Convery v Ziino

[1985] FCA 200

Re: JENNIFER ANN CONVERY and ANTHONY JOHN LUND
And: CHRISTOPHER ZIINO
No. G 99 of 1985
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Neaves J.

CATCHWORDS

Administrative Law - judicial review - Application for review of decision to seize yacht as forfeited to the Crown under the Customs Act 1901 (Cth) - Exercise of discretion to refuse application because of other rights available to applicants.

Practice - Application for stay of proceedings - Whether application for review of decision to seize yacht as forfeited to the Crown under the Customs Act 1901 (Cth) should be stayed pending sentencing of one of the applicants on criminal charge arising from facts relative to the decision to seize.

Administrative Decisions (Judicial Review) Act 1977 (Cth), ss.5, 10

Customs Act 1901 (Cth), ss.203, 205, 208A, 228, 229

HEARING

SYDNEY
#DATE 27:5:1985

ORDER

1. The order made on 7 May 1985 that the parties exchange lists of documents and afford inspection thereof be set aside.

2. Otherwise the motion, notice of which was given on 17 May 1985, be dismissed.

3. The respondent Christopher Ziino pay the applicants' costs of the motion.

Note: Settlement and entry of orders is dealt with in

Order 36 of the Federal Court Rules.

JUDGE1

Pending before the Court is an application by Jennifer Ann Convery ("the first applicant") and Anthony John Lund ("the second applicant") under section 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth). The application seeks an order of review in respect of a decision made on 27 March 1985 by the respondent, Christopher Ziino, an officer of the Australian Federal Police, to seize, as forfeited under the provisions of the Customs Act 1901 (Cth), the yacht "Peregrine" then lying at its moorings at Careel Bay, Pittwater in the State of New South Wales.

1. On 3 May 1985 the applicants were given leave to serve short notice of the application. There was a directions hearing on 7 May 1985 when, by consent, orders were made in the following terms -
   
   

"1. The respondent to file and serve all affidavits relied upon by him on or before 24 May 1985.

2. The parties are to exchange lists of documents on or before 24 May 1985 and afford inspection thereof forthwith.

3. Any affidavits to be relied upon by the applicants in reply to be filed on or before 30 May 1985.

4. The parties are to have leave to approach the Registrar forthwith for a date for hearing, such date not to be before 3 June 1985.

5. Liberty to apply on 1 day's notice."

1. Subsequently, 11 June 1985 was fixed as the date upon which the application would be heard.

2. The matter at present before me is a motion, notice of which was given on 17 May 1985, by the respondent for the following orders -
   
   

(a) An order that the application hereinbefore referred to be dismissed.

(b) Alternatively -

(i) an order that the consent order for discovery made on 7 May 1985 be set aside; and

(ii) an order that the hearing date be vacated pending the disposal of criminal proceedings pending against the second applicant under paragraph 233B(1)(ca) of the Customs Act 1901 (Cth).

1. For present purposes it may be accepted that, immediately prior to its alleged forfeiture, the applicants were the owners of the yacht which was then being used as their home. It appears from the material before the Court that the applicants purchased the yacht for $23,000 pursuant to an agreement made on 24 July 1984 with the former owner. It also appears from that material that, of the purchase price, the first applicant contributed $20,000 and the second applicant $3,000.

2. It may also be accepted for present purposes that the seizure of the yacht followed the discovery aboard the vessel of a quantity of cannabis resin and that, in consequence of that discovery and the questioning of the second applicant by officers of the Australian Federal Police, the second applicant was charged with an offence against paragraph 233B(1)(ca) of the Customs Act 1901 (Cth) and an offence against section 21(1)(b) of the Poisons Act, 1966 (N.S.W.).

3. Paragraph 233B(1)(ca) of the Customs Act 1901 (Cth) provides, inter alia, that a person who, without reasonable excuse (proof whereof shall lie upon him) has in his possession any prohibited imports to which section 233B applies which are reasonably suspected of having been imported into Australia in contravention of the Act is guilty of an offence. Goods consisting of cannabis resin are prohibited imports to which the section applies. The penalty for such an offence is prescribed by section 235 and depends, inter alia, upon whether the narcotic goods in relation to which the offence is committed consist of a quantity of a narcotic substance that is, or is not, less than the trafficable quantity applicable to the substance (it being here alleged that the quantity was not less than the trafficable quantity) and whether the court is satisfied that the offence was not committed by the person charged for any purpose related to the sale of, or other commercial dealing in, those narcotic goods.

4. On 17 May 1985 the second applicant pleaded guilty in the Local Court of New South Wales to the charge under the Customs Act 1901 (Cth) and was committed for sentence to the District Court of New South Wales in its Criminal and Special Jurisdiction. I was informed that the matter is expected to be listed before the District Court within the next eight weeks. The second applicant also pleaded guilty to the charge under the Poisons Act, 1966 (N.S.W.) and that charge stands adjourned for mention before the Local Court on 30 September 1985. The second applicant has sworn in an affidavit filed in the proceedings in this Court that he intends to adhere to his pleas of guilty.

5. There is nothing before the Court to suggest that the first applicant was involved in any criminal activity in relation to the cannabis resin discovered on the yacht. In any event, no criminal proceedings have been taken against her in that regard.

6. On 10 April 1985 the respondent served upon the solicitor for the second applicant a notice purporting to be under sub-section 205(2) of the Customs Act 1901 (Cth) stating that the yacht had been seized as forfeited to the Crown in accordance with the powers conferred by section 203. The reason for the seizure was stated in the following terms -
   
   

"The vessel Peregrine was used in the conveyance of a prohibited import being narcotic goods consisting of a quantity of cannabis resin."

1. The notice did not specify the provision of the Customs Act 1901 (Cth) by virtue of which it was alleged that the yacht was forfeited to the Crown. Counsel for the respondent stated that the respondent had relied upon paragraph 229(1)(j), that paragraph providing that the goods forfeited to the Crown include -
   
   

"Any carriage or animal used in smuggling or in the unlawful importation, exportation, or conveyance of any goods."

"Carriage" is defined in sub-section 4(1) to include vehicles and conveyances of all kinds. Sub-section 229(2) may also be noticed. It provides that section 229 applies in relation to ships, boats and aircraft as well as other goods. Counsel also suggested that reliance might be placed on paragraph 228(1) which provides, inter alia, that any ship not exceeding 250 tons registered tonnage knowingly used in the unlawful conveyance of any prohibited imports shall be forfeited to the Crown. It may be noted that the language used in the statement in the notice served on 10 April 1985 of the reason for seizure does not precisely follow the language of either paragraph 229(1)(j) or paragraph 228(1) of the Act.

1. As Kitto J. said in Powers v. Maher (1959) 103 CLR 478 at p 483:
   
   

"... clear it is that whenever a state of affairs arises in which any one of the descriptions of goods contained in the eighteen paragraphs of s.229 is satisfied, that section intends to effect at once some change in the legal situation with respect to those goods, be it a transfer of ownership to the Crown or only the creation of a right in the Crown to bring about such a transfer by immediate seizure."

The same may be said of the provisions contained in section 228.

1. Sub-section 203(2) of the Customs Act 1901 (Cth) provides that an authorised person (an expression which includes an officer of police) may seize "any forfeited goods or any goods that he believes on reasonable grounds are forfeited goods". When goods have been seized under section 203, notice of the seizure must be given to the owner of the goods or the person who had possession, custody or control of the goods immediately before they were seized (sub-section 205(2)). Unless 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, within 30 days after the day on which the notice was served stating that he claims the goods, the goods are deemed to be condemned as forfeited to the Crown (sub-section 205(6)). Where such a claim is made, the member of the Australian Federal Police who is in possession of the goods may retain possession without taking proceedings for the condemnation of the goods and may serve a notice requiring the claimant to bring an action within 4 months of the service of the notice for the recovery of the goods (sub-section 208A(1)). Failure to take such proceedings within the time prescribed results in the goods being deemed to be condemned as forfeited to the Crown without any further proceedings (sub-section 208A(2)).

2. I have already referred to the notice given by the respondent under sub-section 205(2). In accordance with sub-section 205(6), the first and second applicants, as owners, gave notice on 11 April 1985 that they claimed the yacht. On 16 May 1985, that is after the proceeding in this Court under the Administrative Decisions (Judicial Review) Act 1977 was instituted, the owners were given notice under sub-section 208A(1) "requesting" them to take action for the recovery of the yacht.

3. The submission on behalf of the respondent that the Court should dismiss the application under the Administrative Decisions (Judicial Review) Act 1977 is based upon sub-paragraph 10(2)(b)(ii) of that Act. That sub-paragraph confers on the Court a discretion to refuse to grant an application under, inter alia, section 5 of the Act made to the Court in respect of a decision for the reason that "adequate provision is made by any law other than this Act under which the applicant is entitled to seek a review by the Court, by another court, or by another tribunal, authority or person, of that decision ...". In that provision the word "review" includes a review by way of reconsideration, re-hearing, appeal, the grant of an injunction or of a prerogative or statutory writ or the making of a declaratory or other order (sub-section 10(3)).

4. It was submitted on behalf of the respondent that the Court should dismiss the application for the following reasons -
   
   

(a) That the application would not necessarily determine the question of forfeiture of the yacht and that the applicants, should they be unsuccessful, would not necessarily be estopped from taking proceedings in another jurisdiction for the return of the yacht.

(b) That an alternative remedy is available to the applicants to seek a return of the yacht, such alternative remedy being one contemplated by the Customs Act 1901

(Cth) and one which would finally determine the question of forfeiture.

(c) The Court should not permit a second remedy under the Administrative Decisions (Judicial Review) Act 1977 to be availed of where there is an adequate remedy already available.

(d) The Court should not permit the Administrative Decisions (Judicial Review) Act 1977 to be used for collateral purposes.

1. The alternative remedy available to the applicants is to take proceedings in a court of competent jurisdiction by way of, for example, an action in detinue. It was said, and I think correctly said, that the applicants could have taken such proceedings immediately upon the yacht being seized and independently of the service on 16 May 1985 of the notice under sub-section 208A(1) of the Customs Act 1901 (Cth) to which reference has been made. Whether such proceedings should properly be described as proceedings for the review, in the defined sense, of the decision of the respondent to seize the yacht so as to bring them within the purview of sub-paragraph 10(2)(b)(ii) of the Administrative Decisions (Judicial Review) Act 1977 may be debatable but for present purposes I shall assume that, in the circumstances of this case, they should be properly so described.

2. 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.

3. 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. One cannot, of course, be certain that this will be so as the issues between the parties are not yet clearly defined. In particular, no material has been filed setting out the factual basis upon which the respondent's decision was made and it is, therefore, not clear whether there will be disputed factual, as well as legal, issues. It may be noted, however, that at the directions hearing it was said on behalf of the respondent that there was unlikely to be any real dispute as to the facts.

4. In Graham v. Commissioner for Superannuation (1981) 3 ALN (52) N86, Fox A.C.J., when considering a submission that the Court should exercise its discretion under sub-section 10(2) of the Administrative Review (Judicial Decisions) Act 1977 to decline jurisdiction, said:
   
   

"I think this is always a matter the court has to consider or should I say it is frequently a matter the court will have to consider. The main consideration, I imagine, is what is best to be done in the interests of the parties and in the public interest and with a view to saving cost and time and reaching as soon as possible a finality of decision."

The onus is clearly on those seeking to persuade the Court that it should not exercise the jurisdiction conferred on it by the legislature: Kelly v. Coats (1981) 35 ALR 93 at p 94; Beck v. Thornett (Federal Court (Everett J.) - 31 August 1984 - unreported). In a case such as this, where what the respondent seeks is, in effect, an order summarily terminating the proceedings at a stage when the issues have not been adequately defined, the onus must be a heavy one. The Court should only make such an order in a very clear case.

1. The circumstances of the present case are not comparable with those which convinced Everett J. in Beck v. Thornett (supra) that he should exercise the discretion conferred by sub-paragraph 10(2)(b)(ii) adversely to the applicant in that case. Those circumstances were such that his Honour could say:
   
   

"Even if the applicant succeeded in the existing application it appears very unlikely, in view of the nature of the material before the court, that such a determination would be other than an early step in a potentially protracted and costly course of inquiry and litigation."

1. In the result the respondent has not persuaded me that the Court should intervene at this stage of the proceedings to prevent the matter being litigated in this Court. I am not convinced that the real issue between the parties cannot be determined in the present proceedings. If that should turn out not to be the position other proceedings between the parties will become necessary but the mere fact that that is a possibility provides, in my opinion, no sound ground for denying to the applicants the opportunity to litigate the question whether the decision to seize the yacht was in any respect contrary to law.

2. In reaching this conclusion I have also had regard to the fact that a hearing date of 11 June 1985 has been fixed and that to grant the respondent's application would result in considerable delay in having the issue litigated.

3. I should add, though it is perhaps unnecessary to do so, that nothing I have said will preclude a submission being made to the judge hearing the substantive application that, in the light of the issues as they then emerge, the discretion conferred by sub-paragraph 10(2)(b)(ii) of the Administrative Decisions (Judicial Review) Act 1977 should then be exercised adversely to the applicants.

4. The first order sought in the motion is, therefore, refused.

5. I turn to the first of the alternative orders sought, namely an order setting aside the order for discovery made by consent on 7 May 1985.

6. The respondent's submissions on this point may be summarised as follows -
   
   

(a) The decision to seize the yacht arose out of an investigation into drug trafficking and the decision is one falling within paragraph 2(e) or 2(f) of Schedule 2 to the Administrative Decisions (Judicial Review) Act 1977 and thus a decision to which section 13 of that Act does not apply.

(b) It is generally inappropriate to order discovery even in cases to which section 13 applies (see Lloyd v. Hartigan (Federal Court - Full Court - 9 May 1983 - unreported)) and the procedure should not be used as an alternative to a section 13 statement where that section does not apply.

(c) It is inappropriate to allow discovery in administrative proceedings where the respondent to those proceedings is a police officer prosecuting one of the applicants for a criminal offence and where the matters going to the heart of the administrative proceedings are the same as those involved in the criminal proceedings.

1. I have not found it necessary to form a definitive conclusion on the above submissions but I have had particular regard to what was said by a Full Court of this Court in Lloyd v. Hartigan (supra) on the question of granting discovery in proceedings under the Administrative Decisions (Judicial Review) Act 1977. I have also had regard to the circumstance that, since the order for discovery was made on 7 May 1985, a police brief of evidence in the criminal proceedings brought under the Customs Act 1901 (Cth) has been handed to the Local Court of New South Wales pursuant to section 51A of the Justices Act, 1902 (N.S.W.). No doubt a copy of that brief is available to the applicants and, in the light of the submission of the respondent set out in (c) above, that brief may be expected to contain the material upon which the respondent relied to support the seizure of the yacht.

1. I have also taken into account that the applicants did not press to retain the order for discovery, their concern being rather with a speedy determination of the central issue whether the yacht is forfeited to the Crown.

2. In the light of those considerations I have decided that it would be appropriate to vacate the order for discovery and I do so.

3. The remaining question is whether, as the respondent submits, the proceedings should be stayed pending the disposal of the criminal proceedings pending against the second applicant under the Customs Act 1901 (Cth).

4. For the respondent it was submitted that, as the second applicant has sworn an affidavit in the proceedings and may be cross-examined in relation to the matters deposed to therein and other matters, the respondent may be disadvantaged by any refusal of the second applicant to answer questions on the ground of self-incrimination. It was also said that any answers which the second applicant might give in cross-examination in the proceedings in this Court could well be used against him when the District Court of New South Wales considers the question of sentence and, in particular, the matters relevant to sentence set out in section 235 of the Customs Act 1901 (Cth). It was submitted that, in such circumstances, it was contrary to public policy to allow the present proceedings to continue.

5. The circumstances in which civil proceedings should be stayed because of pending criminal proceedings are discussed and the relevant authorities referred to in the judgment of Wooten J. in McMahon v. Gould (1982) 1 ACL.C. 98: see also Cameron's Unit Services Pty. Ltd. v. Kevin R. Whelpton and Associated (Australia) Pty. Ltd. (Federal Court (Wilcox J.) - 19 December 1984 - unreported). I need not further discuss them here.

6. In so far as the respondent refers to the disadvantage which may flow from a refusal by the second applicant to answer questions on the ground of self-incrimination, it may be a question whether, in proceedings under section 5 of the Administrative Decisions (Judicial Review) Act 1977 to review the decision to seize the yacht, the evidence that is admissible is confined to the material that was before the decision-maker and on which he relied in making the decision. It is unnecessary and undesirable to determine that question at this stage. The respondent, however, has not in my opinion demonstrated that there is a sufficient likelihood that prejudice to the respondent will arise from a continuation of the proceedings in this Court. Nor has the respondent shown, in my view, a real danger of causing injustice in the criminal proceedings which are, in the present circumstances, proceedings for sentence only.

7. In all the circumstances, I am not satisfied that the ordinary right of the applicants, particularly the first applicant against whom no criminal proceedings are pending, to have the proceedings in this Court heard in the ordinary course of the procedure and business of the Court should be interfered with by the granting of a stay. The application is, therefore, refused.

8. In the result, I vacate the order made on 7 May 1985 that the parties exchange lists of documents and afford inspection thereof. Otherwise the motion is dismissed with costs.