Pearce, A.G. v Senator the Honourable John Hutton

The

.xppl lcants

seek an Order

thac

l e t t e r (nf

r e ? u e s t

s e n t t o t h e ? u d l c l a l a u t h o r i t l e s

Honq

Konq

t o t a k e

o r

caUse

t o

be t a k e n t h e

ev;dence

of Herbert Adamczyk, th? manaqlng d l r ~ c t ~ r

German Mgtok-T'; Ltd

Honq

Rong.

The

z p p ? l c a t l c n 1 s oppc>zen b y

the respondents .

Much of t h e

material souqnt t o be tr?lle4 CI,

I n

suppor t

kiLe

a p p i l c a t l o n was

o b i e c t e d

t o

and I gave a r l e - ~ s l r ~ n

y e s t e r d l y

I n

r e spec t

t h o s e

o b ~ e c t i o n s .

1 t-hlnk

t t unnecessary

t o s e t ou t agaln t h e d e t a i l s

the evxdence whlch I mc-ntioncxl I n

t n e course

g l v l n g my

d e c l s i o n on

t h e

o b j e c t l o K ?

t o

c?vl'len,:e

Thnse

d e t a l i s ? r e t o b?

taken

incorpora ted wl th

these

t-?&sclns.

The

p r i n c i p a l

d l f f l c u l t g

t h e

a p p l l c a t i o n

i z c e s

t h 3 t

i t

has heen

r i ea r

f o r

long

time that the

respondentz

mlqilt

well

need ebldence

from Hon3 Kong.

Counsel f o r

the

respondent?

ha5

poln ted

t h e

f a c t

that

the

prlnclpal

ppi1ca:;on

began

l n

November 148.1 and on 1 3 December 1584,

a t d d1rectLon5 hearln?,

Spender

J . mentloned

izhe p o s s l b i l i t y

6 l e t t e r

cf rey-lest .

Co~mse l

f o r

tho

p resent

applicants, in response K a r e q ~ r s t

from

h i s Honour

5 s t a w h y

the matter

should not

s e t cio-kn

f o r V L L ? ~ ,

s a i d

t h a t

thsere was a

poss lb i . i i t y of

a n a p p i l c a f l m

fc.r a

le t ter

reclue-,t. t o

lsgue

t o a u t h o r i t l e s

!imq Y m g .

V h ~ t , fh+

pr lnc lpa l -

app l i ca t lon

was

heard,

beglnnlng

on l 3 Mali 13858, EO

attempl; had course gf thit phase

> e m m3dc

t o

o b t a i n

l e t t e r nf

r?ql lezc.

Put lng

th?

of t he hearing, t h e

a p p l i c 3 n t s

a p p l l f r l

f o r .

and wet-e

gran ted o n terms,

an a d ~ o u r r ~ m e n t

a t t e m p t

t n

,:sbtilin

evtdence

from

Hcny Kong.

Thelr l n t e n l 10n

then

was, n o t

t o

proceed by

way of i s t t e r of

request, but to

induze

a Fersor ot-

per sons

Hong

Konc:

t o come

v o l u n t a r l l y

ti7

l i u s t r a l l a

t o

qlve

e v ~ d e n c e

a b o u t

t h e

matter.

That

f a l l e d .

i.Jcw.

on t he

eve o f

resumption

tine

hea r ing

t h e

p r l r i c ~ p a l

p r o c e e j l n g ,

+,ne

q u e s t l m of a l e t t e r of

r eques t 1 s revived.

.AlthouaL, a;

counsel

€ o r

the

respondents

says,

t h e

h l s t o r y

t he

ma t t e r

1 s

very

mllch

a q a l n s t

t,he

appl l ran ts ,

the

ev ldence

ava l l la5 le

f rom

r l o ~ ~ q

K?nq,

l f

any

can 1n

f a c t be

cb ta lned ,

qces

t o

t h e ve?-:r

h e a l t tJC

the

m a t t e r .

The a~i]our:~ment

g r a n t e d

t o

e n a b l e

1 n v e s t l g ~ t l o r . s

t c

pursued

1r-1 Honq I<mg

was gran ted mth g r e a t rr?nc+anc?.

s l n c e 1.t

appeared.

t o

Tpe

t h a t

t h e r e

was

reasonable

e:iruse f?r

t he

p re sen t

app l l cmts

be lnq

u ready .

The

mster;al

s3:d

a v a i l a b l e I n

Hong Konq,

however.

-t

be a \ l t h ? n t l c . w~ulrl ?*?em

i l k e l y t o

cencluslve

what mlght

ca l l ed

t he

s u o s l a n t l v e

issue und?rlylnq

the

whoie

mat ter :

bjere

t h e

qood.5

u r l a v i u l l y

imported? For the

documents

which

F l t z p a t r l c k

c l a l m ~

trJ hzve

examined

there

Inc lude ,

respec t

each

r? levant

:.7eh1rle,

debl t

no te

f rom

the

vendor

t o the

purchaser

showlna

a hlqher

pr l ce t han t o by Mr Fcarce. Mr. Tearce

chat

s e t ,mt

i n the

sa les

cont rac t

p rcduced

and

sj7ot-n

s a id

no tk l rq

h l s

evidence

aba2ut

a n y d z b l t m t e

ha-zlnq

been

Issued

and,

unless

M r F:I zpatriclc has

s l m p l y In-JentPd

the whole scory,

the

cnnclus ion

Khat

t \ F

~ o n c s

b7e~e

importzd

uniaxful ly

may

seem d l f f l c u l t t o

avold .

F:br

t h%t

r eason ,

t he mer l t s

t h e m a t t e r

l o o k l n g a t

them

b road ly a re

I P ~ S

IR Zavowr of the

present

respondents

han

they

were

hhen

re iuc tan t ly

g ran ted

ad lournment

t he

p r lnc lpa l

p roceed lnq

from 15 May

u n t l l

t o d a y .

It w a s then admitted.

counsel

f o r

t h e

p re sen t applicants

:hat

chey had

d l rec t

ev ldenct

un’~zvfu1

importat lon. nor

was

there any suqges t lcn

tha t

documents

had beer

examned I n Honc Kon3 on

behalf

zhe

respondents

evldenclna

unlawful

lmpor ts t lon .

5. I

Onc

d l f f l c u l t y

a b o u t

d e c i d l n g

t h e

a p p l z c a t l o n

a!:

t h l s

stage

1 s tha t

i t 1 s

unclear

what s t a t u s

rhe afildavlt

of Mr

F i t z p a t r i c k ,

flled

i n

s u p p o r t

the

p r e s e n t

a p p l l c a t l o p ,

wxll

have m

t h e pr;prlpal proceedins .

it has been

admltted

I n the

m t c r l o c u t . 3 c g

a c p l l c s t l o n

o n l y

and ~t a ~ p ~ a r s

cc.

t4e ~.v lae~- l : -

t-hsr:

a t tempt

may

be ma.3e

t o

have it

aLmi.tteu I n

I h e F r l n i ~ p z l

proceedlnq. Tn? outcome

that

attempt c m i d *atffe-t +h?

rezsonahleness

p e m i t t l n g

t h e

p r e s e n t

a p p l i c a n t s

ct tempt

agaLn

to obta ln ev idence , admiss ib l f under

che

o td lna t :I

rlJies,

the ducamznts 57hich Elr Fitzpacrick

examined.

( jn

the

~ h c l e ,

however,

l t 1 s

b f t t e r

t o

a t

l e a s r give

ar. ~nlimatlnn c'f

che

l l k e l y

f a t e

?tie

present.

a p p l ~ c a t i o n ,

a t

t h 1 z

s t a . T e .

B e f o r c

dolng s o , I

shou!d

s t r e s s

t h a t

I have

formed

no v l r w of

f i n a l

kind as t o whether what

F i t z p a t r l c k

s a y s

1 s t r u e ,

what

the

ln fe rencs

p rope r ly

t o be d r a w n

from h i s evid?nce

1';

reason

I have

decides t o

g l v e

a n

i n t i m a t i o n

t h e

I l k e l y

f l t e of

t h e

p r e s e n t

a p p l i r a t l o n

1 s

that

may

a s s ~ s t e j c h

sldE

dote rmln ln7

bes t

t he

cou r se

t o

follow.

have

finally

disposed of

t h e application because:-

WP~..? l

t o

r e l e c t

h e

a p p l l c a t l m ,

zou:r?

i n any event

be renewed.

- 1

3 ,

Counsel

f o r

t he

p re sen t

r e sponden t s

( t he

applicants

i n the

p r i n c i p a l a p p l l c a t i o n i

has

u g e d

upon me

t h e

v i e w

t h a t

should

not

merely

r e v i e w

t h e

l e q a l l t y

t h e

s e l z u r e

and

de ten t ion

from

the

po in t

-JleiJ

c,f

a d m m l s t r a t i v e

law,

should

but

f l n a l l y

d e t e r m i n e

t h e

l e g a l i t y

f a c t

:he

lmportat ion

the

goods.

I t nay be t h a c I

wlll

f lnd

myse

unable

t h a t , li t h e

application

pressed,

wi thsuc

having

ev idence

admiss lb le ,

in accordance n t k t t-:?e

ot-dlnary

rules ,

from Hong Kong.

The reasons I have

adopted

the

v l e w , wh?ch I

Intimate,

t h a t i t

does n o t seein reasonable

a l low

the

appl ’ca t lcm

f o r

let ter

r eques r .

a r e

p r inc lpa l ly

expense

arld

dela-7,

althougr. I

do not

that

the espense of

t a k l n g evld.lle.ice

In tier,?

K m g 1s

l i k e l y

t o

a t

the

level

submlt teC

counzel

f > r t he

respondents .

t h e

v l d e n c e

t o

given

t h e r e %ere

se r l r , u s ly

zontested,

undoubtedly

respondents

the

wouid havr-

tQ be

r ep resen ted , and

tha t

would

c o s t a

cons lderabie

:urn.

I t 1.5

unnecessary t o

say any

more on t h e

ql;?stzon

del .ay

than

1 s s e t ouc above;

cbviously

i t

1 s a

s l q n i f i c a n t f a c t o r

against

the gtci?t lng

t h e a p p l i c a t l o n .

It was

aruued

that

I had no power to

yrant

the

application, hecause there is no relevan-c treaty permlttlng the issue gf a leztpr of request. No authority was clteu in support

cf the assertion that a treaty 1s necessary. It wa5 sald that Order 2 4 Rule l(b) should be read as subject to an lmpllclt llmltaPion that no letter of request should issue. c-.hfent a

relevant treaty.

In the 1895 work by

H m e Wllllams m a Another

entitled

"The Taklng

of Evidence on

Comm~sslon" the f o l l o m n q

comment is made at pp.53-54

with respect tc the

ErLqllsh rule

permit.tlng an rJrder that a request to examirre altn~sses	In llelJ
of a scxm1ss1on be issued. The authors say:-

"The orjgln

of this rule 1 s

hellever! to have bpen

an incldent which occgrred some

fsw years a3-n.

when

an emlnent Quepn's Counsel, who

v a s taking

evldencr

Niesbaden

under

an order of che

Fresld?nt: of

the Probate and Divorce Dlvislon l n

England,

and

administering the oath lto the

~7~1:resses

according to the terms of the

order, was

selzed an83 thrown

into

prison

the

German

authorltlec, whence he was wltrr dlfflculty estrlcated by the representa-clvcs of Great Brltaln. The German authoritlcs conslder a

contempt of court for

any bul; t h e l r own offlclais

to admlnlster

an oath wlthin German terrl-cory,

a:~d

Enqilsh lltiTants desirlng

to avold 1 slmllarly

abrupt

ermlnation

to their rornm1ss;on wlll

thereffii-e do well to obtaln	rfielr Evidence by
means of a letcer of requesr.

The only

two

countries

vnlch

have

R S

yet

offlclally nocified

our Gsvernment the fact

that the taklng of evidence under a letter of

request 1 s the

only

method

Khlch

they

3111

sanction withln their respecclve

t e r r ~ t o r i e s

are

Glrmany snd Spain.

The Swlss author

it1e.c have,

however, made some

represenratlons

a like

effecz

. . . "

It seems

clesr, lf this

account, is correct, tnat

lr. ics c r ~ g l n

the

letter

of request

procedure

was

not

deslgneri to uleet

instances in which a t-?-=aty

had been made; r a t h e r the c~~ntrzrv.

Somexhdt:

slmllar

s u b m i s s ~ o n

f a l l e d ln

t h e 1.1.5.

Court

Appeals , 9th

C 1 t c u l t ,

I n the

case of

m v.

U2.- 555F 2.!

1 2 0 .

That

concerned

r e q w s t

f roF S0ur.h

Korea

fot

assy-s tance

l n

p r o c u r i n q

C a l l f o r n l a n

f l n a n c i a l

r e c o r d s .

A t p.724

t h e

r e p r t

m e f i n d s

"A[:pellant

c m t e n d s

that

a s s l s t n n c e

~ r i c r lmlna l

mat ter5

lnvolv lnq

fo re ign

coun t ry ' s

cu r rency

c o n t r o l

l a m should,

as a

n a t t e r of

p o l l c y , be

ren6ered only

i f

there e x i s t s a

tax t rea ty be tween

the

Uni

ted

S ta tes

and

the

reques t ing

counrry .

b4e

r e ; e c t

t h l s

c o n t e n t l o n .

I t

flnds

support

111

the ianauage

the

Act o r

In Its

l e q l s l a t i v e

h l s t o r y ,

nQr

has

ou r

a t t en t lon

bee11

drar.7n

t o any

j l .!dlclal declslon

s o

h o l d m g . "

I have not been

re fer red

t o any

s t a tu t e

co r re spond lng

t a

t h e

E v l d e n c e ( P r z e e d l n o s

Other

JKrAcl lc t lons 1

1 9 7 5 .

whj c h was

a p p a r e n t l y

passed

E gland

g i v e

e f f e c t

t o

the

Hague

Conventlon on the

Taklng

of Evldence ilorood 1p. ,:,.vi1 ot-

Commercial

Matters

af 1968.

However, I t does

not

apFear t h a t any

t r e a t y	1s	n e c e s s a r y	t o	e n l i v e n	my	~ u r l s d ~ c t ~ o n t o	make th.2. order
sought .

In th?

r e s u l t ,

I do nor. p ropose

make any a d e r Q".

t h e

a p p l l c a t l o n

a l t h o u g h

I hgld that

I have power

t n m k ? w1e.

merely

lnt l rnate

I t

p r e s e n t

i n t e n t l o n

t o

reC~,se t h e

spp l l ca t ion .

Counse l

may, i f

t hey see f l t , seek

tr; L-eopen

Lhe

! ra t te r

a t

t h e

c m c l u s l o n

the rest of

t h c evidence.

whLch

wlll

presumably

ncmr

tadap cr tornocrow;

r c

I ;

C A T C H W O R D S

___

N CTE

S e t t l e ~ n e n t a n d e n t r y

o r d e r s

dealt

m t t ? Ln

17rder

Zk,

of.	the Eeaeral Court R u l e s .

PINCUSJ.

D: TEMPGRE REASONS

FOR

JUDGICNT

The

a p p l l c s n t j

a r e

m o t o i

v e h l c l e

a l e r E

~ A o

have

cha l lenged

the se lzure and de ten t ion

SIX

sa r s

Imported

blr

them

from Hong Xcnq.

The

respondents

res l s t

t h e

a p p l l c l t l o n

thae

ground tha t , or! th?

7-nformatlon

they

h a y r e ,

the

s 1zut-e

xv!

decent lon

were.

ana

the

l a t t e r

remalns,

a ?coper

e . y c r c ~ s e

power.

The

applicants produced

evldence

chst

the

vehicles

were

l awfu l ly

Immr ted .

a n 3

i n

p a r c l c u l a r ,

that

th? r r l r e

them

d l s c i o s e d

L:,

t he

[Customs

a u t h o r l t l e s

was

c o r r e c t .

Vt-

7 e a 1 - c ~ has

exhibited

the

c? levant

sa les

c o n t r a c t s

a n u

t h e p r l c e s ? h o w

there

sl-cp_nort hls

cvldence

that

purchased

t h e

veh:?les

:t-:m

a Hofy

Kong vendor, German Motors	Ltd,	a t	t h e	p r l c e s	i1s:Io5ed	t~
Customs.

3 I

a p p l . ~ c a t i o n

ior

the 1 u s u e of

a l e t t e r of

r e q u e s t ,

i:hlsh

havr

l n t l m a t f d

t h a t

D r e s e n t l y

l n t e n d

t o

r e f u s e ,

t h e yfGunds

t.~f

expense and

d e l a y .

The evldenc?

of Messrs Hume

and Fl tZFat r lCk. lf

admitted,

goes

fu r the r

t han

dea l ing

w t h

+h? SIX

v?r,lcles

I n

question.

That 15, the docuinrnts

they

xamlreri,

o r

s 3 y tne:r

examined,

purport

t o

r e l a t e

t o

t h e

l m p n r t a t l o n

i>f

nllmker

v e h i c l e s

o thec t h a n

tnosc

immediately

Issue

and

t n

show a

slmllar

p a t t e r n ;

t h a t

15,

the

vldence

shows,

1 Z

3f-cepte4,

t imt

there was

a cons i s t en t

pa t t eLn

discrepancy between -,he r a l e s

c o n t r a c t p r i c e

and

t h ? d e b l t n o t e p r i s e .

5 . F

Pearce's evidence

1 s

c o r r e c t ,

tha t

cannot

l??

c o r r e c t ,

f o r

Fearce d i d noc

have

any

the v c h l c l e r

resa1red

i n Hong

Korq .

h r t h e r

r e f e r e n c e

t o what

t he rlwrimentz

a r e

j a i d

t o

d l s c l o s e

a p p e a r s

below, b u t

i t 1 s convenlcct nnw

t c t u I r \ to

the submxsslons made on

ljehalC

th-. a p p i i c s n t ?

I 91p

a p p a r e n t l y

t h e

S l r s t ludge asked t o use Order :: P.u:e

? ( b ~

I n ?my

way

a ther t h a n

r e spec t

a p e r l p t e c a l or

f o ~ n a l

T I Z . T ~ ? L .

A t

l e a s t ,

d e d w e

t h a t

from

the

absence

authority.

i . ou r?e l

fo r

t h e applicants.

l-It-

Cooper ,

yel led

s t ronuly

+on

the d?c;5-Lon of

?inoham J . I n L

Scherinq Chemicals Ltd.

( 1 9 8 3 ) i W.L.R .

1 4 3 .

That

conce rned

the

sms t ruc t lon

EngiLsh

9rder

38 Rule 3 whlch,

t o

se t

o u t s u f f l c l e n t l y

f o r p r e s e n t p u r p o s e s , p e r m l t s

t h e

Mlgh

Court tc

"o rde r that

evidence of

a n y

p a r t l c u i s r

iacC

shal l be

given a t

the t r l a l

in such

manner as map

be s p e c l f l e d

by che

s r d ? r " .

The

ru le 3

on t o

g i v e

p a r t l c u l a i -

instances

t n e way

I n w h c h t h e power

1 5 t o be exercised, f o r ?xamole.

'by rcatenlent

on o a t h of

informarion or b e l i e f " .

Blngham J.

said, i n r e ! ~ c t ~ n n

appllsatlon f o r a d n l s s l o n

evidence: -

Indeed, whereas the power given by

Enq11sh Order 38 I ? I J ~ P 3 1 s ir

terms unllmlted, thls

Court's

power

1 s

restilcted

the

necessity of showlng that compliance "mluht OccasLon or Involve unnecessary unreasonable expense or delay". Apart from that, It 1 s harti to dcr lve anything from a comparison c,€ che worcilng of

the two

rules w'rlch would support the submlsslon that Qrder

Rule 3 t b )

was lntended to have

more drastl; tfrect upon

the

operatlon of the rules of evldence than the Enqlish rule has been

held to have. Mevertheless,

I do

not think

I can apply the

dictum 0;'

B l r l a h a m J.

hxether o r not It 1s correct as a

consccuctlon of the English rule,

It would in m y view be ar,

unwarrantahle ?udlcial amendment

of Order 33 Rule 3 ' 3 ) t c r?ad It

as if it had added "but only where the matter-

sougnt to be r,roverl

is peripheral and largely formal".

Had thar. irnpa3rtxnt llmltatlon

bezn intended. by thsse

who made the

rk les , no dcsubt

it would

have been stated expressly.

It is true that Instances may to be

fo1m-l In WIIICTL

the

courts have devised fetters OR discretlons camCerred

by statute

In such a way as signlflcantly to

alter chc ni.tarlina and ,,peration

of the provlsionr-

conferring the dlscretlons.

There ,does not

appear to be

anythng In the wording

F u l e 3 ( b ) , nor

~n the

context In vhlch that sub-rule appears,

nor in

the scope

oblect of the r u l e s read as a whole, to wart-ant t h r addltion Eo It by a proces;9 of lnterpretatlon of m lmportant q(1a1 iflcatlon

along the llrles of that put forvard in the

Scherix

ccsc?.

- ..

7 h

In my vlew,

Rule 3(b) should be qlven

a consttuctlon

strictly

accordance

wlth Its

terms.

The only

express

limitation on the power

of dispensatlon is

thar: whlch I have

mentloned.

It 1 s not in dispute that compllance not only mlght

Sut would Involve

both conslderable expense

and delay. indeed,

those matr;ers wet-e

strongly urged upon

me Q7 counsel on behalf of

the appllcants,

M r Cooper, in resisting the attenpt to

have an

order 15sued that a letter of request be sent to obtaln the

evlaence In accordance

wlth the ordinary pract~ce.

Rule 3 ( b ) should not, in

my vle;l,

be read ds sl~D]ecr to

any unexpressed exceptions, but

as s j m p l y

r e q u l r l n q that

:!le

discretlon be exercised in a ludicial fashlon.

In the pres?nt

circumstances, where documents

are sought to be proved In

the

fashlon me:ltiont?d abave, the following	general consldet-ations
arise:-

1. Is it probable

that

evld?pce

from th?

apparent maker of the	documents would be ,of
assistance?

2. Does informatlon In the dosumentz correspond

with

facts proved

I n the

cas? by

conventlonal means?

3 . DQ the

documents

Eppear to c'me frcm a

reliable source?

4. Is there any other reason for thlnklng that

the documents may have been

fabricated?

5. Whose fault 1s It

that

evldence

from

conventlonal source is not

available?

As to the first four questlons, they

shnk1.d. In my view,

be answered favourably to the applicatlon f o r dlspensatlon.

The

apparent maker of -he documents 1s some person by or on behalf	of
German Motors Ltd. It appears that evldence fron tnat source	1s

unavallable,

least

the

sense

that

the

proprletor

1 s

unwlllinq to give evldence in this case. Prosecutlons have

been

launched In

Hong Iiong aqalnst German Motors Ltd.

~t 1 s sald, I n

respect of

the lmportatlon of some of the vehlcles

I n question.

There was talk of a plea of guilty, but the defendant declded to

contest the charges.

I can think

of no good reason for assumlnq

that evldence from that source would be likely to be

f any great

assistance.

Secondly,

the

documents

eramlned.

I K I

Important

respects, match precisely documents already tendered

whch are

not in lcsue.

I n partlcular, the sales conttact

mld vo have

been examined In Hong Konq have the same

date, model descrlptlon

and prlce

as those already In evidence. Thlrdly. the source

the documents

1 s satlsfactory in the sense that they were shown

to Messrs

Hume and Fltzpatrick, It 1s said, by the case officer

of the Customs and Excise Department of Honq Kong in respect of the prosecution of German Motors Ltd. It 1 s . of course, poss~ble

that the fabricated a set of documents

case

offlcer

someone

else In that Department,

for

the

plurposes

the

prosecution:

stranger

things

have happened.

But

there

1 s at

least a

degree of plauslbillty In the assertlon that the source

of the

documents is such as to make

It probable that they are

authentic. Lastly,

no other clrcumstance has been put forward,

and I can

think of none, making it seem

probable

that

documents are other than genuine.

As to the question of

fault, there 1 s scne force In the

assertion that It

1 s

the fault

che respondents that the

evidence cannot be adduced from

a conventional source. Tnere was

talk a lonq time ago of a letter of request, and nothlng

was done

about it untll,

it is my view, too late. On the other

hand, It

is not

really clear to me that the letter

of request procedure

would

produce

evldence

mor

any

reliable

than

thls.

In additlon, there are two particular matters whlch have

led me to the

m e w that

I should admlt thls evidence. The first

is that on the case

the applicants, there was slmply no

bill,

lnvolce, or deblt note at all,

a3 I understand l L , In respect of

the vehicles.

The case is not one In whlch there

are. so to

speak, two competing sets

of invoices, yet the set of documents

held by the prosecutlon In Hong Kong Includes a deblt note or notes in respect of every vehicle.

If there were a consplracy to

fabrlcate documents to support a case, then one would have thought the consplrators might have ascertalned the important

fact that, in

accordance with the syscem operatmg, no lnvolces,

blll3, or deblt notes were sent.

The very fact that there were

deblt notes In the documents collected in

Hong Konq, whereas Mr

Pearce has produced none, is in Itself slqnlflcant.

10.

Secondly, it is important to keep In mind the issue

ralsed

the

applicants.

They challenge

the

"seizure

and

continued

detentlon" of

the

vehicles

in question, and

the

partlculars glven make it clear that the expresslon "contlnued" is used advlsedly. Their case IS that even lf (whlch 1s not

conceded) the

original selzure was lawful. the drltentlon of the

vehicles

rlght

the

present

ime

1s unlawful.

The

appllcants through

their

counsel say that on the lnformatlon

avallable to

the Customs officials in thls country, the selsure

and detentlon

were,

and the latter stlll

1s. lmprsper. That

informatlon, however, now Includes

the

recent

mspectlon of

documents in Honq

Kong. Faced with thls dlfflculty, Mr Cooper on

behalf of

the appllcants, very ably

I thought, argued that the

central point of the case 1 s

the seizure.

However, I cannot see

why the evldence may not be relied upon	by the responden'cs as
Information in thelr possesslon.

It is

perhaps unnecessary to

say s o , but

I have taken

lnto account

I n reachlng my

declslon the evidence t o date as a

whole and the

smge which the litlgation has reached. It

1 s

stlll an

open questlnn whether the evldence of

Messrs Hume and.

Fltzpatrick, ~f

I accspt It, may properly be used

I n connectlon

wlth the

clam of the

applicants to what mlght be called flnal

rellef, that 1 s the clalm

to a declaration tha'c the vehlcles are

the

property

the

applicants,

rather

than

tavlnu

been

forfelted.

11. c

It 15, I think,

enough for present purposes to say that

I wlll

admlt the evidence

Messrs Hume and Fitzpatrick wlth

respect to the examlnatlon

documents In Hong Kong and

the

circumstances

urrounding

thls,

the

proceedlngs

for

ellef

brought by Mr and Mrs Pearce.

It will be relevant at least to

the questlon of the information available to the respondents,

not to the other point.

It should

mentioned

that

appllcants

have

foreshadowed, and pursued with at least some s h w of SUCC~SS	to
date, the case that there were lllegalitles attendant upon the

seizure and detention. There

is in prospect

a submlsslon that

for ,hat

reason all or most of

the material obtalned should be

re ~ected.

The evidence with respect to chat matter

1 s not

complete, nor have

I heard counsel on It, so that the exerclse

discretion under Order

33 Rule 3(b) must be

sub~ect

to that

presently unresolved contentlon.

The order whlch I propose to make under Order

33 Rule 3

order that compliance with the rules

of evldence

lspensed

wlth

to such

extent as is necessary to admlt the

rldence

Messrs

Hume

and

Fitzpatrick

wxth respect

~mination

documents in Hong Kong, as set o u t In detall In

.le affidavit of Mr Fitzpatrick filed on 18 June 1985.

I further direct that the evidence

of Hessrs Hume

and

Fltzpatrick, the sub~ect

of my order, is for the present

adrnltted

O a ’ y on the Issue of the information avallable to the respondents

G i k h respect to the vehlcles.

12.

I reserve for further consideration the questlon whether

it shall be admitted on the issue of whether the vehlcles were In

fact unlawfully imported.

[1985] FCA 277

20 Jun 1985