Powers v Maher [1959] HCA 52

High Court of Australia Kitto J. Powers v Maher [1959] HCA 52

ORDER Judgment to be entered for the defendant with costs.

Cur. adv. vult.

Kitto J delivered the following written judgment:—

Oct. 2 Kitto J

On 4th April 1957 the defendant, the Collector of Customs of the Commonwealth for the State of New South Wales, seized, as forfeited under the provisions of the Customs Act 1901-1954 Cth, a 1956 model Buick sedan motor car, which had been landed at Sydney from the s.s. "Vingaren" on its arrival from the United States of America on 24th November 1956. Ever since being landed the car had been in bond in Sydney. The plaintiff, whose property it was, gave the defendant notice on 10th April 1957 that he claimed it; and on 26th April 1957 the defendant served him with a notice pursuant to s. 207 of the Act requiring him to enter an action for the recovery of the car. Within the four months allowed by the section for that purpose, namely on 22nd August 1957, the plaintiff commenced this action, seeking the return of the car or payment of its value, and damages for its detention.

On the day of the seizure the defendant gave the plaintiff a notice purporting to be under s. 205 and stating that the car had that day been seized as forfeited to Her Majesty "on account of a contravention of the Customs Act, 1901-1954, namely that in respect of the said car a statement was made which was false in a particular". Nothing was added by way of identifying either the statement or the particular in which it was alleged to be false. The notice made it clear that the seizure had been made by reference to s. 229 (i) which provides that "The following goods shall be forfeited to His Majesty: (i) All goods in respect of which any entry invoice declaration answer statement or representation which is false or wilfully misleading in any particular has been delivered made or produced". I doubt very much whether the notice was effectual as a notice under s. 205. What that section requires is a notice of the cause of the seizure. Regulation 116 of the Customs Regulations provides that the notice shall be in accordance with Form 60, and that form requires particulars of the "offence" to be inserted. The purpose obviously is to enable the owner of seized goods to know what is the alleged justification for the seizure. To tell him only that in respect of his goods some unidentified statement was made and that it was false in some unidentified particular is to inform him of the general category into which the cause of seizure falls, but it leaves him uninformed as to what that cause is. It does not give him the opportunity to consider his position which the section intends him to have.