Bangkok (Wholesale) Australia Pty Ltd v Wheat, M.A

[1985] FCA 672

IN THE FEDERAL COURT OF AUSTRALIA	)
) .
NEW SOUTH.WALES DISTRICT REGISTRY	) No. G.319 of 1985
)
GENERAL DIVISION	1

BETWEEN:	BANGKOK (WHOLESALE)
AUSTRALIA F T Y LIMITED

Applicant

m: MARIE	ANNE	WHEAT
First Respondent

GAVIN McDONALD

Second Respondent

COLLECTOR OF CUSTOMS FOR

NEW SOUTH WALES

Third Respondent

CORAM :	WILCOX J.
m:	6 DECEMBER 1985

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PLACE : S M N E Y

MINUTE OF ORDERS

THE COURT ORDERS THAT:

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1. On the applicant undertaking within seven ( 7 ) days to

discontinue the proceedings commenced by it in the

Supreme Court of New South Wales in matter no.807 of .

1985, I extend the time within which an application for review of the decision referred to in the

Application filed on 2 3 October 1985 may be made up

to and including that day.

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2. The applicant pay the respondent's costs of this application.

NOTE :

Settlement and entry of orders is dealt with in

Order 36 of the Federal Court Rules.

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c

KNOTE: This decision depends upon its own facts and is not

considered to warrant circulation.]

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IN THE FEDERAL COURT OF AUSTRALIA	) )
NEW SOUTH FJALES DISTRICT REGISTRY	) No. G.319 of 1985
)
GENmAL DIVISION	)

BETWEEN:	BANGKOK (FRIOLESALE)
AUSTRALIA PTY LIMITED

Applicant

MARIE ANNE WHEAT

First Respondent

GAVIN McDOIJALD

Second Respondent

COLLECTOR OF CUSTOMS FOR

N E 5 J SOUTH W E S

Third Respondent

COPM	:	WILCOX J.
W:	6 DECEMBER 1985

PLACE : SYDNEY

EXTEMPORE REASONS FOR JUDGMENT

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This is an application for an extension of time to

make an application to the Court for review of a decision by

the respondents in relation to the seizure of certain goods

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claimed to be owned by the applicant. The notice of seizure,

which was served upon the applicant company on 4 July 1985,

refers to a decision to seize on 1 May 1985. The goods .

referred to consist of "125,491 pairs of 'Kung Fu' shoes of

various styles, brands and colours". I am informed that the

goods were in fact taken from the custody of the applicant

over a period of a few days immediately following 1 May.

On 19 July 1985 a notice of claim was submitted by

the applicant to the Collector of Customs. This was done

pursuant to s.203(6) of the Customs Act'1901. On the same day

a request was made pursuant to 5.13 of the Administrative

Decisions (Judicial Review) Act 1977 seeking a statement in

writing settlng out the findings on material questions of

fact, referring to the evidence or other material on which

those findings were based and giving reasons for the decision.

On 2 August 1985 Mr Gavln McDonald, the second

respondent, who is the Assistant Collector, Investigatlons pursuant to s.l3(3)(a) of the Administrative Decisions

(Judicial Review) Act that he was of the opinion that the

applicant was not entitled to reasons under 3.13. That is a

view which conflicts with my subsequent decision n

Holdinss Ptv Limited v Murphv ( 2 4 September 1985, not

reported) which would appear to be directly applicable.

3 .

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On 1 August 1985 notice was given by the Collector,

Mr Murphy, pursuant to s.208A of the Customs Act requiring the

applicant to bring action against him for recovery of the

goods or to seek a declaration that the goods were not

forfeited and giving notice that, if such action was not taken

within four months, the goods would be deemed to be forfeited

to the Crown without any further proceedings.

There followed a period of some confusion on behalf

of the applicant's advisers as to the best course to take.

Despite their previous reliance upon the Administrative

Decisions (Judicial Review) Act proceedings were commenced in

the Supreme Court of New South Wales. In fact these

proceedings had been commenced very shortly before the notlce,

the Statement of Claim having been filed on 25 July. There

was then some discussion between representatives of the

parties as to the course to be taken and on 2 3 October 1985

the present Application was filed, the applicant conceding the

point that there had not been an extension of time under 5-11

of the Administrative Decisions (Judicial Review)	Act, hence
this applicatlon.

It seems to me to be arguable that time for bringing

the application for review has not yet expired, at least in

relation to certain aspects of the decision which has been

made. If I am correct in the view I expressed in

Holdinss, schedule 2 to the Admlnlstrative Decisions (Judicial

Review) Act does not exclude the obligation to give reasons in

a case of this nature. It would follow that the time

nominated by s.11(3) (b) (ii) of the Administrative Decisions .

(Judicial Review) Act has not yet expired. However this may

be, I am of the opinion that this is a case where	an xtension
of time shoulmd be granted.

Miss Ward on behalf of the respondent has very fairly

said that there is no prejudice to the respondents by the

granting of the application. It seems to me inevitable that

the validity of the seizure will be litigated and she

indicates that from her client's point of view no problem

arises in litigating this matter in this Court rather than the

Supreme Court.

The applicant not only seeks review of the decision

to seize but also seeks a declaration as to its entitlement to

redelivery of the goods and an order accordingly. This Court

can give the whole of the relief available in the Supreme

Court and also exercise jurisdiction under the Administrative

Decisions (Judicial Renew) Act.

The situation in relation to orders for detinue in matters of this nature have been considered in a number of recent cases which were referred to by me in Frost v Collector

of Customs, Oueensland ( 2 6 November 1985, not reported). It

seems to me that the appropriate course 1 that there be an

extension of time but that this should be on terms that the

applicant undertake forthwith to discontinue the Supreme Court

proceedings and that the'applicant pay the costs of the

application for extension of time.

I certify that this and the four ( 4 )

preceding pages are a true copy of

the Reasons for Judgment herein of

his Honour Mr Justice Wilcox.

Date : 20 February 1986

Counsel for the applicant:

Mr P Strasser

Solicitors for the applicant:

Ian C McGillivray

Counsel for the respondent:

Miss S Ward

Solicitors for the respondent:

Australian Government

Solicitor (Mr M Cassin)

Date(s) of hearing:

6 December 1985