Vickers, Michael v Minister for Business & Consumers Affairs

[1982] FCA 74

Re: MICHAEL VICKERS
And: MINISTER FOR BUSINESS AND CONSUMER AFFAIRS; COMPTROLLER-GENERAL OF
CUSTOMS; T. YOUNG; FRANCIS IVOR KELLY (1982) 65 FLR 260
No. G111 of 1981
Administrative Law - Customs - Banks and Banking

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Morling J.(1)

CATCHWORDS

Administrative Law - seizure of money from applicant by Customs officers - money alleged to be proceeds of sale of illegally imported narcotics - bank notes seized - whether reasonably suspected of being proceeds of sale of narcotics - applicant's savings bank account in credit - allegation that moneys deposited to credit of account were proceeds of sale of narcotics - whether bank credit is "goods" - whether bank credit is "moneys in the form of cash" - money standing to credit of account seized from bank - applicant charged with offence under Customs Act - acquitted - demand for repayment of seized money - refusal to repay - whether bank credit acquired "by reason of" sale of drugs - whether applicant entitled to return of money.

Customs Act 1901 (Cth) ss. 203-209, 229 and 229A

Administrative Decisions (Judicial Review) Act 1977 (Cth) s.5

Customs - Forfeited goods - Administrative decision to seize goods - Seizure - Banknotes - Whether "reasonable cause to believe" forfeited - Money standing to credit of bank account - Chose in action - Whether "goods" - Whether "movable personal property" - Customs Act 1901 (Cth), ss. 4, 203, 229A.

Administrative Law - Customs - Forfeited goods - Administrative decision to seize goods - Banknotes - Money standing to credit of bank account - Review - Whether decisions authorized - Administrative Decisions (Judicial Review) Act 1977 (Cth), ss. 5, 16(1)(d).

Banks and Banking - Customs - Forfeited goods - Seizure of money standing to credit of bank account - Legal character - Chose in action - Whether "goods" - Whether "movable personal property" - Customs Act 1901 (Cth), ss. 4, 203, 229A.

HEADNOTE

Section 229A of the Customs Act 1901 provides, inter alia, that money in the form of cash or goods which comes into the possession or under the control of a person by reason of his selling or otherwise dealing in narcotic goods imported into Australia in contravention of the Customs Act 1901 are deemed forfeited goods. Section 4(1) defines "goods" as all kinds of "movable personal property" and by s. 203 any officer of customs may seize any forfeited goods or "goods which he has reasonable cause to believe are forfeited".

Upon decisions taken by the respondents under the Customs Act 1901, $8,000 in banknotes was seized from the applicant's possession and $15,000 standing to the credit of the applicant's account with the bank was seized from that bank. The applicant was later acquitted of a charge of illegally importing narcotics into Australia and challenged the decisions as not authorized by the Customs Act 1901.

Held: (1) The decisions of which complaint was made were clearly decisions of an administrative character and made under the Customs Act 1901 and hence decisions to which the Administrative Decisions (Judicial Review) Act 1977 applied.
(2) In order for a customs officer to have "reasonable cause to believe" that $8,000 in banknotes is forfeited, it is not incumbent upon such officer to have proof that his suspicion was well founded; it is sufficient that he had reasonable cause for his belief.
(3) The legal character of money standing to the credit of a savings bank account is the right in the depositor to recover from the bank the balance standing to his credit in the account, a chose in action, enforceable by an action in debt; but the money so deposited is an asset of the bank which it is free to use as it pleases.

Croton v. The Queen (1967) 117 CLR 326; Grant v. The Queen (1981) 147 CLR 503; R. v. Davenport (1954) 1 WLR 569, applied.
(4) Although the moneys seized from the bank did not belong to the applicant, he had a vital interest in its seizure and, as a person who can show a grievance suffered as a result of the decision beyond that of an ordinary member of the public, was a "person who is aggrieved" within the meaning of s. 5 of the Administrative Decisions (Judicial Review) Act 1977.

Tooheys Ltd. v. Minister for Business and Consumer Affairs (1981) 54 FLR 421; Ricegrowers Co-operative Mills Ltd. v. Bannerman (1981) 56 FLR 443, referred to.
(5) The word "goods" when used in ss. 203 and 229A of the Customs Act 1901 refers to tangible things that are physically severable and a chose in action is not within that class of object.

The Noordam (No. 2) (1920) AC 904; Batchelor & Co. Pty. Ltd. v. Websdale (1963) SR (NSW) 49; Ford and Sheldon's Case (1606) 12 Co. Rep. 1; 77 ER 1283; Ryall v. Rowles (1750) 1 Ves Sen 348; 27 ER 1074; Bartlett v. Bartlett (1857) 1 De G & J 127; 44 ER 671; Burns Philp Trustee Company Ltd. v. Viney (1981) 2 NSWLR 216, considered.
(6) A chose in action is "personal property" but the chose is against the bank itself and not as against a particular branch to which an account may be transferred and is not "movable personal property" and not "goods" within the meaning of s. 4(1) or s. 229A of the Customs Act 1901.

Steignes v. Steignes (1730) Mosely 296; 25 ER 403; Re Walsh (1953) 1 Ch 473, distinguished.
(7) The chose in action cannot be characterized as "money in the form of cash" within the meaning of s. 229A which may become "forfeited goods" and liable to seizure under s. 203.

Re Collings (1933) 1 Ch 920; Re Morgan (1942) 1 Ch 345; Perrin v. Morgan (1943) AC 399; Re Taylor (1923) 1 Ch 99; Re Stonham (1963) 1 WLR 238, distinguished.

Re Wellsted's Will Trusts; Wellsted v. Hanson (1949) Ch 296, not followed.

Re Ashworth (1942) 86 SJ 134, considered.

HEARING

Sydney, 1981, December 15-17; 1982, March 31; May 17. #DATE 17:5:1982

APPLICATION TO REVIEW.

Application to review decisions taken by the respondents under the Customs Act 1901 (Cth).

The facts appear in the judgment.

M.J. Neil and M.H. Murdoch, for the applicant.

G. Rowling, for the respondents.

Cur. adv. vult.

Solicitor for the Applicant: Christopher Murphy.

Solicitor for the Respondents: B.J. O'Donovan, Commonwealth Crown Solicitor.

H.W. FRASER

ORDER

1. The decision of the thirdnamed respondent to seize Fifteen thousand dollars ($15,000.00) being moneys contained in Account No.24694 at the Mosman Branch of the Bank of New South Wales Savings Bank Limited be set aside.

2. The third and fourthnamed respondents pay to the applicant three-quarters of his costs of these proceedings.

3. Execution of proceedings hereunder be stayed for 21 days from the date hereof and, if an appeal to the Full Court of this Court be instituted within such time, until the disposal of such appeal or further order of this Court.

4. Unless an appeal to the Full Court of this Court be instituted within 21 days from the date hereof, the exhibits herein, be returned, after 21 days from the date hereof, to the persons by whom they were produced.

5. The first and second respondents are, by consent, dismissed from the proceedings. Decision to seize the sum of $15,000 set aside.

Respondents to pay three-quarters of the applicant's costs.

JUDGE1

In these proceedings the applicant Michael Vickers applies to the court for relief under s.5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth). He also seeks additional relief under the pendent jurisdiction of the court.

The decisions the applicant seeks to have reviewed are decisions alleged to have been taken by one or other of the respondents under the Customs Act 1901 (Cth) ("the Act"). At an early stage of the proceedings it was agreed by counsel that the first two respondents were not proper parties. Although no formal steps were taken to amend the court record these respondents can be dismissed from further consideration.

The Decisions under Review

On 22 February 1981 the third respondent, a federal police officer, purporting to act under delegated authority from the first and second respondents, seized bank notes to the value of $8,000 then in the possession of the applicant. The seizure was followed on 25 February 1981 by service upon the applicant of a notice of seizure pursuant to s. 229A(2)(a)(i) of the Act. Omitting formal parts, the notice was in the following terms:
"To Michael VICKERS

Notice is hereby given that I did on the 22nd day of February 1981 at Mosman, N.S.W. in pursuance of the powers conferred by the Customs Act 1901-1979, seize as forfeited to Her Majesty pursuant to Section 229A(2)(a)(i) of the said Act Eight Thousand Dollars ($8,000) being moneys for the cause that the aforesaid moneys came into the possession of the aforesaid Michael VICKERS by reason of his selling or otherwise dealing in narcotic goods, to wit, heroin, imported into Australia in contravention of the Customs Act 1901, at Perth in the State of Western Australia on or about 20th January, 1981.

Dated this 25th day of February 1981.

Signature of Seizing Officer T. Young"

Both the decision taken on 22 February 1981 to seize the bank notes and the notice of seizure served on 25 February were conceded by the respondents to be "decisions" within the meaning of the Administrative Decisions (Judicial Review) Act. It was also conceded that the bank notes were still in the possession of the Commonwealth police.

It came to the notice of the third respondent that the applicant maintained an account at the Mosman Branch of the Bank of New South Wales Savings Bank and that there was a sum of $15,000 standing to the credit of that account. Accordingly, on 25 February 1981 a notice in the following terms was served on the bank:
"The Proper Officer,
Bank of New South Wales,
Savings Bank Limited,
743 Military Road,
MOSMAN N.S.W.

AND to Michael VICKERS

Notice is hereby given that I did on the 25th day of February 1981, at Mosman N.S.W. in pursuance of the powers conferred by the Customs Act 1901-79, seize as forfeited to Her Majesty pursuant to Section 229A(2)(a)(i) of the said Act, Fifteen thousand dollars ($15,000.00) being moneys contained in account Number 24694 at the Mosman Branch of the Bank of New South Wales Savings Bank Limited for the cause that the aforesaid moneys came into the possession or under the control of the aforesaid Michael VICKERS by reason of his selling or otherwise dealing in narcotic goods, to wit heroin, imported into Australia in contravention of the Customs Act 1901 at Perth in the State of Western Australia on or about 20th January, 1981.

Dated this 25th day of February 1981

Signature of Seizing Officer T. YOUNG"

The notice was served by the third respondent on the assistant manager of the Mosman branch of the Bank who thereupon handed him bank notes to the value of $15,000. The third respondent thereupon exchanged the notes for a bank cheque for $15,000, which in due course was paid into an account under the control of the fourth respondent, where it is still held. The fourth respondent is the Collector of Customs for the State of New South Wales.

The applicant contends that the decision to serve the notice on the bank and the service of the notice itself were also decisions within the meaning of the Administrative Decisions (Judicial Review) Act. Again, the respondents conceded this to be the case. This concession was well founded, as all the decisions of which complaint is made were clearly decisions of an administrative character made under the Customs Act, and hence decisions to which the Judicial Review Act applies - see ss. 3(1) and 5(1) of the Act.

On 20 August 1981 the applicant's solicitor wrote to the fourth respondent in the following terms:
"re: MICHAEL VICKERS

I act for the abovenamed who appeared before the Supreme Court of Western Australia on 11 and 12 August 1981, Mr. Justice Wallace presiding. Mr Vickers was charged with importing heroin. On 12 August 1981 the jury found Mr Vickers not guilty and Mr Justice Wallace acquitted him of the charge.

Attached please find copies of Seizure Notices relating to amounts of $15,000 and $8,000. This money being seized 'by reason of selling or otherwise dealing in narcotic goods to wit heroin.' Mr Vickers now stands acquitted of this charge and I now demand that all moneys held by you be delivered to this office no later than 12 o'clock noon Friday August 21st."

In response to this demand the applicant's solicitor received a telephone call from an officer of the Commonwealth who informed him that "as the moneys referred to in your letter of 25th August 1981 had not been claimed within the time limited by s.205 of the Customs Act they were considered to be forfeited". Thereupon these proceedings were commenced.

The reasons for the decisions to seize the moneys

It is necessary to refer in brief outline to the events that preceded the seizure of the moneys from the applicant and the service of the notice on the bank. The applicant was born in London and has lived most of his life in England. He was in business on his own account in England before taking up residence in France in 1977. He spent about 12 months in Australia in 1970 when he was a young man of about 18 years. He returned to Australia in 1975 and stayed for 2 years. After leaving Australia he returned to live in France and thereafter, until his third visit to Australia in 1981, he lived in France or elsewhere in Europe. He became friendly with a French girl, Michelle Deniau, whom he met in August 1980. He said he formed the intention towards the end of 1980 to return to Australia to live and to buy a small business in Sydney.

According to the applicant it had always been his habit to carry large sums of money, in cash, about his person. He said that he had acquired this habit because when he was in business in England he bought and sold motor vehicles, and found it necessary to have large amounts of cash readily on hand in order to purchase vehicles when they became available. According to the applicant, he brought with him about $25,000 in Australian dollar notes when he arrived in this country for the third time on 20 January 1981.

The applicant said that, having decided to come to Australia, he enquired about the price of airline tickets and the cheapest way of getting to this country. He decided that the best course to take was to buy a ticket to Bangkok or Singapore and then to buy a cheap ticket from one of those places to Australia. Accordingly, he and Miss Deniau bought tickets to Bangkok and there purchased two single tickets from Bangkok to Perth. He said he decided to go to Perth because he wanted to see that city and thought that he might commence business there instead of in Sydney. He said he had never been to Perth before. According to the applicant the decision to travel to Bangkok rather than Singapore was made because Miss Deniau wanted to see Bangkok. They stayed there 8 days. Whilst there, they met a man named Gregory Watson. The applicant claimed they met him by chance in an hotel. He said he had met Watson once before in West Germany, where they had been working. He denied that he had made any arrangement to meet Watson in Bangkok.

Watson, the applicant and Miss Deniau decided to fly from Bangkok to Australia on the same flight. Watson was a native of Sydney who was returning home after having spent some time working in Europe. According to the applicant Watson had not previously been to Perth. The applicant said that upon arrival at Perth they took a taxi to the city. On the first night after their arrival he, Miss Deniau and Watson stayed together in the same hotel in Perth. He said they then decided to find themselves an apartment near the beach, and that either he or Watson looked through the telephone directory and found the address of a residential flat at Cottesloe. The applicant was adamant that there was no pre-arrangement to stay at the address at Cottesloe. His evidence on this matter was, in part, as follows:
"HIS HONOUR: There was no pre-arrangement whilst in Bangkok or on the plane to stay together?---No not really, your Honour, no. Just as the plane landed we talked about where we would be able to stay and decided to ask the taxi driver to take us to a hotel in the centre. Just as we arrived and after that first night, so far as I remember.

MR. ROWLING: You say you found the apartment through the telephone book?---Myself or Watson, yes.

You telephoned a real estate agent, did you?---Yes - no, it was just holiday apartments advertised in the telephone book, I believe."

Subsequently the applicant was shown the card that he completed and signed upon arrival at Perth airport. On this card the applicant gave the flat at Cottesloe as his intended address in Australia. He was unable to give any satisfactory explanation of his completion of the arrival card in this fashion and I formed a very unfavourable opinion of this part of his evidence. Indeed, I am of the opinion that he was telling a deliberate untruth when he said that he and Watson had not made any arrangement to stay in Cottesloe before they arrived in Australia.

The applicant, Miss Deniau and Watson occupied the apartment at Cottesloe for some days prior to the applicant flying to Sydney on or about 8 February 1981. After arriving in Sydney, the applicant obtained accommodation at the Monterey Private Hotel in Cremorne. Miss Deniau joined him there a short time thereafter.

The third respondent was attached to the Investigation Group which forms part of the Drug Unit of the Australian Federal Police in Sydney. On 21 February 1981 (i.e. the day before seizure of the $8,000) certain information had been furnished to him by an officer of the Federal Police Drug Unit in Perth. This information was to the following effect:

(a) That Gregory Watson had been arrested in Perth by the Australian Federal Police whilst attempting to board a domestic air flight;

(b) That a search of Watson had disclosed a cylinder containing 68 grams of heroin, $14,900.00 in cash, and 14.7 grams of cut heroin which was apparently being carried internally;

(c) That the applicant had opened a savings account at the Cottesloe Branch of the Bank of New South Wales Savings Bank, that he had transferred sums of money out of it to the Mosman Branch of that Bank on 16 February 1981 and that a large cash deposit had been made into that account at the Mosman Branch of that Bank;

(d) That enquiries by the Australian Federal Police in Perth had disclosed that the applicant had travelled to Australia from Thailand on Singapore Airlines Flight SQ47 on 20 January 1981 in company with Watson and that they had resided together in the same unit at the Westhouse Flats in Cottesloe, Western Australia from the time of their arrival in Australia until the applicant's departure for New South Wales;

(e) That the bank's records showed that an amount of $21,000.00 stood to the credit to the applicant's account on 16 February 1981 and that the applicant's address was the Monterey Hotel, Avenue Road, Mosman Bay, Sydney.

Having received the above information the third respondent, in company with other police officers, kept watch on the Monterey Hotel and ascertained that the applicant proposed to leave the hotel early on the morning of 22 February. About 7.30 a.m. on that day the police officers interviewed the applicant in his room. Miss Deniau was also present.

According to the third respondent whose evidence I accept, the applicant was informed that the police had received information that he had arrived in Australia on 20 January 1981 in company with Watson and that Watson had been arrested in Perth on a charge relating to the importation of heroin. The applicant was informed that it was believed by the police that he may also have imported heroin into Australia at the same time as Watson. The room was then searched and found to contain a packet of Australian $50 notes to the value of $8,000. The notes were seized, as were some airline tickets and a small quantity of Indian hemp. It was not suggested that the applicant made any admissions during the interview at the hotel. However, he was subsequently questioned at the Drug Unit office at Redfern. The respondents called evidence to show that when the applicant was interviewed at Redfern he admitted that he had bought heroin in Bangkok and brought it with him to Australia. It was alleged that he told the police officers that he had sold it in Perth for $23,000. The applicant vehemently denied both in evidence at his trial and before me that he had made any such admissions. In due course, he was tried in the Supreme Court of Western Australia upon a charge that he had illegally imported heroin into Australia. He was acquitted of the charge.

The applicant was served with the seizure notices on 26 February 1981 whilst he was at Central Police Station. He was then in custody without bail, having been charged with the offence of which he was subsequently acquitted in Western Australia. He did not take any action on the notices.

The third respondent said that as a result of the information that he had received from Perth and the admissions that the applicant had made to him, he believed that the bank notes found in the applicant's room and the $15,000 standing to the credit of his bank account were moneys which had come into the possession or under the control of the applicant by reason of his selling or dealing in narcotic goods imported into Australia, and that therefore they were moneys to which s.229A(2)(a)(i) and (6) of the Customs Act 1901 referred. He said that, accordingly, he believed that the same were forfeited goods within the meaning of the Act.

Credibility of the Witnesses

I have already said that the applicant denied that he made any admissions when he was interviewed by the police. At the trial in the Supreme Court of Western Australia all three police officers who interviewed the applicant were called to give evidence. Their evidence at the trial was tendered in the present proceedings. After Mr Young had been cross-examined the matter was adjourned part heard and relisted for hearing when the other police officers were to be cross-examined. However over the adjournment and without reference to his counsel or the leave of the court, the applicant left Australia. In the circumstances, his counsel's instructions to cross-examine the other police officers were withdrawn. As a result, although they gave evidence on affidavit, they were not cross-examined. I therefore did not see them in the witness box. Their evidence corroborated Mr Young's account of the conversations with the applicant, and of the applicant's alleged admissions.

If any issue in this case fell to be determined on the credibility of the witnesses I would accept Mr Young on any matter upon which he is in conflict with the applicant. I have already said that, in my opinion, the applicant gave an untruthful account of the circumstances in which he came to occupy the apartment at Cottesloe. I also found his evidence as to his habit of carrying large sums of money about his person to be quite unsatisfactory and lacking credibility. Nor do I accept that his meeting with Watson in Bangkok was coincidental. And I find unconvincing his story that he and Miss Deniau regarded their trip to Australia as being in the nature of a honeymoon. If this was the case I do not believe he would so readily have included Watson in his travel and accommodation arrangements. In general I formed the firm opinion that the applicant was an unreliable witness.

Mr Neil submitted that it was inherently improbable that the applicant would so freely have admitted his guilt to the police officers and that therefore the evidence of the applicant's alleged confession should be disbelieved. If these were criminal proceedings it may be that one could not be satisfied beyond reasonable doubt of the applicant's complicity in the importation and sale of heroin. But it is no part of my function in these proceedings to determine any issue according to the criminal onus of proof, nor does the acquittal of the applicant of the criminal charges brought against him determine any issue before me. See Wiedenhofer v The Commonwealth (1970) 122 C.L.R. 172 at 175 per Gibbs J. (as he then was) and Little's Victory Cab Co. v. Carroll (1948) V.L.R. 249 at 251 per Barry J.

Because it is possible to determine the issues that arise in these proceedings without making any finding whether the applicant did, in fact, illegally import heroin into Australia, it is desirable that no such finding should be made. This is especially the case because I was informed from the bar table that the applicant faces further criminal charges arising out of his alleged complicity in illegal importation of narcotics. In these circumstances, I should strive to avoid any unnecessary findings which might tend to embarrass a fair determination of the charges still pending against him.

The Legislation

It is necessary now to consider the relevant provisions of the Customs Act. Part XII of the Act makes extensive provision for the seizure of goods. Except where otherwise clearly intended "goods" "includes all kinds of movable personal property" - see s.4(1). Sections 203 and 204 are in the following terms:
"203. Any officer of His Majesty's forces or any officer of Customs or police may seize any forfeited ship aircraft or goods upon land or water or any ship aircraft or goods which he has reasonable cause to believe are forfeited.

"204. All seized goods shall be taken to the nearest King's warehouse or to such other place of security as the Collector shall direct."

Section 205 provides that when any goods have been seized as forfeited the seizing officer shall give notice in writing of such seizure and the cause thereof to the owner of the goods. The section further provides that all goods seized shall be deemed to be condemned and may be sold by the Collector of Customs unless the person from whom such goods have been seized or the owner within one month from the date of seizure gives notice in writing that he claims them. Section 206 gives authority for goods that have been seized to be delivered to the claimant on his giving security to pay their value in case of their condemnation. Section 207 provides that whenever any goods have been seized and a claim for such goods has been served on the Collector of Customs by the owner of the goods, the Collector may retain possession of them without taking any proceedings for their condemnation, and may require the claimant to enter an action against him for their recovery. If the claimant does not within four months after the date of such notice enter such action the goods are deemed to be condemned without any further proceedings.

Section 208 provides that all forfeited goods shall be disposed of or destroyed in such manner as may be prescribed or as the Comptroller may direct. Section 209 provides that all goods seized by any person not being a Customs officer shall forthwith be conveyed to the nearest Customs House and there delivered to an officer. Section 220 provides that no person shall be liable for any seizure under the Act for which there shall have been reasonable cause.

Part XIII of the Act provides for penalties. Provision is made by s.228 for the forfeiture to the Crown of ships or boats used in, inter alia, smuggling. Section 229 provides for the forfeiture to the Crown of a variety of goods, including goods which are smuggled or unlawfully imported and prohibited imports.

Section 229A is central to the determination of the issues in this case. It provides, in part, as follows:
"229A. (1) In this section, unless the contrary intention appears -

'cheque' includes a bill, promissory note or other security for money;

'goods' includes cheques, but does not include moneys in the form of cash;

'moneys' means moneys in the form of cash.

(2) This section applies to -

(a) moneys or goods in the possession or under the control of a person, being moneys or goods that came into his possession or under his control by reason of -

(i) his selling or otherwise dealing in, or his agreeing to sell or otherwise deal in, narcotic goods imported into Australia in contravention of this Act;

(ii) his importing, or his agreeing to import, narcotic goods into Australia in contravention of this Act;

. . .

(b) moneys in the possession or under the control of a person that were paid to him for the sale of goods that were, immediately before the sale, goods to which this section applied; and

(c) goods in the possession or under the control of a person that were purchased or otherwise acquired by him with or out of moneys to which this section applied.

(3) Where a person who obtained possession or control of a cheque, or was paid moneys by a cheque, in any of the circumstances set out in paragraph (2)(a) or (b) receives, in respect of the cheque, moneys in the form of cash, the moneys so received shall, for the purposes of sub-section (2), be deemed to be moneys that came into his possession or under his control, or were paid to him, in the circumstances in which he obtained possession or control of the cheque, or was paid the moneys by the cheque.

(4) Where a person who purchases or otherwise acquires goods pays the whole or substantially the whole of the amount paid by him for the goods by means of a cheque that came into his possession or under his control as set out in paragraph (2)(a), the goods shall, for the purposes of sub-section (2), be deemed to have come into his possession or under this control in the circumstances in which the cheque came into his possession or under his control.

(5) For the purposes of paragraph (2)(c), goods shall not be taken to have been purchased with or out of moneys to which this section applied unless the whole, or substantially the whole, of the moneys paid for the goods were moneys to which this section applied.

(6) For the purposes of section 203, moneys or goods to which this section applies shall be deemed to be forfeited goods and, upon moneys or goods to which this section applies being seized in pursuance of section 203, they shall, for the purposes of sections 204 and 209 (inclusive) and Part XIV, be deemed to be forfeited goods, and those provisions apply accordingly.

(7) Where, in any proceedings for the condemnation or recovery of moneys or goods to which this section applies and which have been seized under section 203, the Court is satisfied that the relevant narcotic goods are goods reasonably suspected of having been imported into Australia in contravention of this Act, the Court shall, for the purposes of the proceedings, treat the narcotic goods as narcotic goods which have been imported into Australia in contravention of this Act unless it is established to the satisfaction of the Court that the narcotic goods were not imported into Australia or were not imported into Australia in contravention of this Act.

. . . "
Were the bank notes lawfully seized?

I turn now to consider the applicant's case in respect of the seizure of the bank notes. It was submitted that the applicant was aggrieved by the decision taken on 22 February 1981 to seize this money and the decision to serve the notice on 25 February on the ground, principally, that the decisions were not authorised by the Customs Act - see s. 5(1)(d) of the Judicial Review Act. It was not disputed that the notes were "moneys" within the meaning of s.229A nor that moneys caught by that section were deemed to be forfeited goods for the purposes of s.203. It has been held, in another context, that bank notes are "goods". See Reg. v. Goswami (1969) 1 Q.B. 453. But because of the definition of "goods" in s.229A(1) which excludes money in the form of cash (which bank notes clearly are) no question arises in the present case whether the notes were "goods" within that section. However, plainly they were "moneys" as defined in s.229A(1) and hence, by virtue of s.229A(6), were deemed to be forfeited goods for the purpose of s.203 - provided, of course, they were otherwise caught by the section.

It was contended by Mr Neil on behalf of the applicant that at the time the decisions were taken to seize the notes and to serve the notice of seizure there was no basis upon which the police officers could have had reasonable cause to believe the notes were forfeited goods, that is to say, that they came into the applicant's possession by reason of his selling or otherwise dealing in narcotic goods illegally imported into Australia. It was contended that, in the absence of such reasonable cause for belief, the actual seizure of the notes was not authorised by s.203.

Mr Neil argued that, whatever suspicions may have been held about the applicant's involvement in the sale of or dealing in narcotic goods, there was nothing to indicate that the $8,000 found in his possession was the proceeds of the sale of drugs. It was put that any person, even a person involved in the drug trade, may possess a large sum of money in cash, innocently acquired. He submitted that an examination of the bank records which were in evidence did not show that the $8,000 had any connection with or came from the proceeds of the sale of narcotic goods. He pointed out that although the bank records showed that $6,500 was withdrawn from the Mosman bank account a few days before the seizure of the $8,000 from the applicant, that withdrawal was insufficient of itself to establish that the bank notes found in his possession were moneys of the kind referred to in s.229A(2).

I do not think this submission gives full weight to the totality of the information which had been furnished to the third respondent at the time he seized the money on 22 February. I accept his evidence that at that time he had been informed that the applicant had entered Australia in company with Watson who had been found in possession of a large sum in cash and a considerable quantity of cut heroin, that Watson had been arrested in Perth, that the applicant had opened a savings bank account in a Perth suburb and transferred large sums of money from it to his Mosman bank account and that the applicant had resided with Watson at an address in Perth after their arrival together from Thailand. When coupled with the lack of a satisfactory explanation of the applicant's possession of the $8,000, the information that the third respondent possessed was, in my opinion, sufficient to give him reasonable cause to believe that the money had come into the possession of the applicant by reason of his selling or otherwise dealing in narcotic goods imported into Australia. Plainly, the information did not establish that to be the fact. But it was not incumbent upon the third respondent to have proof that his suspicion was well founded. It was sufficient that he had reasonable cause for his belief. This, in my opinion, he clearly had when he found the $8,000 in the applicant's possession on the morning of 22 February.

There can be no question that if the third respondent's version of the interview which took place at the Redfern Drug Unit later that day is accepted, he had abundant reason to believe that the $8,000 did constitute part of the proceeds of the sale of narcotic goods imported into Australia in contravention of the Act. I have already said that upon any matter on which the applicant and the respondent Young are in conflict, I would accept Young's evidence in preference to the applicant's. But as I have already found that Young had reasonable cause to believe that the banknotes were forfeited goods at the time he seized them, I think it is unnecessary for me to determine what actually took place in the interview at the Drug Referral Centre.

The finding that Young had reasonable cause to believe the banknotes were forfeited goods is sufficient to dispose of the applicant's claim for relief in respect of the $8,000. Plainly the decisions to seize the money and serve the notice of seizure were authorised by the Act and there is no basis for the claim in respect of that sum under s.5(1) of the Judicial Review Act.

The rival contentions as to seizure of the money in the bank

It is now necessary to consider the claim in respect of the $15,000 seized from the applicant's bank account. As in the case of the $8,000, the principal claim for relief under the Judicial Review Act was that the decision to seize this money was not authorised by the Customs Act. The principal basis for the submission was that the credit balance in a savings bank account is not "goods" within the meaning of s.203, nor "goods" or "moneys" within the meaning of s.229A of the Act. It was also submitted that even if the credit balance was "goods" or "moneys in the form of cash", it came into his possession by reason of his depositing moneys to the credit of the account with the bank and not "by reason of his selling . . . narcotic goods . . . " within the meaning of s.229A(1). As I understood the respondents' argument, it was conceded that if either of these submissions was correct the seizure of the $15,000 was not authorised and the applicant is entitled to the return of it. The question of the appropriate form of relief in the event that it was held that the seizure was unlawful was not argued, it being agreed by counsel that the form of any order should be left open until after delivery of my reasons.

Mr Rowlings submitted on behalf of the respondents that the money standing to the credit of the applicant's savings bank account was either "goods" or "moneys" within the meaning of those words in s.229A. He argued that, in s.229A "goods" had a meaning at least as wide as that given to it in s.4(1). In that section "goods" are defined to include all kinds of "movable personal property". It was submitted that movable property included all types of pure personalty or, alternatively, all types of property that is moveable. It was put that a savings bank account has a location which is either the branch of the bank at which the account is kept or where the holder of the account may call for payment of the moneys. That location, so it was put, is movable at the option of the owner of the account. It was argued that the owner, at his discretion, may move the account from one branch of a bank to another. Accordingly, so it was submitted, such an account is movable, and is movable personal property within the meaning of the Act. It was submitted in the alternative that "goods" in s.229A include every type of personal property including choses in action. It was further argued that, in any event, the money in the account was "moneys in the form of cash" and hence "moneys" within the meaning of s.229A.

Mr Neil submitted that, in its setting in the Act and notwithstanding the wide definition in s.4, "goods" should not be construed as comprehending money standing to the credit of a savings bank account. He argued that such moneys, although personal property, were not movable. He further submitted that they were not moneys "in the form of cash" and that therefore the seizure of the moneys in the account was not authorised.

Was the bank credit "goods"?

Before addressing the critical question whether the money standing to the credit of the account was liable to be seized, it is necessary to identify its true legal character. The money itself belonged to the bank, not to the applicant. All he had was a right to recover from the bank the balance standing to his credit in the account. This right was a chose in action which could be enforced by an action in debt, but the money deposited in the account was an asset of the bank which it was free to use as it pleased. See Croton v. The Queen (1967) 117 C.L.R. 326 at 330 per Barwick C.J.; Grant v. R. (1981) 35 A.L.R. 97 at 101 and R. v Davenport (1954) 1 All E.R. 602 at 603 where Lord Goddard C.J. said:
". . . but although we talk about people having money in a bank, the only person who has money in a bank is the banker. If I pay money into my bank, either by paying cash or a cheque, that money at once becomes the money of the banker. The relationship between banker and customer is that of debtor and creditor. He does not hold my money as an agent or trustee. The leading case of Foley v. Hill (1848) 2 H.L.Cas. 28; 9 E.R. 1002, exploded that idea. When the banker is paying out, whether in cash over the counter or whether by crediting the bank account of somebody else, he is paying out his own money, not my money, but he is debiting me in my account with him. I have a chose in action, that is to say, I have a right to expect that the banker will honour my cheque, but he does it out of his own money."

A perusal of the Customs Act and of the many sections in which "goods" are referred to does not convey to the reader that it was the intention of the draftsman to include within the meaning of that word the chose in action owned by a person whose savings bank account is in credit. The powers of seizure given under Part XII of the Act relate clearly enough to goods of a tangible kind which are susceptible of physical seizure. Thus officers are given powers under s.186 to "open packages and examine weigh mark and seal any goods subject to the control of the customs". The power of search given to officers extends to "authorise the opening of any package, locker, or place and examination of all goods" - vide s.189. Officers are empowered by s.190 to move goods to a warehouse and under s.197 an officer, upon reasonable suspicion, may stop and search any carriage for the purpose of ascertaining whether any dutiable goods are contained therein. Section 200 gives to an officer, in certain circumstances, the power to enter and search premises in which goods may be located. Section 203 gives to officers the power to seize any forfeited goods which they have reasonable cause to believe are forfeited. Section 205 requires that any seized goods "shall be taken to the nearest King's warehouse or such other place of security as the Collector shall direct." These references make it plain enough, in my opinion, that "goods" for the purpose of the Act are tangible things which can be physically seized and taken to a place such as a warehouse where they may be kept.

However, it was argued on behalf of the respondents that where, in s.4(1) it is provided that "goods includes . . . all kinds of movable personal property" the word "includes" does not mean "means and includes", and that therefore the natural meaning of "goods" is extended by the definition. Batchelor & Co. Pty. Ltd. v Websdale (1962) N.S.W.R. 1441 was relied upon. It was then argued that the decided cases show that "goods" includes every type of personal property, including choses in action. Thus Ford & Sheldon's Case 12 Co. Rep.; 77 E.R. 1283 was relied upon as showing that in an Act of Parliament the word "goods" can include personal actions, such as an action for forfeiture of a recognizance. Ryall v. Rowles (1749-50) 1 Ves. Sen. 348 at 371; 27 E.R. 1074 at 1088 was also relied upon. In that case Lord Hardwicke said, in respect of a statute concerning bankruptcy, that choses in action were properly within the description of goods and chattels in the statute. In Bartlett v. Bartlett (1857) 1 De. G. & J. 127 at 139: 44 E.R. 671 at 676 Turner L.J. held that a contingent reversionary interest in a fund in Court fell within the description of goods and chattels in a section of an Act dealing with bankruptcy. His Lordship there said:
". . . The words 'goods and chattels' are words of most extensive import. Unless controlled by the context, they comprise all the personal estate of whatsoever nature or description."

In Burns Philp Trustee Company v. Viney (1981) 2 N.S.W.L.R. 216 Kearney J. held that in the context in which the word "goods" appears in s. 465 of the Crimes Act, 1900 (N.S.W.) it is to be read as applying to all forms of personal property, including choses in action. The section provides:
"465. No inquest, conviction, or judgment, in respect of any felony, shall cause any escheat or forfeiture of lands or goods"
However, as Kearney J. pointed out, the meaning of the word will depend upon its context. In that case his Honour was construing a remedial statute, the purpose of the section being to avoid forfeiture of a felon's property. It is readily understandable that, in that context, "goods" when used in the expression "lands or goods" should be construed as including all forms of personal property.

In The Noordam (1920) A.C. 905 at 908, Lord Sumner, speaking for the House of Lords in an Admiralty case, said that the word "goods" is "of very general and quite indefinite import, and primarily derives its meaning from the context in which it is used". Their Lordships were of the opinion that the cardinal consideration in interpreting the Order in Council in question was the character and scope of the Order itself. Thus Lord Sumner said:
"The content of the word 'goods' differs greatly according to the context in which it is found and the instrument in which it occurs. In a will or in a policy of marine insurance, in a marriage service, or in a schedule of railway rates, in the title of a probate action or in an enactment relating to the rights of an execution creditor, the word may sometimes be of the narrowest and sometimes of the widest scope. The question is what is its content here."

See (1920) A.C. 905 at 909.
This statement is a salutory warning not to construe "goods" in the Customs Act by reference to the decisions cited by counsel for the respondents.

Putting on one side for the moment the question whether the credit in the savings bank account was "movable personal property" none of the above cases persuade me that the word "goods" where used in s.203 and s.229A should be interpreted as including moneys standing to the credit of a savings bank account. Plainly, such moneys are not goods in ordinary parlance. I have already referred to some of the many sections of the Act in which "goods" is used as referring to tangible things that are physically movable. I do not think that a chose in action is within that class of object. If the money seized from the applicant's bank account was within the definition of "goods" in the Act, it must therefore have been because it was "movable personal property". I therefore turn to consider whether it was property of that kind.

Was the bank credit "movable personal property"?

It is beyond question that money standing to the credit of a bank account is personal property. But is it within the expression "movable personal property" as used in the definition in s.4? When answering this question it must be kept firmly in mind that the task in hand is to ascertain the meaning of those words in the Customs Act.

I was referred to many cases in which the meaning of the word "movables" and similar words has been considered in other contexts. I do not think those cases are of any real assistance. Thus in Steignes v. Steignes (1730) Mosely 296: 25 E.R. 403 it was held that the word "movables" in its full sense, takes in all personal chattels. That was a case in which a testator made his will in French and gave his wife, besides all his movables, plate, jewels, pictures, linen, etc., and South Sea Stock. The question was, what passed by the French word "meubles" which was translated as movables. The Master of the Rolls held that if there was nothing to restrain the meaning of the word "movables" in the will it would take in the whole of the purely personal estate.

In In re Walsh (1953) 1 Ch. 473, another will case, Vaisey J. held that the word "movables" used by the testator did not include a sum standing to the testator's credit at his bank at the date of his death. He reached this conclusion as a matter of construction of the words used by the testator, but pointed out that had the words stood alone, Steignes v. Steignes (supra) might have required a different conclusion. I do not think this and other will cases are of any assistance in construing the Customs Act.

In Dicey & Morris, The Conflict of Laws, 10th Edition, volume 2 at p. 524 the point is made that the distinction between movables and immovables must not be confused with the distinction between tangible things and intangible things such as debts and stocks and shares. The authors there say:
"In reality, the distinction between movables and immovables is not appropriate to these intangible things, since a thing which cannot be touched obviously cannot be moved. Logically, therefore, things should be classified as being (1) tangible things, which may be either (a) movable or (b) immovable, and (2) intangible things. However, it is common practice to classify all things as being movable or immovable for the purposes of the conflict of laws, and to include intangible things in movables, and even to ascribe an artifical situs to intangible things in order to bring them within the scope of rules of law expressed in terms of situs."

If it be correct to say, as I think it is, that "a thing which cannot be touched obviously cannot be moved", it seems inappropriate to treat intangible things (which cannot be touched) as "movables" for any purpose other than the conflict of laws.

I do not think the ability of a customer to transfer his account with a bank from one branch to another makes the customer's chose in action against the bank movable. The customer's right to repayment and to sue the bank to recover the credit balance in his account does not move when he transfers the account to another branch. That right remains intact and unchanged in every relevant respect notwithstanding a change in the location of the branch at which the account is kept. It is true that when a customer keeps a savings account at a branch of a bank his right to repayment is a right to recieve repayment at that branch. But the right is, of course, against the bank itself and is not attached to the branch. That right does not move at all if the account is transferred to another branch. Certainly it does not move in the sense that movable personal property is contemplated as being moved under the relevant provisions of the Customs Act.

That it is inapposite to treat a chose in action as movable personal property becomes apparent when the essential nature of the third respondent's action qua the bank credit is appreciated. In reality, what he did when he persuaded the bank manager to hand him the $15,000 was not to deprive or divest the applicant of his chose in action, but rather to acquire the bank's money. The applicant was not deprived of his chose in action in the absence of a statutory divestiture of it or of his own voluntary assignment of it. The chose in action itself was not taken or "moved" from the applicant. Indeed, in the view I take of the law, the applicant, instead of taking these proceedings, could have called on the bank to pay him the credit balance in the account prior to the withdrawal of the $15,000. These considerations lead me to conclude that the money standing to the credit of the applicant's bank account was not movable personal property and was not "goods" within the meaning of s.4(1) or s.229A of the Act.

Was the bank credit "moneys in the form of cash"?

However, the seizure of the $15,000 would nevertheless have been authorised if it was "moneys" within the meaning of s.229A. Whether it was "moneys" will depend upon whether it was "moneys in the form of cash" as that expression is used in s.229A, and I now consider that question.

It is to be noted that the expression is "moneys in the form of cash" not "moneys" simpliciter. Over the years the courts have developed a meaning for the word "money" wide enough to comprehend choses in action, such as moneys on deposit at a bank. See In re Collings (1933) 1 Ch. 920 and In re Morgan (1942) 1 Ch. 345 per Lord Greene M.R. at p. 346. The decision of the Court of Appeal in In re Morgan was reversed in the House of Lords but the correctness of Lord Greene's observation on this matter was not doubted. See Peron v. Morgan (1943) A.C. 399. The appeal succeeded because the House of Lords held that the court was not bound to adopt a fixed meaning of the word "money" and must ascertain as between various meanings of the word which is the correct interpretation in the particular document being construed. Viscount Simon L.C. said:
"I agree, of course, that, if a word has only one natural meaning, it is right to attribute that meaning to the word when used in a will unless the context or other circumstances which may be property considered show that an unusual meaning is intended, but the word "money" has not got one natural or usual meaning. It has several meanings, each of which in appropriate circumstances may be regarded as natural. In its original sense, which is also its narrowest sense, the word means "coin". Moneta was an appellation of Juno and the Temple of Moneta at Rome was the mint. Phrases like "false money" or "clipped money" show the original use in English, but the conception very quickly broadens into the equivalent of "cash" of any sort. The question: 'Have you any money in your purse?' refers presumably to bank notes or Treasury Notes, as well as to shillings and pence. A further extension would include not only coin and currency in the possession of an individual, but debts owing to him, and cheques which he could pay into his banking account, or postal orders or the like. Again, going further, it is a matter of common speech to refer to one's 'money at the bank' although in a stricter sense the bank is not holding one's own money and what one possesses is a chose in action which represents the right to require the bank to pay out sums held at the call of its customer. Sums on deposit, whether with a bank or otherwise, may be included by a further extension, but this is by no means the limit to the senses in which the word 'money' is frequently and quite naturally used in English speech."

(1943) A.C. 399 at 406.

In Re Taylor (1923) 1 Ch. 99 Warrington L.J. referring to the meaning of money in the strict sense in which the word has come to be construed in wills said:
"'Money in the strict sense' means, as I understand money actually in hand as cash, or at the bank on drawing account . . . ".

I do not think Taylor's Case is of much assistance in determining the present case, but it is interesting to note that Warrington L.J. drew a distinction between money "actually in hand as cash" and money "at the bank on drawing account".

In Re Stonham (1963) 1 W.L.R. 238 Wilberforce J. (as he then was) held in the light of all the surrounding circumstances of that case that a testatrix had intended by using the expression "cash in Lloyds bank" to dispose of all money standing to her credit in both her current and deposit account. His Lordship considered the case law concerning expressions such as "cash", "ready money" and "money". All the cases referred to appear to be will cases and they are not of any real assistance in determining the meaning in the Customs Act of the expression "moneys in the form of cash". However, it is not without interest that in one of the cases referred to by his Lordship, - In re Ashworth (1942) 86 S.J. 134 the word "cash" simpliciter was held by Sir John Bennett V-C not to pass money in a Post Office savings deposit which was, as to amounts over 3 pounds, withdrawable only on notice. The Vice-Chancellor thought that no distinction should be drawn between the 3 pounds which could be drawn without notice and the remainder of the deposit.

In Re Wellsted's Will Trusts, Wellsted v. Hanson (1949) Ch 296, Lord Greene M.R. said at p. 314: "'Cash', of course, is a loose expression. Nowadays it does not mean mere cash in one's pocket, but it includes a chose in action like money on current or deposit account at the bank". His Lordship does not cite authority for this proposition, and I do not think the statement should be taken as conveying anything more than that, unrelated to any particular context, "cash" is a word which may comprehend money in the bank. I would myself doubt whether, in common parlance in Australia, money on fixed deposit would be regarded as cash. Giving to Lord Greene's statement the great respect which any observation of his Lordship must be afforded, I do not think it is of much assistance in determining the meaning of the expression "moneys in the form of cash" in s.229A(1) of the Customs Act.

It is to be kept in mind that the prime purpose of s.229A is to make moneys, in some circumstances, liable to seizure. Moneys may become "forfeited goods" for the purpose of s. 203 - vide s.229A(6). It is in this context that moneys are defined as meaning "moneys in the form of cash". In such a context I do not think that the expression extends to include money standing to the credit of a savings bank account. Those moneys belong to the bank, not to the customer. The owner of the account has no more than a right to call for payment. In my opinion it is not correct to call such a right "cash". It is certainly not something which it is easy to contemplate as being liable to seizure under s.203. Indeed, it cannot be physically seized from any person other than the bank. And if and when a seizure of such "moneys in the form of cash" is made, what is seized is the bank's money, not the customer's. These considerations lead me to the view that moneys standing to the credit of a savings bank account are not "moneys in the form of cash". I therefore conclude that there was no statutory warrant for the seizure of the $15,000 from the applicant's bank account.

Was the bank credit acquired "by reason of" conduct believed to be proscribed?

Mr Neil relied upon an alternative argument that, even if the moneys standing to the credit of his client's bank account was "goods" or "moneys in the form of cash" such moneys did not come into the possession or under the control of the applicant "by reason of his selling or otherwise dealing in . . . narcotic goods imported into Australia" within the meaning of s.229A(2)(a)(i). It was contended that the owner of a bank account acquires his chose in action against the bank by reason of depositing money to the credit of his account, and not otherwise. It was argued that even though the source of the money may have been conduct proscribed by the Act, that circumstance does not avoid the result that once the money is paid into a bank account it becomes the property of the bank, and the account holder's chose in action is acquired "by reason of" the deposit, and not by reason of engagement in the proscribed conduct.

Grant v. R. (1981) 35 A.L.R. was called in aid by the applicant. In that case the High Court held that there was no warrant for resorting to the common law doctrine of following or tracing so as to give to s.40 of the Summary Offences Act 1970 (N.S.W.) an extended meaning. Under that section a person is guilty of an offence if he has any thing in his custody which thing may be reasonably suspected of being stolen or otherwise unlawfully obtained. The High Court held that the "thing" in the section is a reference to the same physical object throughout and that it is that object to which the reasonable suspicion of being stolen or otherwise unlawfully obtained must attach. Accordingly, it was held that where moneys, which were reasonably suspected of having been unlawfully obtained, were paid into a savings bank account and subsequently withdrawn and placed in a solicitor's trust account and thereafter moneys withdrawn from the solicitor's trust account were handed to the accused, the moneys in the possession of the accused were not a "thing" within the meaning of the section. Grant's Case is, of course, clearly distinguishable from this case and it does not throw any light upon the meaning which should be given to the expression "by reason of" in s.229A. In Grant's Case the court referred to the consistency with which the courts have insisted upon a strict construction of the words outlining the elements of the offence, recognising the serious character of a law which authorises the arest of a person on mere suspicion. Bearing in mind that the combined effect of ss.203 and 229A is to authorise the seizure of goods where there is reasonable cause to believe they are forfeited, a similar approach to the construction of those sections seems appropriate.

The expression "by reason of" has been considered in many cases, some of which were referred to in argument. See, for example, R v. Justices of the Peace at Yarram; ex parte Arnold (1964) V.R. 21; The Queen v. Steel (1976) 1 Q.B. 482 and The Diamond (1906) P. 282; and Main Electrical Pty. Limited v. Civil & Civic Pty. Limited (1978) 19 S.A.S.R. 34. In the last mentioned case one question which arose for decision was the meaning, in a building contract, of a clause which provided that in the event of a dispute or difference arising "by reason of any of the terms and provisions" of the contract, no action should lie in respect of the claim until the architect had given his decision upon it. Bray C.J. said of the phrase "by reason of":

"This phrase, to my mind, implies a relationship of cause and effect between the terms and provisions of the contract and the claim in question . . .".
The Chief Justice's judgment makes it clear that, in his opinion, the relationship need not be direct. I respectfully agree with the Chief Justice's observations. To adapt his words, I think that the phrase "by reason of" in s.229A(2)(a) implies a relationship of cause and effect between the sale or dealing in narcotics and the possession of the bank account.

It is not an easy question whether a person who obtains money from selling or dealing in narcotic goods imported into Australia in contravention of the Customs Act, and who deposits those moneys to the credit of his bank account acquires a chose in action against the bank "by reason of" his selling or dealing in the narcotic goods. He acquires the chose in action, in effect, in exchange for the money he deposits with the bank. There is obviously a causal relationship between the deposit of the money and the acquisition of the chose in action. But it is another matter whether there is a causal relationship between the sale of the narcotic goods and the acquisition of the chose in action. Between those two events there is interposed an entirely separate legal transaction with a third party, i.e. the bank. It was submitted by Mr Rowling that subsections (2), (3) and (4) of s.229A manifest an intention that a person who obtains a financial advantage from dealing in illegally imported narcotic goods should be deprived of that advantage. I have no doubt that this is so, but on the other hand the introduction into s.229A of subsections (3) and (4) may indicate that the draftsman saw the need for specific provisions to deprive offenders of the benefits of the proceeds of sale of illegally imported narcotic goods where such proceeds have been converted into other species of property.

With some hesitation I have formed the opinion that where a person sells narcotic goods and deposits the proceeds of sale into a savings bank account, and where no other moneys are deposited in that account, it can properly be said that the person comes into possession of the bank credit "by reason of" selling narcotic goods. In such circumstances there is a sufficient relationship of cause and effect between the sale of the narcotics and the possession of the bank account. It would be an over-technical approach to treat the deposit of money into the savings bank account as destroying the causal relationship. Such a construction of the phrase "by reason of" promotes the purpose or object underlying the Act and is thus to be preferred to one that does not. Since the third respondent had reasonable cause to believe that the money in the account was the proceeds of the sale of narcotics I would not have been prepared to find for the applicant on Mr Neil's alternative argument.

Conclusion

As I have already said it was not disputed that the decision to seize the money from the bank was a decision to which the Judicial Review Act applies. Further, it was conceded that the applicant is aggrieved by that decision. I think this concession was well founded. Although the money seized from the bank did not belong to the applicant, he had a vital interest in its seizure. The words "a person who is aggrieved" in s.5 of the Judicial Review Act are not confined to those who can establish that they have a legal interest at stake in the making of the decision. They extend to cover a person who can show a grievance suffered as a result of the decision beyond that of an ordinary member of the public. See Tooheys Limited v. Minister for Business and Consumer Affairs (1981) 36 A.L.R. 64 per Ellicott J. at p. 79, referred to with approval in Rice Growers Co-operative Mills Limited v. Bannerman and Anor (Bowen C.J., Franki and Northrop JJ., 16 December 1981, as yet unreported).

For the above reasons I am of the opinion that the applicant is not entitled to relief in respect of the seizure of the bank notes, but is entitled to relief in respect of the seizure of the $15,000 standing to the credit of his account at the Bank of New South Wales Savings Bank. At the request of counsel I shall stand over for further argument the question of the appropriate form of order. It may well be that the most appropriate order would be an order under s.16(1)(d) of the Judicial Review Act directing one or other of the respondents to pay into the applicant's account with the bank an appropriate amount to off-set the amount improperly taken from it by the bank after service upon it of the notice of seizure. Because the money that was handed by the bank to the third respondent was the bank's money and not the applicant's, it may well be inappropriate to give judgment against one or other of the respondents as in an action for debt, even if such a judgment could be given under the court's pendent jurisdiction.

20 May 1982., The Court Orders that;

1. The decision of the third named respondent to seize Fifteen thousand dollars ($15,000.00) being moneys contained in Account No. 24694 at the Mosman Branch of the Bank of New South Wales Limited be set aside.

2. The third and fourth named respondents pay to the applicant three quarters of his costs of these proceedings.

3. The execution and proceedings hereunder be stayed for 21 days from the date hereof and, if an appeal to the Full Court of this Court be instituted within such time, until the disposal of such appeal or futher order of this court.

4. Unless an appeal to the Full Court of this Court be instituted within 21 days from the date hereof, the exhibits herein, be returned, after 21 days from the date hereof, to the persons by whom they were produced.

5. The first and the second respondents are, by consent, dismissed from these proceedings.