Sinclair, W.C.G v Commonwealth of Australia & Collector of Customs (Qld)
[1989] FCA 635
•19 Oct 1989
JUDGMENT No. .b.$,h...f8-
| IN THE FEDERAL COURT OF AUSTRALIA | ) |
| VICTORIA DISTRICT REGISTRY | ) No. VG77 of 1989 |
| GENERAL DIVISION | ) |
BETWEEN: WILLIAM CHARLES GARFIELD
SINCLAIR
Applicant
Respondents
MINUTES OF ORDER
| CORAM : | Jenkinson J. |
| PLACE : | Melbourne |
| DATE : | |
| - | 19 October, 1989 |
The Court Orders That:
The motion of which notice was filed on 28 June 1989 be dismissed.
2. The respondents pay the applicant's costs of the said motion.
of the Federal Court Rules.)
| ( NOTE : | Settlement an |
| - | d entry of orders is dealt wlth in Order 36 |
| IN THE FEDERAL COURT OF AUSTRALIA | ) |
| VICTORIA DISTRICT REGISTRY | ) NO. VG77 of 1989 |
| GENERAL DIVISION | ) |
BETWEEN: WILLIAM CHARLES GARFIELD
SINCLAIR
Applicant
AND: THE COMMONWEALTH OF
AUSTRALIA and THE COLLECTOR OF CUSTOMS
(QUEENSLAND)
Respondents
| CORAM: | Jenkinson J. |
| PLACE : | Melbourne |
| DATE : | 19 October, 1989 |
REASONS FOR JUDGMENT
Motion for an order that the proceeding be dismissed
because no reasonable cause of action is disclosed.
I set out the endorsement on the wrlt standing in place
| of a statement of claim: |
"1. On or about the 13th day of October, 1978 Gregory William Sinclair delivered to Graham Edward Jeffs ( 'Jeffs' ) the sum of $145,580.00 ('the said sum') in Australian bank notes ('the bank
notesp ) . 2. Of the bank notes:
(a)
bank notes to a total value of $90,000.00 (approximately) were the property of the plaintiff;
(b)
bank notes to a total value of $55,580.00 (approximately) were the property of Gregory William Sinclair and Robln Joy Sinclair.
3. On or about the 13th day of October, 1978 Jeffs delivered the bank notes to an officer or officers of the Queensland Police Force.
4. In or about the month of October or November, 1978, Maxwell J. Rogers (*RogersV), a customs officer employed in the Narcotics Bureau of the Australian Customs Service:
(a)
purported to seize the bank notes pursuant to the provisions of section 203 of the Customs Act 1901 as goods forfeited to the Crown by virtue of section 229A(2)(a) of that Act;
(b)
took possession or control of the bank notes.
PARTICULARS
( i ) In or about the month of October or November 1978, Rogers or another officer or officers of the Australian Customs Service took physical possession of the bank notes;
(ii) By a purported Notice of Seizure dated the 17th day of October, 1978 addressed t o Jeffs, Rogers purported to give notice pursuant to section 205 of the Customs Act
October, 1978, seized the bank 1901 that he had on the 17th day of notes as forfeited to Her Majesty by virtue of the provisions of
section 229A(2)(a) of that Act;(iii) By a purported Notlce of Seizure dated the 19th day of October, 1978 addressed to Gregory Willlam Sinclair, Rogers purported to give notice pursuant to the provisions of sectlon 205 of the Customs Act 1901 that Rogers had on the 19th day of October, 1978, selzed the bank notes as forfeited to Her Majesty by virtue of the provisions of section 229A(2) of the said Act; (iv) By a purported Notice of Seizure dated the 8th day of November, 1978 addressed to the Chief Commissioner of Police (Queensland) Rogers purported to give notice pursuant to section 205 of the Customs Act 1901 that he had on the 8th day of November, 1978, seized the bank notes as forfeited to Her Majesty by virtue of the provisions of section 229A(2)(a) of the said Act; (v) By a purported Notice of Seizure dated the 17th day of November, 1978 addressed to the Chief Commissioner of Police (Queensland) Rogers purported to give notice pursuant to section 205 of the Customs Act 1901 that he had on the 8th day of November, 1978, seized the bank notes as forfeited to Her fiaiesty by virtue of the provisions of section 229A(2) (a) of the said Act; (V) By a purported Notice of Seizure dated the 17th day of November, 1978 addressed to Jeffs, Rogers purported to give notice pursuant to section 205 of the Customs Act 1901 that he had on the 8th day of November, 1978, seized the bank notes as forfeited to Her Majesty by virtue of the provisions of section 229A(2)(a) of the said Act
5. No Notice of Seizure or purported Notice of Seizure relating to the bank notes was delivered to the plaintiff personally or by letter addressed to him and transmitted by post to or delivered at
as required by section 205 of the Customs his last known place of abode or business Act 1901 nor was any such notice or purported notice otherwise served upon the plaintiff at the time of or subsequent to the seizure of the bank notes or at any other time.
6. No Notice of Seizure or purported Notice of Seizure relating to the bank notes was delivered to Gregory William Sinclair personally or by letter addressed to him and transmitted by post to or delivered at his last known place of abode or business as required by section 205 of the Customs Act 1901 nor was any such notrce or purported notice otherwise
served upon Gregory William Sinclalr at the time of or subsequent to the seizure of the bank notes or at any other time.
7. No Notice of Seizure or purported Notice of Seizure relating to the bank notes was delivered to Robin Joy Sinclair personally or by letter addressed to her and transmitted by post to or delivered to her last known place of abode or business as required by section 205 of the Customs Act 1901 nor was any such notice or purported notice otherwise served upon Robin Joy Sinclair at the time of or subsequent to the seizure of the bank notes or at any other time.
8. The purported Notices of Seizure set out in the particulars subjoined to paragraph 4 hereof, and each of them, stated the cause of seizure as follows:
'There is reasonable cause to believe that the said moneys in your possession or under your control being moneys that come into your possession or under your control by reason of section 229A(2)(c) of the Customs Act'.
9. By reason of the matter set out in paragraph 8 hereof the said purported Notices of Seizure, and each of them, if otherwise effective (which is not admitted) failed to comply with the requirements of section 205 of the Customs Act 1901 in that they did not, as required by that section, state a cause of seizure or alternatively did not state a cause of seizure authorized by the said
Act or otherwise known to law. 10. Neither at the time of the seizure of the bank notes nor at the time of the issue of the Notices of Seizure mentioned in the particulars subjoined to paragraph 4 hereof, did Rogers or any other person authorised to seize forfeited goods or any other person associated with the said seizure believe that the bank notes or any of them were forferted goods.
11. ~lternatively to paragraph 10 hereof, if Rogers or any other authorised person or any other person associated with the seizure of the bank notes at any time believed that the bank notes or any of them were 'forfeited goods' there was no reasonable cause or grounds for such belief.
12. The plaintiff was held in custody in Thailand from October 1978 until in or about the month of August 1982.
13. By reason of the matters set out in the preceding paragraph the plaintiff was unable to return to Australia until in or about August 1982 and he was not able during that time to claim the return of the bank notes or to exercise any rights in relation to the bank notes.
14. In or about the month of August 1982 the plaintiff requested the return of the bank notes or alternatively the return of the said sum.
PARTICULARS
The request was in writing contained in a letter from the plaintiff dated the 20th day of August, 1982. A copy of the said letter is in the possession of the plaintiff's solicitors at whose office it may be inspected durlng normal office hour S.
15. As at the date of the request set out in paragraph 14 hereof, the bank notes were in the possession and control of the secondnamed defendant.
16. The secondnamed defendant refused to return the bank notes or the said sum to the plaintiff.
PARTICULARS
The refusal was in writlng contained in a letter dated the 2nd day of September, 1982 from the secondnamed defendant to the plaintiff. A copy of the said letter is in the possession of the plaintiff's solicitors at whose office it may be inspected during normal office hours. 17. In or about the month of August 1982, following the request mentioned in paragraph 14 hereof the secondnamed defendant directed that the bank notes or alternatively the said sum be paid into consolidated revenue and the bank notes were or the said sum was paid into consolidated revenue in accordance with such direction.
18. There were not at any material time, and there are not, in existence any facts by reason of which the bank notes or the said sum were or are of l forfeited goods1 within the meaning of that term as used in the Customs Act 1901 or by reason of which the bank notes or the said sum were or are otherwise forfeited to the Crown or deemed to be so forfeited.
19. Further and in the alternative to paragraph 18 hereof and by reason of the matters set out in paragraphs 4 to 11 hereof, the purported seizure and the taking of the bank notes set out in paragraph 4 hereof was not authorised by the provisions of the Customs Act 1901 and was contrary to law.
20. In the premises the purported seizure and the taking of the bank notes:
(a) was an improper exercise of the
powers conferred by the Customs ~ c t
1901;(b) constituted a wrongful detention and/or conversion of the bank notes by the firstnamed defendant and/or by the secondnamed defendant. 21. Further to paragraph 20 hereof, in the premises the bank notes have not been forfeited to Her Majesty or condemned, or alternatively any purported forfeiture or condemnation of the bank notes is contrary to law.
22. Further and in the alternative to paragraph 21 hereof, in the premises, the
payment of the bank notes or of the said sum into consolidated revenue: (a) was not authorised by statute;
(b) was contrary to law;
(C) constituted a wrongful conversion of the bank notes by the firstnamed defendant and/or by the secondnamed defendant.
23. By a deed of gift dated the 19th day of June, 1986 Robin Joy Sinclair assigned to the plaintiff all her right, title and interest in the said bank notes or any part thereof and her right to bring
proceedings for the recovery of the said
bank notes or any part thereof.24. By a deed of glft dated the 19th day of June, 1986 Gregory William Sinclair assigned to the plaintiff all his right, title and interest in the sald bank notes or any part thereof and his right to bring proceedings for the recovery of the said bank notes or any part thereof.
25. By notices dated the 30th day of July, 1986 the plaintiff gave the firstnamed defendant notice of each of the assignments set out in paragraphs 21 and 22 hereof.
AND THE PLAINTIFF CLAIMS:
A. A declaration that the bank notes are not and were not at any material time forfeited goods within the meaning of the Customs Act 1901. B. A declaration that the bank notes were serzed and/or taken by the firstnamed defendant, its servants or agents contrary to law and otherwise than in accordance with the provisions of the Customs Act 1901. C. A declaration that the bank notes are the property of the plaintiff and were at all material times until the 19th day of July, 1986 the property of the plaintrff, of Gregory William Slnclair and Robin Joy Sinclair. D. A declaration that the payment of the bank notes or alternatively of the sard contrary to law. sum into consolidated revenue was
E. A declaration that as at the month of ~ugust 1982 the secondnamed defendant, or alternatively the firstnamed defendant, held the bank notes on trust for the plaintiff, Gregory William Slnclair and Robin Joy Sinclalr or one or more of them.
F. A declaration that the flrstnamed defendant o r alternatively the secondnamed defendant acted wrongfully and contrary to law in not returning the bank notes or alternatively the said sum to the plaintiff, Gregory William Sinclair and Robin Joy Sinclair in August
G.
A declaration that the flrstnamed defendant has had and recelved the sum of $145,580.00 to the use of the plaintiff.
H.
An order that the firstnamed defendant pay to the plaintiff the sum of $145,580.00 as moneys had and received by the firstnamed defendant to the use of
the plaintiff . I. Alternatively to G, a declaration that the bank notes are unlawfully detained by the firstnamed defendant.
J. Alternatively to H, damages for the wrongful detention and/or conversion of the bank notes."
The respondents filed a single defence after the action had been remitted to this Court by order of the High Court of Australia, where it had been commenced. The respondents admit that the sum of $145,580 was seized, as they allege "pursuant to s.203 of the Customs Act 1901 ('the Act') as goods forfeited to the Crown by virtue of s.229A of the Act". The ground of the motion was that each of the arguable causes of action disclosed by the endorsement - conversion, detlnue, money had and received - was barred by the Limitation of Actions Act 1958 (Vlc.), made
| Judiciary Act 1903. The last paragraph of the defence reads as binding on this Court, sitting in Victoria, by s.79 of the | follows: |
"27. Further or alternatively to paragraph 26
hereof -
( a ) each of the Applicants' alleged causes of actlon accrued if at all (which is denied) more than 6 years before the institution of this proceeding, and is
therefore barred by the provisions of SS. 5 and 6 of the Limltitations of Actions Act 1958;
(b)
and any interest which the Applicant might otherwise have had in the moneys (which is denied) has been extinguised by S.6 of that Act."
The respondents' case in support of the motion is that the final plea is unanswerable and that, if it be upheld, the proceeding must fail.
No point was taken, by either Mr. Nettle of counsel for the respondents or Mr. Ford, who appeared for the applicant, on the hearing of the motion concerning paragraphs 5, 14 and 16 of the endorsement. Paragraph 5 is denied, but it was not suggested that a notice of the description specified by s.205 of the Customs Act 1901 had ever been given the applicant in the manner specified by the section. (It was common ground that by 1982 the applicant had learnt all that such a notice would have been llkely to communicate to him.) There is no suggestion by counsel that the written request to which reference is made in paragraph 14 of the endorsement had been followed by a notice to the applicant under the Collectorps hand of the kind for which 5.207 makes provision. Mr. Nettle's submission was that service on any person who fell
| within any of the diverse classes of persons included by s.4(1) of | the Customs Act 1901 in the extended definition of the word | |
| "owner", in relation to goods, would satisfy the requirement as to service of notice of seizure imposed by s.205 of that Act, and that the condemnation contemplated by that section would occur even if the owner, in the conventional sense of that word, had neither been served with notice of seizure nor been otherwise made aware of the seizure within one month from the date of seizure. But, Mr. Nettle submitted, even if those submissions were not accepted, there remained the bar to the applicant's proceeding which the Limitation of Actions Act 1958 raised. | ||
| It is true that proceedings instituted by persons claiming against the Collector or the Commonwealth curial remedy in respect of seizures of goods justified by reference to forfeiture provisions of the Customs Act 1901 have been, or have commonly been taken to be, grounded on causes of action in trover and detinue. It is, however, in my opinion arguable that such a proceeding is upon a cause of action sui generis arising out of the legislative scheme, for statutory equivalents of condemnation of ships, aircraft and goods seized in the belief they are forfeited, which was enacted in the six sections of the Customs Act 1901, as in force when the bank notes were selzed in 1978, which follow s.203. As Dixon J. observed in Willey v. Synan (1935) 54 C.L.R. 175 at 185-186, the Crown is afforded by those provisions statutory substitutes for judicial proceedings agalnst the goods. The scheme contemplates, in s.207 expressly and elsewhere impliedly, action against the Collector "for the recovery of" seized goods. Section 206 establishes a means of | ||
| ||
| Judgment in detinue affords no unqualified rlght to recovery of the goods. The grant of that relief in detinue lies in the Court's discretion. Not having had the benefit of extensive argument on the point, I am not persuaded to the degree I think necessary to justify summary dismissal that the cause of action is one which falls within s.5 or s.6 of the Limitation of Actions Act |
The motion will be dismissed with costs.
I certlfy that this and the 10 preceding pages are a true copy of the Reasons for Judgment of The Honourable Mr. Justice Jenkinson.
Dated: 19 October, 1989
| Counsel for the Applicant | Mr. L.R. Ford, Solicitor |
Counsel for the Respondent : Mr. G.A.A. Nettle
| Solicitor for the Applicant : | Juliano Ford & Co. |
| Solicitor for the Respondent : | Australian Government Solicitor |
| Date of Hearing | 11 July, 1989 |
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