Case: East Australian Pipeline Pty Ltd v Australian Competition and Consumer Commission [2007] HCA 44 ; (2007) 233 CLR 229
Outcome: followed
Report did not explain what, if anything, was identified as a factor that had been eliminated from consideration. It is not possible to read this "finding" as another way of stating that the CEO or the Minister had not attributed for the purposes of s 269TAE(2A) any injury or threat of injury to Qenos to factors other than the exportation of goods from Thailand or by Siam. In effect, this passage in the Report, did no more than say that the CEO had considered those factors in the sense of having looked at, but discarded, them in a cursory way: cf East Australian Pipeline Pty Ltd v Australian Competition and Consumer Commission [2007] HCA 44 ; (2007) 233 CLR 229 at 244 [52] per Gleeson CJ, Heydon and Crennan JJ, see also 256 [102] per Gummow and Hayne JJ. The attribution of dumping as the sole cause of the likelihood of material injury or its threat was fundamental to the imposition and continuation of anti-dumping measures. The CEO and the Minister had to give a reason to eliminate any factors other than dumping as being likely to cause such an injury or threat so as to arrive at the appropriate determination of what, if any, measures were needed to prevent that injury or threat, and if so, what the nature and extent of the measures would be. No other reason supported the conclusion that the threat of material injury to Qenos would be caused by Siam's dumping (or dumping of Thai exports) alone if the measures were allowed to expire. The material in Report 137 was inadequate to establish that the CEO and the Minister had considered what was shown in confidential appendix 7 as undercutting, in accordance with s 269TAE(2), by not attributing any factor other than dumping as being likely to cause material injury. They took the undercutting itself into account as material establishing the likelihood of a threat of material injury. But, that material begged questions, that were left unanswered, as to why the differences in price appeared and what injury was likely to be caused. Because of this inadequacy, the CEO and the Minister did not, in fact, have sufficient material on which to be satisfied that expiration of the measures would be likely to lead to a threat of material injury to Qenos caused by Siam's dumping: see Telstra Corporation Ltd v Australian Competition Consumer Commission (2008) 107 ALD 474 at 518-519 [180]-[182] where I examined the authorities; R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Company Pty Ltd (1953) 188 CLR 100 at 120 per Dixon CJ, Williams, Webb and Fullagar JJ. As I said there ( Telstra 107 ALD 502 at 107): "[107] Where a decision-maker must consider matters prescribed by law, generally, he or she cannot jettison or ignore some of those factors or give them cursory consideration only in order to put them to one side: East Australian Pipeline Pty Ltd v Australian Competition and Consumer Commission (2007) 233 CLR 229 ; 239 ALR 50 ; 97 ALD 274 ; 63 ACSR 404 ; [2007] HCA 44 at [52] ( East Australian Pipeline ) per Gleeson CJ, Heydon and Crennan JJ. As Gummow and Hayne JJ, in concurring observed ( East Australian Pipeline at [102]): [102] ... It was not enough for the ACCC to say in its final determination that it had considered those matters in the sense of having looked at but discarded them ..."