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Munchies Management Pty Ltd v Belperio

Munchies Management Pty Ltd v Belperio

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Case Copied 22 July 1988 12 min read

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. S ' . , . . L .

C A T C H W O R D S

ADMINISTRATIVE LAW - judicial review - seizure of documents - Customs Act - validity of notice - principle governing stay - serious question to be tried.

CUSTOMS - Notice to Produce Documents - information on oath in writing - allegation that goods unlawfully imported, entered or undervalued - disjunctive allegation - arguably insufficient.

Customs Act 1901 s.214

Administrative Decisions (Judicial Review) Act 1977 s.15
Federal Court of Australia Act 1976
Pearce v Button (1985) 60 ALR 537

Snow v Deputy Commissioner of Taxation (1986) 70 ALR 672

Perkins v Cuthill (1981) 34 ALR 669

KELLOGG OVERSEAS CORPORATION, JGC CORPORATION & KAISER ENGINEERS
(AUSTRALIA) PTY LTD T/AS KJR V JOHN D LAMBERT, COLLECTOR OF
CUSTOMS FOR WESTERN AUSTRALIA, DENIS JOHN LEWIS and COMPTROLLER
GENERAL OF CUSTOMS

No. WAG 107 of 1988

22 JULY 1988

FRENCH J.
PERTH

IN THE FEDERAL COURT )
OF AUSTRALIA )
WESTERN AUSTRALIA )
DISTRICT REGISTRY )
GENERAL DIVISION

1 No. WAG 107 of 1988

B E T W E E N : KELLOGG OVERSEAS CORPORATION,
JGC CORPORATION & KAISER
ENGINEERS (AUSTRALIA) PTY LTD
T/AS KJR

Applicants
and
JOHN D LAMBERT, COLLECTOR OF
CUSTOMS FOR WESTERN AUSTRALIA
First Respondent

and
DENIS JOHN LEWIS
Second Respondent

and
COMPTROLLER GENERAL OF CUSTOMS
Third Respondent

MINUTE OF ORDER

JUDGE MAKING ORDER: FRENCH J.
DATE OF ORDER: 22 JULY 1988

WHERE MADE: PERTH

THE COURT ORDERS THAT:

1. The respondents do until further order refrain from

perusing, copying or otherwise dealing with the documents seized from the offices of the applicants on 20 July 1988 pursuant to the notice dated 13 July 1988

under the hand of the first respondent except in
accordance with this order.

2 .         The respondents do as soon as practicable seal up the documents so seized and any copies or extracts therefrom.
3 .         There will be liberty to either party to apply on short notice to vary or discharge this order.
4 .         Costs of the day reserved.

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

IN THE FEDERAL COURT

OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION

No. WAG 107 of 1988
B E T W E E N : KELLOGG OVERSEAS CORPORATION,

JGC CORPORATION & KAISER

ENGINEERS (AUSTRALIA) PTY LTD
T/AS KJR

Applicants
and

JOHN D LAMBERT, COLLECTOR OF
CUSTOMS FOR WESTERN AUSTRALIA
First Respondent

and
DENIS JOHN LEWIS
Second Respondent

and

COMPTROLLER GENERAL OF CUSTOMS

Third Respondent

CORAM: FRENCH J.
22 JULY 1988

EX TEMPORE REASONS FOR JUDGMENT

ON APPLICATION FOR INTERLOCUTORY INJUNCTION

On Wednesday, 2 0 July 1988 officers of the Australian

Customs Service seized a large quantity of documents from the

offices of the applicants at 140 St. George's Terrace, Perth. The

documents were taken under the authority of a notice to produce

documents and a warrant said to have been issued by the Collector

of Customs on 13 July. The applicants…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1988] FCA 413
Decision Date: 22 Jul 1988

CaseChat Overview and Summary

Kellogg Overseas Corporation, JGC Corporation, and Kaiser Engineers (Australia) Pty Ltd, trading as KJR, applied to the Federal Court of Australia for an interlocutory injunction against the Collector of Customs for Western Australia, Denis John Lewis, and the Comptroller General of Customs. The applicants sought to restrain the respondents from dealing with documents seized from their offices on 20 July 1988 under a notice issued under the Customs Act 1901. The notice to produce documents was based on an allegation that certain goods had been unlawfully imported, entered, or undervalued. The applicants argued that the notice was invalid as it did not positively assert one or more of the alleged offences, but instead used a disjunctive "or," which they contended did not meet the requirements of the statute.

The legal issues before the court were whether the notice to produce documents was valid and if the seizure of documents was justified. The applicants relied on the principle that the information must commit to the alleged offence to be valid, citing Pearce v Button (1985) 60 ALR 537. The court also considered the principles governing interlocutory relief under the Administrative Decisions (Judicial Review) Act 1977 and the Federal Court of Australia Act 1976.

The court found that the notice was arguably insufficient as it did not positively allege one or more of the offences required by the statute, raising a serious question to be tried. On the balance of convenience, the court decided that the respondents should be restrained from dealing with the documents further until the court could hear further argument. The court ordered that the respondents must not peruse, copy, or deal with the seized documents except in accordance with the court's order and must seal up the documents. The court reserved costs for the day.

Orders