Kapitany v Commonwealth of Australia [2006] FCA 111

FEDERAL COURT OF AUSTRALIA

Kapitany v Commonwealth of Australia [2006] FCA 111 Protection of Movable Cultural Heritage Act 1986 (Cth) ss 14, 27, 34, 36, 37 Acts Interpretation Act 1901 (Cth) ss 28A, 29 Skalkos v T & S Recoveries Pty Ltd (2004) 141 FCR 107 applied Secretary, Department of Social Security v Garratt (1992) 109 ALR 149 distinguished Secretary, Department of Social Security v O'Connell (1992) 38 FCR 540 cited Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 cited Repatriation Commission v Gordon (1990) 26 FCR 569 considered TAMAS KAPITANY v COMMONWEALTH OF AUSTRALIA VID 1393 OF 2005 SUNDBERG J 17 FEBRUARY 2006 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID 1393 OF 2005

BETWEEN: TAMAS KAPITANY

APPLICANT

AND: COMMONWEALTH OF AUSTRALIA

RESPONDENT

JUDGE: SUNDBERG J

DATE OF ORDER: 17 FEBRUARY 2006

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The objection to competency be upheld. 2. The application be dismissed. 3. The applicant pay the respondent's costs of the objection and the application.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID 1393 OF 2005

BETWEEN: TAMAS KAPITANY

APPLICANT

AND: COMMONWEALTH OF AUSTRALIA

RESPONDENT

JUDGE: SUNDBERG J

DATE: 17 FEBRUARY 2006

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 By application filed on 4 November 2005, the applicant seeks a declaration that certain objects seized under the Protection of Movable Cultural Heritage Act 1986 (Cth) (the Act), or some of them, "are not forfeited or liable to be forfeited" under the Act, and an order that they be returned to him. The application states that it is made pursuant to s 37 of the Act. 2 The respondent has filed a notice of objection to competency, objecting to the jurisdiction of the Court to entertain the application on the grounds that "(a) The applicant did not, within 4 months after the service of the notice under subsection 36(7) of the Act, bring an action for recovery of the objects; and (b) Pursuant to subsection 36(8) of the Act, the objects were forfeited on or about 31 October 2005." 3 On 1 December 2005 it was ordered by consent, pursuant to Order 29 rule 2 of the Rules of Court, that the notice of objection to competency be decided separately from any other question in the proceeding. That is the matter now before me. 4 It is convenient at this stage to set out certain provisions of the Act, the long title of which is "An Act to protect Australia's heritage of movable cultural objects, to support the protection by foreign countries of their heritage of movable cultural objects, and for related purposes." 5 Part II of the Act deals with the Control of Exports and Imports. Division 2 concerns Imports, and consists of s 14. Sub‑section (1) provides: "Where: (a) a protected object of a foreign country has been exported from that country; (b) the export was prohibited by a law of that country relating to cultural property; and (c) the object is imported; the object is liable to forfeiture."