Commonwealth of Australia v Sinclair, W.C

[1987] FCA 418

Re: THE COMMONWEALTH OF AUSTRALIA; THE COMPTROLLER-GENERAL OF CUSTOMS; THE
COLLECTOR OF CUSTOMS (QLD) and MAXWELL J. ROGERS
And: WILLIAM CHARLES GARFIELD SINCLAIR
No. VG49 of 1987
Practice and Procedure

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Sweeney(2), Jenkinson(1) and Gummow(3) JJ.

CATCHWORDS

Practice and Procedure - appeal against order extending time for making application for order of review - grounds of appeal that decision wrong in law and against weight of evidence of no significance and unable to support submissions of kind to be made - assertion that lapse of time made review of or setting aside decision legally impossible rejected as not covered in grounds of appeal.

Federal Court Rules Order 52 Rule 10.

HEARING

MELBOURNE

#DATE 16:6:1987

Counsel for the appellants: Mr G Nettle

Solicitors for the appellants: Australian Government Solicitor

Counsel for the respondent: Mr P. Wilson

Solicitors for the respondent: Juliano Ford & Co.

ORDER

The Court orders that the appeal be dismissed with costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

The Court has before it an appeal brought by leave against an order of a judge of the Court extending the time within which application might be made for an order of review in respect of a decision which is alleged by the respondent to this appeal, the applicant in the Court below, to be a decision reviewable under the Administrative Decisions (Judicial Review) Act 1977.

1. The application for extension of time was granted. In the course of stating his reasons for the conclusion to which he came on the exercise of the discretionary power which he was exercising, the learned trial judge observed:
   
   

"Because of the absence from the evidence of any statement by the respondents of reasons for the refusal to repay the moneys claimed by the applicant, I have not attempted to

evaluate with any precision the applicant's prospects of success on the merits of his

application. However, I have acted on the view that the evidence so far before the court raises a serious question to be tried."

1. I should say that the decision, as it is alleged to be, of an administrative character which the respondent to the appeal seeks to have reviewed, is a decision of one of the appellants here, refusing to accede to a request by the respondent to this appeal for repayment of a sum of money which had been previously seized, purportedly in exercise of power granted by s.229A of the Customs Act 1901.

2. The appellants, by their counsel Mr Nettle, sought the leave of the Court at the opening of the appeal to amend the grounds of appeal to add grounds in substance asserting that the decision sought to be reviewed was not a decision as to which there was any possibility of a successful application for an order of review. That application the Court refused a short time ago on what might be thought to be conventional grounds, that the matter sought to be raised was not in substance indicated in the original grounds of appeal, and did not raise a point which had been so seriously agitated in the Court below that the respondent to the appeal must have realized that, whatever appeared in the formal grounds of appeal, the points would be asserted and sought to be relied upon on the hearing of the appeal.

3. I should say that, in the course of argument on the application with which we are now dealing - that is to say, an application that the appellants be permitted to make submissions under the existing grounds of appeal designed to show that the application for review could have no hope of success - it became clear that there was not unanimity between the parties as to just what had happened in the course of the hearing below. But it certainly seems that the submissions, which it is now desired by the appellants to put, were not submissions that were pressed or given any emphasis in the course of the hearing below. That, of course, is what one would expect to be the situation, having regard to the terms of the remarks which the learned judge made on the question of the serious question to be tried, which I have quoted. There is nothing in his reasons to suggest that any serious debate took place before him as to whether or not there was a fatal legal obstacle to the success of the application for an order of review. So, too, when one looks at the grounds of appeal, there is nothing in those grounds to suggest that those who were advising the appellants were conscious at the time when the grounds were drawn that a serious, and seriously pressed, legal argument of the kind now sought to be put had been in effect ignored by the learned judge.

4. Nevertheless, the essential question, as it seems to me, which now arises is whether or not the submissions which it is desired to put on behalf of the appellants may properly be put under any of the existing grounds of appeal. Three possible grounds are suggested by Mr Nettle. The first is the first ground of appeal, that the decision - that is to say, the decision granting an extension of time - was wrong in law.

5. In my opinion, the circumstances would indeed be very rare when a ground expressed in those terms could be relied upon to cover a submission which was not covered by any other ground. I think it is fair to say that the assertion in a notice of appeal that the decision was wrong in law is nothing more than a pious recital that has no significance and affords no assistance to an appellant at all.

6. The second ground suggested as that under which the submissions might be made is ground number 2 : in exercising the discretion to grant the said application, the learned judge acted against the weight of the evidence. It does not, from what we have been told about the argument that it is desired to put before the Court in support of this submission, appear that there is any disputed question of fact, any question or doubt as to the significance or weight of evidence involved. As we understand it, the submissions that it is desired to put are submissions which rest upon undisputed factual circumstances, few in number and comparatively simple to state. The expression "against the weight of the evidence" is a traditional expression used in appeals to Courts which have the power to deal not only with errors of law but errors of fact. The history and significance of the expression was considered at some length in Chamberlain v. R. (1983) 46 ALR 493 at 547-557. It is, in my opinion, quite unable to support submissions of the kind which it is desired to make in this case.

7. The third suggested ground is ground number 7(i) : "In exercising the discretion to make the said order, the learned judge failed to have sufficient regard to ... the fact that the decision not to refund the said moneys referred back to, and upon review would involve a consideration of, the decision to seize the same and the decision to issue a Notice of Seizure, therefore, which said actions were taken approximately eight years before the application for review was issued" (sic).

8. It appears that the decision which is sought to be reviewed was made only some five or six years ago, perhaps even less. Ground 7(i) is, as I understand it, designed to complain that the judge failed to have sufficient regard to the circumstance that he was not concerned only with a delay between the time of the decision and the time of his consideration of the application, but that necessarily there would be involved in the hearing of the application for an order of review a retrospective consideration of circumstances occurring even further back in the past, that is to say, about eight years before. If that is what the ground refers to, it is plain that it could not possibly provide a basis for the submission which it is desired to make, that by reason of certain circumstances - admittedly including the circumstances which obtained at the time of the seizure - no review or setting aside of the decision is legally possible. For those reasons, in my opinion, the appellants cannot be permitted to advance the submissions that they propose to advance because they are submissions which are not covered by the grounds of the notice of appeal.

9. Mr Nettle has argued these questions, which have been agitated at the beginning of the hearing of the appeal, with succinctness and ability and frankness, and his final act of frankness was to indicate to the Court that, if we were against him on the last question that I have just been discussing, he really had no further submissions that he felt that he could put to the Court in support of the appeal. That being the situation, it would appear that the only order this Court may now make is an order that the appeal be dismissed with costs, and that is what I would propose.

JUDGE2

I agree with the order proposed and with the reasons that my brother Jenkinson has given. I would simply add this. As has been pointed out in the course of argument, nothing that has been said here today will prevent the appellants from raising in the principal application the matters on which they have sought to address us. It is, in my opinion, having regard to the history of this matter before it came to this Full Court, important that those matters should be raised before a judge at first instance and should not be considered by this Court in the setting of this appeal and of the grounds relied upon in support of it.

JUDGE3

I agree with the judgments that have been delivered. For myself, I would only add that, if there are to be agitated at first instance the matters Mr Nettle indicated concerning s.81 and the succeeding sections of the Constitution as to the role of Consolidated Revenue, attention will have to be paid to the provisions of s.78B of the Judiciary Act.