Atochem, S.A. v Minister for Industry & Commerce

Re: ADRIAN GEORGE PEARCE & KATHRYN MARES PEARCE trading as Mister Cars Gold
Coast
And: SENATOR THE HONOURABLE JOHN BUTTON MINISTER OF STATE FOR INDUSTRY AND
COMMERCE OF THE COMMONWEALTH OF AUSTRALIA; THOMAS PLUNKETT HAYES Comptroller
General of Customs; WALLIS WHITEFILED MOORE Collector of Customs for the State
of Queensland and NOEL PATRICK WYNNE
No. G79 of 1985
Federal Court - Administrative Law - Customs - Evidence
8 FCR 408

COURT

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Fox(1), Lockhart(2) and Spender(3) JJ.

CATCHWORDS

Federal Court - jurisdiction - seizure of cars as forfeited to the Crown by Customs officers - reasonable grounds for belief that forfeited - challenge under Administrative Decisions (Judicial Review) Act 1977 to seizure and retention of cars - whether jurisdiction under Judicial Review Act to determine question of forfeiture - associated jurisdiction - accrued jurisdiction.

Administrative Law - "decision" - whether retention of possession of seized vehicles could be challenged under Judicial Review Act - scope of Judicial Review Act - extent and nature of power conferred by s.16.

Customs - notice to produce documents - necessity to swear to breach of Customs Act 1901 in information under s.214 - seizure of goods - scheme for determining disposition of goods - role of Judicial Review Act.

Evidence - admission of evidence under 0.33 r.3 of Federal Court Rules - whether discretion of trial judge should be exercised in respect of evidence central to the case.

Administrative Decisions (Judicial Review) Act 1977 ss. 3 (2) (f) ; 5 (1) (h) ; 5 (3) ; 8 ; 16 (1)

Customs Act 1901 ss. 203, 204, 205, 206, 207, 208, 208A, 214 229 (1) (i), 234, 245, 262

Federal Court of Australia Act 1976 ss. 32, 59

Federal Court Rules 0.33 r. 3

Burton v. Honan (1952) 86 C.L.R. 169 ref'd to

Willey v. Synan (1935) 54 C.L.R. 175 ref'd to

Brunetto v. Collector of Customs (1984) 4 F.C.R. 92 cons.

French v. O'Connor (unreported, Northrop J., 23 May 1985) cons.

Convery v. Ziino (unreported, Neaves J., 27 May 2985) cons.

Tetron International Pty. Ltd. v. Collector of Customs (Victoria) (unreported, Northrop J., 7 August 1985) cons.

Frost v. Collector of Customs for Queensland (unreported, Wilcox J., 26 November 1985) cons.

Evans v. Friemann (1981) 35 A.L.R. 428 ref'd to

Philip Morris Inc. v. Adam P. Brown Male Fashions Pty. Ltd. (1981) 148 C.L.R. 457 cons.

Stack v. Coast Securities (No. 9) Pty. Ltd. (1983) 154 C.L.R. 261 cons.

Murine Eve Remedy Co. v. Eldred (1926) V.L.R. 425 ref'd to

Hicks v. Guardian Assurance Co. Limited (1963) 80 W.N. (N.S.W.) 940 ref'd to

H. v. Schering Chemicals Limited (1983) 1 W.L.R. 143 ref'd to

Downs Irrigation Co-operative Association Limited v. National Bank of Australasia Ltd. No. 2 (1983) Qd.R.475 ref'd to

Federal Court - Jurisdiction - Seizure of forfeited goods under provisions of Customs Act 1901 (Cth) - Challenge under Administrative Decisions (Judicial Review) Act 1977 (Cth) to seizure and retention of goods - Whether jurisdiction to determine question of forfeiture - Associated jurisdiction - Accrued jurisdiction - Customs Act 1901, Administrative Decisions (Judicial Review) Act 1977.

Administrative Law - Judicial review of decision to seize goods under Customs Act 1901 (Cth) and retention thereafter - Whether retention of goods involved "decision" or "conduct" reviewable under provisions of Administrative Decisions (Judicial Review) Act 1977 (Cth) - Scope of Act - Extent and nature of power conferred by s 16.

Customs - Notice to produce documents - Necessity to swear to breach of Customs Act 1901 in information under s 214 - Seizure of goods - Scheme for determining disposition of goods - Role of Judicial Review Act - Administrative Decisions (Judicial Review) Act 1977.

Evidence - Admission of evidence under O 33, r 3 of Federal Court Rules (Cth) - Hearsay evidence of documents going to matter in issue - Whether discretion should be exercised to admit such evidence - Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 3, 5, 8, 16 - Customs Act 1901 (Cth), ss 203-208, 208A, 214, 229, 234, 245, 262 - Federal Court of Australia Act 1976 (Cth), ss 32, 59 - Federal Court Rules, O 33, r 3.

HEADNOTE

The applicants were the owners of certain motor vehicles which had been seized by the respondents on the basis that they were forfeited goods. The applicants sought review, under the provisions of the Administrative Decisions (Judicial Review) Act 1977 (Cth), of both the decision to seize the goods and the decision or conduct of the respondents in their continued retention of the vehicles. At first instance the court dismissed the application holding that there was material to support a reasonable belief that the goods were forfeited and further that they were actually forfeited goods. During the course of the hearing the court admitted, under the provisions of O 33, r 3, certain hearsay evidence of the contents of certain documents which had been inspected by the witness in Hong Kong but which were not available for tender in the proceedings. On appeal,

Held: (1) Per curiam - The Customs Act 1901 (Cth) sets out a procedure for the seizure and subsequent retention of goods where certain circumstances exist. Once goods are lawfully seized under this procedure the provisions of the Act permit their retention until they are dealt with as set out in the Act. Such retention is not susceptible to challenge under the provisions of the Administrative Decisions (Judicial Review) Act 1977.

(2) Per Lockhart and Spender JJ, Fox J not deciding - The provisions of O 33, r 3 should not have been invoked to permit hearsay evidence to be given in respect of documents forming a vital part of the case against the applicants and crucial to the question of whether the vehicles had in fact been unlawfully imported.

Per Lockhart J - Order 33, r 3 is not confined to dispensing with the rules of evidence to facilitate proof of merely formal matters but the court should be slow to invoke it where there is a real dispute, as here, about matters which go to the heart of the case.

Per Spender J - In admitting such evidence the court had denied the applicants a fair and reasonable opportunity to challenge and test that evidence in any meaningful way. There was thus a breach of the requirements of natural justice.

(3) Per Fox and Spender JJ - The provisions of s 16(1)(c) of the Administrative Decisions (Judicial Review) Act 1977 did not grant jurisdiction to the Federal Court to determine the question of whether or not the goods were forfeited.

Per Fox J - That section is not a source of additional jurisdiction. It simply enables orders to be made in relation to collateral or related matters in order to give effect to a finding made within the jurisdiction.

Per Spender J - The question of whether or not the goods were forfeit was a factual matter and thus outside the scope of the Judicial Review Act.

(4) Per Fox J - Section 32 of the Federal Court of Australia Act 1976 did not give the court jurisdiction to determine the question of forfeiture. The essence of a claim respecting forfeiture is a common law one going to the right to possession of goods. The provisions of s 32 only grant additional jurisdiction if the "associated" matter is federal in nature which such an action in detinue, trespass or conversion clearly is not.

Semble, per Spender J - It is not difficult to foresee problems as to the extent to which the accrued jurisdiction of the court may be availed of as granting jurisdiction to the court to determine the question of forfeiture in such a case.

Burton v. Honan (1952) 86 CLR 169; Willey v. Synan (1935) 54 CLR 175; Brunetto v. Collector of Customs (1984) 4 FCR 92; French v. O'Connor (unreported, Federal Court, 23 May 1985); Convery v. Ziino (unreported, Federal Court, 27 May 1985); Tetron International Pty Ltd v. Collector of Customs (Victoria) (unreported), Federal Court, 26 November 1985); Evans v. Friemann (1981) 53 FLR 229; Philip Morris Inc v. Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457; Stack v. Coast Securities (No 9) Pty Ltd (1983) 154 CLR 261; Murine Eye Remedy Co v. Eldred (1926) VLR 425; Meek v. Guardian Assurance Ltd (1963) 80 WN (NSW) 940; H v. Schering Chemicals Ltd (1938) 1 WLR 143; Downs Irrigation Co-operative Association Ltd v. National Bank of Australasia Ltd (No 2)(1983) 1 Qd R. 475, referred to.

HEARING

Brisbane, 1985, October 8-9; 1986, March 7. #DATE 7:3:1986

APPEAL

Appeal from a decision of Pincus J.

D F Jackson QC and EJ Cooper, for the appellants.

H G Fryberg QC and M B Boulton, for the respondents.

Cur adv vult

Solicitor for the appellants: G R. Brown.

Solicitor for the respondents: Australian Government Solicitor.

SMW

ORDER

The finding of the learned trial judge that the seized vehicles were forfeited goods be set aside.

Otherwise the appeal be dismissed and the order made by the learned trial judge be confirmed.

There be no order as to the costs of the appeal.

Note: Settlement and entry of orders is dealt with in

Order 36 of the Federal Court Rules.

Finding that seized goods were forfeited set aside; otherwise appeal dismissed

JUDGE1

This is an appeal from the decision of a judge of this Court (Pincus J) in which he dismissed an application made by the appellants under the Administrative Decisions (Judicial Review) Act 1977 ("the Judicial Review Act"). Officers of the Customs Department had in July and August 1984 seized six motor cars imported by the appellants, on the footing that false statements had been made or were believed to have been made by the latter, when the cars were being entered for home consumption, concerning the prices paid for the cars (s. 229 (1) (i) of the Customs Act 1901, ("the Customs Act")).

The vehicles were seized in two lots, one lot of two cars, and one of four cars. The first were seized in July 1984 and the second in August 1984. The customs officers acted under s.203(2):

203. . . .

(2) An authorized person may seize any forfeited goods or any goods that he believes on reasonable grounds are forfeited goods."

The notices of seizure which were given, pursuant to s. 205 (2) of the Customs Act, referred to the cars as being forfeited for reasons there set out, indicating in each case circumstances within s. 229 (1) (i) of the Customs Act, which was specifically referred to. This paragraph is as follows:

"229. (1) The following goods shall be forfeited to the Crown:

. . .

(i) All goods in respect of which any entry invoice declaration answer statement or representation which is false or wilfully misleading in any particular has been delivered made or produced."

Notices of claim, in accordance with s. 205 (6), were duly given by the appellants on 24 July 1984 and 28 August 1984 respectively. Although the notices of seizure referred to actual forfeiture, rather than the alternative given by s. 203 (2) of belief on reasonable grounds, it has been common ground that it was open to the customs authorities to rely on that alternative for the seizure and, at least to some point in time, the subsequent retention.
The amended application, tendered by leave to us, stated that its purpose was "to review the seizure and continued detention" of the six cars and relief was sought accordingly. His Honour regarded the substantive issue underlying the whole matter as being one whether or not the cars were in fact unlawfully imported, and were thus forfeited. The respondents argued that there was no jurisdiction for the Court to decide that issue under the Judicial Review Act. His Honour assumed jurisdiction to hear the matter on the basis that the Judicial Review Act authorised the making of a declaration concerning the status of the vehicles, as in his view the power was comprehended by the words "in respect of any matter to which the decision relates" in s. 16 (1) (c) (see also Frost v. The Collector of Customs for Queensland, 26 November 1985, unreported, Wilcox J.).
His Honour made a finding that the customs officers believed on reasonable grounds that there had been a forfeiture, and there was material to support that conclusion. He also found that the goods were forfeited within the meaning of the first limb of s. 203 (2), but he was not invited to make a declaration, or grant other relief to that effect and did not do so. Forfeiture follows directly from the existence of facts falling within s. 229 of the Customs Act, and does not involve a decision (Burton v. Honan (1952) 86 CLR 169). The "authorised person" will firstly form a view of the facts, and, if he believes, or forms the conclusion, from legally admissible evidence or other material, that s.229 applies, seizure can follow.
The Customs Act itself provides machinery for having the seized goods condemned as forfeited. In the present case, although notices of seizure under s. 203 and notices of claim under s. 205 were given, at the time of the application to this Court no notice under s. 208A (requiring the "owner" of the goods to commence proceedings) had been issued, nor had the procedure for which s. 208 provides (release of the goods on giving security) been set in train.
No prosecution had or has been commenced under s. 245. If the Collector commences a prosecution concerning an offence regarded as causing a forfeiture, a conviction amounts to a condemnation (s. 262). The Customs Act says little about curial proceedings for condemnation. Probably they are rare. They are proceedings in rem, which conclusively determine the title of the Collector (see Willey v. Synan (1935) 54 CLR 175, at p 186 and note Halsbury's Laws of England 4 edn. vol. 12 paras. 631 et seq). They are not proceedings under the Judicial Review Act. A person whose goods have been seized can bring proceedings, as for example an action in detinue, for their recovery. These are of course proceedings in personam, but issues determined against the Collector would bind him.
The situation which eventually evolved on the hearing of this appeal was that the seizure was not challenged. This was doubtless because what was wanted was a return of the goods, and this could only be achieved if the finding of forfeiture was held to be bad.
It was said by the respondents at the outset of their argument that it was not desired to challenge on the appeal the jurisdiction of the Court, and this position was maintained. I am not sure what aspect of jurisdiction was referred to, but it seems to me that the Court should be able to understand and accept the jurisdictional basis upon which the appellants' argument proceeded, and I will deal with this matter in the course of these reasons.
It was submitted that the continuing retention of the vehicles was a decision, or a series of decisions under the Judicial Review Act, and s.3(2)(f) was relied upon. Under that paragraph the making of a decision includes "retaining, or refusing to deliver up, an article".
Assuming that passive conduct of the nature in question can at some point be regarded as amounting to the making of a "decision", and that it could be regarded in the present case as made under an enactment it would become necessary to determine the provisions of the Judicial Review Act (ss. 5, 6 or 7) which could be relied upon. In my view, there is none. The fact is that the Customs Act provides for retention, during the time a prescribed procedure is followed. Section 208A(1) is as follows:

"208A. (1) Where notice under sub-section 205(6) is given in respect of any goods seized under section 203, the Collector or member of the Australian Federal Police who is in possession of the goods may -

(a) retain possession of the goods without taking any proceedings for the condemnation of the goods; and

(b) may serve on the person who gave that notice, either personally or by post, a notice in writing requiring him to bring an action against him within 4 months of the service of the notice for the recovery of the goods."

(see also ss.204, 205(8)).

Confusion arises from the fact that the appellant seems to rely on sections 5, 6 (&7) of the Judicial Review Act, and also on common law principles, the Judicial Review Act being used in the latter case as the medium for obtaining relief of the same nature as is available at law. So far as reliance is placed on the Judicial Review Act, the point at which the appellant fails (if he has not done so on the way) is in the application of ss. 5, 6 and 7. He is not able to satisfy a relevant provision.
The particular provision pointed to in argument before us as being that relied upon was s.5(1)(h), which refers to absence of evidence. This paragraph is qualified by s.5(3). The decision said to be under challenge is however one to retain, in the artificial sense mentioned, and it is difficult to see how the paragraph can be applied to it. What is in substance being challenged is the existence of the factual situation dealt with in s.229(1)(i). The Judicial Review Act is not intended to provide simply for review of findings of fact, on the "merits" of a case.
Reliance was placed on s.16(1) of the Judicial Review Act, as giving jurisdiction to make a declaration that the goods had not been forfeited, and an order for their return. The learned judge was of the view that s. 16(1) (c), in particular, applied. He thereafter proceeded to determine the matter without mentioning any of the central provisions of the Judicial Review Act (ss. 5,6 and 7). Before us, the appellants' approach was ambiguous, but, as I have said, s. 5(1) (h) was relied on.
There have been a number of decisions in this Court dealing with the jurisdiction of this Court in customs matters and I shall briefly refer to them.
In Brunetto v. Collector of Customs (1984) 4 FCR 92 the application relied on paras. (c) and (e) of s. 5(1) of the Judicial Review Act in a challenge to the decision to seize. For the seizure, the respondent relied on belief on reasonable grounds. Toohey J. dismissed the application. He said:

"I must emphasise that, in the present proceedings, I am not concerned to determine whether the goods are forfeited goods; I am concerned only to review the decision to seize them. Of course if the decision to seize is set aside in this application, the subsequent provisions of the Customs Act are inoperative. If the decision is not set aside, the provisions remain operative and it is for the applicant to challenge the forfeiture".

In French v. O'Connor (23 May 1985, unreported) Northrop J. dealt with an application for inspection of discovered documents, which arose in a proceeding under the Judicial Review Act to review "the decision of the respondent to detain, refuse to surrender and seize goods of the applicant". His Honour expressly refrained from expressing any view on whether the matter of forfeiture could be dealt with in the proceedings.
In Convery v. Ziino, (27 May 1985, unreported) Neaves J. dealt with an application under s. 10(2)(b)(ii) of the Judicial Review Act to dismiss proceedings in which a decision to seize under the Customs Act was challenged, the challenge to the proceedings being based on the existence of alternative remedies and the inconclusiveness of the subject proceedings. The application was refused. In the course of his reasons his Honour said:

"I agree with the submission made on behalf of the respondent that, at least in some cases, proceedings under section 5 of the Administrative Decisions (Judicial Review) Act 1977 for an order of review in respect of a decision taken under sub-section 203(2) of the Customs Act 1901 to seize goods as being forfeited to the Crown would not resolve the question whether the goods were forfeited. Thus, if the decision to seize was based, not upon an objective finding that the conditions prescribed by one of the paragraphs of section 228 or 229 of the Customs Act 1901 (Cth) were fulfilled, but upon the decision-maker's belief that such conditions were fulfilled, it is easy to postulate that the decision might be upheld without the question whether the goods were forfeited being addressed.

. . .

In the present case, however, the decision was based upon an objective finding that the yacht was used in the unlawful conveyance of the cannabis resin discovered on board and it seems to me to be likely that the proceeding pending in this Court will resolve the issue whether the yacht was forfeited."

In Tetron International Pty. Ltd. v. Collector of Customs (Victoria) (7 August 1985, Northrop J., unreported) his Honour gave reasons for a decision, announced earlier, to allow an amendment to proceedings brought under the Judicial Review Act which sought review of decisions made under s. 203 of the Customs Act. His Honour had allowed an amendment to deal with forfeiture, in a claim in detinue under the accrued jurisdiction of the Court, and to add parties. As presently relevant, he said:

"Different consequences follow where proceedings are commenced under the Judicial Review Act seeking an order of review of a decision to seize goods under s. 203 of the Customs Act. The essential issue in proceedings under the Judicial Review Act is whether there were reasonable grounds upon which the authorised person could base a belief that the goods were forfeited goods. Normally, those proceedings would not determine the issue of whether the goods were forfeited goods or not. Normally, in those proceedings no order would be made for the goods to be delivered up to the "owner"; see French v. O'Connor, above, and Brunetto v. Collector of Customs, Federal Court of Australia, Toohey J., 12 December 1984, unreported."

He then said that s. 16(1) (c) of the Judicial Review Act and ss. 21 and 22 of the Federal Court of Australia Act 1976 did not assist the applicant. He was of the view that the issue of forfeiture could only be determined under the accrued jurisdiction of the Court.
Frost v. The Collector of Customs for Queensland, already referred to, was a case in which a car had been seized by customs officers as being forfeited goods. The applicant contended that the seizure was not in accordance with the Customs Act, and she sought a declaration that the car was her property, and not forfeited to the Crown, and an order for re-delivery. The issue was whether the goods were forfeited. It is convenient to set out at some length parts of what Wilcox J. had to say, as being of present relevance.

"The Administrative Decisions (Judicial Review) Act provides a convenient, expeditious and relatively inexpensive method of reviewing administrative decisions. Decisions as to seizure, under s. 203 of the Customs Act, being not excluded by Schedule 1 of the Administrative Decisions (Judicial Review) Act, are open to review under that Act. However, mere review of the decision to seize will usually leave open the ultimate question of forfeiture. Goods may be 'forfeited goods' - as at the date of the trial of an action - even though invalidly seized; perhaps because the seizing officer was not an 'authorized person', perhaps because the officer did not at that time have the requisite belief or the relevant event occasioning forfeiture had not yet occurred, perhaps because some legal error vitiated the formation of the decision to seize. As Northrop J. pointed out in French v. O'Connor (23 May 1985, not reported), a fresh seizure may be effected even after a successful challenge to the original seizure. Conversely, goods validly seized may not in law be forfeited goods; the matter which led to the formation by the seizing officer of the necessary belief may be satisfactorily explained at a full hearing in respect of the ultimate issue."

The decisions in Brunetto and French and Convery were then referred to by his Honour, who continued:

"Possibly as a result of the discussion in Brunetto, French and Convery, applicants in a number of recent cases brought under the Administrative Decisions (Judicial Review) Act have sought more than mere review of the decision to seize. They have sought orders for re-delivery to them of the seized goods; orders which necessarily require the Court to determine the question of forfeiture, whether or not a declaration upon that matter has been sought."

His Honour, following the decision of Pincus J. the subject of this appeal, was of the opinion that s. 16(1) (c) gave jurisdiction to determine the matter of forfeiture, and, if appropriate, to order a return of the goods.

It is apparent that the course of decision has not been even. There have however been expressions by a number of judges suggesting, or deciding, that s. 16(1)(c) is not available for the purpose for which it is sought to use it in the present case (see also per Marks J. in Rosenthal v. Phillips (1985) VR 409).
In my view, and with respect to those who have thought otherwise, s.16(1)(c) of the Judicial Review Act is not available as a foundation upon which to explore the question of forfeiture. That section is not a source of additional jurisdiction. It simply enables orders to be made (over a wide area) in relation to collateral or related matters in order to give effect to a finding made within jurisdiction; it deals with relief (see Report of Commonwealth Administrative Review Committee (1971) para.263). Jurisdiction involves power, and it is not always easy to determine whether a grant of power gives jurisdiction. (Philip Morris Inc. v. Adam P. Brown Male Fashions Pty. Ltd. (1981) 148 CLR 457, at pp 489-490, 505, 529; Stack v. Coast Securities (No.9) Pty. Ltd. (1983) 154 CLR 261, at pp 276, 279-280). In the Commonwealth, distinct language is usually employed by the draftsman when jurisdiction is granted, but its absence is at best only a guide. Although it is convenient to use the terms "jurisdiction" and "power", the question must in the long run be one of the extent and nature of power, and so far as concerns proceedings brought in reliance on the Judicial Review Act the ultimate question is the scope of s.8 of that Act. It refers to "applications made to the Court under this Act". Sections 5, 6 and 7 give rights to apply, but s.16 deals with what may be done when an application is made. Section 16(1) is framed in the language of power, and not as a grant of jurisdiction.
The decision to seize is either good or bad; if good, that is an end of the matter. To attempt a definitive determination of the question of forfeiture (other than in condemnation proceedings) is to become involved in questions such as whether there has been a breach of the Customs Act and of the title to, and right to possession of, the goods. These are matters to be determined by action at law, and possibly in proceedings for a penalty (see ss. 234 and 245).
Reliance was placed in argument before us on s.32 of the Federal Court of Australia Act 1976 as giving jurisdiction. This section was discussed in Philip Morris (supra) at pp. 494, 516, 538 and 547. It was decided that it only applied where the "associated" matter was federal in nature. The essence of the claim respecting forfeiture is however a common law one. It is one respecting the right to possession of goods. The cause of action would be in detinue, trespass or conversion. The fact that the validity of the seizure is not now disputed makes this position clearer.
The "accrued" jurisdiction of the court was also relied on, but this basis of approach, as his Honour said, was expressly disavowed at the hearing. The issue of recovery of possession under the accrued jurisdiction was not before the learned judge. His finding concerning forfeiture erroneously relied upon s.16(1)(c). If there had been an attempt to rely on the accrued jurisdiction, a serious question would have arisen as to whether the further proceeding (for recovery of possession, on the basis of absence of grounds for forfeiture) could, or should, be heard with the application for review of the seizure. The claim under the accrued jurisdiction would in large measure have overtaken the proceedings under the Judicial Review Act. At the moment, it seems to me that the addition of a common law claim would in this case have involved a misuse of the Judicial Review Act, and been impermissible.
The amended application contains a claim for damages for detention, including exemplary damages, but they were not determined by his Honour and, as I understand, it is conceded that the Court would have had to rely on the accrued jurisdiction for that purpose.
As I am of the view that the matter of recovery of possession must be litigated separately, I will say little of the evidence.
One matter should be mentioned. It was the starting point of counsel's submissions. The Customs officers could not support in Court a case of forfeiture without leading evidence available at the time of the hearing only in Hong Kong. Officers were sent there. They interviewed people, saw documents, and returned. They then gave evidence to his Honour based on the result of the examination of documents, and perhaps some things they were told. Evidence of the contents of an unsworn statement from a person out of the jurisdiction was admitted. The Hong Kong authorities required the documents for some time for their own purposes and would not release them, or copies of them. The result was that evidence was given in this case which was sometimes what has been called hearsay upon hearsay, and could not be made the subject of cross-examination. This evidence was admitted by the learned judge under Order 33 r.3 of the Rules of Court which is as follows:

"3. The Court may at any stage of the proceedings

(a) dispense with compliance with the rules of evidence for proving any matter which is not bona fide in dispute; or

(b) dispense with compliance with the rules of evidence where such compliance might occasion or involve unnecessary or unreasonable expense or delay, including, but without limiting the generality of this power, compliance with the rules relating to proof of handwriting or of documents and the proof of the identity of parties or of authority."

The argument was made that the rule should be understood in a limited sense, but I agree with his Honour that, notwithstanding its serious import, it should be construed in accordance with its ordinary meaning. It was submitted that great care should be taken before reliance is placed on it where matters central to the case are involved. With this I entirely agree. It is however a matter for the discretion of the trial judge, who is so much better acquainted with the total situation than an appellate court can hope to be. His Honour, as appears from the transcript, gave careful consideration to a range of matters, and originally, at least, limited the use to which some evidence given under the rule could be put. I am not at present sure that I would be prepared to interfere with the exercise of his discretion, but a decision on this matter would require a much closer study of the materials than I have made.
The case of belief on reasonable grounds, as his Honour found, and as counsel concedes, was not dependent on the evidence admitted under the rule. The belief, and grounds, existed at the time of seizure.
My view is that the finding respecting forfeiture should be set aside but otherwise the appeal should be dismissed. I agree that in the circumstances there should be no order as to costs.

JUDGE2

Proceedings were brought in this Court by Adrian George Pearce and Kathryn Maree Pearce trading as Mister Cars Gold Coast, ("the appellants") under the Administrative Decisions (Judicial Review) Act 1977 ("the Judicial Review Act") seeking a review of the seizure and detention of six motr vehicles by the Customs authorities. The lawfulness of the seizure was supported by the Customs Authorities on two grounds. First, they maintained that the goods were forfeited to the Crown by the operation of para. 229(1)(i) of the Customs Act 1901 ("the Customs Act") in that false statements were made about their purchase price in the entry documents. Second, the Customs officer who seized the goods was said to have believed on reasonable grounds that the goods were forfeited goods. Either ground supports a lawful seizure under s. 203 of the Customs Act which provides, so far as presently relevant, that an officer of Customs may seize any forfeited goods or any goods that he believes on reasonable grounds are forfeited goods.

The application was heard by a single Judge of this Court (Pincus J.) who found against the appellants and dismissed the application with costs. The appellants appealed to the Full Court of this Court from his Honour's judgment. At the trial the appellants challenged the lawfulness of the seizure on two grounds, first, that the customs entries were not false so that the cars were not forfeited to the Crown and, second, that the Customs officer who seized the cars did not have reasonable grounds for his belief that the cars were forfeited goods.
The learned trial Judge found that the relevant entry documents in relation to the cars contained materially false statements. Invoices purporting to record the sale of the cars from a Hong Kong seller (German Motors Limited) to the appellants were said by the respondents to be materially false in that they stated the sale price of each car at a much lower figure than its actual sale price. It was the respondent's case that the appellants engaged in an unlawful enterprise with German Motors to provide false sales contracts for the purpose of deceiving the Customs authorities both in this country and Hong Kong.
The trial Judge found that the cars passed into the ownership of the Crown before seizure. His Honour's conclusion was based on Burton v. Honan (1952) 86 CLR 169 which held that unlawfully imported goods are, by the very fact of their unlawful importation, forfeited to the Crown. Such goods are vested in the Crown forthwith, without the necessity of Court orders. His Honour found that the making of the false statements in the entry documents led to the unlawful importation of the goods and to the cars thereupon being forfeited to the Crown by operation of s. 229. His Honour also found that the Customs officers who seized the goods believed on reasonable grounds that they were forfeited goods. His Honour concluded that both limbs of sub-s. 203(2) were established and that the goods were therefore lawfully seized pursuant to that sub-section. His Honour found that the detention of the goods by the Customs authorities subsequent to seizure was lawful and dismissed the proceeding. It is helpful to state some further findings of his Honour to understand the issues in the case.
Section 214 provides that, whenever information in writing has been given on oath to the Collector that goods have been unlawfully imported, the owner shall immediately upon being required so to do by the Collector produce and hand over to him all books and documents relating to the imported goods.
The trial Judge found that s. 214 of the Customs Act required the "swearing out" of an information and his Honour held that it was necessary for an informant, when "swearing an information" pursuant to that section, to swear as a matter of positive assertion that goods had been unlawfully imported and that the "information" in this case, which was the foundation of the processes of search and seizure undertaken by the Customs authorities, was void because the officer who swore it said that he had reasonable cause to believe and did believe that the cars had been unlawfully imported but did not state that they had in fact been unlawfully imported.
His Honour held that, although the processes of search and seizure undertaken by the Customs authorities of the appellant's premises were unlawful, nevertheless the male appellant had consented to the searches for and the seizure of documents. His Honour admitted evidence obtained from the search.
His Honour permitted evidence to be given of the contents of copies of sales contracts, debit notes, a "confession" by a Mr. Adamczyk and a document annexed to the "confession" which together were said to show that the true prices of the cars were considerably higher than the prices disclosed on the sales contract notes available in Australia and which were used to support the importation of the cars into Australia. The debit notes in particular were said to establish that the undisclosed "balance" of the purchase price for the cars had in fact been paid by the appellants to German Motors. It was common ground before the trial Judge that this evidence was vital to the respondents' case and that without it there would have been no evidence sufficient to found a conclusion that the customs entry documents were false. Yet none of the documents were tendered and the evidence of their contents was given by Mr. Fitzpatrick, a customs officer, and Mr. Hume, a solicitor with the Australian Government Solicitor, both of whom travelled to Hong Kong for the purpose of conducting investigations there referable to these proceedings. Whilst in Hong Kong those gentlemen were shown documents which, according to information given to them by Hong Kong Customs officers, had been seized from the supplier of the cars to the appellants, namely, German Motors. His Honour admitted this evidence (which for convenience I will describe as "the Hong Kong evidence") pursuant to Order 33 Rule 3 of this Court's Rules which permits the Court in the circumstances there mentioned to dispense with compliance with the rules of evidence.
The appellants asserted before us that the cars were not in truth forfeited goods because the trial Judge erred in admitting the Hong Kong evidence without which there could have been no finding that the cars were forfeited goods. The appellants also challenged the validity of the retention of the cars by the Customs authorities on the ground that, as they were not forfeited goods, they could not be lawfully retained. But the appellants accepted before us the correctness of the trial Judge's finding that the Customs officer who seized the cars believed on reasonable grounds that they were forfeited goods for the purposes of sub-s. 203(2) of the Customs Act.
There is a fundamental difficulty in the path of the appellants in this appeal and it is associated with a further difficulty which the appellants have in identifying the relevant decision which is said to be capable of review under the Judicial Review Act. The appellants changed course more than once in argument before us in their efforts to identify the relevant decision; and we allowed at one stage an amended application to be filed. Finally, as I understood it, the appellants asserted that there were two decisions challenged by them. First, the decision to seize the vehicles and, second, the decision to retain them. The enlargement by para. 3(2)(f) of the Judicial Review Act of the notion of the making of a decision to include the "retaining, or refusing to deliver up an article" was relied on in support of an argument that the continued retention of the cars, following their seizure, constituted the making of a decision refusing to return them. Alternatively, it was argued that the respondents are engaging in conduct whereby the cars are still being detained for the purpose of making a decision whether to return them or not, this being conduct susceptible of review under s. 6 of the Judicial Review Act. The difficulty with these various ways of formulating the appellant's case is that the trial Judge found that the officer who seized the goods had reasonable grounds for believing that they were forfeited goods and this finding was not challenged on this appeal. It must follow that the seizure was therefore lawful whether the goods were actually forfeited or not: sub-s. 203(2). Whether the retention of the cars can be nevertheless challenged under the Judicial Review Act required an analysis of the relevant provisions of the Customs Act.
The class of goods which shall be forfeited to the Crown includes:

"all goods in respect of which any entry invoice declaration answer statement or representation which is false or wilfully misleading in any particular has been delivered made or produced" (para. 229(1) (i)).

An "authorised person" may seize any forfeited goods or any goods that he believes on reasonable grounds are forfeited goods (sub-s. 203 (2)). An "authorised person" means, inter alia, an officer of Customs (para. 203(1) (b)).
An officer of Customs who seizes any goods other than narcotic-related goods under the Customs Act shall take them to an approved place (sub-s. 204(2)). An "approved place" means a place approved by a Collector as a place for the storage of a class or kind of goods in which those goods are included (sub-s. 204(1)).
Where goods are seized under s. 203 the responsible person (an expression defined by sub-s. 205(1) as including the relevant Customs officer) shall, as soon as is practicable, serve on the owner of the goods or the person who had possession, custody or control of them immediately before they were seized a notice in writing identifying the goods, stating that they had been seized under s. 203, specifying the reason for the seizure and setting out certain other matters (sub-s. 205(2)). Where a notice under sub-s. 205(2) is served in respect of goods seized under s. 203, the goods shall be deemed to be condemned as forfeited to the Crown unless within 30 days after the day on which the notice was served the owner of the goods or the person who had possession, custody or control of them immediately before they were seized gives notice in writing to the appropriate person specified in the notice under sub-s. (2) stating that he claims the goods (sub-s. 205(6)).
If a notice under sub-s. (2) is served in respect of goods seized under s. 203 the goods shall for the purposes of the Customs Act be taken to be in the possession of the appropriate person specified in the notice (sub-s. 205(8)).
The appropriate Customs officer may authorise any goods other than narcotic-related goods seized under s. 203 to be delivered to a person claiming them under sub-s. 205(6) on that person giving appropriate security in relation to the goods (sub-s. 208(1)).
Where notice under sub-s. 205(6) is given in respect of goods seized under s. 203 the Collector who is in possession of the goods may (a) retain possession of the goods without taking any proceedings for their condemnation; and (b) may serve on the person who gave that notice a notice in writing requiring him to bring an action against him within four months of the service of the notice for the recovery of the goods (sub-s. 208A(1)).
If a notice under sub-s. 208A(1) in relation to goods is given and the person to whom the notice was given does not within the said period of four months bring an action for the recovery of the goods then the goods shall be deemed to be condemned as forfeited to the Crown without any further proceedings (sub-s. 208A(2)).
Where goods are delivered to a person under s. 208 any notice given under sub-s. 208A(1) in relation to the goods shall be deemed not to have been given and the person authorising the delivery may serve on that person a notice in writing requiring him to bring an action within four months of service of the notice seeking a declaration that the goods are not forfeited (sub-s. 208A(3)).
If a notice under sub-s. (3) in relation to goods is served and the person on whom the notice was served does not within four months after service bring an action seeking a declaration that the goods are not forfeited the goods shall be deemed to be condemned as forfeited to the Crown without any further proceeding (sub-s. 208A(4)).
Notwithstanding that goods have been sold or destroyed under ss. 206 or 207 (which I need not set out) a person may claim the goods under s. 205 and proceedings for recovery or condemnation of the goods may be instituted or continued as if the goods were in the condition immediately before they were sold or destroyed and remained in the possession of a Collector (sub-s. 208B(1)).
If in proceedings for the recovery or condemnation of goods sold or destroyed under s. 206 or s. 207 the Court decides that it would, but for the sale or destruction, have ordered that the goods be delivered to a person, the Court shall order the payment by the Commonwealth to that person of an amount equal to the proceeds of sale where the goods have been sold or the market value of the goods at the time of their destruction where the goods have been destroyed (sub-s. 208B(2)).
The Customs Act thus contains a code governing the forfeiture of goods, their seizure and retention. It provides machinery whereby a person claiming to be the owner of the goods or entitled to their possession may sue for their recovery by action in a court of competent jurisdiction presumably in detinue or conversion. But it is fundamental to the operation of the Customs Act that the goods be validly retained by the Customs authorities after seizure and pending their disposition by sale, destruction, return on security or otherwise.
It is the evident scheme of the Customs Act that once goods have been lawfully seized the person who claims to be their owner or entitled to their possession may recover them by appropriate proceedings in the courts. Doubtless, the lawfulness of the seizure may be challenged in those proceedings and the question whether the goods were forfeited goods may be investigated. But once the lawfulness of the seizure is conceded, as it is here (i.e. in relation to the second limb of sub-s. 203(2)), and once it is recognised that the Customs Act does, and indeed must for its proper operation, permit the retention of lawfully seized goods in the hands of the Customs authorities until they have been dealt with by due processes under or recognised by the Customs Act, the retention of the goods by the Customs authorities in the meantime is not susceptible to challenge.
In this case the cars were lawfully seized pursuant to sub-s. 203(2). The requisite notice was given under sub-s. 205(2). The appellants gave notice under sub-s. 205(6) that they claimed the cars. The Customs authorities stated in a letter dated 8 August 1984 to the solicitor for the appellants that they will retain the cars pending the completion of "overseas enquiries and at that time a decision will be made as to whether a notice under s. 208A will be served, prosecution action be taken, or the goods will be released". In my opinion the retention of the cars is lawful and cannot be challenged under the Judicial Review Act.
Section 5 of that Act prescribes the grounds for reviewing decisions, none of which apply in this case given the lawfulness of the seizure of the goods. There would be no different result if the subject matter of review was conduct engaged in for the purpose of making a decision within the meaning of s. 6 of the Judicial Review Act. The appeal must therefore be dismissed.
However, the trial Judge made a finding that the goods were forfeited goods based on his antecedent finding that materially false statements were made in the relevant entry documents (para. 229(1)(i)). That finding was challenged by the appellant before us. In particular, his Honour's reception of the Hong Kong evidence was strongly criticised and there is no doubt that without that evidence the finding could not have been made.
Although it is not strictly necessary to consider whether the Hong Kong evidence was correctly admitted to decide this appeal, it may be unjust to the appellants not to do so. They would then be left with the trial Judge's finding that the cars were forfeited to the Crown by operation of para. 229(1)(i). The appellants, on the ground of res judicata, may be precluded from challenging thaa finding in subsequent proceedings for recovery of the cars. If the finding be erroneous, in the sense that it is based on inadmissible evidence without which the finding could not have been made, it would be wrong, in my view, for this Court, in the rather unusual circumstances that have arisen, not to examine the finding. Accordingly, I propose to do so.
In the case of all except two of the cars seized by the Customs authorities (the two exceptions being a BMW and an Oldsmobile Toronado) the only evidence to establish that the sales contracts did not show the real purchase price was the Hong Kong evidence. In the case of the BMW and the Oldsmobile Toronado there was some evidence bearing on the falsity of the prices shown in the sales contract, but it could not, independently of the Hong Kong evidence, support the finding that those cars were forfeited goods.
I have already mentioned the Hong Kong evidence briefly. I would add to my earlier statement of it that when Mr. Fitzpatrick and Mr. Hume went to Hong Kong in May 1985 it was for the purpose of obtaining further evidence in relation to this proceeding which had commenced on 21 November 1984.
On 20 June 1985 the trial Judge refused an application by the respondents for the issue by them of a letter of request to be sent to the relevant authorities in Hong Kong to take evidence from Herbert Adamezyk, the managing director of German Motors. In refusing the application his Honour said that it had been clear for a long time that the respondents might need to obtain evidence from Hong Kong, yet no attempt was made by the respondents until the eleventh hour to obtain the issue of a letter of request. The respondents had sought and obtained an earlier adjournment of the hearing of the matter in May 1985, not to obtain a letter of request, but to induce persons resident in Hong Kong to come voluntarily to Australia to give evidence. That failed. Then on the eve of the resumption of the final hearing the question of a letter of request was renewed. His Honour recognised that the Hong Kong evidence went to "the very heart of the matter". His Honour said that he rejected the application principally on the grounds of expense and delay.
On 24 June 1985 his Honour ruled that the Hong Kong evidence was admissible and he admitted it. The Hong Kong evidence was that given by Mr. Hume and Mr. Fitzpatrick who were shown in Hong Kong documents which, so they were informed by Hong Kong Customs officers, had been seized from German Motors. I described earlier the documents themselves. None of the documents or copies thereof were tendered. The only relevant documentary evidence in this respect were copies of sales contracts that were available in Australia. On 24 June 1985 his Honour ordered that:
Compliance with the rules of evidence be dispensed with to such extent as was necessary to admit the evidence of Messrs. Hume and Fitzpatrick with respect to their examination of documents in Hong Kong as detailed in the affidavit of Mr. Fitzpatrick filed on 18 June 1985;
The evidence of Messrs. Hume and Fitzpatrick be admitted only on the issue of the information available to the respondents with respect to the cars and that the question whether the evidence should be admitted on the further issue of whether the cars were in fact unlawfully imported was reserved for further consideration.
At the conclusion of the trial his Honour reserved his judgment. In his reasons for judgment his Honour said that he had on reflection decided that he should use the Hong Kong evidence on the further question whether the cars were in fact imported in breach of the Customs Act "as opposed to the question whether the Customs reasonably thought they were". His Honour admitted the Hong Kong evidence solely on the basis of 0.33 r.3(b) of this Court's Rules which provides:

"3. The Court may at any stage of the proceedings

. . .

(b) dispense with compliance with the rules of evidence where such compliance might occasion or involve unnecessary or unreasonable expense or delay, including, but without limiting the generality of this power, compliance with the rules relating to proof of handwriting or of documents and the proof of the identity of parties or of authority."

Order 33 r.3 is made pursuant to the power conferred by s. 59 of the Federal Court of Australia Act 1976. That section empowers the Judges of the Court to make rules, not inconsistent with that Act, making provision for or in relation to the practice and procedure to be followed in the Court and for or in relation to all matters and things incidental to any such practice or procedure or necessary or convenient to be prescribed for the conduct of any business of the Court (sub-s. 59(1)), in particular the means by which particular facts may be proved and the mode in which evidence of particular facts may be given (para. 59(2)(p)). This wide power authorises a rule which empowers the Court to allow the proof of facts at the hearing by some means not allowed by the rules of evidence. Order 33 r. 3 is in wide terms. I see no reason why it should be read down. It should be construed according to its ordinary and natural meaning. But the power conferred upon the Court by the rule is limited to dispensing with compliance with the rules of evidence to prove any matter not bona fide in dispute (r. 3(a)) or where such compliance might occasion or involve unnecessary or unreasonable expense or delay (r. 3(b)). In my opinion although it is for the Judge to determine in each case whether the rule may be applied, its essential object is to facilitate the proof of matters which are not central to the principal issues in the case. The rule is not confined to dispensing with the rules of evidence to facilitate the proof of merely formal matters, but a Judge should be slow to invoke it where there is a real dispute about matters which go to the heart of the case. Murine Eye Remedy Co. v. Eldred (1926) VLR 425; Meek v. Guardian Assurance Co. Limited (1963) 80 WNN.S.W. 940; H. v. Schering Chemicals Limited (1983) 1 WLR 143 and Downs Irrigation Co-Operative Association Limited v. The National Bank of Australasia Limited No. 2 (1983) QdR 475 are cases where comparable rules or statutes were considered by courts of this country and the United Kingdom and where appraoches were taken generally similar to mine.
The circumstances in which appellate courts may interfere with the exercise of the discretion of trial Judges in matters of this kind are well known and need no restatement. With great respect to the trial Judge in my opinion 0.33 r.3 should not have been invoked to admit the Hong Kong evidence. The basis on which his Honour exercised the power conferred by the rule in this case was that compliance with the rules of evidence might occasion or involve unnecessary or unreasonable expense or delay. But that evidence was vital to the respondent's case. Without it there could have been no finding that the cars were goods forfeited to the Crown. The evidence of Mr. Hume and Mr. Fitzpatrick was hearsay and in some instances double hearsay. There were no practicable means whereby the appellants could test the evidence of Mr. Hume or Mr. Fitzpatrick in any effective way. In the main those two gentlemen related in their evidence what they had been told by the Hong Kong Customs authorities and what they recalled of their reading of documents which they had seen in Hong Kong. Yet these matters were central to the question whether the entry documents supporting the importation of the cars were false and therefore basic to the finding that the cars were forfeited to the Crown by operation of para. 229(1)(i).
I refrain from expressing any opinion on the question whether the matter of forfeiture can be dealt with in proceedings under the Judicial Review Act and whether para. 16(1)(c) of that Act can be invoked by this Court in such proceedings to order a return of goods alleged to have been forfeited. It is not necessary for me to consider this question in this case.
I would set aside the trial Judge's finding that the cars the subject of these proceedings were forfeited goods. Otherwise I would dismiss the appeal. In the unusual circumstances of this case I would make no order as to costs of the appeal.

JUDGE3

This is an appeal from a decision of a single judge of this Court (Pincus J.) dismissing an application made by the appellants under the Administrative Decisions (Judicial Review) Act 1977 (the "Judicial Review Act"). The decision is reported at (1985) 60 A.L.R. 537.

The appeal raises two significant questions: the first a jurisdictional one concerning the nature and extent of the jurisdiction of the Federal Court under the Judicial Review Act and the second an evidentiary question concerning the extent to which compliance with the ordinary rules of evidence may be dispensed with under the provisions of Order 33 rule 3 of the Federal Court Rules.
The case relates to the importation of six vehicles by the appellants from Hong Kong, the vehicles having been purchased by the appellants (who traded as 'Mister Cars' on the Gold Coast) from German Motors Ltd. in Hong Kong.
The contention of the respondents before the learned primary judge was that, in providing sales contracts to the Customs officers when importing the vehicles, the appellants had provided false information in that the prices paid for the vehicles were in fact considerably higher than stated, and that the sales contracts produced to the Customs officers were false documents produces so that a lesser rate of customs duty would be paid. The goods were thus forfeited goods by the operation of s. 229 (1) (i) of the Customs Act 1901, ("the Customs Act"). In addition, it was contended that the Customs officer seizing the goods believed on reasonable grounds that the goods were forfeited goods. In either event, it was said, the goods were lawfully seized: s. 203 of the Customs Act.
The amended application for an order of review sought to review "the seizure and continued detention" of six particularised motor vehicles, and claimed:-

1. An order that the Respondents deliver up the seized motor vehicles.

2. A declaration that the cars are the property of the Applicant.

3. A declaration that no reasonable grounds existed on which the vehicles might have been seized and detained.

4. Damages.

5. Exemplary damages.

The learned trial judge declined to make the declaration sought. He held that the goods were forfeited goods and dismissed the application with costs.
The chronology of events with which this appeal is concerned is that shortly before 5 July, 1984, Jeffrey Joyner, an investigation officer with the Australian Customs Service received a computer print-out containing information concerning motor vehicles imported into Australia from Hong Kong.
Section 214 of the Customs Act provides that, whenever information in writing has been given on oath to the Collector that goods have been unlawfully imported, the owner shall, immediately upon being required so to do by the Collector, produce and hand over to him all books and documents relating to the goods so imported. Regulation 171 of the Customs Regulations provides:-

"Notice to produce documents under Section 214 of the Customs Act 1901-1925 shall be in accordance with Form 61."

Form 61 requires the goods to be identified, and the place and date of importation to be specified.

On 5 July, 1984, Mr. Joyner swore an information which baldly said:-

"I have reason to believe and do believe that certain goods to wit MOTOR VEHICLES have been unlawfully imported undervalued entered or illegally dealt with contrary to the Customs Act 1901."

On the basis of this information, the Collector of Customs, the third respondent, purporting to rely on s. 214 of the Customs Act, issued a number of Notices to produce documents.
The learned primary judge held that the information sworn by Mr. Joyner was void because it did not state that the cars had been unlawfully imported, as required by s. 214. The respondents filed a Notice of Contention under 0.52, r. 22(3), challenging this finding. I agree with the conclusion of the learned trial judge for the reasons he gave and, in addition, in my opinion the information did not identify the goods and so did not entitle the Collector of Customs, acting under s. 214, to deduce that the goods referred to in the information referred to, or included goods imported by Mister Cars, Gold Coast.

Notwithstanding that the processes of search and seizure of documents undertaken at the appellants' premises, and from the appellants' bank, were unlawful, his Honour admitted the evidence obtained from the searches.
No challenge was made to that course on the appeal and it is therefore unnecessary to express a view as to the correctness of it.
On the 17 July, 1984, Notices of Seizure were executed in respect of two motor vehicles, the notice reciting in each case that an authorised officer, Mr. Wynne, the fourth respondent, did "in pursuance of the powers conferred by s. 203 of the Customs Act seize as forfeited" to the Crown the nominated motor vehicle, the reason for the seizure being given:

"The said goods are forfeited to the Crown pursuant to section 229 (1) (i) of the Customs Act 1901 in that an invoice . . . produced to an Officer . . . was false and wilfully misleading in that it did not reflect the correct value of the goods, and an entry . . . was false and wilfully misleading in that it did not reflect the correct value of the goods."

Section 203 (2) of the Customs Act provides:-

"An authorised person may seize any forfeited goods or any goods that he believes on reasonable grounds are forfeited goods."

Section 229 (1) (i) operates to render goods forfeit to the Crown, if false statements are made about the goods in the entry documents.

The authorised officer, in seizing the goods, expressly relied on the first limb of s. 203 (2), and did not purport to seize the goods because he believed on reasonable grounds that the goods were forfeited goods, the second limb of 203 (2).
It was found by the learned primary judge both that the goods were forfeited goods and that they were reasonably believed to be so, in the light of the further material which had come into the possession of the Customs since the swearing of the information.
The appellants did not seek to challenge on the appeal the second of those findings by his Honour.
It follows, accepting that it was open to justify the decision to seize on either limb of s. 203 (2), notwithstanding that the Notice of Seizure expressed that the seizure was based on the first limb, that the seizure was lawful.
On 24 July, 1984, Notices of Claim in respect of those two motor vehicles were given under s. 205 (6). On 22 August, 1984, Notices of Seizure were executed in respect of four further motor vehicles on the same grounds as the earlier two vehicles and, on 28 August, 1984, Notices of Claim in respect of those four motor vehicles were given. On 21 November, 1984, an application was filed under the Judicial Review Act and the matter was heard before the learned primary judge on 13, 14, 15 May, 1985.
On 15 May, 1985, the matter was adjourned to enable evidence to be obtained by the Customs officials from Hong Kong.
On 19 June, 1985, the respondents sought an order that a letter of request be sent to judicial authorities in Hong Kong. The learned primary judge indicated that he was not disposed to grant the application for a letter of request, because of expense and delay. On such a procedure, while expense and delay would result, the applicants before the learned primary judge would, of course, have been able to challenge the reception, and test the reliability of any evidence sought to be obtained.
However, the learned primary judge, on 24 June, 1985, relying on 0.33 r.3 of the Federal Court Rules, ordered that compliance with the rules of evidence be dispensed with to such an extent as was necessary to admit the evidence of Mr. Fitzpatrick, a customs officer, and Mr. Hume, a solicitor with the Australian Government Solicitor, with respect to the examination of documents by them in Hong Kong, that that evidence be admitted only on the issue of the information available to the respondents with respect to the vehicles, and that the question whether the evidence be admitted on the issue of whether the vehicles were in fact unlawfully imported, be reserved for further consideration. It is to be noted that this evidence, such as it was, came to the notice of the Customs only in late May, after the trial had commenced.
In his reasons for so dealing with that evidence, he said:-

"It is not in dispute that compliance (with the rules of evidence) not only might but would involve both considerable expense and delay."

The applicants therefore got the worst of both worlds: the 'Hong Kong evidence' was admitted against them, and they were not able to challenge it, or test its provenance, by cross-examination.
Addresses were concluded on 1 July, 1985 and then on 29 July, 1985, his Honour gave his reserved judgment on the substantive application.
In the course of that judgment, the learned primary judge said:-

"I have, on reflection, decided that I should use the evidence in question on the claim for declaratory relief - to put that more fully, on the question whether the vehicles were in fact imported in breach of the Act as opposed to the question whether the Customs reasonably thought they were."

The trial judge, at the urging of the applicants, and against the submissions of the respondents below, concluded that he had jurisdiction to enquire into whether the vehicles had in fact been unlawfully imported. Relying on the 'Hong Kong evidence', he concluded they had been, and he therefore declined to make the declaration sought by the applicants.
It was not disputed by the parties that the evidence so admitted (the 'Hong Kong evidence') was crucial to the question of whether the vehicles had in fact been unlawfully imported.
The Hong Kong evidence was the evidence given before the learned primary judge by Messrs. Hume and Fitzpatrick, who swore that in Hong Kong they were shown various documents. They were told by Hong Kong Customs officers that some of those documents had been seized from the premises of German Motors Ltd. The documents were described by the witnesses as copies of sales contracts, a book of copy 'debit notes', a document which purported to be a 'confession' by Mr. Adamczyk, the Managing Director of German Motors Ltd., and a document annexed to that confessional statement purporting to show the undisclosed balance of the purchase price for the cars had been paid by the appellants. The debit notes were said to be copies of documents which showed that the appellants had paid the "true" price of the vehicles. None of the documents was tendered before the learned primary judge nor was a copy of any sought to be tendered.
The principal argument for the appellants on the appeal was that the Hong Kong evidence should not have been admitted. Without that evidence the learned primary judge could not have found that the goods were forfeited goods.
His Honour acknowledged that the evidence was crucial, and admitted it under 0.33 r.3(b) of the Federal Court Rules, which provides:-

"3. The Court may at any stage of the proceedings -

. . .

(b) dispense with compliance with the rules of evidence where such compliance might occasion or involve unnecessary or unreasonable expense or delay, including, but without limiting the generality of this power, compliance with the rules relating to proof of handwriting or of documents and the proof of the identity of parties or of authority."

It was argued that this rule should be read down as not applying to matters central to the case. I do not accept that there is any such necessary implication, but the importance of the evidence to the case is clearly a matter of concern as to whether compliance with the rules of evidence should be dispensed with. The criteria for the operation of O.33 r.3(b) are "unnecessary or unreasonable expense or delay." Such terms are inherently relative. What is "unnecessary" or "unreasonable" will vary with the particular circumstances, and with the nature of the evidence sought to be admitted, but the paramount consideration in such a determination must be justice between the parties.

In this particular case, the "evidence" involved hearsay upon hearsay and there are grounds for thinking that the alleged source, German Motors Ltd., may have had its own motives in relation to the documents. Moreover, the respondents had initially sought an adjournment to obtain evidence from Hong Kong. When that attempt failed, a letter of request was sought. That was refused, but the evidence to which such a request was directed was allowed in, in circumstances where it could not in any meaningful way be challenged.
The right to be heard is a major component of the principles of natural justice. Implicit in that right is the right of a party reasonably to test the case presented against it. In my opinion, a clear and serious breach of the requirements of natural justice occurs where a party to proceedings, on a matter central to those proceedings, is denied a fair and reasonable opportunity to challenge what is said against it.
Applying the well known principles on which an appellate court might interfere with a discretionary decision of this kind, in my respectful opinion the discretion miscarried and the "Hong Kong evidence" should not have been admitted.
It follows that, in my opinion, the finding by his Honour that the goods were forfeited goods should be set aside.
The object of the appellants on the appeal and below was to obtain the return of the motor vehicles. The respondents argued at first instance that there was no jurisdiction in the Court to make the declaration sought by the applicants. However, on the appeal, the respondents stated that it was not sought to challenge the jurisdiction of the Court to grant the declaration sought by the appellants.
Different judicial opinions have been expressed about whether there is jurisdiction in the Federal Court on an application under the Judicial Review Act to grant declarations as to the status of seized goods, or whether, in the exercise of the accrued jurisdiction of the Court, to grant relief on the basis of detinue, trespass or conversion.
The learned trial judge concluded that s. 16 (1) (c) and (d) of the Judicial Review Act enabled the question of forfeiture to be investigated, and declarations given. Section 16 (1) provides:

"16 (1) On an application for an order of review in respect of a decision, the Court may, in its discretion, make all or any of the following orders:

. . .

(c) an order declaring the rights of the parties in respect of any matter to which the decision relates;

(d) an order directing any of the parties to do, or to refrain from doing any act or thing the doing, or the refraining from the doing, of which the Court considers necessary to do justice between the parties."

He also noted that "counsel for the applicants was careful not to base his argument on the notion of accrued jurisdiction, on the basis that the Court is seized of a 'matter'".
His view was accepted and followed by Wilcox J. in Frost v. Collector of Customs for Queensland (26 November, 1985, unreported).
Northrop J. reached a contrary view in Tetron Industries Pty. Ltd. v. Collector of Customs (Victoria) (7 August, 1985, unreported), expressly finding that "paragraph 16 (1) (c) of the Judicial Review Act does not empower the Court to make declarations on whether seized goods are forfeited goods under s. 229 of the Customs Act." His Honour permitted amendments to enable the applicants to add parties, and bring claims in detinue and conversion in the Federal Court, in the exercise of the accrued jurisdiction of the Court.
In Convery v. Ziino (27 May, 1985, unreported), Neaves J. expressed the view that, where seizure was based not on a belief by the decision maker as to certain conditions being fulfilled, but on objective findings of the existence of those conditions, -

". . . it seems to me to be likely that the proceeding pending in this Court will resolve the issue whether the yacht was forfeited."

Notwithstanding the stance of the parties, the case squarely raises the issue of the jurisdictional limits of the Federal Court under the Judicial Review Act.
The Judicial Review Act is one of a quartet of Acts concerned with Commonwealth administrative decisions. It is relevant in this case to recognise its place in the whole Commonwealth legislative scheme dealing with administrative law.
The Ombudsman Act 1976 gives power to investigate action relating to a matter of administration taken by a Department or by a prescribed authority. The Freedom of Information Act 1982 gives a right to access, with specified restrictions, to documents held by public authorities. The Administrative Appeals Tribunal Act 1975 establishes the Administrative Appeals Tribunal, whose function is to review on the merits certain Commonwealth administrative decisions. Smithers J. said in Drake v. Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 429: -

"The duty of the Tribunal is to satisfy itself whether a decision in respect of which an application for review is duly instituted is a decision which in its view, was objectively, the right one to be made."

Bowen C.J. and Deane J., in the same case, said at p. 419: -

"The function of the Tribunal is, as we have said, an administrative one. It is to review the administrative decision that is under attack before it. In that review, the Tribunal is not restricted to consideration of the questions which are relevant to a judicial determination of whether a discretionary power allowed by statute has been validly exercised. Except in a case where only one decision can lawfully be made, it is not ordinarily part of the function of a court either to determine what decision should be made in the exercise of an administrative discretion in a given case or, where a decision has been lawfully made in pursuance of a permissible policy, to adjudicate upon the merits of the decision or the propriety of the policy. That is primarily an administrative rather than a judicial function. It is the function which has been entrusted to the Tribunal."

The preamble to the Judicial Review Act recites that it is "an Act relating to the Review on Questions of Law of certain Administrative Decisions."
The Commonwealth Administrative Committee Report (1971), which was the basis of the later statutory scheme, noted at p. 29 that "the constitutional limitations attaching to the exercise of Federal judicial power effectively prevent the exercise by the courts of the entirety of review on the merits." The Judicial Review Act reflects that limitation.
The contention of the appellants that the continued detention of the vehicles was invalid involves three elements:

(i) there was a "decision" within the meaning of the Judicial Review Act in respect of the detention of the vehicles,

(ii) that decision was amenable to review on one or more of the grounds contained in the Judicial Review Act, and

(iii) on that review, s. 16 (1) (c) enables a declaration to be made as to the status of the seized goods.

This case highlights the necessity under the Judicial Review Act to identify and isolate the decision sought to be reviewed. Such identification would go a long way to delineating the ambit of the evidence properly to be considered and direct attention to the fundamental question under the Judicial Review Act, which is not what the position is on the merits at the date of trial, but whether the decision of the decision maker, on the material properly to be considered by him, was vitiated by legal error.
As to whether the continued detention of the motor vehicles involves a "decision" under the Judicial Review Act, the appellants referred to s. 3 (2) (f) of the Judicial Review Act which provides that "In this Act, a reference to the making of a decision includes a reference to . . . retaining, or refusing to deliver up, an article." They asserted that the continued detention of the vehicles constituted a decision to refuse to return them. Implicit in that argument, it seems to me, is the concept that a continuing state of affairs involves, at each moment, a separate decision, which decision is properly to be assessed on the information available at that moment to the person in possession, so that at trial, whatever be the validity of any previous decision to retain, the decision at that time is to be judged on the material then available.
Alternatively, it was said that the detention of the vehicles was "conduct" under s. 6 of the Judicial Review Act engaged in by the respondents for the purpose of deciding whether to return them or not. The answer to that submission is factual: the detention of the vehicles by Customs is not conduct "for the purpose" of making a decision to which the Act applies.
If, contrary to my view, there is a "decision" involved in the continued detention of the vehicles, in my opinion it is not reviewable on any of the grounds available under the Judicial Review Act. Those grounds are to be found in ss. 5, 6 and 7 of that Act.
Section 208A (1) of the Customs Act provides: -

"Where notice under sub-section 205 (6) is given in respect of any goods seized under section 203, the Collector or member of the Australian Federal Police who is in possession of the goods may -

(a) retain possession of the goods without taking any proceedings for the condemnation of the goods; and

(b) may serve on the person who gave that notice, either personally or by post, a notice in writing requiring him to bring an action against him within 4 months of the service of the notice for the recovery of the goods."

Accepting that there has been a valid seizure under s. 203 and that notice under s. 205 (6) has been given (which is not disputed in this case), 208A (1) (a) gives to the Collector of Customs for the State of Queensland a statutory right to possession of the goods, until the procedures contemplated by the Customs Act, which include an action for the recovery of goods, alter that entitlement. His statutory right to possession is not capable of being attacked on any of the grounds set out in ss. 5, 6 and 7 of the Judicial Review Act.
Finally, an issue arises whether s. 16 (1) (c) confers jurisdiction to make a declaration that goods are forfeited goods. Section 16 (1) (c) empowers the Court, in its discretion, to make an order declaring the rights of the parties in respect of any matter to which the decision relates.
If there has in fact been an unlawful importation, no decision by any person is necessary before the goods are forfeited, and the title to the goods vests immediately in the Crown: Burton v. Honan (1952) 86 CLR 169. Dixon C.J. said at 176: -

"On authority it is clear that under the provisions of s. 229, provided the facts exist which justify a forfeiture, the title to the goods vests in the Crown when the forfeiture takes place in consequence of the occurrence of the facts. No further proceedings are requisite to make title, although of course further proceedings may be necessary either to vindicate the title of the Crown or to exclude the claim of some person asserting a right to the goods. In point of fact elaborate provisions are made in the Customs Act for the seizure of the goods, for lodging a claim when the goods are seized, and for a notice requiring the claimant to proceed to establish his title to the goods."

The declaration sought in this case is that the cars are the property of the applicants.
No decision is made which relates to the property in the goods. The property in the goods is an objective fact, unaffected by and unrelated to the decision of the authorised person to seize. At the highest, the decision to seize relates only to the authorised person's claim that the objective facts which justify a forfeiture exist.
In my opinion, and with respect to those of the contrary view, the auxiliary powers given to the Court by s. 16 (1) (c) of the Judicial Review Act are not available to enable the Court to declare that goods are, or are not, forfeited, or that a party is, or is not, entitled to possession of those goods.

I am confirmed in this opinion by the consideration that those questions are factual matters, to which the Judicial Review Act is not directed, and there is no necessary correspondence between the evidence on which they can be determined and the evidence properly to be considered on whether the decision to seize was lawful or not.
If this be wrong, it is possible to envisage many situations involving, for instance, pensions, deportation, or promotion, where the Federal Court will, under the guise of reviewing decisions associated with those questions, be asked to, and be empowered to, make declarations going to the factual merits of the decision. That was not the purpose of the Judicial Review Act, and I do not think that is its effect.
Some passing reference was made to the accrued jurisdiction of the Court. As noted earlier, the learned primary judge in his reasons observed that counsel for the applicants before him "was careful not to base his argument on the notion of the accrued jurisdiction, on the basis that the court is seized of a 'matter'". His Honour's findings were therefore not based on that question. In those circumstances, it is inappropriate to consider whether and to what extent such accrued jurisdiction may be availed of, although it is not difficult to foresee problems as to that course.
On the issues on the appeal as argued by the parties, the appellants have been substantially successful, though for the reasons given I am of the opinion that the appeal should be dismissed. I would therefore agree that the finding of the trial judge that the seized vehicles were forfeited goods be set aside; that otherwise the appeal be dismissed and there be no order as to the costs of the appeal.

[1986] FCA 61

07 MARCH 1986