Case: Swan Portland Cement Ltd v Minister for Small Business and Customs [1991] FCA 49 ; (1991) 28 FCR 135 at 144
Outcome: cited
respondents contended that it was open to the CEO to make the finding in Report 137 that in that context it was likely that there would be price convergence between Siam's imports and Qenos' product. They argued that the test of causation of material injury was "essentially a practical exercise that had the purpose of achieving an objective of determining whether, viewed as a whole, the relevant Australian industry is suffering material injury from dumping", relying on what Lockhart J had said in Swan Portland Cement Ltd v Minister for Small Business and Customs [1991] FCA 49 ; (1991) 28 FCR 135 at 144; and Schaefer Waste Technology Sdn Bhd v Chief Executive Officer, Australian Customs Service [2006] FCA 1644 ; (2006) 156 FCR 94 at 115-116 [147] - [149] per Jacobson J. ISSUE TWO Did the respondents misconstrue the application of s 269TAE(2B)? The respondents responded that Report 137 had analysed whether material injury to Qenos was being caused or threatened in a practical manner as contemplated in Swan Portland 28 FCR at 144 and Schaefer 156 FCR at 115-116 [147]-[149]. They argued that the terms of s 269TAE(1) directed the Minister's enquiry to the exportation of goods from "the country of export", not to an individual exporter located there and that nothing in s 269TAE(2A) affected this construction. The respondents argued that Report 137 had considered Thai exports as a whole and their impact on the Australian industry in accordance with the requirements of Div 6A of Pt XVB. They contended that they had applied the right test and had used the non-injurious price analysis in Report 134 to arrive at their findings. In Swan Portland 28 FCR at 144-145, Lockhart J examined the nature of a determination whether material injury to an Australian industry producing like goods to those dumped has been, or is being caused, or is threatened. He said that such a determination was not an exercise of counting heads of markets, production or distribution centres or things of that kind and that: "It is essentially a practical exercise designed to achieve the objective of determining whether, when viewed as a whole, the relevant Australian industry is suffering material injury from the dumping of goods." And, he went on to emphasise that the finding of injury depends on the facts of the case and inevitably involves a question of degree, balancing all relevant considerations and integers, before concluding whether or not the dumping constitutes material injury to the Australian industry. That approach was approved by Black CJ, Neaves and von Doussa JJ in ICI Australia Operations Pty Ltd v Fraser [1992] FCA 120 ; (1992) 34 FCR 564 at 576, 577-578. The Full Court held that if the Australian ind`ustry had suffered detriment from a number of probable causes, then s 269TG required a determination whether there was a separate material injury or material incremental injury caused by the dumping over and above detriment caused by other factors: ICI Australia 34 FCR at 579. While in each of those cases the Court was considering the legislation in an earlier form than that it presently takes, those observations continue to assist in the construction of the present statutory scheme: see e.g. Schaefer 156 FCR at 115-116 [147]-[149] per Jacobson J.