Lakshmi Patel v A.B. Luckman (as the Collector of Customs, Victoria)

[1985] FCA 691

85

JUDGMENT No. .....,....,..... 6 T "I ........ ....

IN THE FEDERAL COURT OF AUSTRALIA ) )

VICTORIA	DISTRICT	REGISTRY	)	NO. VG 83 of 1985
)

GENERAL DIVISION )

Between: LAKSHMI PATEL Applicant

and

A . B . LUCKMAN (as the Collector of

Customs, Victorla) Respondent

THE COURT: Sweeney J.

DATE : 14 October 1985

PLACE : Melbourne

M TEMPORE REASONS FOR JUDGMENT

In this matter the applicant seeks to have judicial review of

the declsion of the respondent to refuse to authorise delivery of

a motor car to the applicant which was seized	by the respondent on
7 December 1984.

The questlon turns on the interpretation of schedule 2(f) of

the Administratlve Decisions Judicial Review Act 1977, and that

reads, under the heading: "Schedule 2, Classes of decisions that

are not decislons to whlch section 13 applies:

"(f) decisions in connection with the institution or

L.

conduct of proceedings in a civll court including

declsions that relate to, or may result In, the bringlng

of such proceedings for the recovery of pecuniary

penaltles arlslnq from contraventions of enactments, and

in partlcular -".

In the Schedule there are then set out four sets of

particulars. As the matter now stands in addition to the materlal that was prevlously before m there is an affidavit whlch has been

sworn today by a senior investlqatlons officer of the Customs

Department, Mr John Hodges, referring to the notice whlch was

given on 20 August 1985. He deposes to the fact that he

recommended to the respondent that he retain the vehicle in

question so It could be used as evldence in proceedings against

Mr. J. Schelling, the importer of the car, pursuant to Part 14 of

the Customs Act, 1901.

He is informed by the respondent and verily believes that

this recommendation was accepted by him. I might add that the

conduct of this case makes it plam Indeed that that

recommendatlon has been acted upon. He goes on to say:

"I am lnformed by the Respondent and verlly belleve that

the Comptroller-General of Customs intends to commence

proceedings aqalnst Mr. J. Schellinq for the recovery of

pecuniary penalties, by the end of this year. It will

be alleged that a number of breaches of the Customs Act

have been commltted by the sald Mr. Schelling. Amongst

these allegatlons wlll be claims that the vehlcle In

question in the present proceedings was smuggled into

Australia. Also allegatlons of evaslon of duty, false

entry and producing a false involce wlll be made durlng

the course of these proceedlnqs.

I am informed by the respondent herein and verlly

believe that the vehicle referred to these in

proceedings IS requlred by him as evldence for the

abovementloned	intended	prosecutions	of Mr. J.
Schellinq."

3 .

The words "decisions In connection with the institution or

conduct of proceedings in a clvil court" cover proceedings of this

character. The proceedings are proceedings In a civll court, and

the words "decisions in connection with" are very wide indeed, and

I am satisfied on the evidence presently before the court that the

declsion in question 1 s in connection wlth the lnstltution or

conduct of proceedlngs in a clvll court.

It is not necessary, in my opinion, for the court to have

before It some precise and detalled account of the nature and

likely course of those proceedings, including in that account all

the permutations and combinations that may flow from the way in

which the case develops and the manner in which the defence	IS
conducted.

It 1 s sufficient, In my opinion, to have such partlculars a

are presently available to the court, and the decision to retain

possesslon of the motor car is one which is, in my opinion, quite

closely connected with the institution or conduct of proceedings.

It would be one of the first matters which an Intending prosecutor

or an Intending applicant in relation to those proceedings would

consider, so as to declde whether he should retain in his own

possesslon what may very well be regarded as the best evidence in

relation to at least some of the Issues which are likely to arise

in such a proceedlng. Accordingly, I do not think that the

applicant is entitled to the relief that is sought, namely the

recelpt of a statement pursuant to s.13.

4.

I certify that this and the

precedlng three ( 3 ) pages are a

true copy of the Reasons for

Judgment herein of The Honourable Mr. Justice Sweeney.

Dated: 14 October 1985

........ ........ ..... Assoclate

4 .

I certify that the preceding

three ( 3 ) pages are a true copy of the Reasons for Judgment

herein of The Honourable	Mr.
Justlce Sweeney.

Dated: 14 October 1985 ,

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