Re Thomas Tigani v Collector of Customs of South Australia & Walter Bezeruk [1985] FCA 239 (9 July 1985)

FEDERAL COURT OF AUSTRALIA

Re: THOMAS TIGANI
And: COLLECTOR OF CUSTOMS FOR THE STATE OF SOUTH AUSTRALIA & WALTER BEZERUK
No. SA G 36 of 1984
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIAN DISTRICT REGISTRY
GENERAL DIVISION
Forster J.

CATCHWORDS

Administrative Law - Judicial Review - Application for costs - imported motor vehicle retained under control of Customs - vehicle released to owner subsequent to institution of proceedings under Administrative Decisions (Judicial Review) Act - whether Customs acted reasonably in retaining vehicle - whether released as a consequence of institution of proceedings.

Administrative Decisions (Judicial Review) Act 1977

Customs Act s.38B

HEARING

ADELAIDE
9:7:1985

DECISION

This is an application for an order for the costs of proceedings taken by the applicant.

2. In this matter the applicants imported from Great Britain a Mercedes motor car which was interrupted - to use a neutral word - by the Customs Department in order that the department might make investigations which were thought necessary in order to confirm the ownership of the vehicle and also its value for the purposes of duty.

3. In the course of the investigations being made by the department a notice pursuant to s.38B of the Customs Act was directed both to the applicant and to his solicitors requiring the production of bank statements of the Commonwealth Trading Bank, Aldwych, United Kingdom branch, of the account of Tigerno Investments, which show deposits and withdrawals of moneys or cheques or bank cheques in relation to all payments for the said vehicle; all cheque books for the above account which contained butts detailing payments for the said vehicle and documentary records of all other forms of payments made in relation to the said vehicle.

4. Those documents which were required at some time on 9th August, the date of the notice, have never been supplied and no explanation satisfactory to me, at all events, is given for the failure to supply those documents. Because the vehicle was still retained under the control, at least, of customs - whether or not it was detained in any literal sense - the applicant eventually took these proceedings under the Administrative Decisions (Judicial Review) Act in order to seek review of decisions, failure to make decisions and conduct of the respondents - that is, officers of the Customs Department, with the object of obtaining delivery to him of the vehicle, which he imported.

5. Those proceedings were taken on 1 November 1984. On 6 November 1984 I am informed the vehicle was released to him. The circumstances of that are proved by the affidavit of Mr Reginald John Gaffney, a customs officer, who says that he decided on or about 30 October 1984 no longer to withhold authority to deal in the goods from the applicant.

6. It has not been sought to cross-examine Mr Gaffney on his affidavit to get any further detail of that and I am quite unable to say that the release of the vehicle was as a consequence of the proceedings being instituted under the Administrative Decisions (Judicial Review) Act. In fact the sworn date of Gaffney's decision and my experience of the speed with which government departments often work would lead me to think that it certainly was not.

7. The whole point in this matter is really whether - two points really - whether the customs officers were acting reasonably in detaining the vehicle and making the investigations which they made. On that point the affidavit of Mr Bezeruk proves that he was not satisfied to release the vehicle until certain inquiries had been made. It has not been sought to cross-examine him either in order to examine the reasonableness or otherwise of that lack of satisfaction and I have no reason to doubt that he did form that opinion.

8. The second thing is whether or not the release of the vehicle was as a consequence of the proceedings being taken. As I have already said, I am not able to say that this was so. Therefore, these proceedings, although in a temporal sense following their institution the vehicle was released, nevertheless it was not, in my opinion, as a consequence of the issue of those proceedings.

9. The further matter which I should mention is that at this stage, at all events, there is no evidence to support the only grounds of the application which are still pressed - that is, that there was no evidence or other material to justify the making of the decisions and that the making of the decisions were an improper exercise of the power conferred by the anactment in pursuance of which it was purported to be made. It is true, as Mr Waye pointed out, that I am not now examining the corrrectness of the application because the application was not before me to be tried in any sense at all.

10. Nevertheless it seems to me that the applicant being aggrieved, as he says and as the Act says, by the decision not to release the vehicle to him, took the proceedings in order to secure its release. He has secured its release but not, in my view, as a result of taking the proceedings. Had it been otherwise, he probably would have been entitled to his costs but as it is, I can see no reason why he should receive the costs of these proceedings and the application is refused itself, with costs against the applicant.