FEDERAL COURT OF AUSTRALIA

Dalian Steelforce Hi-Tech Co Ltd v Minister for Home Affairs of The

Commonwealth of Australia [2012] FCA 1192

Citation: Dalian Steelforce Hi-Tech Co Ltd v Minister for Home Affairs of The Commonwealth of Australia [2012] FCA 1192

Parties: DALIAN STEELFORCE HI-TECH CO LTD and STEELFORCE TRADING PTY LIMITED (ACN 110 146 515) v MINISTER FOR HOME AFFAIRS OF THE COMMONWEALTH OF AUSTRALIA and CHIEF EXECUTIVE OFFICER, AUSTRALIAN CUSTOMS AND BORDER PROTECTION SERVICE

File number: NSD 1074 of 2012

Judge: NICHOLAS J

Date of judgment: 31 October 2012

Catchwords: ADMINISTRATIVE LAW– where applicants commenced proceeding for judicial review of decisions made by Minister under s 269TG(1), (2) and s 269TJ(2) of the Customs Act 1901 (Cth) – where applicants also applied for review of the same decisions under Pt XVB, Div 9, Subdiv B of Customs Act 1901 (Cth) – whether review under Pt XVB, Div 9, Subdiv B is a review or an adequate review for the purposes of s 10(2)(b)(ii) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) – whether discretion to dismiss proceeding under s 10(2)(b)(ii) and/or s 16(1) of Administrative Decisions (Judicial Review) Act 1977 (Cth) enlivened – whether proceeding should be dismissed.

PRACTICE AND PROCEDURE – whether provisional hearing date should be vacated – whether proceeding for judicial review of decisions made by Minister under s 269TG(1), (2) and s 269TJ(2) of the Customs Act 1901 (Cth) should be adjourned pending outcome of review under Pt XVB, Div 9, Subdiv B of the Customs Act 1901 (Cth).

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Legislation: Federal Court Rules 2011 r 30.01(1)Administrative Decisions (Judicial Review) Act 1977 (Cth) s 10(2)(b)(ii), s 10(3), s 16(1)Customs Act 1901 (Cth) s 269TC(1)(c), s 269TEA, s 269TF, s 269TG(1), s s 269TJ, s 269TJ(2), ss 269ZZA-269ZZM, s 269ZZA(1)(a), s 269ZZM(6)

Cases cited: Australian Telecommunications Commission v Colpitts (1986) 12 FCR 395Bannister v See (1982) 42 ALR 78Bragg v Secretary, Department of Employment, Education and Training (1995) 59 FCR 31Colpitts v Australian Telecommunications Commission (1986) 9 FCR 52Du Pont (Australia) v Comptroller-General of Customs (1993) 30 ALD 829Kamha v Australian Prudential Regulation Authority (2005) 147 FCR 516Kamha v Australian Prudential Regulation Authority (2007) 98 ALD 49Swan Portland Cement Ltd v Comptroller-General of Customs (1989) 25 FCR 523Woss v Jacobsen (1985) 11 FCR 243

Date of hearing: 22 October 2012

Place: Sydney

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 50

Counsel for the Applicants: Mr MR Speakman SC with Mr M Izzo

Solicitor for the Applicants: Moulis Legal

Counsel for the Respondents: Mr GR Kennett SC with Mr JD Smith

Solicitor for the Respondents: Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION NSD 1074 of 2012 BETWEEN: DALIAN STEELFORCE HI-TECH CO LTD

First Applicant

STEELFORCE TRADING PTY LIMITED (ACN 110 146 515)Second Applicant

AND: MINISTER FOR HOME AFFAIRS OF THE COMMONWEALTH OF AUSTRALIAFirst Respondent

CHIEF EXECUTIVE OFFICER, AUSTRALIAN CUSTOMS AND BORDER PROTECTION SERVICESecond Respondent

JUDGE: NICHOLAS J

DATE OF ORDER: 31 OCTOBER 2012

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The following questions be determined as a preliminary issue pursuant to r 30.01(1)

of the Federal Court Rules 2011:

(a) Should this proceeding be dismissed on discretionary grounds pursuant to

s 10(2)(b)(ii) of the Administrative Decisions (Judicial Review) Act 1977

(Cth)?

(b) Should this proceeding be dismissed on discretionary grounds pursuant to

s 16(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth)?

2. The question in paragraph 1(a) above is answered, “No.”

3. The question in paragraph 1(b) above is answered, “No.”

4. The provisional hearing date is vacated.

5. The procedural orders numbered 2, 4, 5, 6, 7 and 8 made on 10 September 2012 are

set aside.

6. The proceeding is listed for directions at 9.30am on 26 November 2012.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011

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IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION NSD 1074 of 2012 BETWEEN: DALIAN STEELFORCE HI-TECH CO LTD

First Applicant

STEELFORCE TRADING PTY LIMITED (ACN 110 146 515)Second Applicant

AND: MINISTER FOR HOME AFFAIRS OF THE COMMONWEALTH OF AUSTRALIAFirst Respondent

CHIEF EXECUTIVE OFFICER, AUSTRALIAN CUSTOMS AND BORDER PROTECTION SERVICESecond Respondent

JUDGE: NICHOLAS J

DATE: 31 OCTOBER 2012

PLACE: SYDNEY

REASONS FOR JUDGMENT

BACKGROUND

1 The interlocutory application now before me was filed by the respondents on

18 September 2012. It is the vehicle by which the respondents have raised for consideration

the application of s 10(2)(b)(ii) of the Administrative Decisions (Judicial Review) Act 1977

(Cth) (the ADJR Act) and the question whether the proceeding brought against them by the

applicants should be dismissed or stayed on discretionary grounds pursuant to either s 10(2)

(b)(ii) or s 16(1) of the ADJR Act.

2 The principal relief sought by the respondents in their interlocutory application are

orders that:

1. Pursuant to r 30.01(1) of the Federal Court Rules 2011 (the Rules), the Court determine, as a preliminary issue, the question of whether the proceedings should be dismissed on discretionary grounds pursuant to ss 10(2)(b)(ii) and/or 16(1) of the ADJR Act.

2. Pursuant to r 30.02(b) of the Rules, the proceeding be dismissed, with costs.

3. In the alternative to paragraphs 1 and 2 above, pursuant to r 26.01(d) of the

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Rules, the proceeding be dismissed, with costs, as an abuse of the process of the Court.

3 The respondents also sought, in the alternative to the above, an order adjourning the

proceeding and vacating the provisional hearing date already set aside, pending the outcome

of the review notified by the Trade Measures Review Officer (TMRO) on 12 September

2012.

4 A directions hearing was held soon after the interlocutory application was filed. At

that directions hearing, the applicants indicated that they wished to argue that the matters

raised by the interlocutory application should not be determined in advance of the final

hearing by way of separate question, but that they were willing to fully argue the separate

question at the hearing of the interlocutory application against the possibility that I might

determine that it was appropriate to resolve the issues raised by the respondents by way of

separate question.

5 Accordingly, I have heard argument on the respondents’ interlocutory application

including, in particular, whether or not there ought to be any separate question. I have also

heard argument on the separate question itself including whether or not the applicants’

proceeding should be dismissed.

6 I propose to determine as a separate question whether or not the proceeding

commenced by the applicant should be dismissed on discretionary grounds pursuant to

s 10(2)(b)(ii) or s 16(1) of the ADJR Act. I explain in these reasons why I propose to answer

the separate question in the applicants’ favour and why I propose to refuse the orders referred

to in paragraphs 1-3 of the interlocutory application. I also explain why I propose to vacate

the provisional hearing date.

THE RELEVANT DECISIONS

7 By their originating application for judicial review filed on 31 July 2012 the

applicants seek judicial review of three decisions. The first two were decisions of the first

respondent (the Minister) made on 12 June 2012 and published on 3 July 2012. They are:

the Minister’s decision to accept the recommendations of the second respondent (the

CEO) and to publish a notice under s 269TG(1) and (2) of the Customs Act 1901

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(Cth) (the Customs Act) in relation to certain hollow structural sections (HSS)

exported from China;

the Minister’s decision to accept the recommendations of the CEO and to publish a

notice under s 269TJ(2) of the Customs Act in relation to HSS exported from China.

8 Both of the Minister’s decisions were based upon recommendations of the CEO in a

report to the Minister (the Report). The applicants also seek judicial review of the CEO’s

decision to make the recommendations referred to in the Report.

ADMINISTRATIVE REVIEW

9 The first applicant also lodged on 2 August 2012 an application (the TMRO

application) with the TMRO for review of the Minister’s decisions of 12 June 2012 under

s 269ZZA(1)(a) of the Customs Act. Applications for review were also lodged under

s 269ZZA(1)(a) by at least six other parties. On 12 September 2012, the TMRO published a

notice under s 269ZZI of the Customs Act indicating that he intended to conduct a review of

the Minister’s decisions.

THE ISSUES IN THE PRINCIPAL PROCEEDING

10 Apart from the issues raised by the separate question, there are eight other issues

arising in the proceeding. According to an agreed statement of issues (the agreed issues) the

following issues will need to be determined should the proceeding continue to a full hearing:

1. Whether the Respondents erred in construing or applying s.269TAC(2)(a) of the Customs Act 1901 (Cth) (Customs Act) by finding that there was a situation in the Chinese HSS market such that sales in that market were not suitable for use and could not be used in determining normal value.

2. Whether the Respondents erred in construing or applying reg.180(2) of the Customs Regulations 1926 (Cth) (Customs Regulations) by finding that the costs incurred by HSS Manufacturers in China for hot-rolled coil steel and narrow strip steel did not reasonably reflect competitive market costs.

3. Whether the Respondents erred in construing or applying reg.181A(3) of the Customs Regulations by deciding to use the average net profit from domestic sales made in the ordinary course of trade by other selected cooperating exporters from China in determining the profit on the First Applicant’s sales for the purposes of s.269TAC(2)(c)(ii) of the Customs Act.

4. Whether the Respondents erred in construing or applying the term “public body” in s.269T of the Customs Act by finding that Chinese State-invested enterprises (SIEs) which produce HRC and narrow strip are public bodies.

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5. Whether the Respondents misconstrued the definition of “subsidy” in s.269T of the Customs Act by finding that the alleged provision by SIEs of HRC and narrow strip for less than adequate remuneration amounted to a “financial contribution ... by a public body ... that is made in connection with the production, manufacture or export of goods”.

6. Whether the Respondents misconstrued s.269TAAC of the Customs Act by finding that Program 20 was specific so as to amount to a countervailable subsidy.

7. Whether the Respondents erred in construing or applying s.269TACC(4) and (5) of the Customs Act by finding that an external benchmark could be used to determine the adequacy of the remuneration received by manufacturers of HRC and narrow strip in China.

8. Whether the Respondents erred in construing or applying s.269TACC(4) or (5) of the Customs Act by finding that a weighted average “basket” of costs incurred by verified selecting cooperating HSS exporters was an external benchmark suitable for determining the adequacy of the remuneration received by manufacturers of HRC and narrow strip in China.

HEARING DATE

11 The first directions hearing in this proceeding was held on 30 August 2012. At that

stage, the TMRO application had been lodged, but the TMRO was yet to publish a notice

under s 269ZZI. I fixed the proceedings for hearing on 26 November 2012 provisionally. I

noted at the time that this was a “highly conditional fixture”. While the possibility of the

hearing date being vacated or adjourned because the proceeding was brought prematurely

was raised at the directions hearing, it was not until the respondents’ interlocutory application

was filed that it became apparent that the respondents would seek to terminate the proceeding

in advance of the final hearing.

THE ADJR ACT

12 The respondents rely upon s 10(2)(b)(ii) and s 16(1) of the ADJR Act. Pursuant to

s 10(2)(b)(ii), the Court may, in its discretion, refuse to grant an application for review of a

decision under the relevant provisions of the ADJR Act for the reason that:

… adequate provision is made by any law other than this Act under which the applicant is entitled to seek review by the court, by another court, or by another tribunal, authority or person, of that decision, conduct or failure.

Section 10(3) provides that a “review” includes:

… a review by way of re-consideration, re-hearing, appeal, the grant of an injunction or of a prerogative or statutory writ or the making of a declaratory or other order.

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13 Section 16(1) specifies the types of order that the Court may, in its discretion, make in

a proceeding for review under the ADJR Act in respect of a reviewable decision. It is not

necessary to set out the types of order that may be made. They include, of course, an order

quashing or setting aside the relevant decision. Such orders are sought by the applicants in

this proceeding.

THE RELEVANT STATUTORY SCHEME

14 It is necessary to explain the nature of the review process set in motion by the TMRO

application lodged by the first applicant on 2 August 2012. The relevant provisions are

contained in Div 9 of Pt XVB, which is headed “Review by Review Officer”. Subdivision B

(ss 269ZZA-269ZZM) of Div 9, Pt XVB which is headed “Review of Ministerial Decisions”

is specifically concerned with the review of decisions by the Minister to publish dumping

duty notices or countervailing duty notices under the provisions of the Customs Act.

15 Section 269ZZF provides that an applicant seeking a review under Subdiv B must

establish to the satisfaction of the TMRO that there are reasonable grounds to warrant the re-

investigation of the findings specified in the application for review. The TMRO must reject

the application for review in certain circumstances: see s 269ZZG (failure to provide

sufficient particulars) and s 269ZZH (failure to provide a summary of confidential

information).

16 Section 269ZZI requires the TMRO to publish a notice in a newspaper circulating in

each State and Territory indicating that the TMRO proposes to conduct a review.

Section 269ZZJ provides that interested parties may make submissions within 30 days of the

publication of the notice.

17 Section 269ZZK requires the TMRO to make a report to the Minister recommending

that the Minister affirm the Minister’s previous decision or recommending that the Minister

direct the CEO to re-investigate a finding or findings that formed the basis of the Minister’s

earlier decision. The TMRO’s report must be made at least 30 days, but not more than 60

days, after public notification of the review.

18 The TMRO is required, if he or she is of the view that the finding or findings should

be affirmed, to recommend that the Minister affirm the earlier decision. If the TMRO

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recommends that a finding or findings be re-investigated, the TMRO’s report must set out the

relevant finding or findings. The TMRO’s report must also set out the reasons for the

TMRO’s recommendations.

19 In carrying out the review the TMRO must only have regard to information which the

CEO had regard, or was required to have regard, when making findings set out in the CEO’s

report to the Minister under s 269TEA.

20 Sections 269ZZL and 269ZZM establish the procedures to be followed after the

Minister receives the report of the TMRO (referred to in those provisions as “the Review

Officer”). They relevantly provide:

269ZZL:

(1) If:

(a) the Minister receives a recommendation by the Review Officer to affirm a reviewable decision; or

(b) the Minister does not accept a recommendation by the Review Officer to require the CEO to reinvestigate a finding or findings that formed the basis of the reviewable decision;

the Minister must, by public notice, affirm the reviewable decision.

(2) If the Minister accepts a recommendation by the Review Officer to require the CEO to reinvestigate a finding or findings, the Minister must:

(a) in writing, require the CEO to:

(i) make further investigation of the finding or findings, having regard only to the information and conclusions to which the Review Officer was permitted to have regard; and

(ii) report the result of the further investigation to the Minister within a specified period; and

(b) by public notice indicate the acceptance of that recommendation (including particulars of the requirements made of the CEO).

(2A) The Minister must do the things that the Minister is required to do under subsection (1) or (2) within:

(a) 30 days after receiving the recommendation; or

(b) if the Minister considers there are special circumstances that prevent the doing of those things within that period – such longer period as the Minister considers appropriate.

(2B) If paragraph (2A)(b) applies, the Minister must give public notice of

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the longer period.

(3) The CEO must conduct an investigation in accordance with the Minister's requirements under subsection (2) and give the Minister a report of the investigation concerning the finding or findings within the specified period.

(4) In a report under subsection (3), the CEO must:

(a) if the CEO is of the view that the finding or any of the findings the subject of reinvestigation should be affirmed – affirm the finding or findings; and

(b) set out any new finding or findings that the CEO made as a result of the reinvestigation; and

(c) set out the evidence or other material on which the new finding or findings are based; and

(d) set out the reasons for the CEO's decision.

269ZZM:

(1) After receiving a report by the CEO in respect of a reinvestigation under subsection 269ZZL(3), the Minister must:

(a) affirm the reviewable decision concerned; or

(b) revoke that decision and substitute a new decision.

(1A) The Minister must make a decision under subsection (1) within:

(a) 30 days after receiving the report; or

(b) if the Minister considers there are special circumstances that prevent the decision being made within that period – such longer period as the Minister considers appropriate.

(1B) If paragraph (1A)(b) applies, the Minister must give public notice of the longer period.

(2) The Minister's decision under subsection (1) takes effect from the time specified by the Minister.

(3) Without limiting subsection (1), the Minister may, under that subsection:

(a) publish a dumping duty notice or countervailing duty notice; or

(b) vary a dumping duty notice or countervailing duty notice; or

(c) revoke a dumping duty notice or countervailing duty notice and substitute another dumping duty notice or countervailing duty notice (as the case requires).

(4) The Minister must give public notice of his or her decision.

…

21 The effect of ss 269ZZL and 269ZZM may be summarised as follows:

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(1) The TMRO may recommend to the Minister that the earlier decision be

affirmed. Alternatively, the TMRO may recommend to the Minister that the

CEO re-investigate a finding or findings that formed the basis of the earlier

decision. The report to the Minister containing the TMRO’s recommendations

must set out the TMRO’s reasons.

(2) If the TMRO recommends to the Minister that the earlier decision be affirmed

then the Minister must affirm the decision. If the TMRO recommends to the

Minister that the CEO investigate a finding or findings made by the CEO that

formed the basis of the earlier decision, then the Minister must require the

CEO to make a further investigation of the relevant finding or findings. The

Minister must give public notice indicating his acceptance of a

recommendation from the TMRO that the CEO re-investigate a finding or

findings.

(3) The Minister must, unless he or she considers that there are special

circumstances that prevent the Minister from doing so, either affirm the earlier

decision or require the CEO to re-investigate within 30 days after receiving the

TMRO’s recommendations. If the Minister considers that special

circumstances exist that prevent the Minister affirming the earlier decision or

requiring the CEO to re-investigate within that period then the Minister must

give public notice of the longer period required for that purpose.

(4) If the Minister requires the CEO to make a further investigation then the

Minister must require the CEO to report the results of the CEO’s further

investigation within a specified time. The Minister must by public notice

indicate his acceptance of the TMRO’s recommendation and particulars of

what is required of the CEO.

(5) The CEO must conduct the further investigation and report to the Minister in

accordance with the Minister’s requirements. If the CEO is of the view that

any finding the subject of his or her re-investigation should be affirmed then

the CEO’s report must affirm such findings. The CEO’s report must also set

out any new finding or findings that the CEO made as a result of the re-

investigation, and the evidence or other material on which they are based,

together with reasons for the CEO’s decision.

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(6) After receiving the CEO’s report the Minister must affirm the Minister’s

earlier decision or revoke it and substitute a new decision. The Minister may

decide to publish a new notice, vary an existing notice, or revoke a notice and

substitute a new notice in its place. The Minister’s decision takes effect from

a time specified by the Minister.

(7) The Minister must, unless he or she considers that there are special

circumstances that prevent him or her from doing so, act on the CEO’s report

within 30 days of its receipt.

(8) If the Minister considers that there are special circumstances preventing the

Minister from making a decision within 30 days after receipt of the CEO’s

report then the Minister must give public notice of the longer period required

for that purpose.

22 Section 269ZZM(6) is concerned with the refund of interim duty paid in

circumstances where the Minister revokes or varies a dumping duty notice or a countervailing

duty notice with effect from a date before the Minister’s decision. A person who has paid

interim duty may apply under Div 3 of Pt VIII of the Act for a refund of any excess paid. It

is common ground that neither s 269ZZM(6) nor any other provision of the Customs Act

would permit a person to recover anything by way of compensation for lost sales in such

circumstances.

THE PARTIES’ SUBMISSIONS

23 I begin with the parties’ submissions in relation to the power of the Court under

s 10(2)(b)(ii) and s 16(1) of the ADJR Act to refuse the relief sought by the applicants in the

principal proceeding on discretionary grounds. The applicants submitted that the Court did

not have power to refuse the relief sought by the applicants in this case under either s 10(2)

(b)(ii) or s 16(1). They submitted that a Pt XVB Review was neither a review nor an

adequate review for the purposes of s 10(2)(b)(ii). They further submitted that if a Pt XVB

Review was not a review or an adequate review for the purposes of s 10(2)(b)(ii), then the

Court would lack the power to refuse relief under s 16(1).

24 As to s 10(2)(b)(ii), the respondents submitted that the discretion provided for under

that provision is enlivened in this case. They submit that the review provided for in Pt XVB,

Div 9, Subdiv B (Pt XVB Review) is both a review, and an adequate review, for the purposes

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of s 10(2)(b)(ii). Such a review involves, according to the respondents, a reconsideration of

the kind referred to in s 10(3).

25 So far as s 16(1) of the ADJR Act is concerned, the respondents submitted that the

Court has a power to refuse any of the relief referred to in s 16(1) on discretionary grounds,

that the principles which entitle a Court to withhold discretionary relief under the general law

remain applicable, and that the Court’s power to withhold relief in accordance with those

principles is not diminished by the presence of s 10(2)(b)(ii).

26 In support of their submissions the respondents referred to several authorities

including the Full Court decision in Swan Portland Cement Ltd v Comptroller-General of

Customs (1989) 25 FCR 523 (Morling, Pincus and O’Loughlin JJ). There is a passage in the

Full Court decision which deals specifically with s 10(2)(b)(ii) of the ADJR Act as it applied

to a decision by the Comptroller under s 269TC(1)(c) of the Customs Act as it then stood.

The particular passage relied upon by the respondents was as follows (at 529-530):

Prima facie, the appellant is entitled to have the decision set aside. The respondents’ counsel argues, however, that in the exercise of the Court's discretion under s 10(2)(b)(ii) of the Judicial Review Act, the application should be dismissed.

That provision, which appears to have been little used, empowers the Court to refuse an application of this sort for the reason:

“that adequate provision is made by any law other than this Act under which the applicant is entitled to seek a review by the Court, by another court, or by another tribunal, authority or person, of that decision, conduct or failure.”

The learned primary judge pointed out that the legislation provided “its own method of review”, referring to an applicant's right to go to the Anti-Dumping Authority referred to above. His Honour also remarked that, “it should not be thought that it is always appropriate to bring a matter of this kind before the Court”. We agree and express the view that in many, (perhaps most) circumstances, the Court’s proper response to an application of this particular sort should not be to embark upon a full hearing, but rather to exercise the discretion under s 10(2)(b)(ii) adversely to the applicant.

Their Honours went on to explain why they did not think it appropriate to disturb the primary

judge’s exercise of the discretion in the circumstances of that case.

27 The respondents placed considerable emphasis upon the suggestion in Swan Portland

Cement that in many, if not most, circumstances the Court should not embark upon a full

hearing of an application for judicial review, but should first exercise its discretion under

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s 10(2)(b)(ii) of the Act to dismiss the proceeding where merits review was available to the

applicant.

28 The respondents not only submitted that an order should be made under s 10(2)(b)(ii)

as a matter of discretion, but also that the principal proceeding was an abuse of process and

that an order dismissing the proceeding should be made under s 10(2)(b)(ii) on that basis. In

particular, they submitted that it is an abuse of process for the applicants to have commenced

and to maintain the principal proceeding at the same time as they were seeking to have the

Minister’s decisions re-considered pursuant to Pt XVB of the Act. They referred to the

general inconvenience and potential embarrassment that might arise in circumstances where

the applicants are at the same time seeking judicial review of the Minister’s decisions under

the ADJR Act and merits review of the same decisions under Pt XVB of the Act.

29 The applicants submitted that it was not inappropriate for them to bring a proceeding

for judicial review of the Minister’s decisions whilst also seeking to have such decisions re-

considered by the Minister pursuant to Pt XVB of the Act. They argued that their case is that

the Minister acted unlawfully in reaching the decisions in issue, and that they are entitled to

have his decisions quashed even though they are simultaneously seeking to have such

decisions reviewed under Pt XVB of the Act.

30 Recognising that it may be necessary or at least desirable for the applicants to amend

their claims should the Minister re-affirm his earlier decisions, or substitute different

decisions in their place, an undertaking was proffered by the applicants the effect of which, if

accepted, would be to prevent them from raising different grounds to those already specified

in the application for judicial review filed on 31 July 2012 in connection with any challenge

to any further decision by the Minister arising out of the Pt XVB review. The object of the

proffered undertaking is to ensure that any re-casting of the proceeding to take account of any

further decision by the Minister does not disrupt the hearing should it take place on the date

which has been provisionally fixed.

CONSIDERATION

31 The argument that a Pt XVB review is not a “review” for the purposes of s  10(2)(b)

(ii) and s 10(3) finds some support in the judgment of Burchett J in Colpitts v Australian

Telecommunications Commission (1986) 9 FCR 52. In that case, Burchett J was concerned

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with the question whether certain regulations made pursuant to the Telecommunications Act

1975 (Cth) (the Telecom Act) provided for a “review” of the Australian Telecommunications

Commission’s decision to retire Mr Colpitts from service within the meaning of that term as

used in s 56(2) of the Telecom Act. Thus, his Honour was not directly concerned with the

proper construction of s 10(2)(b)(ii) of the ADJR Act, but with the proper construction of

s 56(2) of the Telecom Act. However, in construing s 56(2), his Honour remarked (at 62)

that both the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) and the ADJR

Act “… use the word ‘review’ in a sense involving the independent exercise of powers

directly affecting the decision reviewed.” While his Honour did not refer expressly to s 10(2)

(b)(ii) of the ADJR Act, I think it is apparent from what his Honour said on the subject that

he would have understood the word “review” as used in s 10(2)(b)(ii) and s 10(3) to refer to a

review by an independent authority with power to alter the result.

32 The respondents submitted that Burchett J’s observations may be disregarded because

his Honour was reversed on appeal: see Australian Telecommunications Commission v

Colpitts (1986) 12 FCR 395 (Toohey, Fisher and Jackson JJ). I do not think this follows. It

is apparent that the Full Court took a different view to his Honour as to what was intended by

the use of the word “review” in s 56(2) of the Telecom Act. Toohey J referred to previous

authority which made the point that “review” is not a precise term: Woss v Jacobsen (1985)

11 FCR 243 per Toohey J at 252 and per Davies J at 259 citing Bannister v See (1982)

42 ALR 78 at 81 per Toohey J. But I do not think Toohey J disagreed with what Burchett J

said obiter in relation to the use of the word “review” in both the AAT Act and the ADJR

Act. On the contrary, his Honour appears to have accepted what Burchett J said on that topic.

33 More directly on point are the observations of Davies J in Bragg v Secretary,

Department of Employment, Education and Training (1995) 59 FCR 31 where his Honour

said (at 33):

The “review” that s 10(2)(b)(ii) contemplates should, as Burchett J described it in Colpitts v Australian Telecommunications Commission (1986) 9 FCR 52 at 62, be a review involving “an independent exercise of powers directly affecting the decision reviewed”.

His Honour went on to hold that the appeal procedure with which he was concerned was a

review for the purposes of s 10(2)(b)(ii) of the ADJR Act. He also found that it was an

adequate review for the purposes of s 10(2)(b)(ii).

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34 I do not accept the applicants’ submission that the TMRO is not independent of the

Minister. However, the question whether the TMRO exercises powers directly affecting the

decisions which the applicants wish to have reviewed is more difficult.

35 The Minister must affirm his or her earlier decision if the TMRO recommends that

this be done. In these circumstances, the TMRO will have exercised powers directly

affecting the earlier decision, but that is of no comfort to a person who disputes the validity of

the earlier decision. If the TMRO recommends that findings be re-investigated by the CEO

then the Minister must require the CEO to carry out a re-investigation. But it still remains

open to the CEO to affirm the findings that the CEO previously made.

36 Importantly, the Minister is not required to act in accordance with any

recommendation of the TMRO beyond either affirming the earlier decision or requiring the

CEO to conduct a re-investigation. Nor does the TMRO have any further role to play in the

review process should the Minister decide to require the CEO to carry out a re-investigation.

37 It seems to me, in light of the authorities to which I have referred, that the review of

the decisions in issue in this case provided for by Pt XVB is not a review of the kind referred

to in s 10(2)(b)(ii) of the ADJR Act. The description of the review process adopted by

Burchett J in Colpitts (at 62) – which he likened to an “appeal from Caesar to Caesar” – is not

apt to describe the review process available to the applicants under Pt XVB in this case.

Nevertheless, it still falls short of what Davies J in Bragg considered necessary to enliven the

discretion under s 10(2)(b)(ii).

38 It follows that the discretion arising under s 10(2)(b)(ii) is not enlivened in this case,

and I do not have power to dismiss or stay the applicants’ proceedings on discretionary

grounds pursuant to that provision.

39 This brings me to s 16 of the ADJR Act. In Kamha v Australian Prudential

Regulation Authority (2005) 147 FCR 516 (Emmett, Allsop and Graham JJ) considered

whether it was open to a Court considering an application for judicial review under the ADJR

Act to refuse relief on the basis that the applicant had an alternative remedy by way of full

merits review of the decision in question pursuant to s 63 of the Insurance Act 1973 (Cth).

The distinguishing feature of Kamha was not that the alternative remedy was something less

than a “review” for the purposes of s 10(2)(b)(ii), but that a further administrative step needed

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to be taken before the review process could be engaged by the applicant. On the question of

the relationship between s 10(2)(b)(ii) and s 16 the Full Court said (at [87]):

The grant of relief under the ADJR Act is discretionary. That is consistent with the principles concerning the grant of relief under the prerogative writs. There was a discretion for a court to refuse prerogative relief where an alternative remedy was available. That principle is also the origin of the express discretion conferred by s 10(2)(b). Nevertheless, that express discretion does not derogate from the general discretion arising under s 16. Section 16 undoubtedly reserves a discretion to the Court as to whether to grant relief in a particular case. While s 10(2)(b) is directed to the specific circumstance where adequate provision is made by another law for an applicant to seek review of a decision and giving rise to an express discretion to refuse relief, the absence of engagement of that provision does not preclude the exercise of the residual discretion conferred on the Court by s 16.

40 The proceeding was remitted by the Full Court to the primary judge (Gyles J) to

consider how the discretion should be exercised: Kamha v Australian Prudential Regulation

Authority (2007) 98 ALD 49. Gyles J subsequently dismissed the proceeding on the basis

that the applicant had a suitable alternative remedy by way of full merits review. In coming

to that conclusion, his Honour observed (at para [8]) first, that the judicial discretion under

s 16 is at large even when a case for relief is made out, and secondly, that there are no

mandatory criteria governing its exercise.

41 In the present case there is a review of a limited kind available to the applicants. That

there is not a full merits review is partly explained, perhaps, by the nature of the decisions

made by the Minister which may have an impact across whole industries and large parts of

the national economy. The respondents made the point that the fact that a Pt XVB review

leads to a reconsideration by the original decision maker (ie. the Minister) does not detract

from its adequacy as a scheme of review, but merely reflects the discretionary nature of the

decision made by him.

42 In my view, the fact that the Pt XVB review leads to a reconsideration by the Minister

does detract from the scheme of review. This is a feature that distinguishes a Pt XVB review

from the scheme of review under consideration in Swan Portland Cement and Du Pont

(Australia) v Comptroller-General of Customs (1993) 30 ALD 829 (Heerey J) where the

particular decisions in issue were open to full merits review by the Anti-Dumping Authority

established by the (since repealed) Anti-Dumping Authority Act 1988 (Cth). Here, the review

is limited to what is, in substance, a review by the CEO of his or her own findings and a re-

consideration by the Minister which takes place in light of the CEO’s review.

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43 Even so, in an appropriate case, the broad discretion arising under s 16(1) of the Act

would entitle the Court to refuse substantive relief in respect of a decision made by the

Minister under s 269TG or s 269TJ of the Act in a proceeding under the ADJR Act in

circumstances where the applicant was at the same time seeking review of such decisions

pursuant to Pt XVB of the Act. Whether the Court should exercise its discretion under

s 16(1) against an applicant in such a case would depend upon all the circumstances. It seems

to me that questions of timing will usually be of considerable significance. If the evidence

indicated that a re-consideration of the Minister’s decision as part of a Pt XVB review

instigated by the applicant was imminent, then this would be relevant in deciding whether or

not relief should be withheld. The nature of the issues raised in the proceeding for judicial

review are also likely to be significant because many of the questions of law arising in

proceedings concerned with decisions to which Pt XVB applies involve questions of mixed

fact and law that are of a quite technical and complex nature.

44 In the present case the Pt XVB review process has been engaged by the applicants and

numerous other parties. The time frames within which the Pt XVB review must take place

require the TMRO to make a recommendation to the Minister within 60 days of publication

of the notification of the review unless the Minister allows additional time due to special

circumstances. Ordinarily, the TMRO would be expected to provide his recommendation to

the Minister in this case by no later than 12 November 2012. In these circumstances, there is

a distinct possibility that the TMRO will have made his recommendation by that date. This

could, theoretically at least, enable the hearing of this proceeding to take place on the dates

that have been provisionally fixed.

45 In the present case I am not satisfied that it is appropriate to dismiss this proceeding

pursuant to s 16(1) merely because the applicants have also instigated a review pursuant to

Pt XVB of the Act. Any embarrassment or inconvenience that might be suffered by the

respondents as a result of having to participate in proceedings for judicial review and a

Pt XVB review of the Minister’s decisions is just as easily overcome in the present case by

adjourning the proceeding until sometime after the Minister has made a decision under

s 269ZZL of the Act.

46 In the circumstances, I do not propose to confirm the provisional fixture given that the

Pt XVB review is proceeding in accordance with the statutory scheme. In particular, it would

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not be appropriate to pre-empt the TMRO’s decision by confirming the provisional fixture in

the expectation that the TMRO will make a recommendation that the earlier decisions be

affirmed or to proceed to a final hearing before the Pt XVB review has been given a

reasonable opportunity to produce an outcome.

47 The position might be different if the earlier decisions were said to have been affected

by a lack of procedural fairness or if they raised what might be called pure questions of law.

In this case, the applicants do not assert that there has been any lack of procedural fairness,

and although the application for judicial review and the agreed issues postulate questions of

law, most of these involve questions of mixed fact and law that are technical and complex.

48 Assuming that the TMRO does not recommend that the Minister’s decisions be

affirmed or that the Minister does not accept a recommendation by the TMRO that the

Minister require the CEO to re-investigate, then the Minister’s decisions will eventually be

affirmed, revoked or varied by the Minister after he has had the opportunity to consider the

CEO’s report. This does not mean that the hearing of the proceeding must be delayed until

that occurs. Particularly in circumstances where one significant step in the process (the

preparation of the CEO’s report) need not be completed within any specified time frame, it

would not be appropriate to adopt such a rigid approach. But I do not think it appropriate to

bring the matter on for final hearing at this stage when there is a real prospect that the Court

will be required to review further decisions of the Minister made after a re-investigation

conducted in accordance with Pt XVB of the Act. Given that the applicants have initiated the

Pt XVB review, it seems to me the process should be given a reasonable opportunity to bear

fruit and without either the CEO or the Minister having to give attention to this proceeding

and the Pt XVB review at the same time.

DISPOSITION

49 Accordingly, I am not satisfied that it is appropriate to dismiss the proceeding

pursuant to either s 10(2)(b)(ii) or s 16(1) of the ADJR Act. Nor am I satisfied that the

applicants have engaged in an abuse of process in commencing this proceeding while at the

same time seeking to have the Minister’s decisions reviewed pursuant to Pt XVB of the Act.

However, it does not follow that the hearing should proceed on 26 November 2012. For the

reasons set out above, I propose to vacate the provisional fixture and list the proceeding for

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further directions at 9.30am on 26 November 2012. I will hear from the parties on the costs

of the interlocutory application at that time.

50 My orders will be:

1. The following questions be determined as a preliminary issue pursuant to r 30.01(1)

of the Federal Court Rules 2011:

(a) Should this proceeding be dismissed on discretionary grounds pursuant to

s 10(2)(b)(ii) of the ADJR Act?

(b) Should this proceeding be dismissed on discretionary grounds pursuant to

s 16(1) of the ADJR Act?

2. The question in paragraph 1(a) above is answered, “No.”

3. The question in paragraph 1(b) above is answered, “No.”

4. The provisional hearing date is vacated.

5. The procedural orders numbered 2, 4, 5, 6, 7 and 8 made on 10 September 2012 are

set aside.

6. The proceeding is listed for directions at 9.30am on 26 November 2012.

I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholas.

Associate:

Dated: 31 October 2012