erg He OL Fie ey|S> IN THE FEDERAL COURT OF AUSTRALIA ) QUEENSLAND DISTRICT REGISTRY ) QLD G118 of 1985 GENERAL DIVISION ) BETWEEN: WINCH INDUSTRIES (AUSTRALIA) PTY. LTD. Applicant AND: JOHN ALFRED 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 Mr. R. Hanson Q.C. instructed by Henderson Lahey Trout Bernays. - for the respondents Mr. W. M. Boulton instructed by the Australian Government Solicitor J. A. LYONS ASSOCIATE TO PINCUS J. 22 April 1986 Rte: » 2 MAY 886 IN THE FEDERAL COURT OF AUSTRALIA ) QUEENSLAND DISTRICT REGISTRY ) QLD G118 of 1985 GENERAL DIVISION ) BETWEEN: WINCH INDUSTRIES (AUSTRALIA) PTY. LTD. Applicant AND: JOHN ALFRED 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 Decisions (Judicial Review) Act may be brought be extended to the 28 November 19985. 2. The costs of and incidental to the application for extension of time be costs of the respondents in the principal proceedings. i Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA ) QUEENSLAND DISTRICT. REGISTRY ) QLD G118 of 1985 GENERAL DIVISION ) BETWEEN: WINCH INDUSTRIES (AUSTRALIA) PTY. LTD. Applicant AND: JOHN ALFRED ISELE First Respondent AND: DANIEL EDMUND LER 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 toa 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 3.205 of the Customs Act. On 31 July the Collector of Customs for the State of Queensland issued a notice under s.208A(1) of the Customs Act requiring the applicant to bring an 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(1)(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.11(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 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 within 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 away 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.16(1)(c) of that Act make a declaration as to the legality or otherwise of the importation in question. The court did not in 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 that the average legal 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. 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 asa 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, entities 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. Another matter to be taken into account in 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 applicant pay them. In the particular circumstances of this case, I da not propose toa 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. ) tertfy {bar ihis andthe 5" preceding Fanés are a true cosy of the reasons for udgreent herein of His Honour Mr Justice Pincus Ahiat Lomas a Associate Dated 22 Qaril ee