Ferris v Commonwealth Director of Quarantine
[1991] FCA 187
•17 APRIL 1991
Re: JAMES IAN FERRIS and SANDRA FERRIS
And: COMMONWEALTH DIRECTOR OF QUARANTINE; RUSSELL ANDREW FAULKNER and JOSEPH
FRANK WOODS
No. Q G52 of 1991
FED No. 187
Justices
29 FCR 147
COURT
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Pincus J.(1)
CATCHWORDS
Justices - use of unsworn evidence in issuing warrants - whether decision to issue is administrative or judicial act.
Administrative Decisions (Judicial Review) Act 1977
Quarantine Act 1908, ss. 67 and 74A
HEARING
BRISBANE
#DATE 17:4:1991
Counsel for the applicants: Mr P.J. McHugh
Solicitors for the applicants: O'Connor and Tracey
Counsel for the first and third
respondents: Mr P. Bickford
Solicitors for the first and
third respondents: Australian Government Solicitor
Counsel for the second respondent: Mr A. Rafter
ORDER
The warrants issued pursuant to s.74A(3) of the Quarantine Act 1908 dated 30 March 1991 in respect of the matters set out in the application are declared to be void and are set aside.
The orders purporting to be made under s.74A(3) of the Quarantine Act 1908 by the third respondent dated 30 March 1991 are declared to be void and are set aside.
The third respondent pay the applicants' costs of and incidental to the proceedings, to be taxed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
This is an application filed on 10 April 1991 for an order of review under the Administrative Decisions (Judicial Review) Act 1977 ("the Judicial Review Act"). It proved to be desirable to accord the matters an urgent hearing. The decisions attacked are those of Mr R.A. Faulkner, a Justice of the Peace for the State of Queensland, to issue certain warrants and Mr J.F. Woods, a Commonwealth officer, to make orders consequential upon those warrants. A number of grounds of challenge of those decisions was taken, but the only one which was pressed in address is that dealt with below: that the Justice, Mr Faulkner, made an unwitting error in procedure, namely that he issued the warrants on the basis of unsworn, as well as sworn information. (I should add that Mr Faulkner appears to me to have acted with diligence and in all good faith.) In the circumstances, it may seem unnecessary to go into the facts in detail, except with respect to that point. However, each side urged me to deal with another factual question which was raised and which is further mentioned below.
The warrants and what was done under them related to certain plum trees and fruit picked from the trees on the applicants' properties near Stanthorpe in Queensland. In broad outline, the applicants' case is that they obtained some budwood about seven years ago and a few years after that grafted it on to rootstock from which, over a period of years, they have successfully harvested plums which have been sold in various places here and overseas. The third respondent says that, acting on a tip-off from an informer, he and others have taken an interest in the applicants' properties and have come to the conclusion that the plum trees in question are derived ultimately from a variety of Californian plum called "Autumn Giant", which is the subject of a United States patent.
It is a digression to say so, but it seems to me odd that, in the evidence put forward on behalf of the first and third respondents, something was made of the fact that there was a patent; the implication appeared to be that there might be an obligation to protect the patentee. The rights, if any, of the American patentee are not in issue here and were irrelevant to the respondents' considerations - or, at least, they should have been so treated.
It is common ground that, under the quarantine legislation and proclamations thereunder, only one E.D. Fleming, a Victorian nurseryman, under permit QP36D19449 has been given permission to import "Autumn Giant" budwood; any importation by another person would have been unlawful under s.67(1) of the Quarantine Act 1908. Fleming's evidence is that he obtained permission to import some budwood of this variety in 1984 and some four years later it was released to him. He says he has sold plants of that variety, of considerable value, in Australia, but not to the applicants.
The third respondent, Mr Woods, formed the view that it was necessary to quarantine the applicants' plants and fruit which are in question, because those plants and fruit are alleged to be of the Autumn Giant variety. The third respondent acted on the view that they are therefore "infected goods" within the meaning of the Quarantine Act 1908 ("the Act") and, in particular, s.74A. Section 74A(9) defines infected goods as meaning, among other things, goods that have been imported into Australia in contravention of the Quarantine Act, or a proclamation under the Act. The definition is elaborated on (in effect) by adding that goods which have been in contact with such imported goods are also deemed to be infected goods - para (c). Under sub-s.(10) a plant shall "be deemed to have been in contact with any plant of which it is the progeny, including any plant of which it was a cutting or from which it was otherwise derived" - para (c). Sub-section (10) also says, in paragraph (d):
"goods that have been in contact with other goods shall be deemed to have been in contact with any goods with which those other goods have been in contact (including any goods with which those other goods are deemed to have been in contact by virtue of this subsection)".
It was pointed out during the course of the hearing that if one read this literally, then fruit ultimately derived from budwood imported generations ago could be covered by it. There might be quite a lot of fruit currently being sold in Australia which could be traced back to budwood, or indeed to plants, imported after 1908 without permission; reading the definition quite literally, all that appears to be "infected goods" and subject to the Quarantine Act. There was some mention of the possibility that the Commonwealth's power under the Constitution (s.51(ix)) may not extend so far as that, but nothing was made of it and I say no more on that topic.
The consequence of these provisions, so counsel for the third respondent contends, is that trees and fruit of the Autumn Giant variety are "infected goods" unless derived from Fleming's budwood and that view was the basis for the action which was taken. What was done was that the third respondent, Woods, went to the second respondent, Faulkner, and obtained the issue of warrants under s.74A. Section 74A(2) reads as follows:
"Where a quarantine officer has reason to believe that premises contain infected goods, the quarantine officer may make an application to a Justice of the Peace for a warrant (to be known as "Quarantine Warrant") authorizing the quarantine officer to enter the premises and to exercise the functions of a quarantine officer under this section in relation to those premises".
Sub-section (3) says:
"If, on an application under subsection (2), the Justice of the Peace is satisfied, by information on oath or affirmation, that there is reasonable ground for believing that the premises to which the application relates are premises on which there are infected goods, the Justice of the Peace shall grant a Quarantine Warrant authorizing the quarantine officer, with such assistance as the quarantine officer thinks necessary, to enter the premises, during such hours of the day or night as the warrant specifies, or, if the warrant so specifies, at any time, if necessary by force, and to exercise the functions of a quarantine officer under this section in relation to those premises".
Sub-section (4) sets out the functions of a quarantine officer under the section in relation to premises and they include:
"(b) to order into quarantine any infected goods found on the premises".
I have found no explanation in the Act of what legal consequences follow from ordering infected goods into quarantine. It may be that meaning is to be given to the notion by inferences or implications from earlier references in the Act to that subject: see ss.13(1), 29, 31, 44, 48. However, nothing seems to turn upon that. I simply draw attention to the fact that so far as counsel for the third respondent was able to assist me, and as far as I myself could find assistance in the Act, the concept of ordering goods into quarantine seems rather obscure.
There was no separate attack on the validity of the third respondent's orders. One of them purported to order into quarantine all "rooted plant" on 129.3 hectares of land. That includes established fruit trees. They are not chattels and it may be that the definition of "infected goods" in the Act read with the definition of "goods" includes chattels only; but I need say no more on that subject.
As I have mentioned, the application raised a number of grounds and the one which was pressed fastened upon evidence given by Mr Faulkner, the first respondent. In an affidavit by Mr Faulkner he said (in paragraph 8), among other things:
"From my careful reading of the said Information sworn on oath, my discussions with the said Mr Woods and having read the Quarantine Warrants produced to me by Mr Woods, I formed the opinion that the informant had reasonable grounds for believing that there were infected goods within the meaning of the Quarantine Act upon the premises referred to in the said Information".
Attention was focused upon the use of the expression "my discussions with the said Mr Woods". There was no dispute about the fact that there were such discussions and I say more about them below.
The legislative basis of the issue of the warrants is the satisfaction of Mr Faulkner by information on oath or affirmation that there is reasonable ground for believing certain things; see s.74A(3), quoted above. According to Faulkner's evidence, the legislative basis was discussed and he also said:
"I enquired of the said Mr Woods of the hours within which the Warrants could be executed and was reasonably satisfied by his explanation to not specify any particular hours of the day".
That was a reference to the fact that the warrants permitted entry at any time, if necessary by force. The terms of the warrants need not, I think, be read out in full; it is sufficient to say that they purported to authorise the third respondent under s.74A of the Act, in relation to certain premises of the applicants, to enter them at any time, if necessary by force, and to exercise the functions of a quarantine officer under s.74A. It appears that Woods made some statements to Faulkner to satisfy him that the matter was of such a character as reasonably to require warrants of that sort. The statute contemplates that hours of entry may be specified or that the warrant may allow entry at any time; something was said to Faulkner which satisfied him that no time should be specified, but its content was not disclosed. Woods, no doubt honestly, disputed that he had such a conversation with Faulkner as I have just mentioned, but I accept Faulkner's evidence on the point, he being, in general, the more reliable witness of the two. Faulkner seemed to have a fairly clear recollection of the general nature of what had happened; the issue of such warrants was, no doubt, quite an unusual event in his life. Unfortunately, neither he nor Woods was able to give any but a very incomplete account of what the conversations concerning the matters the subject of the warrants were.
When Faulkner gave oral evidence, he explained that he had had Woods swear to the truth and accuracy of what was in the written document. In addition to that, he obtained answers to questions which he asked Woods and also "information that Mr Woods had volunteered to me". Mr Faulkner said:
"In signing the warrants, I relied on the - the written information given to me on oath ... and the discussions I'd had with Mr Woods".
That is, of course, consistent with his affidavit. Faulkner mentioned that he had "needed further elaboration on some of the stuff in that" where "that" apparently refers to the written information. According to Faulkner, the conversation concerning the circumstances "would have been at least fifteen to twenty minutes" in length.
Mr McHugh for the applicants argued that, in these circumstances, the warrants were void. The argument was to the effect that, on Mr Faulkner's evidence, the warrants had been issued on the basis of an amount of unsworn information, as well as that which was sworn to.
I understood counsel for the third respondent to contend, in substance, that it was not clear that the conversation had included any statements of real significance. Accepting, as I do, Faulkner's account of the matter, it would seem to me impossible to assume that the lengthy conversation about the circumstances leading to the request for the warrants consisted entirely of matters of no consequence or of mere repetition of what was in the written information: Faulkner gave me the opposite impression. He appeared to have been anxious to satisfy himself that the issue of the warrants sought was genuinely necessary and I think that, acting in a proper fashion, he obtained from Woods a substantial amount of what he called "elaboration" on the material in the written information. Unfortunately, his having done so, without first swearing Woods, did not conform with the Act. Although in large part, the nature of the oral discussions cannot now be reconstructed, one point Faulkner apparently remembers distinctly is that there was the discussion just referred to, relevant to the hours of entry. That must have been thought a matter of consequence, for Faulkner to have raised it, but what Woods said to satisfy Faulkner on the point is not now known. It must surely have been something which impressed upon Faulkner the importance of the matter and the risks attendant upon issuing only a warrant limited to particular times.
On the face of it, the procedure laid down in s.74A(3) has not been followed in that the Justice of the Peace has been satisfied by information on oath, as well as information not on oath - principally, I would think, by the former, but not unimportantly by the latter.
Mr Bickford submitted that, even if this were so, the High Court's decision in George v Rockett (1990) 170 CLR 104 saved the warrant. There, the statute made the power to issue a search warrant depend upon its appearing to a Justice "on complaint made on oath, that there are reasonable grounds for suspecting ..." certain matters: s.679 of the Queensland Criminal Code. At p 114, the reasons referred to Feather v Rogers (1909) 9 SR (N.S.W.) 192 at 196, in which it was said, with reference to a requirement that facts be shown "on oath before a Justice":
"The statements made before the information was sworn were apparently not made on oath. They were therefore immaterial".
The High Court went on:
"That is not to say that a justice before whom a complaint is sworn should abstain from questioning the complainant if the justice wishes to obtain some confirmation of what appears in the complaint. The requirement is that the sworn complaint should contain sufficient facts to found the reasonable suspicion and the reasonable belief respectively mentioned in s.679. If that requirement is not satisfied, the information otherwise conveyed to the issuing justice is immaterial but, if that requirement is satisfied, the justice may seek confirmation by inquiry of the complainant".
In Feather v Rogers, the statute in question was s.354 of the N.S.W. Crimes Act 1900, beginning:
"where any credible person, on oath before a Justice, shows reasonable cause to suspect that ...".
When describing the unsworn statements which were considered in that case as "immaterial", Simpson A.C.J. plainly meant that they could not be considered in determining whether the statute had been complied with; his Honour did not mean to suggest that if reasonable cause were shown partly on oath and partly not on oath, that would do. The present case is one in which the course of disregarding unsworn statements which is urged upon me would, if adopted, save the warrants, not condemn them. Assuming that the remarks made by the High Court as to the permissibility of obtaining confirmation of the content of a sworn complaint under the statute there in question apply to s.74A(3) warrants under the Quarantine Act, still the warrants here were bad; it does not appear at all likely that the conversation which occurred was limited to confirmation. The whole impression given to me by Faulkner is that he was anxious to obtain details to satisfy himself that the warrants were really necessary.
I prefer to decide the matter, however, on the basis that the requirement of the statute is clear enough and strict compliance is necessary: see George v Rockett at 111. The circumstance that, as I infer, neither Woods nor Faulkner troubled to take any note of the substance of the conversation should not be allowed to save what was, prima facie, an unlawful procedure. The mere possibility that all that was said orally was, in substance, a repetition of what was in the writing, allied to the absence of recollection of what it was that was said, is not an attractive ground on which to uphold the warrants. This is particularly so when on one point which the Justice rightly treated as important, namely the question of time of entry, there is every reason to think that something of real significance must have been added. Nothing in the written document, as it appears to me, could have been thought by a reasonable Justice to be a ground for permitting the extreme course of a forcible entry on to a citizen's premises at night.
I therefore hold that the warrants were invalid for the reason that the Justice's satisfaction was attained by information not on oath, as well as information on oath. It follows - and this consequence did not appear to be disputed, assuming the correctness of the premise - that there was no right for the third respondent to order any infected goods into quarantine.
A further point taken by Mr Bickford about this aspect of the case was that the Court had no jurisdiction under the Judicial Review Act to set aside the warrant. He argued, on the basis of the decisions in Baker v Campbell (1982) 44 ALR 431 and other cases, that the decision to issue a search warrant is not an administrative but a judicial act.
In my respectful opinion, Baker v Campbell should not be followed on this point. See per Wilson J. in the later Baker v Campbell case, reported in (1983) 153 CLR 52 at 92; see also Aston v Irvine (1955) 92 CLR 353 at 363 as to the power to endorse a warrant for the apprehension of a person under the Service and Execution of Process Act.
In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 338, the Chief Justice made some observations relevant to this point. The present importance of what was said in Bond's case is that his Honour approved the conclusion of the Full Court of this Court expressed in Lamb v Moss (1983) 49 ALR 533 that a Magistrate's decision to find a prima facie case in committal proceedings is one of an administrative character. That function is, in my respectful opinion, more akin to what a Court ordinarily does than the issue of warrants of the kind issued here. The right to issue a warrant under the provisions of s.74A(3) of the Quarantine Act does not depend upon the commission of an offence or the actual or potential existence of any Court proceedings; the warrant is merely an aid to administrative investigation. The issue of such a warrant seems to me plainly not a judicial act.
The warrants and orders must be set aside, but it is necessary to deal with a further matter which was raised by counsel.
Both counsel for the applicants and for the first and third respondents asked for a finding as to whether the trees and plums in question are of the Autumn Giant variety. It is particularly unclear why counsel for the respondents did so. Not without hesitation, I have determined to express my views.
I preface what I have to say by remarking that the case came on as a matter of urgency. It appeared that unless it were heard quickly, then the plums (the gross value of which is said to be $150,000) might simply go bad and the result of the case become, as to them, academic. The urgency with which the matter was brought on was emphasised by Mr Bickford. He implied, I think, that but for the shortness of time, he could have advanced a more elaborate case. It appears to me that the question of identifying the one set of plums in evidence as of the same variety as the other set of plums is quite a difficult one, and I accept that, given more time to prepare, the parties may have produced more satisfactory evidence. It must also be kept in mind that the question of the identification of the plums is not made, by the Judicial Review Act, a matter for this Court.
Mr Wickson, a specialist horticulturalist working in New South Wales, examined samples of fruit obtained from Mr Fleming and said to be Autumn Giant, and compared them with the applicants' fruit and also with the description in the American patent. He made a report dealing with the samples of fruit and also with the patent, and he said in his conclusion:
"The fruit of the said variety 'Autumn Giant' matched the overseas description in relation to colour, shape, flesh and fruit as well as maturity time. When compared with fruit supplied by Flemings Nursery, (a legal introduction of the variety) all fruit displayed the same symptoms. The fruit variability in shape and tip protrudence was common to all samples as was the variation in skin roughness.
I am satisfied that the samples from Stanthorpe and Flemings Nursery are of the same variety, that being Autumn Giant".
Wickson's was the principal evidence upon which reliance was placed by Mr Bickford, in support of his suggestion that I should make a finding that on the balance of probabilities, identity has been shown. Mr Wickson obtained some support from the evidence of Mr Fleming.
Another category of evidence on the same topic is that of Mr Ferris. He says, as I have mentioned, that he got the budwood about 1984. He budded it in 1987 and got his first crop in 1989; the current crop is the third. There is no dispute that in 1989, the same year in which the applicants say the first crop was sold, Ferris approached Fleming about obtaining Autumn Giant. There is also no dispute that in that year Ferris ordered of Fleming some Autumn Giant material, although they were never delivered. There is a complete lack of agreement between Fleming and Ferris on other important points.
It appears to me that Fleming's letter to Ferris dated 15 March 1989, which is not in dispute, is clear evidence of a request having been made by Ferris to Fleming about that time to propagate Autumn Giant plum.
Now Ferris says, and I accept, that he is familiar with the Autumn Giant plum. It is not easy to understand why, if he had what he believed to be many Autumn Giant plum trees already, he would in 1989 be seeking permission from Fleming to propagate Autumn Giant. It appears to me that this incident, coupled with the admitted subsequent order from Ferris to Fleming for Autumn Giant trees, tends to show that Ferris did not believe that the many trees he then had, producing what are now said to be Autumn Giant plums, were of that variety.
However, while this supports the conclusion that Ferris was then genuine in his apparent belief that the plums in question were not Autumn Giant, the question is whether he was right or wrong.
Fleming says that there is "no doubt" that the applicants' plums are Autumn Giant. Quite apart from his obvious interest in saying so, I feel obliged to remark that I was not particularly impressed with him as a witness. One reason is the answer which Mr Fleming gave as to Exhibit 5, a packet of plums which, according to the applicants' case, were ultimately derived from budwood from the disputed trees. Fleming cut one of the plums and said, rather emphatically, that they were not Autumn Giant going by the "flesh colour, a sort of red around the outside, and so forth". I found it difficult, having performed a similar examination myself (with the consent of the parties) to accept that Fleming could have been as definite about this point as he claims to be. The flesh colour in Exhibit 5 appeared to be somewhat similar to that of his own plums and, to put it at the lowest, there was no such difference between the flesh colours as to warrant the confidence which Fleming displayed.
In the end, the finding which was sought by Mr Bickford could be made, as it seems to me, only on the evidence of Wickson. It appeared to me that Wickson's evidence, which I will not here set out in detail, was less than satisfying as to two points.
Firstly, Fleming's sample plums are noticeably bigger than the applicants' plums. It was said in evidence that the difference could be due to application of different quantities of water late in the maturation period or to other matters of culture. No doubt that is so, just as a marked difference between the stature of one person and that of another may be largely due to differences in nutrition; but it might also be in part genetic.
Another aspect of Wickson's evidence with which I have difficulty was the comparison of the Fleming plums with the patent description. Although, in the end, Mr Wickson did not make much of this, his report gives the impression that he had compared the fruit with the patent and has attained a certain state of satisfaction. It is worth repeating that he began: "The fruit of the said variety 'Autumn Giant' matched the overseas description ...". This appeared to me quite unconvincing and I was surprised that, having no apparent interest in the matter, Wickson was prepared to swear to the effect he did, namely that the sample matched the overseas description in relation to colour and other matters. As Mr McHugh justly pointed out, it was not possible for Mr Wickson to compare the colours, because he did not have the information or knowledge to interpret the spectrum numbers of the colours set out in the patent description.
No doubt specimens of a plant may vary in characteristics within a range, without being regarded by experts as constituting distinct varieties. Wickson relies in identifying the two sets of plums as of the same variety, not on any particular matter of expert knowledge, (which he does not have, as to Autumn Giant plums) but simply upon matters which are perceptible to the non-expert. Taking into account my own observations, as well as my impression of the witnesses, I note that the plums look quite similar, except as to size, but it seems to me impossible to make a positive finding that they are of the same variety rather than of similar varieties. I find it difficult to understand how Wickson could have reached his conclusion. That is, I am not satisfied on the present evidence, that the applicants' trees which are in question, and the fruit picked from them, are of the Autumn Giant variety.
The last point that Mr Bickford raised for consideration is the exercise of the discretion referred to at the end of the reasons in George v Rockett. It is my opinion that the applicants are entitled to succeed and that, except in unusual circumstances, one should not adjourn such proceedings nor grant a stay for the purpose of enabling fresh warrants to be obtained. I take into account that, on the unchallenged evidence, this is the third substantial crop from these trees, and the plums have been sold far and wide, both here and overseas, in two previous years.
As I understand the respondents' case, it will not be possible for some months finally to decide whether any exotic diseases in fact exist in relation to the applicants' plums or trees; the plums which the applicants need to sell would, if one waited so long, be spoiled and a large sum of money lost, perhaps quite unnecessarily. I have also taken into account the evidence that it is possible that the trees and fruit have some exotic disease. But no-one says that there is any particular reason to think that any of the micro-organisms which are on them have a recent foreign origin. There is evidence of the presence of some degree of infection by disease, but it is not said that this is unusual in degree or, so far as the experts can judge from inspection, kind. I take into account, also, the tests which were done by the applicants' expert, which at least in part "cleared" the applicants' plums. No-one would think of looking for exotic diseases in the plums, but for the assumed initial unlawful importation in 1984. The notion is that it is possible that some noxious exotic disease has survived, so far undetected, these seven years since the applicant first got the disputed budwood. There is no evidence before me as to whether that is in truth likely.
I should add that I have made a finding against Mr Faulkner, although he was an impressive witness who seemed to be a conscientious man; the error which he made was one made in all good faith. It was, perhaps, contributed to by the fact that neither he nor the third respondent examined carefully enough the particular requirements of the statute. Those requirements seem to me to be important and not to be lightly ignored.
I would add that the fact that the litigation has occurred reflects, in my view, no necessary discredit on either side. It may have been due to a genuine difference of opinion and I make no criticism of Mr Woods' conduct, except insofar as he acted in a way which s.74A(3) did not permit.
I hope it is not thought to be an unwarranted intrusion into the parties' affairs if I add that it would seem to me desirable, rather than any further litigation being contemplated, that the parties should enter into some sensible discussion about the matter and try to avoid the necessity of bringing it before the Court again.
Mr Bickford took the point that the first respondent should not have been joined; I do not propose to deal with that.
That is, the orders will be that, in accordance with the application which was filed, the warrants issued pursuant to s.74A(3) of the Quarantine Act dated 30 March 1991 in respect of the matters set out in the application are declared to be void and are set aside. The orders purporting to be made under the same provision by the third respondent dated the same date and referred to in the application are declared to be void and are set aside. It is further ordered that the third respondent pay the applicants' costs of and incidental to the proceedings, to be taxed.
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