Ideal Imports Pty Ltd v Australian Customs Service
[2012] QMC 23
•22 November 2012
MAGISTRATES COURTS OF QUEENSLAND
CITATION:
Ideal Imports Pty Ltd v Australian Customs Service [2012] QMC 23
PARTIES:
Applicant
Respondent
IDEAL IMPORTS PTY LTD
(applicant)
v
THE CEO OF CUSTOMS FOR THE AUSTRALIAN CUSTOMS SERVICE
(respondent)
FILE NO/S:
MAG115919/12(1)
DIVISION:
Magistrates Court
PROCEEDING:
Application for directions - to inspect seized items
ORIGINATING COURT:
Magistrates Court at Brisbane
DELIVERED ON:
22 November 2012
DELIVERED AT:
Brisbane
HEARING DATE:
15 November 2012
MAGISTRATE:
Thacker AC
ORDER:
Application is Dismissed
CATCHWORDS:
CUSTOMS – FORFEITURE OF PROPERTY – PRACTICE AND PROCEDURE – inspection of seized goods – whether there is sufficient disclosure of seized goods
COUNSEL:
Metzdorf for the Applicant
M Hansen for the Respondent
SOLICITORS:
This application relates to a complaint brought by the Chief Executive Officer of Customs as complainant (“the CEO of Customs”) against Ideal Imports Pty Ltd (“Ideal Imports”) for a declaration that certain knives, seized by Customs on 27 January 2012, are special forfeited goods and as such are to be condemned as forfeited to the Crown.
Ideal Imports is seeking a direction that Craig Eady, the sole director of Ideal Imports, be permitted to personally inspect some of the knives or one of each category of knives the subject of this complaint. An essential part of this application is for permission to be granted to Craig Eady to handle and test the opening mechanism of the knives. I understand Craig Eady would also have with him at the time, an expert to a give him advice.
The CEO of Customs is opposing the application.
Background
Previously, before this Court, in relation to another matter also concerning importation of knives, Mr Eady as director of another company, was with the consent of the CEO of Customs, granted a direction by me, as follows:
1. That the Respondent representative Craig Eady may have access to and ability to touch and open each of the subject knives on the following condition.
2. The condition is that the complainant will present the knife / each of the knives in turn, within a secure room that has the capacity to be supervised through a glass door or similar facility, or otherwise as the complainant deems fit to fulfil occupational health and safety risks to persons in the immediate vicinity of the knives.
In the previous matter there were 396 knives in 10 categories. I do not know or remember how many knives were inspected and handled. In the present case 1,177 knives listed in the complaint in 16 categories. I am told that 15 knives (“the 15 knives”) would be inspected and handled.
I am told that following the inspection conducted in relation to the previous matter the complaint was resolved by the Respondent Company withdrawing its opposition to the complaint.
Also, with respect to the present complaint, I notice that on 12 July 2012 application was made by the defendant to view the (15) knives and I Ordered as follows:
Application to view the knives the subject of the proceedings before the applicant provides to the respondent and expert report regarding the description of the knives, is rejected. (It is noted that this does not preclude the respondent making an application to view the knives after the respondent is provided, should it wish to so.) I Order the matter is adjourned for mention to 2.15pm on 20 September 2012.
That Order was made upon a brief mention of the matter before me in the callover list on 12 July 2012. The Order was intended to enable to the parties to continue negotiations they had commenced between themselves towards resolving the issues but with an acknowledgement the Court would continue management of the matter should that be required. It is necessary for the Court to make a decision as between the competing interests of the parties. Therefore, the application before the Court now is a thorough airing of the issues between the parties for the first time and has caused more serious reflection on what was been a more informal approach to provision of further and better particulars to the defendant.
The application for personal access to the 15 knives by Craig Eady
As I understand the submissions made to the Court –
In essence the opposition by the CEO of Customs is to Craig Eady having personal access to the 15 knives and rests upon the desire of the CEO of Customs to fulfil the duties and obligations imposed by the Customs Act in a sensible way.
Further, I gather from the fact of the opposition that the CEO of Customs does not consider he should be tied to the previous agreement to provide access to knives or to have any kind of precedent in this regard, set for the future.
On the other hand, Craig Eady pragmatically seeks access the knives so that he can make a commercial decision at least cost to the defendant as to whether or not he will pursue opposition to the declaration and forfeiture being sought on the complaint. Moreover, he wants to gather evidence himself by having access personally to the 15 knives.
Grounds of the CEO of Customs opposition
The CEO of Customs opposes the present application for directions on the following grounds:
Firstly, the attitude of the CEO of Customs towards Craig Eady has changed because Craig Eady is now the defendant in criminal proceedings having been charged on a complaint related to importation of pornographic DVDs he carried into Australia in late 2011;
I also comprehend that the CEO of Customs regrets his earlier generosity towards Craig Eady and would wish to stop any precedent from developing in this or similar matters due to the added concern related to occupational health and safety measures that must also be a factor in assessing the practicalities of allowing access to items such as the 15 knives by defendants and / or their representatives. In this regard Mr Hansen took the Court through the various obligations on the CEO of Customs immediately upon seizure, to ensure the seized goods are secured appropriately pending final decision.
Secondly, Craig Eady is not a relevant expert so that the evidence of Craig Eady on the matter would be of low weight in any event. Furthermore, the defendant proposes, as I understand it, that Craig Eady would be accompanied by an expert assistant to him – a Professor Barry. Despite not being entirely clear in his submission Mr Hansen raises for me two points here, namely relevance and expert evidence.
Thirdly, the CEO of Customs has given sufficient information to the defendant by providing –
· A copy of an expert report on the knives to the defendant. The report is under the hand of Dr Stace (marked Exhibit 1). The report is detailed and contains photographs; together with,
· A willingness to provide an expert appointed by the defendant opportunity to inspect the 15 knives.
The Commonwealth Evidence Act
There are a number of sections in the Evidence Act that are useful in determining the extent to which allowing Craig Eady personal access to the 15 knives would be useful in these proceedings.
Section 55 - Relevant evidence provides
(1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.
Section 56 - Relevant evidence to be admissible
(1) Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding.
(2) Evidence that is not relevant in the proceeding is not admissible.
Section 76 - The opinion rule
(1) Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed.
Section 79 - Exception: opinions based on specialised knowledge
(1) If a person has specialised knowledge based on the person’s training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge
Section 135 - General discretion to exclude evidence
(1) The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:
(a) be unfairly prejudicial to a party; or
(b) be misleading or confusing; or
(c) cause or result in undue waste of time.
Application of these sections to this application indicate to me that if Craig Eady were permitted personal access to the 15 knives there would be very little admissible evidence he would thereafter be able to give to the Court about the matters he witnessed.
Procedural fairness and / or Further and Better Particulars
Certainly, the defendant ought to be given an opportunity to be heard by the Court. The obligation on the Court to afford procedural fairness under the hearing rules is variable. It will depend on the relevant statutory framework and on what is ‘fair’ in all the circumstances. The more significant the decision is, in terms of its effect on a person’s / company’s interests, the greater the care the decision-maker should take to provide that person with an opportunity to be heard.
That said, however, while the term “procedural fairness” was used a lot in the submissions to the Court. I do not agree it is the appropriate concept or term to be used in the proceedings before the Court in these proceedings. It is the Court that is under the obligation to afford procedural fairness in its dealings with parties before the Court. It is not directly an obligation by one party to another. I will not dwell on this aspect of the matter further apart from saying that it seems to me that the issue before the Court is actually a contest over what are further and better particulars of the complaint the CEO of Customs would or should (if any) provide to the defendant.
Regardless how the matter might be framed the defendant cannot expect that the CEO of Customs should be required to assist the defendant in his endeavour to make a commercial decision about whether or not to import items. It is not the responsibility of the CEO of Customs to provide the defendant with an opportunity to inspect items because the defendant did not properly inform himself prior to the purchase order being sent that the content of the order was compliant with Customs Act requirements.
The defendant says he cannot be sure the items are the ones he ordered but I find this difficult to accept given the specificity with which all the knives are identified by a brand name (per paragraph one of the complaint) at the very least, and also given the defendant’s previous experience with importation of knives through its experience by sole director Craig Eady.
Conclusion
Each application of this kind before the Court must be assessed upon its own facts. What has occurred previously in similar matters cannot be used in the manner of a precedent that must be followed.
Equally, the applicant should not be deprived of an opportunity for access to the 15 knives merely on the basis of a change of attitude by the CEO of Customs because the sole director of the respondent company has been charged with a criminal offence.
A change of attitude of the CEO of Customs towards the defendant is permissible. It is not something that I consider should be criticised or used as a reason to force the CEO of Customs to continue what may have been a previous generous hand in the execution of his duties.
Consequently I have endeavoured to set out all of the considerations relevant to the matter pursuant to the rules of Court, especially by reference to provisions in the Commonwealth Evidence Act.
Given the defendant has been provided with the expert report of Professor Stace there is a much greater degree of particularity about the complaint than was initially made on the complaint. Whether or not one agrees with the conclusion of the report is another matter of course and one for the ultimate decision in the matter of the complaint. I am of the view that by provision of this report, the CEO of Customs has provided sufficient information to the defendant by way of further and better particulars of the complaint.
I understand the CEO of Customs would facilitate the expert engaged by the defendant – Dr Barry – having access to the 15 knives so that the defendant may have its own expert opinion. If there was opposition to this it would form grounds for further consideration as to whether or not the Court would make directions to facilitate its occurrence. There is no need for this consideration to be undertaken here.
In the circumstances however, I am not satisfied that allowing Craig Eady personal access to the 15 knives would advance the matter of obtaining evidence in relations to the complaint before the Court. His opinion is not an expert opinion and given his interests as director of the defendant, his evidence would have low probative value in the considerations of the Court. I am not satisfied Craig Eady should be accorded access to the 15 knives.
I ORDER the application of the respondent is dismissed.
I make no Order as to costs.
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