Richards v Chief Executive Officer of Customs

[2015] FCA 689

FEDERAL COURT OF AUSTRALIA

Richards v Chief Executive Officer of Customs [2015] FCA 689

Citation:	Richards v Chief Executive Officer of Customs [2015] FCA 689
Parties:	JASON RICHARDS v CHIEF EXECUTIVE OFFICER OF CUSTOMS
File number:	VID 800 of 2014
Judge:	TRACEY J
Date of judgment:	3 July 2015
Catchwords:	PRACTICE AND PROCEDURE – application to dismiss proceeding – where applicant failed to attend hearing – where applicant had right of appeal from the decision of the Magistrates’ Court of Victoria
Legislation:	Customs Act 1901(Cth) ss 205D, 245 Federal Court of Australia Act 1976 (Cth) s 20(5)(d)(ii)
Date of hearing:	3 July 2015
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	13
Counsel for the Applicant:	The Applicant did not appear when the proceeding was called on
Solicitor for the Respondent:	Mr D Brown of the Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 800 of 2014

BETWEEN:	JASON RICHARDS Applicant
AND:	CHIEF EXECUTIVE OFFICER OF CUSTOMS Respondent

JUDGE:	TRACEY J
DATE OF ORDER:	3 JULY 2015
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The proceeding be dismissed with costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 800 of 2014

BETWEEN:	JASON RICHARDS Applicant
AND:	CHIEF EXECUTIVE OFFICER OF CUSTOMS Respondent

JUDGE:	TRACEY J
DATE:	3 JULY 2015
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. There is before the Court an application by Mr Jason Richards.  The respondent to the application is the Chief Executive Officer of Customs.  The application sought various orders including orders that the Victorian Magistrates’ Court did not have summary jurisdiction to deal with a forfeiture order which the respondent sought in that court against Mr Richards in respect of a crossbow which Mr Richards had imported into the country and which was seized by the respondent. 

2. When the matter first came on for hearing in this Court, I adjourned the further hearing of it on the basis that the proceeding in the Victorian Magistrates’ Court was scheduled and it would be open to Mr Richards to persuade that court that it lacked jurisdiction to deal with the application. 

3. The matter has since come on in the Victorian Magistrates’ Court and, on 16 June 2015, an order was made by the magistrate under ss 205D and 245 of the Customs Act 1901 (Cth) that the crossbow be forfeited to the Minister and disposed of or otherwise dealt with according to the direction of the Minister.

4. I infer that any attempt which Mr Richards may have made to persuade the magistrate that his court lacked jurisdiction to deal with the application was considered and rejected.  Or, alternatively, that, on reflection, Mr Richards did not make the submission.  In any event the matter has come back on in this Court this morning and Mr Richards has not appeared. 

5. He has a right of appeal against the magistrate’s decision and there has been a stay pending the expiry of the appeal period.  If he wishes to pursue his challenge to the seizure of the crossbow further, that will be the appropriate forum. 

6. In the circumstances I consider that there should be an order under s 20(5)(d)(ii) of the Federal Court of Australia Act 1976 (Cth) that the proceeding be dismissed by reason of Mr Richards’ failure to attend this morning’s hearing. Moreover there is, in my view, no utility in keeping this proceeding on foot in this Court.

7. The proceeding will be dismissed with costs.

   POSTSCRIPT

8. Earlier this morning I dismissed this proceeding on the basis that the applicant, Mr Richards, had failed to appear and because, in any event, he had a right of appeal from the decision of the Magistrates’ Court of Victoria in relation to the decision by the magistrate that the crossbow, which is the subject of dispute in this proceeding, be forfeited to the Minister and disposed of or otherwise dealt with according to the direction of the Minister. 

9. After I had left the bench Mr Richards appeared in Court and I have since heard him in support of an application that I should vary the order which I had earlier made. 

10. He said that he wished to agitate in this Court the question of the lawfulness of the decision of the respondent to prosecute the matter in the Magistrates’ Court. 

11. He said that he would have had no objection to the matter being prosecuted in the Supreme Court but said that the Magistrates’ Court lacked jurisdiction.  That was an argument which he had agitated unsuccessfully in the Magistrates’ Court. 

12. It is either right or it is wrong.  If the argument is right then there is a proper ground of appeal under the civil appeal provisions of the Victorian legislation. 

13. Mr Richards still has time within which to pursue such an appeal and, as a result, there is no utility in the matter remaining in this Court.  I therefore refuse the application to vary or otherwise amend the order that I made earlier today.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey.

Associate:

Dated:        6 July 2015