414 tonnes by reference to variables which differed from
                                                 -3-

    those in the initial dumping notice. The subsequent dumping notice was based on a decision
    of the Minister of 18 September 2002 accepting a recommendation of Customs that it be
    published and approving its publication.


6          It is convenient to refer to other matters of detail and the relevant legislative
    provisions when considering each of the three issues raised in this application.


    The first issue - country of origin

7          The initial dumping notice applied to ammonium nitrate exported from Russia. The
    interim dumping duty was levied on the 414 tonnes of bagged ammonium nitrate on the basis
    that it had been exported from Russia. Similarly, the application for accelerated review was
    sought on the same basis. Expo-Trade challenges that premise in these proceedings. It is
    common ground that Expo-Trade was the owner of the goods at the time of export from
    Estonia and also that Expo-Trade arranged for the shipment of the goods to Australia and
    paid for ocean freight and marine insurance. The bills of lading nominated Expo-Trade as the
    shipper. It is also common ground that whether the bagged ammonium nitrate was exported
    from Russia was a jurisdictional fact upon which the Minister’s decision of 18 September
    2002 was based. The parties agreed that if Expo-Trade establishes in these proceedings, as a
    matter of fact, that the ammonium nitrate was exported from Estonia then orders should be
    made nullifying the Minister’s decision and its effect.         The relief sought includes a
    declaration that the country of export of the ammonium nitrate purchased by Expo-Trade and
    sold to Whitford and Mirco was not Russia but Estonia, and that Expo-Trade was not a
    residual exporter of the ammonium nitrate from Russia (similar orders were sought on the
    footing that NPK was the exporter).


8          In order to understand how the question of whether the ammonium nitrate was
    exported from Russia or from Estonia arises, it is necessary to refer to the evidence
    concerning the circumstances in which the ammonium nitrate was bought and sold in Eastern
    Europe. There was no real issue about what the primary facts were (to the extent that they
    were established by the evidence) though there was an issue about what they revealed and
    what relevant inferences could be drawn. Oral evidence about the transaction was given by
    Mrs Larissa Vakulina, a director of Expo-Trade and Mr Gregory Dyner, the export manager
    of Expo-Trade. Various documents were tendered. The evidence was to the following effect.
                                                      -4-

9           The ammonium nitrate (from which the 414 tonnes were drawn) was manufactured in
     Russia by Azot. NPK and Azot had a contract which provided for the purchase and delivery
     by Azot to NPK of ten thousand metric tonnes of ammonium nitrate in bulk. Shipment was
     to be in Azot’s railway carriages. Supply was to be during the month of February 2002 and
     delivery in accordance with NPK’s instructions. Under the contract, NPK was responsible
     for the return of the carriages to Azot.


10          NPK also had an agreement with a company or entity, Transtrade, to transport
     ammonium nitrate from Predcombinat railway station (near Azot’s plant) to Pechory
     Pskovskie railway station (a Russian station on the border of Estonia and Russia). This
     agreement provided, at least in the English translation, for a specified transport tariff rate for
     the period 1 February 2001 to 28 February 2002. The evidence did not establish the number
     (if any) of shipments from Predcombinat to Pechory Pskovskie in February 2002, the size of
     any shipment, or how the train carriages of ammonium nitrate got from the border to Port
     Muuga in Estonia.


11          As part of the contract, Azot undertook to provide NPK with documents, such as
     duplicate consignment notes, for each carriage of ammonium nitrate purchased from them
     though none were produced in evidence in these proceedings. NPK stored ammonium nitrate
     in three warehouses, one in Tallinn, Estonia, one in St Petersburg, Russia and a third at Port
     Vostochny, also in Russia. NPK rented the warehouse in Estonia and did not sell ammonium
     nitrate into the markets of Estonia or Russia.


12          NPK and Expo-Trade are related in the following sense. A Mr Vakulin, who was not
     called to give evidence, is a shareholder in both NPK and Expo-Trade. He works for both
     companies. In NPK, he is a 51% shareholder and a senior officer and in Expo-Trade he is a
     20% shareholder and sales and marketing manager.             Officers of Expo-Trade, in their
     communications with customers, referred to NPK’s office as ‘our Russian office’ and NPK
     staff as ‘our people in Russia’.


13          In December 2001, Expo-Trade sent written orders to NPK for 400 tonnes of
     ammonium nitrate to be packed into 1250 kg bags and delivered to Australia. On 8 January
     2002, NPK contracted to sell and deliver 414 metric tonnes of ammonium nitrate to Expo-
     Trade in bags of 1150 kg. On the same day an employee of NPK indicated to an employee of
                                                   -5-

     Expo-Trade that the order could be filled within five days “[o]ther time it’s necesary to go for
     shipping from Muga Tallinn to Australia”. The delivery terms on the commercial invoice
     from NPK to Expo-Trade were ‘FOB TALLINN, ESTONIA’ although the word ‘FOB’ has
     had a line drawn through it and the handwriting ‘FAS’ written beneath it. The handwriting
     did not appear on the original.         According to the sale confirmations the terms of
     ‘delivery/payment’ for both Mirco and Whitford were CIF Fremantle, Western Australia.
     Expo-Trade arranged the shipment of the goods to Australia and paid for ocean freight and
     marine insurance. The bills of lading also nominated Expo-Trade as the shipper.


14             The sale confirmations from Expo-Trade to Mirco and Whitford contained references
     to ‘Quantity & Origin’. Beneath that heading on both documents was recorded the words
     ‘AZOT PLANT, RUSSIA’. Also, in the formal contract between Expo-Trade and Whitford,
     dated 8 February 2002, a clause, titled ‘ORIGIN OF THE PRODUCT’ stipulated ‘[t]he
     product is Russian origin – AZOT plant at Kemerovo’. Some of the documentary evidence
     suggests NPK arranged for ammonium nitrate from the warehouse in Estonia to be bagged
     sometime after 5 February 2002 and before 8 February 2002. Bags of ammonium nitrate
     were subsequently shipped from Tallinn to Fremantle, Australia.


15             Generally, the question of where goods are exported from (and who is the exporter) is
     significant in the legislative scheme (as applying to the facts of this case) for the following
     reason.     The original dumping notice reflected a determination by the Minister under
     s 269TG that, amongst other things, the export price of like goods (to the goods that had been
     under consideration (see the definition in s 269T), namely the ammonium nitrate exported
     from Russia considered in the first report) was less than the amount of the normal value of
     those goods.      As is apparent from s 269TAC, the normal value is (subject to possible
     qualifications which are not presently relevant) the price paid or payable for like goods sold
     in the ordinary course of trade for home consumption in the country of export in arms length
     transactions. The determination was based on a normal value of ammonium nitrate exported
     from Russia. It appeared to be common ground in these proceedings that the Minister’s
     power, in effect, to issue (by making a declaration published in the Gazette) the subsequent
     dumping notice of 27 September 2002 under subs 269ZG(3) was enlivened only if the goods
     to which it related had the same characteristics (including having been exported from the
     same country) as the goods to which the initial dumping notice (of 24 May 2001 for which
     the review under Part XVB, Div 6 was sought) related.            No point was taken by the
                                                   -6-

     respondents, the Minister and the CEO that the application for review could only have been
     made by Expo-Trade if it was an exporter from Russia (see subs 269ZE(1)). It is relatively
     clear that the parties wish to have resolved, perhaps somewhat indirectly, the question of
     whether interim dumping duty was lawfully levied, which appears to depend (having regard
     to the approach of the parties) on whether the 414 tonnes of ammonium nitrate were exported
     from Russia.


16          The expressions “country of export” and “country of origin” are defined in s 269T in
     the following way:

            country of export, in relation to goods exported to Australia, means a
            country outside Australia from which those goods are exported to Australia,
            whether or not it is the country where those goods are produced or
            manufactured.

            country of origin, in relation to goods exported to Australia, means a
            country, whether the country of export or not, where those goods are
            produced or manufactured.

     Subsection (2B) of s 269T provides:
            For the purposes of this Part, where, during the exportation of goods to
            Australia, the goods pass in transit from a country through another country,
            that other country shall be disregarded in ascertaining the country of export
            of the goods.


17          This provision reflects an aspect of the scheme established by the General Agreement
     on Tariffs and Trade (“GATT”) to deal with dumping. It is to be recalled that the purpose of
     the anti-dumping provisions of the Act is to give effect to Australia’s international obligations
     under GATT: see Pilkington (Australia) Ltd v Minister of State for Justice and Customs
     (2002) 71 ALD 301. In particular, the anti-dumping provisions presently under consideration
     are intended to give effect to Australia’s obligations under Article VI of GATT and the
     Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade
     1994 (“the Anti-dumping Agreement”): see Nordland Papier AG v Anti-Dumping Authority
     (1999) 93 FCR 454 at [28]. That agreement relevantly provides in relation to transhipment:

            2.5     In the case where products are not imported directly from the country
                    of origin but are exported to the importing Member from an
                    intermediate country, the price at which the products are sold from the
                    country of export to the importing Member shall normally be
                    compared with the comparable price in the country of export.
                    However, comparison may be made with the price in the country of
                                                  -7-

                    origin, if, for example, the products are merely transshipped through
                    the country of export, or such products are not produced in the country
                    of export, or there is no comparable price for them in the country of
                    export.
18          It can be seen that a country through which goods are transhipped should not provide
     the point of comparison on the basis that it is a country of export for the purpose of
     determining whether there has been dumping. This is reflected in the legislative scheme
     which I now discuss.


19          While there are some exceptions which I refer to shortly, the general scheme of
     Pt XVB of the Act can, for present purposes, be described in the following way.               It
     establishes a mechanism by which the Minister can determine whether goods exported to
     Australia are being dumped and, if so, take anti-dumping measures to protect Australian
     industry which otherwise might be injured. Central to the determination of whether goods
     are being dumped is an assessment of the normal value of the goods: see s 269TAC. That is
     because dumping arises when a comparison between export prices and normal value reveals
     the former is less than the latter: see subs 269TACB(5). If goods are being exported from a
     country to Australia at a price less than the price for which they are sold in the domestic
     market of the country of export then they are, at a level of generality, being dumped onto the
     Australian market.


20          It is instructive to consider the various methods by which normal value can be
     calculated. In all but one it is assumed there are like goods sold in the country of export or
     like goods manufactured in the country of export. The assessment of normal value, in the
     ordinary course, involves consideration of the price of like goods sold in the ordinary course
     of trade for home consumption in the country of export (by the exporter or other sellers): see
     subs 269TAC(1). Thus the focus of the inquiry is on domestic transactions in the country of
     export. The scheme contemplates that the goods are coming from a country (the country of
     export) and the determination of whether they are being dumped involves an investigation of
     the domestic market of like goods in that country. It is a consideration of the circumstances
     of the domestic market of the country of export that is important.


21          There are exceptions to this and normal value can be assessed in other ways. The first
     arises if there are no sales, few sales or no suitable sales of like goods: see par 269TAC(2)(a)
     or there are no appropriate sales of like goods in the domestic market by the exporter and it is
                                                  -8-

     not practicable to obtain prices in sales by other sellers: par 269TAC(2)(b).         In those
     situations there can be consideration of the cost of production or manufacture of the goods in
     the country of export (together with assumed costs of sale and profit): see par 269TAC(2)(c),
     or prices paid when like goods are exported to third countries from the country of export:
     par 269TAC(2)(d). Thus, there must the production or manufacture of the goods, or export
     sales of like goods, in the country of export. The second exception arises when the trade of
     the goods from the country of export is monopolised by the government, substantially
     influencing the domestic price of the goods. In those circumstances another method of
     calculating normal value can be used: see subs 269TAC(4). But again the provision seems to
     assume some domestic trading in goods of the type in question.


22          The third exception is when there has been but no longer is a government monopoly
     on trading in goods but price control of like goods presently exists (affecting domestic sales
     of either the exporter or other sellers: see subs 269TAC(5E)). In those circumstances, the
     Minister can determine the normal value of the goods said to have been dumped: see
     subs 269TAC(5D).      The fourth exception is when there has been (but no longer is) a
     government monopoly or substantial government influence on the domestic price of goods in
     the country of export, no relevant price control but there has been the provision of subsidised
     raw materials by a government agency in the production or manufacture of the goods said to
     have been dumped. In those circumstances, normal value can be calculated in a particular
     way: subs 269TAC(5G). Each of these methods of calculating normal value of goods alleged
     to be dumped assumes either a domestic market in like goods in the country of export or the
     manufacture of those goods in the country of export.


23          It is true that subs 269TAC(10) creates an exception which enables, in fairly
     unconstrained terms, the Minister to treat the country of origin as the country of export which
     could be used if there was not a nexus of the type just discussed between the goods and the
     country of export. However the existence of this exception does not detract from what, in my
     opinion, otherwise emerges from s 269TAC. The notion of the country of export is not an
     abstract notion determined by looking simply at contractual arrangements between a person
     who might be thought to be the exporter and an importer and the country in which,
     physically, the goods were immediately before importation into Australia. The country of
     export would usually be a country in which like goods were sold in a domestic market or the
     goods in question were produced or manufactured. This is reinforced by subs 269T(2B)
                                                    -9-

     which contemplates allegedly dumped goods entering Australia from another country which
     is not the country of export but rather a country of transit.


24          The notion of exportation and related concepts was considered by a Full Court in
     Companhia Votorantum de Celulose e Papel v Anti-Dumping Authority (1996) 71 FCR 80. In
     that matter, paper had been manufactured in Brazil and imported into Australia. Customs
     concluded the paper was dumped. One issue was what had been the export price (being the
     price paid for the goods by the importer) which, incidentally, raised the identity of the
     exporter for consideration. It was common ground that the country of export was Brazil. In
     fact, the goods were sold to the importer by a Japanese trading company, DaiEi Papers Ltd
     (“DaiEi”). The Australian importer ordered the paper from DaiEi who, in turn, then ordered
     it from the Brazilian manufacturer. The manufacturer shipped the paper directly to Australia
     but invoiced DaiEi for it on a C & F basis (thus the manufacturer was responsible for the
     shipping). DaiEi paid the manufacturer for the paper and then invoiced the Australian
     importer again on a C & F basis who paid for the paper. The primary judge, Finn J,
     concluded (see Companhia Votorantim de Cellulose e Papel v Anti-Dumping Authority
     (1996) 42 ALD 7) the exporter was the Brazilian manufacturer even though DaiEi had caused
     the paper to be sent out of Brazil by giving the manufacturer the direction to ship the paper to
     the Australian importer.


25          In the appeal, the majority, Wilcox and R D Nicholson JJ, reached the same
     conclusion. Northrop J concluded that DaiEi was the exporter essentially because it had
     contracted to sell the goods to the Australian importer. In the course of their reasons Wilcox
     and R D Nicholson JJ considered what was meant by “export” and “exporter” and said (at 91-
     93):

             Neither the verb “export” nor the noun “exporter” is defined in the Act. The
             closest the Act gets to a relevant definition is the definition of “country of
             export” in s 269T, viz “a country outside Australia from which those goods
             are exported to Australia, whether or not it is the country where those goods
             are produced or manufactured”. The parties agree that, in the present case,
             this was Brazil.

             The definition of “country of export” draws a distinction between the country
             of export and the country where goods are produced or manufactured. The
             latter is defined by s 269T as “country of origin”. Other definitions in s 269T
             utilising the concept of exporter are those for “new exporter”, “residential
             exporter” and “selected exporter” but none assist an understanding of the
                                      - 10 -

word “exporter”. Nor does the definition of “importer”, which proceeds on
the basis that goods have been exported to Australia and describes the
beneficial interest that identifies the “importer” for the purposes of the Act.

In s 269TAB itself, subs (1)(a) and (b) makes clear that an exporter may also
be an importer. Within those paragraphs it is required there be a purchase by
the importer from the exporter; in the case of par (a) at arm’s length, and in
the case of par (b) not at arm’s length.

The use of the concept of purchase does not mean that the identity of the
exporter is to be determined by identifying the vendor under the contract of
purchase with the importer. The question is the other way around; it is
necessary to identify the “exporter” and then to examine whether that is the
party from whom the importer has purchased. It is not the passing of property
which identifies the exporter (although it may be critical to identification of
the importer) but rather the identification of which party satisfies the
requirements of truly being the exporter. This view is reinforced by the
presence of s 269TAB(1)(c) which contains no description referable to
purchase.

Although “exporter” is not defined in the Act, its meaning has been judicially
considered. In Henty v Bainbridge-Hawker (1963) 36 ALJR 354, Owen J of
the High Court of Australia was concerned with a prosecution for offences
under the Customs Act. There were 14 charges of exporting prohibited goods
and a question arose whether the defendant was the exporter. Owen J said (at
356):

“Another general submission was made that neither the defendant nor the
companies which he directed and managed could be found to have been the
exporter of prohibited exports because whatever goods were in fact exported
were sold f.o.b. Sydney to an overseas buyer. The seller’s obligations
therefore ceased when the goods were placed on board the ship at the Port of
Sydney and it was the overseas buyer who thereupon became the exporter of
them. For the purposes of this case it is sufficient to say that if, in the case of
an f.o.b. contract with an overseas buyer the seller places the goods sold on
board a ship bound for foreign parts and engages with the shipowner to carry
them to the overseas buyer and the goods are carried overseas, the seller has,
in my opinion, exported the goods within the meaning of the Customs Act.”

In the present case the relevant contracts were C & F contracts. If anything,
that circumstance strengthens the argument that Celpav was the exporter.
Under a C & F contract the seller has to arrange the carriage of the goods to
the named foreign port of destination at its expense: see Schmitthoff’s Export
Trade (8th ed), p 48. It must have been Celpav who engaged the ship, in each
case, and delivered the goods for loading.

In Australian Trade Commission v Goodman Fielder Industries Ltd (1992) 36
FCR 517 a Full Court of this Court considered the meaning of the word
“export” in the context of the Export Market Development Grants Act 1974
(Cth). The Court said (at 523):
                                     - 11 -


“The ordinary meaning of ‘export’ is to send commodities from one country
to another using the verb ‘send’ as indicating that which occasioned or
brought about the carriage of the commodity from one country to another.”

There is, perhaps, some ambiguity in the words “that which occasioned or
brought about the carriage”. In one sense, an order from an importer can be
said to occasion or bring about the despatch, and therefore the carriage, of
goods from one country to another. However, for the reason indicated, this
sense is not relevant to s 269TAB(1)(a) of the Customs Act.

It is worth adding that s 269TAC assists the understanding of s 269TAB(1)(a).
Section 269TAC(1) provides that subject to the section, for the purposes of the
part,

“the normal value of any goods exported to Australia is the price paid for like
goods sold in the ordinary course of trade for home consumption in the
country of export in sales that are arms length transactions by the exporter or,
if like goods are not so sold by the exporter, by other sellers of like goods”.

Subsections (10) and (11) read as follows:

“(10) Where:

     (a)      the actual country of export of goods exported to Australia is
     not the country of origin of the goods; and

     (b)      the Minister is of the opinion that the normal value of the
     goods should be ascertained for the purposes of this Part as if the
     country of origin were the country of export;

he or she may direct that the normal value of the goods is to be so ascertained.

  (11) For the purposes of subs (10), the country of origin of goods is:

     (a)     in the case of unmanufactured raw products – the country of
     which they are products; or

     (b)      in any other case – the country in which the last significant
     process in the manufacture or production of the goods was performed.”

It will be observed that these subsections draw a distinction between “the
country of origin of the goods” and “the actual country of export of goods”.
However, the distinction does not support the view that DaiEi should be
regarded as the “exporter” for the purposes of s 269TAB(1)(a). Under those
subsections it is still necessary to determine the identity of the country of
export of goods – that country is the true place of export. The provisions
would apply in the circumstances of the present proceeding if, for example,
the goods had originated in a country other than Brazil and had then been
exported from Brazil. It is the place of export, and hence the identity of the
                                                  - 12 -

            exporter, that are fundamental to the achieving of the purpose of the
            anti-dumping provisions of the Act.


26          These observations, in one sense, are of limited assistance in resolving the issue
     arising in these proceedings. That is because both the parties and the Court accepted that
     Brazil was the country of export. It was not a matter in issue. Indeed, on the facts, there was
     probably no room for any other conclusion. The issue in those proceedings was who was the
     exporter of the goods. It may be thought, as counsel for Expo-Trade submitted, that their
     Honours’ observations about the relevance of the C & F contract and the Brazilian
     manufacturer’s role in the carriage of the goods from Brazil support a conclusion that, in this
     matter, NPK was the exporter. However the anterior question (and this characterisation of the
     question is suggested by the observations of Wilcox and R D Nicholson JJ in the final
     paragraph) is what is the country of export. When that question is answered then the identity
     of the exporter can be addressed.


27          In the present case, it would be open, on the facts, to view Estonia as a country of
     transit and not the country of export.        The ammonium nitrate in question was not
     manufactured in Estonia. There is nothing to suggest that there is a domestic market in
     ammonium nitrate in Estonia and it is clear that neither Expo-Trade nor NPK sell in that
     market even if it does exist. There is nothing to suggest that any part of the bulk quantity of
     ammonium nitrate from which the 414 tonnes was taken was sent to Estonia for any purpose
     other than on-sale to purchasers in other countries. I would have thought this was the
     hallmark of goods in transit. The only dealings with ammonium nitrate in Estonia was to
     transport that into that country (as an alternative to shipping it from a Russian port) to be
     stored in a bond store prior to shipping.


28          I am not affirmatively satisfied that the country of export was Estonia and accordingly
     I am not satisfied that the applicant has made good the proposition that the impugned
     decisions were invalid for the reasons earlier discussed.


     The second issue-was there a price control situation in Russia?

29          The calculations of normal value of the goods exported from Russia were on the basis
     that the sale of ammonium nitrate was the subject of price regulation in Russia. Expo-Trade
     contends that this conclusion is infected by legal error. The following was said in the second
                                                    - 13 -

     report about price control:

            On the evidence available to it, Customs is of the view that the Minister can
            be satisfied that a price control situation applies due to a combination of the
            following factors.

                     Government enactments operating to exert control or substantial
                      control over the selling prices of ammonium nitrate in Russia.

                     Government regulation resulting in natural gas and electricity being
                      available at prices significantly below market prices. The control over
                      these significant production inputs exerts control or substantial
                      control over the selling price of some or all of the sellers of ammonium
                      nitrate in Russia.

            Customs recommends that, under subsection 269TAC(5D) of the Act, the
            Minister be satisfied that a price control situation applies.


30          The legislative provisions of the immediate relevance are subss (5D), (5E) and (5G)
     of s 269TAC.      That section generally deals with the manner in which normal value is
     ascertained. Those subsections provide:

            (5D)      If goods are exported to Australia and the Minister is satisfied that:

            (a)    in the past the Government of the country of export had a monopoly, or
                   a substantial monopoly, of the trade of that country and determined, or
                   substantially influenced, the domestic price of goods in that country;
                   and
            (b)    the circumstance described in paragraph (a) no longer applies in
                   relation to the country of export; and
            (c)    a price control situation applies, within the meaning of
                   subsection (5E), in relation to like goods to those first-mentioned
                   goods;
            the normal value of those first-mentioned goods is such amount as is
            determined by the Minister having regard to all relevant information.

            (5E) A price control situation applies in relation to the domestic selling
            price of like goods to the goods first referred to in subsection (5D):

                      (a)    if the exporter of the goods so referred to sells like goods in the country
                             of export and the domestic selling price of those like goods is
                             controlled, or substantially controlled, by a government (at whatever
                             level) of that country; or
                      (b)    if the exporter does not sell like goods in the country of export but there
                             are other sellers in that country of like goods and the domestic selling
                             price of like goods sold by some or all of those other sellers is so
                             controlled or substantially so controlled.
                                                    - 14 -


            (5F)    Without limiting the generality of subsection (5D), for the purpose of working
                    out, under that subsection, the amount that is to be the normal value of goods
                    exported to Australia, the Minister may determine that amount in a manner
                    that would be open to the Minister under paragraph (4)(c), (d), (e) or (f) if
                    subsection (4) were applicable.

            (5G)    If goods (exported goods) are exported to Australia and the Minister is
            satisfied that:

                    (a)       in the past the government of the country of export had a monopoly, or
                              a substantial monopoly, of the trade of that country and determined, or
                              substantially influenced, the domestic price of goods in that country;
                              and
                                                                                                        Formatted: Bullets and Numbering
                    (a)(b) the circumstance described in paragraph (a) no longer applies in
                           relation to that country; and
                    (a)(c) subsection (5D) does not apply in relation to the exported goods; and
                    (a)(d) a particular raw material used in producing or manufacturing the
                           exported goods was, in whole or in part, supplied directly to the
                           producer or manufacturer by an enterprise that is wholly owned by the
                           national government, or by a provincial government, of that country;
                           and
                    (a)(e) the cost actually incurred by the producer or manufacturer in
                           procuring the raw material so supplied exceeds 10% of the costs
                           actually incurred by the producer or manufacturer in producing or
                           manufacturing the exported goods;
            the normal value of the exported goods for the purposes of this Part is the sum of:
                    (f)       an amount determined by the Minister, having regard to all relevant
                              information, to be the value of the raw material so supplied,
                              irrespective of the cost actually incurred by the producer or
                              manufacturer in procuring the raw material so supplied; and
                                                                                                        Formatted: Bullets and Numbering
                    (f)(g) the amount of the cost actually incurred by the producer or
                           manufacturer in producing or manufacturing the exported goods, other
                           than the cost actually incurred by the producer or manufacturer in
                           procuring the raw material so supplied; and
                    (f)(h) on the assumption that the exported goods, instead of being exported,
                           had been sold for home consumption in the ordinary course of trade in
                           the country of export—an amount determined by the Minister to be the
                           sum of the administrative, selling and general costs associated with the
                           sale of the exported goods and of the profit on that sale.


31          Counsel for Expo-Trade submitted that the second factor identified by Customs as
     indicating price control, the price of natural gas and electricity, was not a matter raised for
                                                  - 15 -

     consideration by subs 269TAC(5E) (as a matter of construction), and if Customs erred in
     having regard to that matter, it is clear from the way the conclusion was expressed (“due to a
     combination of the following factors”), it was not an immaterial error.             Both these
     propositions were put in issue. I apprehend it was common ground that at least natural gas
     was a raw material used in the production of ammonium nitrate.


32          The question of construction arises this way.        There is no express reference in
     subs 269TAC(5E) to the cost of raw materials, though there is in subs 269TAC(5G). That
     latter provision provides a means of calculating normal value when there is not a price
     control situation (see par 269TAC(5G)(c)) but nonetheless the market for the goods had been
     (but no longer was) monopolised or substantially monopolised by the government.
     Apparently on the basis that subs (5D)(together with subs (5E)) and subs (5G) each confer a
     power on the Minister, counsel for Expo-Trade relied on the principle discussed in Saraswati
     v The Queen (1991) 172 CLR 1 (particularly at 23-24) (although disavowing reliance on any
     notion, rule or principle of expressio unius). That principle provides that if a statute confers
     both a general power not subject to limitations and qualifications and a special power subject
     to limitations and qualifications, the general power cannot be exercised to do that which is the
     subject of the special power.


33          I have some difficulty understanding how that principle has any application in the
     present case. Even assuming that subs (5D) (together with subs (5E)) should be viewed as
     conferring a power to work out normal value only in particular circumstances (though
     subs (5D), even when read with subs (5F), does not appear to limit the manner in which the
     normal value can be worked out in those particular circumstances) and that subs (5G) should
     be viewed as conferring a power to work out normal value in another and different
     circumstance by the method identified in that subsection (together with subs (5H) but subject
     to subs (6)), it is clear there is no area of overlap concerning the circumstances in which the
     two powers can be exercised. Because of par (5G)(c), the latter power cannot be exercised if
     the former can. The former can only be exercised if the Minister is satisfied that a price
     control situation applies: see subs (5D).       What the Minister should consider when
     ascertaining whether a price control situation applies is found in subs (5E). The Minister
     must consider whether the domestic selling price of those like goods is controlled or
     substantially controlled by the Government. The provision does not, in terms, circumscribe
     the matters that might be considered by the Minister in considering whether the selling price
                                                 - 16 -

     is controlled. In my opinion, the Minister is not precluded from considering whether the
     price is controlled (or substantially controlled) by considering whether the price of inputs is
     so controlled by the Government (either considered in isolation or together with other
     matters) as to warrant a conclusion that the sale price is, by that means, controlled or
     substantially controlled by the Government.       Unless the language of subs (5D) clearly
     indicated that it was concerned only with direct price control resulting from some form of
     legislative or analogous prescription (which it does not) it was a matter for the Minister to
     determine how to assess whether the domestic selling price of like goods was controlled or
     substantially controlled by the Russian Government and for the Minister to be satisfied or not
     satisfied that the price was so controlled. The applicant has not made good its second ground
     challenging the impugned decisions.


     Third issue-calculation of non-injurious price

34          The last issue raised in the application concerns the way Customs calculated the non-
     injurious price to apply to the importation of the ammonium nitrate. What is the non-
     injurious price is established by s 269TACA of the Act which relevantly provides:


            The non-injurious price of goods exported to Australia is the minimum price
            necessary:

            (a)    if the goods are the subject of, or of an application for, a dumping duty
            notice under subsection 269TG(1) or (2)–to prevent the injury, or a
            recurrence of the injury, or to remove the hindrance, referred to in paragraph
            269TG(1)(b) or (2)(b); or

            (b)     …

     Also relevant is s 8 of the Customs Tariff (Anti-Dumping) Act 1975 (Cth) (“the Anti-
     Dumping Act”) which provides:
            (1)     …

            (2)     There is imposed, and there must be collected and paid, on goods to
                    which this section applies by virtue of a notice under subsection
                    269TG(1) or (2) of the Customs Act, a special duty of Customs, to be
                    known as dumping duty calculated in accordance with subsection (6).

            (3)    Pending final assessment of the dumping duty payable on goods the
                   subject of a notice under subsection 269TG(1) or (2) of the Customs
                   Act, an interim dumping duty is payable on those goods.
                                                 - 17 -

            (4)    Subject to subsection (5), the interim dumping duty payable on goods
                   the subject of a notice under subsection 269TG(1) or (2) of the
                   Customs Act is an amount equal to the sum of:

                   (a)    the difference between the export price of goods of that kind as
                          ascertained, or last ascertained, by the Minister for the
                          purpose of the notice and the normal value of goods of that
                          kind as so ascertained, or last so ascertained; and

                   (b)    if the export price of those particular goods is lower than the export
                          price of goods of that kind as ascertained, or last ascertained, by the
                          Minister for the purpose of the notice—the amount by which the latter
                          export price exceeds the former.
            (5)    The Minister must, by signed notice, direct that the element of interim
                   dumping duty referred to in paragraph (4)(a) in respect of particular goods be
                   ascertained:
                   (a)    as a proportion of the export price of those particular goods or of the
                          export price of goods of that kind as ascertained, or last ascertained,
                          by the Minister for the purpose of the dumping duty notice, whichever
                          is the greater; or
                   (b)    by reference to a measure of the quantity of those particular goods; or


                   (c)    by reference to a combination of a proportion of the kind referred to in
                          paragraph (a) and a measure of the quantity of those particular goods;
                   and the notice has effect accordingly.

            (5A)   The Minister must, in exercising his or her powers under subsection (5) in
                   respect of particular goods the subject of a notice under subsection 269TG(1)
                   or (2) of the Customs Act, if the non-injurious price of goods of that kind as
                   ascertained or last ascertained by the Minister for the purposes of the notice is
                   less than the normal value of goods of that kind as so ascertained, or last so
                   ascertained, have regard to the desirability of fixing a lesser amount of duty
                   such that the sum of:
                   (a) the export price of goods of that kind as so ascertained or last so
                       ascertained; and
                                                                                                       Formatted: Bullets and Numbering
                   (a)(b) that lesser duty;
                   does not exceed that non-injurious price.

35          The relevance of non-injurious price (and how it might be used) is addressed in the
     following passage from a Customs Manual which is in evidence:

            NON INJURIOUS PRICE (NIP) CALCULATION

            (1)    The difference between the normal value and export price (or the
                                                 - 18 -

            amount of countervailable subsidy) sets the maximum amount of duty payable.
            However, in accordance with ss. 8(5A), 9(5A) 10(3C), and 11(5) of the
            Dumping Duty Act, the minister must have regard to the desirability of fixing
            a lesser amount of duty such that the sum of the export price and the lesser
            amount of duty does not exceed the non-injurious price; ie. a price sufficient
            to remove the injury caused by the dumping and/or countervailing. The NIP
            is defined at s. 269TACA of the Customs Act.

            (2)    The NIP calculation is included in the recommendation to the
            Minister.

            (3)     Although the method of calculating a NIP is not given in the
            legislation, it is generally derived from the Australian industry’s
            unsuppressed selling price. To determine the USP for the sale of like goods
            in Australia, the case manager will examine the market to assess the price
            that can realistically be achieved in the absence of dumping or subsidisation.

            (4)     The market may not always, however, allow a reliable measure of the
            USP. The prevailing market price may not be a reliable measure because it is
            affected by dumping. Further, if dumping has been occurring for some time it
            may not be possible to use a price before the dumping occurred as the price is
            dated. The industry may have undergone significant structural changes since
            the time it was unaffected by dumping or subsidisation.             In these
            circumstances it may be necessary to calculate the USP, normally from the
            local producer’s current cost to make and sell plus a profit. This raises the
            question of what profit mark-up will be used in the calculation. Profit on
            sales by closely related industries may be examined using published profit
            surveys (eg. from stock exchange information, business publications or the
            ABS); or the industry may provide details of the margin on sales they
            normally would have achieved.

            (5)     Having calculated the USP of the Australian goods, deductions from
            the USP are made using information relating to the most efficient
            representative importer (ie. usually the importer with the lowest on-costs, at
            the chosen level of customer). Deductions will include all costs incurred in
            getting the goods from the export FOB point (or another point if appropriate)
            to the chosen level of customer in Australia, including all into store costs and
            duties. These costs may have already been determined during inquiries with
            importers. If not, they are obtained from Customs documentation or by
            revisiting the importers.


36          Counsel for Expo-Trade submitted that the CEO made two errors in calculating the
     non-injurious price for the purposes of the second report which had various legal
     consequences. The first error was that the unsuppressed selling price (used in both the first
     and second reports) was based on the price in a sale by an Australian manufacturer to a
     customer who was an end-user (a mining company who would use the ammonium nitrate as
     an explosive). In contrast, Whitford and Mirco were not end-users of the ammonium nitrate
                                                  - 19 -

     but would on-sell it to customers (such as farmers who would use it as fertiliser). None of
     those factual matters appeared to be in dispute.


37           This first error, it was submitted, had three legal consequences. The first was that the
     CEO failed to take into account a relevant consideration in calculating the non-injurious price
     (to be applied in relation to the Mirco and Whitford importation) namely that the calculation
     of the non-injurious price and the unsuppressed selling price for the purposes of the initial
     dumping notice was based on the same level of trade which was a level of trade different to
     that of the sale from Expo-Trade to Mirco and Whitford.             The second was that the
     recommendation of the CEO in relation to the calculation of the non-injurious price was so
     unreasonable that no reasonable person could have exercised the power given by the Act in
     that way. The third was that there had been a denial of natural justice because the CEO
     departed from the procedure in the Manual without notice to Expo-Trade.


38           The second error was that in calculating the non-injurious price, the CEO made no
     deductions for the importer’s costs and profits and only the landing, bagging, ocean freight
     and marine insurance costs were deducted from the unsuppressed selling price (again these
     factual matters were not in issue). That error had, it was submitted, two legal consequences.
     The first was that the decisions made under s 269ZG (the CEO’s recommendation in the
     second report and the decision to publish the subsequent dumping notice) were not authorised
     by the Act because the specified non-injurious price was not a price which was the minimum
     required to prevent the injury as required by s 269TACA. The second was that there had
     been a breach of the rules of natural justice for substantially the same reasons advanced in
     relation to the first alleged error.


39           I turn now to consider these contentions. The notion of “level of trade” can be used
     when ascertaining whether dumping has occurred, for example in ascertaining an appropriate
     normal value to compare with an export price: see GTE (Aust) Pty Ltd v Brown (1986) 14
     FCR 309 at 333-335. It is a notion found in the Anti-dumping Agreement. Paragraph 2.4 of
     Article 2 of that Code provides that the domestic price in the exporting country and the export
     price should be compared at the same level of trade in order to effect a fair comparison. As
     noted earlier, the anti-dumping provisions presently under consideration are intended to give
     effect to Australia’s obligations under Article VI and the Anti-dumping Agreement: see
     Nordland Papier AG v Anti-Dumping Authority (1999) 93 FCR 454 at [28].
                                                  - 20 -

40          I accept that the notion of “level of trade” is a notion which might also be used in
     determining the amount of duty payable.        That is because by operation of, relevantly,
     s 269TG and s 269TACA of the Act and subs 8(5A) of the Anti-Dumping Act, duty is
     ascertained by determining first whether there has been dumping causing material injury
     (which might occur when the price of the dumped goods is less than the domestic selling
     price of like goods produced in Australia) and secondly by notionally adjusting the price of
     the dumped goods upwards to a price which approximates the domestic selling price of the
     Australian produced goods. The adjustment, in monetary terms, provides a measure of the
     duty which should be levied.


41          If some allowance might, in appropriate circumstances, be made having regard to
     levels of trade in determining whether there was dumping (by comparing normal value with
     export price) it may well be appropriate, in certain circumstances, similarly to make some
     allowance for levels of trade for the last comparison in the process, namely the comparison
     between the domestic selling price of the Australian produced goods and the price of the
     dumped goods if the sales of each are at different levels. But ultimately any such adjustment
     is designed only to ensure that the comparison involved in determining the duty payable is a
     fair and appropriate one.


42          But has Expo-Trade demonstrated that on the facts of this case Customs was obliged
     to make an adjustment for level of trade or that the comparison actually made was not a fair
     and appropriate one resulting in an unreasonable decision in the Wednesbury sense? It is true
     that, in the assessment made by Customs in this matter, the sales of the Australian produced
     goods used to determine a non-injurious price and used in the comparison, were, in one sense,
     at a different level of trade to the sales which revealed the dumping. It might be thought that
     the levels of trade were different because, on the one hand, Whitford and Mirco as traders
     would on-sell the ammonium nitrate to consumers, whereas the sales of the Australian
     produced goods were to a consumer (in the sense of end-user).


43          In the first report, Customs discussed how it might go about determining a non-
     injurious price and what might be an appropriate unsuppressed selling price. It explained, in
     effect, that it could use as an unsuppressed selling price, a price (ex-works) struck between an
     Australian producer of ammonium nitrate and an end-user (a mining company) apparently
     because it considered volumes were a greater determinant of price than level of trade. This
                                                  - 21 -

     was in a context where the sales used to determine export price (as part of determining
     whether goods had been dumped) were not to an importer in Australia who was an end-user
     (at least in one sense) but rather were sales to an explosives manufacturer who blended or
     otherwise treated the ammonium nitrate to create explosives which were then sold to end-
     users, principally in the mining industry. Customs said that it accepted that a closer match in
     volume (a match between the transaction in which the goods had been dumped (and in which
     the normal value and export price had been considered and a notional ex-works price created
     by adjustments) and any transaction used to establish unsuppressed selling price) would
     ultimately reflect a level of pricing which appears to be more dependent upon volumes than
     level of trade.


44           One can conceive of situations where the price for the sale of goods likely to be struck
     between two parties will depend not on the point in a trading chain where the two parties are
     to be found but rather on the volumes involved. In any event, it is not apparent to me that the
     approach taken by Customs in the first report involved a failure to take into account a
     consideration it was obliged to take into account or that its decision in this respect was
     manifestly unreasonable. I appreciate, of course, that Expo-Trade challenges the repetition of
     this process in the second report and not the exercise undertaken in the first report. Customs
     repeated the process described above in the second report in the sense that it used the
     unsuppressed selling price revealed in the transaction between the Australian manufacturer
     and the mining company to establish an unsuppressed selling price as a step in determining a
     non-injurious price. The rationale for doing so in the second report was apparently the same
     as for doing so in the first. It is not apparent to me that Customs erred in the first way (apart
     from questions of procedural fairness which I will deal with compendiously at the conclusion
     of this section of my reasons) contended by Expo-Trade in using the unsuppressed selling
     price from the first report in determining a non-injurious price in the second report.


45           I turn to consider the second alleged error and the contention that because no
     deductions were made (from the unsuppressed selling price) for the importer’s costs and
     profits when the non-injurious price was determined, the decisions made under s 269ZG were
     not authorised by the Act. The method adopted to calculate a non-injurious price (ex Tallinn)
     was to identify an unsuppressed selling price in Australian dollars per kilogram and then
     deduct amounts (all in Australian dollars per kilogram) for landing costs, overseas freight and
     overseas insurance and add an amount for bagging. Subtractions and additions of this type
                                                   - 22 -

     are made to ensure that the unsuppressed selling price is transformed into a comparable
     landed, duty paid price so that the duty imposed (to be added notionally to the export price)
     truly reflects a minimum amount necessary to protect Australian industry. The unsuppressed
     selling price used in the present case (of the goods sold (I infer in bulk) in Australia) had to
     be reduced (and was) to allow for the fact that those goods had not been transported from
     Europe with attendant freight insurance and landing costs because the goods sold in the
     transaction founding the unsuppressed selling price were not bagged, whereas the dumped
     goods were.


46          It is true that in a glossary forming part of the second report an explanation and
     illustration is given for calculating the non-injurious price. In that explanation it is said that
     all post exportation costs, plus an amount for the importer’s profits, are deducted from the
     unsuppressed selling price to determine the injurious price. In the illustration, a deduction is
     also made for the selling, administration and distribution costs of, I infer, the importer. It
     should be noted, however, that in a similar glossary in the first report, it is not suggested that
     allowance should be made for the importer’s profits and any selling, administration and
     distribution costs, nor is that suggested in the section of the first report where the method of
     establishing a non-injurious price is discussed.


47          I do not see why, at least in this case, adjustments should have been made to allow for
     profits of the importer or, putting it more precisely, why the failure to make such an
     allowance results in the decisions not being authorised by the Act. The task being undertaken
     was to create a price which the importer (in this case Whitford and Mirco) would have to pay
     if the goods were sourced from an Australian producer. This was done by adding the costs of
     importation to a notional price for the ammonium nitrate (created by adjustments) imported
     from Russia (payable at the point of exportation).


48          This process was undertaken, as a mathematical exercise, by taking the unsuppressed
     selling price and deducting the costs associated with transporting the ammonium nitrate to
     Australia. The difference between the notional price and the actual price (the export price)
     became the duty payable. Having regard to the objective being sought to be achieved, this
     approach is, in my opinion, unexceptionable.


49          I lastly deal with the alleged denial of natural justice in relation to the calculation of
                                                 - 23 -

     the non-injurious price as concerns both the level of trade and deductions for the importer’s
     costs and profits. The gist of the contention advanced by Expo-Trade was that the methods
     of calculation actually adopted did not accord with the stated method of calculation in the
     Customs Manual referred to earlier. Expo-Trade was entitled to be told that there was to be a
     departure from the earlier stated method and, in the result, Expo-Trade was denied the
     opportunity of making submissions about the adoption of that method of calculation and how
     the calculation might be made.


50          Counsel for Expo-Trade relied on the judgment of the Full Court in Minister for
     Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189. In that
     matter the Administrative Appeals Tribunal (“the Tribunal”) had affirmed a decision of a
     delegate of the Minister to deport Mr Gray under what might be described as the criminal
     deportation provisions of the Migration Act 1958 (Cth). One provision, s 55, authorised the
     deportation of a person who had, relevantly, been in Australia as a permanent resident for a
     period of less than 10 years and had committed an offence of the prescribed type. The
     Minister had promulgated policy guidelines dealing with the manner in which the
     discretionary power to deport might be exercised.        The Tribunal had regard to those
     guidelines in making its decision. However both the primary judge and a majority of the Full
     Court concluded that the Tribunal had misconstrued and selectively applied the guidelines.
     In the course of their reasons, the majority (French and Drummond JJ) observed that a
     departure from an announced policy may not be open unless procedural fairness requirements
     have been observed. In support of that proposition, their Honours referred to Century Metals
     and Mining NL v Yeomans (1989) 40 FCR 564. Counsel for Expo-Trade also referred to the
     observations of McHugh J in Haoucher v Minister for Immigration & Ethnic Affairs (1990)
     169 CLR 648 at 680-682.


51          Even making a number of assumptions in Expo-Trade’s favour about the status of the
     Manual and statements in it about the way particular matters might be approached, the
     contention that it was denied procedural fairness fails because there is no evidence to suggest
     that Expo-Trade acted on the basis that what was said in the Manual would be given effect to
     and refrained from advancing material (which it can now point to) or making submissions
     because of an erroneous assumption about how Customs would go about considering relevant
     matters. To adopt the expression used by Gleeson CJ in Re Minister for Immigration and
     Multicultural Affairs; Ex parte Lam (2003) 195 ALR 502 at [38], no practical injustice has
                                                  - 24 -

     been shown.


52            The application should be dismissed with costs.




     I certify that the preceding fifty-two
     (52) numbered paragraphs are a true
     copy of the Reasons for Judgment
     herein of the Honourable Justice
     Moore.


     Associate:

     Dated:          5 December 2003


     Counsel for the Applicant:        S J Gageler SC with K Richardson

     Solicitor for the Applicant:      Baker & McKenzie

     Counsel for the Respondent:       A Robertson SC with S Lloyd

     Solicitor for the Respondent:     Clayton Utz

     Date of Hearing:                  29-30 July 2003

     Date of Judgment:                 5 December 2003

				
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