Murphy, P.A. v Ballarto Pastoral Pty Ltd

[1985] FCA 663

I-N THE FEDERAL COURT OF AUSTRALIA )

NEW SOTJTH MALES DISTRICT REGISTRY

)

GXXERAL DIVISION

)

APPLICATION FOR F. FRIT C!

MANDAMTJS

BETGEEN :

PATJL A MTJRPHY, COLLECTOF OF

CTJSTOMS FOR THE STATE OF PTEC.1

SOUTH WALES

BFIAN FnBIPiSON. P,N OFFICEP nF

CUSTOMS

Second Respondent

@E :

B3LLAPTO PXTORAL PTP. LIMITED

Prosecutor

MINUTE OF ORDFR

JTJDGE : FOX J.

DATE OF ORDER:	30 DECEMBER l385
WFXE MADE:	SYD@TEY
THE COrSRT ORDERS THAT:

1. The order nisi fnr mandamus be discharmed.

2. MO order for costs of proceedinus r ~ l ~ ~ t i ~ 7 e to the order

nisi.

3. Prosecutnr pav the respondent's c o s t s of today's

proceedinus.

: & N Settlement: and entr:7 of orders 1 s dealt with In

Order 36 nf che Federal Court Fules.

BEThTEEN :

FOX J.

L .

Grounds were shown to his Honour as to the Nd?nree of Iuraencv 3bout the matter; one related to the interest tnvable on mnnevs for wh1i.h the prosecutor was out of pocket. A TP0c-e 7&rnpr,rtsnt lone - I ?.m not, slure how much it was emphasized before

131s Honour but it gas emphas1?ed before me - ~p1a te .d t o the

p o s s l b l l ~ t v . thouaht indeed to be more than 3 mere p o s s l b l l l t s , that, I f the car was not cleared b7 (customs and minor modifications to it now required under existlnn lsw were qo t m3de before 1 Januarv 1986. greater mndiflcatlnns would be necessar';

in order to adlust the car to take lea? free p e t r n l .

The orders referred to in the order nisl were that the

cllstoms officer deal with the entrv for home consumption and

Issue an authoritv authorizlna the motor vehicle to be delivered

f o r home consumption upon pavment of the proper amo1.1nt5 q2f liatv

and sales tax.

When the matter came before me thls mornina. counsel for

zhe prosecutor informed me that a notlce of selzure had been

5erved upon his client, relatina t o the particular car. It was

dated 19 December and expresses three arnunds.

.. The first around alleues that the entrv f o r home

consumption is false in the value fo r dutv whlch it states. in that the amount should have been hiuher. The second allecres that there was produced to the authorities a contract $of sale whlch

showed a false amount a s the purchase price. the proper xnount

aaain beincr hlaher. It	1 s also a around that the -rehlcle was
smuaaled.

This. a s I have mdicacpd, vac allecred ?a$ the authorised person lssuina the notice of seizure dld not Ittempt

to determine the customs value of the croods. This is n o t to sav

that he was not in a posltlon tc sav that what w a s presented bv

the Drosecutor. as importer, is not false. I t would seem to me,

therefore, that I am not i n a positlon to sav that the no t l , ?e of

seizure was not issued bona flde.

4.

m e next application is that I arant leave to add forthwith an application under the Admlnistrative Declslons

Judicial .- Feview Act 1977 for review of the seizure. This course was opposed on behalf of customs officers and I think understandablv so. Eefore there can be a properly considered and

nresented case dealma wlth the vallditv or otherwise of the

notice of seizure some further work has t n be done. and Indeed

done on both sldes.

At the moment the !counsel for the Drosecutnr has tr1.117

s ~ 1 d there is verv scant evidence, lf evidence ,ar all. as to zh-:

che authorlsed person has rome to the cmciusions that he h a s .

The authorlsed perscn. and. I muht add. the asaistmt collector has sworn an affldavlt and all these matters have to be explored. There is no reason at all whv there cannot now be commer!ced

oroceedinas under the Act I have lust mentioned but I do not see

anv scope for beinu able to brina them on withln a few davs.

5.

The third matter aruued for the prosecutor is that I

should direct in these proceedinus that the customs officers act In accordance wlth section 2 0 8 ( 1 ) of the Customs Act and release

the car in question upon securltv beinu uiven in accordance with

the section. This is a matter for the dlscretion of customs officers and while that discretion mav be challenued In an appropriate case. auain it 1 s not a matter that I ran deal wlth

todav and it would seem, at least, there would have to be some

formal request for action under that	sectlon, and consideration
Qf the matter bv the Collector.

mere is certainly no duty irposed on the customs officer. such as I could enforce by mandamus. It 1 s . therefor?. mv vlew that no steps can be taken alonu the lines requested bv counsel for the prosecutor, and ~t seems to me that the mandamus

appllcatlon cannot have any further llfe I n it. In other words.

the decree nisl will have to be discharued.

I make no order as to tine costs of the proceedinus

relative to the obtaininu of the order nlsl.	and order the
prosecutor to pav the costs of todav's proceedinus.