Winch Industries Australia Pty Ltd v Isele, J.A

[1986] FCA 155

IN THE FEDERAL COURT OF AUSTRALIA 1

!WEENSLAND DISTRICT REGISTRY 1 QLD G 1 1 8 of 1985

GENERAL DIVISION )

BETWEEN: WINCH INDUSTRIES (AUSTRALIA) PTY. LTD.

Applicant

AND: JOHN ALF'RED ISELE

First Respondent

AND: DANIEL EDMUND LEE

Second Respondent

DATE OF HEARING:

22 April 1986

DATE JUDGMENT DELIVERED:

22 April 1986

COUNSEL:

. for the applicant

by Henderson Lahey Trout

Mr. R. Hanson Q.C. instructed

Bernays.

. for the respondents

Mr. W. M. Boulton instructed

by the Australian Government

Solicitor

J . A. LYONS

ASSOCIATE TO PINCUS J.

22 April 1986

IN THE FEDERAL COURT OF AUSTRALIA	)
PUEENSLAND DISTRICT REGISTRY	) QLD G118 of 1985
GENERAL DIVISION	1

BEIWEEN: WINCH INDUSTRIES (AUSTRALIA) PTY. LTD.

Applicant

AND: JOHN ALFFED ISELE

First Respondent

AND: DANIEL EDMUND LEE

Second Respondent

MINUTES OF ORDER

JUDGE MAKING ORDER:	PINCUS J.
DATE OF ORDER:	22 April 1986
WHERE MADE:	BRISBANE
THE COURT ORDERS THAT:

1. The time within which the application for relief

under the Administrative D cisions (Judicial

Review) Act may be brought be extended to the 28

November 1985.

2.	The costs of	and incidental to the application for
extension of	time be costs of the respondents in

the principal proceedings.

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

of the Federal Court Rules.

IN "HE FEDERAL COURT OF AUSTRALIA	1
QUEENSLAND DISTRICT REGISTRY	) QLD G118 of 1985
GENERAL DIVISION	)

: - B WINCH INDUSTRIES (AUSTRALIA) PTY. LTD.

Applicant

AND: JOHN ALFRED ISELE

First Respondent

AND: DANIEL DMUND LEE

Second Respondent

PINCUS J. 22 April 1986

EX TEMPORE REASONS FOR JUDGMENT

I have before me an application for an extension of time

to enable the bringing of proceedings under the Administrative

Decisions (Judicial Review) Act with respect to a seizure	of
imported winches under the Customs Act.

The seizure took place on 11 July 1985 at Brisbane, and

on 18 July it was challenged by a telex sent to the Senior

Inspector, Australian Customs Service, by solicitors acting for

the applicant. On 29 July the applicant received a notice dated

26 July 1985 with respect to the seizure, that notice being given

under 5.205 of the Customs Act. On 31 July the Collector of

Customs for the State of Queensland issued a notice under

s.208A(l) of the Customs Act requiring the applicant to bring a

2.

action for the recovery of the goods. According to the evidence

the s.208A notice was received on 6 August 1985. On 23 August

1985 the applicant gave notice that it claimed the goods the

subject of the seizure.

During the period from the time of the seizure until 18

November 1985, there were contacts between the applicant and its

solicitors with a view to collecting information to bring the

proceedings, which the applicant thought had to be brought within

four months of the date of service of the notice of 31 July, that

is within four months from 6 August 1985. That time was, of

course, set out in the notice under s.208A(1), which informed the

applicant that if it did not, within four months after the date

of the service, bring an action for the recovery of the goods,

the goods should be condemned as forfeited. That was reinforced

by the last two paragraphs of a letter written by the Collection

of Customs bearing the same date, that is 31 July 1985.

The solicitors, until they consulted counsel (with

respect, much too late) were under the impression that the only

relevant time limit was that mentioned in s.208A(l)(b) and in the

documents from which I have just quoted. However, there is, of

course, another relevant time limit and that is under the

Administrative Decisions (Judicial Review) Act, s.ll(3). That

was not adverted to until counsel was consulted.

It is argued by counsel for the applicant that there was

some excuse for the error which was made, in that the documents

received from the Collector of Customs were misleading. Those

3 .

documents, at least in this respect, faithfully followed the

terms of s.208A of the Customs Act which prescribes a time limit

of four months for the bringing of an action for the recovery of

the goods; subs.4 of that provision has the effect that if such

an action is not brought within that time the goods shall be

deemed to be condemned as forfeited to the Crown without any

further proceedings.

There is, of course, quite a separate method of

challenging the Customs officers’ procedure, under the subsequent

statute, the Administrative Decisions (Judicial Review) Act; and

the provisions at s.208A have to be read as subject to the

Administrative Decisions (Judicial Review) Act. Section 208A(4)

does not tell the whole truth when it says that if an action

seeking a declaration that the goods are not forfeited is not

brought wlthin four months the goods are deemed to be condemned

as forfeited. It may be possible to avoid that consequence by

applying under the Judicial Review Act, challenging seizure.

An application under the Judicial Review Act would open

the possibility of challenging the seizure as an administrative

act and the further possibility of succeeding in that challenge

in such a way as to achieve the result that the goods are not forfeited. That is subject to the qualification that, by reason

of the decision of the Full Court in Pearce v. Button,

unreported, 7 March 1986, in proceedings under the Administrative

Decisions (Judicial Review) Act, this court may not under

s.l6(l)(c) of that Act make a declaration as to the legality or

otherwise of the importation in question. The court did not in

4 .

that case decide the question of the scope of the accured

jurisdiction and the possibility of making such	a declaration by
that means.

Counsel for the applicant urges upon me the view that

the jurisdiction of state courts in this sort of contest is

affected (that is, diminished) by the terms of s.9(1) of the

Administrative Decisions (Judicial Review) Act, which among other

things deprives state courts of jurisdiction to review "a

decision to which the section applies that is made after the

commencement of this act", and also conduct engaged in for the

purpose of making such a decision.

It is, as it seems to me, not necessary to reach any

conclusion on that submission for the purposes of disposing of

the present application, nor on the question whether, as the

present application assumes, the court in exercising jurisdiction

under the Judicial Review Act may also make a declaration that

the goods are not forfeited goods -- the latter under the

accrued jurisdiction. The importance of this brief discussion of

the relationship between the jurisdiction, and the provisions of

the Administrative Decisions (Judicial Review) Act relating to

the exercise by this court of its jurisdiction, and the accrued

jurisdiction, is to illustrate hat the average l gal

practitioner (and, indeed, some not in that category) may well be

a little uncertain as to what is the appropriate course when

desiring to challenge a seizure.

5.

It seems probable that in this case the failure to bring

the proceedings under the Judicial Review Act in time was not due

to any such uncertainty, but simply to the fact that no one

adverted to the possibility until counsel was consulted.

Nevertheless, these jurisdictional problems are relevant as a

background against which the merits of the application should be

considered. The essence of the applicant’s case is in two

matters, the first being that, without any criticism of the

respondent, the documents referred to misled the applicant and,

in consequence of them, he took the view that the only relevant

time limit was the four months, as the documents implied. The

second on which the application is founded is that there is no

suggestion that the respondents have suffered any prejudice, and

counsel for	the respondents, very fairly, did not suggest that
they did.

I agree with the submission made by counsel for the

respondents that there is no general rule that fault on the part

of the solicitor, as seems to have been present here, entitles

the applicant to an extension. The Administrative Decisions

(Judicial Review) Act is now commonly used and has in force long

enough to expect people to become conscious that it imposes what

some may think to be quite a short-term limit on the bringing of

legal proceedings. Nevertheless, the solicitors here, in my

view, and the applicant through them, were less at fault than

they might otherwise have been, because they have an excuse or

alleviating factor in the form of the Customs documents to which

I have referred.

6.

Another matter to be taken into account i exercising my

discretion is that, if the present application for extension of

time is not allowed, the only remedy available to the applicant

is action under the general law, that action being at least

potentially inhibited in its effectiveness by s.9 of the Judicial

Review Act, mentioned above. It seems to me that it is just to

allow the extension sought, and I propose to do so. An extension

was granted on a like basis by Burchett	J. in Poznick v. Minister
of Health (unreported, 14 March 1986).

On the question of costs, Mr. Boulton urged upon the

view that I should make the appllcant pay them. In the

particular circumstances of this case, I do not propose to do

that. I will make the costs of the respondent, respondent's

costs in the proceedings, so that they will obtain those costs

only if they are successful.