Williams, I.a. v Collector of Customs for the State of Queensland

[1985] FCA 520

NOT CONSIDERED SUITABLE FOR CIRCULATION

IN THE FEDERAL COURT OF AUSTRALIA	1
) '
NEW SOUTH WALES DTSTRICT REGISTRY	)
)
GENERAL DIVISION	)
BETWEEN :

IRIS ANNELLI WILLIAMS

- Applicant

- AND :

COLLECTOR OF CUSTOMS

FOR THE STATE OF

QUEENSLAND

Respondent

MINUTE OF ORDER OF THE COURT

Judqe Makinq Order:	Burchett J.
Date of Order:	15 October 1985
mere Made :	Sydney

THE COURT ORDERS THAT:

(1) The Applicant, on or before 23 October 1985, file and

serve an amended application to raise any alternative

claim upon which she proposes to rely.

( 2 )

The Respondent's application to adjourn the matter pending

the prosecution brought against the applicant be refused.

( 3 )

The application be listed for further directions at 9-30AM

on 24 October, 1985.

m: Settlement and entry of orders is dealt with in Order 36

of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA	)
)
NEW SOUTH WALES DISTRICT REGISTRY	) No. G.264 of 1985
1
GENERAL DIVISION	)
BETWEEN :

IRIS ANNELLI WILLIAMS

Applicant

AM):

COLLECTOR OF CUSTOMS

FOR THE STATE OF

QUEENSLAND

Respondent

REASONS FOR JUDGMENT

BURCHETT J.

This is an application for an order to review, brought

under the Administrative Decisions (Judicial Review) Act,	1977 in
respect of certain decisions relating to the seizure of a

Rolls-Royce motor vehicle by the Collector of Customs and the

issue of a notice under s.208A of the Customs Act, 1901,

requiring the applicant to bring within four months an action

m e n the application came before me in the directions list Mr.

Peters, for the Collector, submitted any directions would be

otiose since the application had not been brought within time.

against the Collector for the recovery of the motor vehicle. is for the purpose of detinue proceedings, such as might be

2 .

brought in the Supreme Court of a State, but could not affect the

prescribed period fixed under s.11 of the Administrative

Decisions (Judicial Review) Act in respect of an application

under that Act. Counsel for the applicant made it clear that he

contested this proposition, but also that if I were to rule

against him he would then ask leave to amend his application to

seek an extension of time to apply under the Administrative

Decisions (Judicial Review) Act. In that situation, I indicated

that I did not think it appropriate to make a ruling on the

application in its present form. It seemed to me that the

application should first be amended in the manner foreshadowed so

that all matters relevant, both to Mr. Peters' argument and the

question whether the Court's discretion should be exercised to

permit an enlargement of time for the bringing of the

application, could be considered together. Prima facie, if the

application were held to be out of time, although brought within

the four months nominated in an official notice issued under a

provlsion of the Customs Act, there would be much to be said for

the proposition that the time ought to be extended. In that case

the respondent's argument would be but a sterile academic

exercise. I now formally direct that the applicant, on or before

23/10/85, file and serve an amended application to raise any

alternative claim upon which she proposes to rely.

Mr. Peters also asked me to stand the matter over

generally in order to enable a prosecution upon the same facts to

proceed first. I was informed that the prosecution had been

I .

3 .

launched after the giving of the notice under s.208A and the

institution of these proceedings. It seems to me a novel

proposition that proceedings brought in response to a notice

under s.208A of the Customs Act should then be postponed to a

prosecution subsequently brought. It was, of course, within the

power of the Commonwealth to delay giving a notice under s.208A

and to launch a prosecution. In the more common situation, where

a party prosecuted is also the defendant in civil proceedings

which he seeks to have adjourned on the footing that it would be

unjust to require him to defend the civil proceedings whilst a

prosecution is pending, it has been stated in a number of cases

that prima facie the plaintiff in the civil proceedings is

entitled to have his action tried in the ordinary course of the

procedure and business of the Court (see Jefferson -v- Bhetcha

C19791 1 WLR 898; Re: Saltersate Insurance Company C19801 4 ACLR

733; Rochfort -v- John Fairfax & Sons Ltd. C19721 1 NSWLR 16;

McMahon -v- Gould C19821 1 ACLR 98; Cameron's Unit Services Pty.

Ltd. -v- Kevin R. Whelpton & Associates (Australia) Ptv. Ltd.

(1984) 4 FCR 428) . It seems to me that a fortiori this

proposition should apply where it is the prosecutor who is

seeking the adjournment of the clvil proceedings, and I reject

the application for adjournment.

Finally, Mr. Peters sought a change of venue to

Queensland. At this stage, it seems to me premature to determine

the venue. There is no reason why the matter should not be

prepared fo r hearing in the normal way. I was informed that the

4.

applicant is expected to be moving to Sydney and I do not think

that I should in any event, having regard to the shortness of the

notice that was given of the application to change the venue,

proceed to deal with that application without giving her the

opportunity to put before the Court any material bearing on the

question of the convenient forum from her point of view. I think

the question of the venue can most appropriately be dealt with

when the matter is ready to be fixed for hearing.

I direct that the matter be listed for further

directions at 9-30AM on the 24th day of October 1985 when, the

amended application having been filed and served, the parties

should be in a position to have a timetable for the necessary

further steps in the preparation	of this matter settled.
I certify that this and the

preceding three ( 3 ) pages are

a true copy of the Reasons for

Judgment herein of his Honour

Mr. Justice Burchett.

Dated: 15 October, 1985.