Re Adrian George Pearce and Kathryn Maree Pearce Trading As Mister Cars Gold Coast v Senator the Honourable John Button, Minister of Industry and Commerce of the Commonwealth of Australia and Ors [1985] FCA 279 (29 July 1985)

FEDERAL COURT OF AUSTRALIA

Re: ADRIAN GEORGE PEARCE and KATHRYN MAREE PEARCE TRADING AS MISTER CARS GOLD
COAST
And: SENATOR THE HONOURABLE JOHN BUTTON, MINISTER OF STATE FOR INDUSTRY AND
COMMERCE OF THE COMMONWEALTH OF AUSTRALIA AND ORS
No. QLD G133 OF 1984
Administrative Law - Customs and Exise - Evidence
8 FCR 388

COURT

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Pincus J.(1)

CATCHWORDS

Administrative Law - customs Act - searches and seizures - validity of steps taken in Customs Act investigation - jurisdiction to make declaration as to rights of parties - scope of declaratory relief under Judicial Review Act - consent to searches and seizures - whether apparent consent negated.

Customs Act - s.214 procedure - validity of information under s.214 - whether Form 61 must state date of illegality - forfeiture - whether ownership passed immediately on forfeiture.

Evidence - search warrant - whether illegally obtained evidence - consent to search - whether consent to search negated by circumstances - whether discretion to exclude illegally obtained evidence in civil matter.

Administrative Decisions (Judicial Review) Act, s.16

Customs Act, ss.203, 204, 214, 229, regs. 171, 200, Form 61

Acts Interpretation Act, s.25D

Administrative Law - Seizure of imported motor vehicles - Validity of notice to produce documents - Whether documents obtained pursuant to invalid notice admissible in evidence - Consent to search and seizure of documents - Jurisdiction to make declaration that vehicles lawfully imported - Scope of declaratory relief under Administrative Decisions (Judicial Review) Act 1977 (Cth) - Customs Act 1901 (Cth).

Customs and Excise - s 214 procedure - Validity of information under s 214 - Forfeiture - Whether ownership passes immediately on forfeiture - Customs Act 1901 (Cth), s 214.

Evidence - Invalid search warrant - Whether evidence obtained during search admissible in evidence - Whether discretion to exclude illegally obtained evidence in civil matter - Consent to search - Administrative Decisions (Judicial Review) Act 1977 (Cth), s 16 - Customs Act 1901 (Cth), ss 203, 204, 214, 229, regs 171, 200, Form 61 - Acts Interpretation Act 1901 (Cth), s 25D. Held: (1) The Federal Court, in reviewing a decision made under the Customs Act 1901 to seize goods, has jurisdiction, pursuant to s 161(1)(c) of the A Administrative Decisions (Judicial Review) Act 1977 to make a declaration on the question of whether the goods were lawfully imported or not, that being a question "in respect of any matter to which the decision" under review relates.

(2) When swearing an information for the purpose of s 214 of the Customs Act 1901, which requires relevantly information on oath that goods have been unlawfully imported, in order to require an owner of goods to produce all relevant documents, the informant must positively swear to the matter complained of and cannot do so merely on the basis of having reasonable cause to believe or suspect that matter.

(3) A notice to produce pursuant to s 214 of the Customs Act 1901 and in accordance with Form 61 must set out the date of the matter complained of and is invalid if it fails to do so.

(4) There is a discretion even in civil proceedings to admit or to exclude evidence illegally obtained by the purported use of the provisions of the Customs Act 1901. Thus, where a notice to produce purportedly pursuant to s 214 of the Act was invalid, the court has a discretion as to whether evidence obtained pursuant to that notice should be admitted or excluded.

(5) The clearance of goods by Customs officers does not, in general, create an estoppel as to the value of the imported goods, at least where there has been a false pretence with respect to their purchase price.

(6) Forfeiture under s 229 of the Customs Act 1901 occurs by operation of the Act, there being no necessity for a court order to achieve it. Provided the facts exist which trigger a forfeiture, the title to the goods vests in the Crown when forfeiture takes place in consequence of the occurrence of the facts.

State Government Insurance Office v. Crittenden [1966] HCA 56; (1966) 117 CLR 412; State Government Insurance Office (Q) v. Rees [1979] HCA 52; (1979) 144 CLR 549; Huppert v. Stock Options of Australia Pty Ltd [1965] HCA 30; (1965) 112 CLR 414; Wigan v. Edwards (1973) 47 ALJR 586; Ghani v. Jones (1970) 1 QB 693; Meates v. Attorney-General (Customs Department) (1981) 2 NZLR 335; Stockfleth v. De Tastet (1814) 4 Camp 10; 171 ER 4; Ibrahim v. The King (1914) AC 599; Hurst v. Evans (1917) 1 KB 352; Maneti v. Melbourne & Metropolitan Tramways Board (1954) VLR 115; Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54; Cleland v. The Queen [1982] HCA 67; (1982) 151 CLR 1; R. v. Tan (1977) AC 650; Carmody v. Sarah Coventry Pty Ltd (1974) 48 ALJR 222; French v. O'Connor (unreported, Federal Court, 23 May 1985); Powers v. Maher [1959] HCA 52; (1959) 103 CLR 478; Bert Needham Automotive Co Pty Ltd v. Federal Commissioner of Taxation (1976) 26 FLR 108; Burton v. Honan [1952] HCA 30; (1952) 86 CLR 169, referred to.

HEARING

Brisbane, 1985, May 13-15; June 20-21, 24; July 1, 29. 29:7:1985
APPLICATION

Application for orders of review of decisions to seize and detain goods.

E J Cooper and R. A Perry, for the applicants.

M B Boulton and J A Logan, for the respondents.
Cur adv vult

Solicitor for the applicants: G R. Brown.

Solicitors for the respondents: Australian Government Solicitor.
SMW

ORDER

The application be dismissed.

Application dismissed

DECISION

This is an application under the Administrative Decisions (Judicial Review) Act 1977 which, as amended, seeks to review the seizure and continued detention of six motor vehicles. They were seized and detained, and are still detained, because of a belief on the part of the respondents that they were imported under the pretence that the price paid for them overseas by the applicants was lower than that in fact paid. I have dealt with some questions of evidence in two interlocutory judgments delivered on 20 and 24 June 1985.

2. The principal arguments advanced on behalf of the applicants (who traded as "Mister Cars") challenged the means whereby evidence was obtained of the circumstances surrounding the importation of the vehicles, it being said that the processes of search, seizure of documents, and questioning used were all unlawful. It was also contended that the state of mind of the respondents was not such as to justify either the seizure or the detention, the respondents having no reasonable cause to believe that the vehicles had been the subject of any false representation about price. But in addition the applicants urged that on the evidence adduced on their behalf the vehicles had in fact been quite lawfully imported and that I should so declare. The respondents steadfastly denied my jurisdiction to make any such declaration, submitting that under the relevant Statute only administrative law questions can be raised.

JURISDICTIONAL QUESTIONS

3. Because the question just mentioned must be resolved before one can decide what the issues in the case are, it is convenient to begin at that point. Reference was made, on behalf of the respondents, to cases such as Sean Investments Pty. Ltd. v. MacKellar (1981) 38 ALR 363 at p 370, as authority for the view that this Court's jurisdiction under the Act does not extend to conducting a review of the merits of administrative decisions. Counsel for the applicants, Mr Cooper, was careful not to base his argument on the notion of accrued jurisdiction, on the basis that the Court is seized of a "matter"; he said the right to make a declaration arises under s.16(1)(c) of the Judicial Review Act. I set out the relevant parts of s.16:-

"16(1) On an application for an order of review in
respect of a decision, the Court may, in its
discretion, make all or any of the following
orders:

...

(c) an order declaring the rights of the
parties in respect of any matter to
which the decision relates;

(d) an order directing any of the parties
to do, or to refrain from doing, any
act or thing the doing, or the
refraining from the doing, of which the
Court considers necessary to do justice
between the parties."

4. The expression "rights ... in respect of any matter to which the decision relates" requires two connections to be found. Firstly, the declaration must relate to rights "in respect of" a matter and I think that implies, in this context, a fairly close connection between the rights and the matter. There is, it is true, authority that the expression "in respect of" has "the widest possible meaning of any expression intended to convey some connection or relation between the two subject matters to which the words refer": State Government Insurance Office v. Crittenden [1966] HCA 56; (1966) 117 CLR 412 at p 416, State Government Insurance Office (Q) v. Rees [1979] HCA 52; (1979) 144 CLR 549 at p 561; nevertheless it seems unlikely that any remote nexus was contemplated here. Secondly, there must be found a relationship between the matter and the decision. Although, clearly enough, the decision may have a relationship with quite a number of matters, in the sense of being directly or remotely connected with them, the legislative intention probably is that only matters which are closely connected with the decision may be the subject of a declaration.

5. The argument for the respondents would have me read this provision very narrowly, so that the only declaration permissible would be one directly expressing the outcome of the attack on the administrative decision, for example, declaring in the present case that a particular seizure was lawful, or otherwise. Had it been the intention of the legislature to confine the right to obtain a declaration in that way, surely different language would have been used. The intention, more probably, was to enable the parties to avoid the necessity of litigating elsewhere matters closely related to the decision attacked, by having this Court make a declaration associated with a setting aside, or refusal to set aside, a decision. It must be accepted that no declaration may be granted which usurps the exercise of a discretion or fact-finding power entrusted to an administrator, but it may be sometimes useful to make a declaration which, while not open to that criticism, settles a question of fact or law closely connected with the decision. In this case, there has been produced a considerable quantity of information relevant to the question whether the vehicles were unlawfully imported. That is not a question which the statute commits exclusively, or indeed at all, to the respondents. Deciding it cannot be regarded as trespassing upon the administrators' preserve. On the narrow view put forward on behalf of the respondents, the presence of s.16(1)(c) makes no substantial difference, but justifies at the most the extraction of a declaration from the Court's reasons for upsetting, or failing to upset, an administrative decision. For example, in such a case as this there might be a declaration that a respondent believed on reasonable grounds that goods were forfeited goods: see s.203(2) of the Customs Act. Here, it is said by the respondents that the declaration sought by the applicants, namely that the goods in question are not forfeited, is not "in respect of any matter to which the decision relates". So to hold, in my view, is unwarrantably to read down the phrase "in respect of" and the word "relates". One factor tending to suggest that such a narrow reading is not consonant with the general intention of the legislature is that the next provision, s.16(1)(d), appears rather wide. In my opinion, it is open to the Court to make a declaration of the kind sought by the applicants, from which it follows that evidence as to the circumstances of the importation is admissible and the issue whether there was unlawful importation falls for determination.

6. A separate question concerned with the scope of the litigation is whether relief under s.16 may be given only on the basis of the facts existing at the inception of the proceedings. It seems clear that an application under the Judicial Review Act is not subject to the rule governing certain cases under the general law, namely that the cause of action must have arisen at the commencement of the suit: cf. Huppert v. Stock Options of Australia Pty. Ltd. [1965] HCA 30; (1965) 112 CLR 414, Wigan v. Edwards (1973) 1 ALR 497 at p 515.

7. In the present case, assuming that there was no proper ground for continuing detention at the date of the making of the application (21 November 1984) but it subsequently became clear that the goods were unlawfully imported, it would be impossible to justify an order for their return. The applicant attacked, not merely the initial seizures, but detention from the date of the seizures on and I can see no reason to confine the enquiry, whether with respect to the review of the decisions attacked, or as to declaratory relief, to events up to the date of institution of the proceedings. That point becomes important, because some of the most important evidence in the case related to information which became available to the respondents only in May 1985; I decide the case on the basis that the evidence in question is of no less significance than evidence as to the information available at the commencement of the proceedings in November 1984.

THE HISTORY OF THE MATTER

8. In what follows I give an account of events, including my findings on the contentious issues. The reasons for making the findings appear principally in this section, but certain questions which had to be resolved en route to the findings are dealt with in later sections and in the interlocutory judgments mentioned above.

9. The events in question in the case commenced in November 1983 and, on the view I have taken, ran up to the month of May 1985. The applicants purchased the six motor vehicles from German Motors Ltd, a motor dealer in Hong Kong. In order of date of purchase, the vehicles are a Porsche, a B.M.W., an Oldsmobile Toronado, which I shall call simply a Toronado, a Cadillac Seville (the Seville), a Cadillac Fleetwood (the Fleetwood) and an Oldsmobile Cutlass (the Cutlass). More elaborate descriptions of these vehicles are available; for example, the Porsche is said to be a 1975 model, with a certain licence number, engine number, chassis number and colour.

10. The Porsche was bought by the applicants from German Motors Ltd by a written contract dated 22 November 1983 showing a price of HK$45,000. The true price, however, was HK$85,000, as appears from debit note numbered 3265 which was issued by German Motors on 23 November 1983. The money was probably paid, at least in part, by telegraphic transfer, but no documentary evidence of payment of any part of the price has been produced. As appears in more detail below, the Porsche was seized, after importation, in July 1984.

11. The next vehicle bought, the B.M.W., was the subject of a sales contract in the sum of HK$35,000 dated 18 January 1984. However, the true price was HK$75,000, converting to about A$10,710, which figure is shown in a note made by the male applicant, a copy of which is Exhibit "B" to the affidavit of Noel Patrick Wynne made in June 1985. The price of the B.M.W. was paid by two telegraphic transfers. The first was procured by the applicants' cheque No. 573935 dated 20 January 1984 in a sum of A$5053.15, converting, with some adjustment, to HK$35,000. The second payment was made by the applicants' cheque No. 573963 dated 27 January 1984 in the sum of A$5714.63 . That cheque was used for a telegraphic transfer bearing the same date, converting with some adjustment to HK$40,000, a copy of the relevant requisition being part of Exhibit "D" to the same affidavit.

12. Here, as in the case of the Porsche, it is necessary to rely to some extent on the affidavit of W.J. Fitzpatrick, who examined in Hong Kong a debit note No. 3368 dated 6 February 1984 in the sum of HK$75,000. The gap in time, nearly three weeks, between the contract and debit note is not explained. There is direct documentary support for that price in the note made by the male applicant just referred (Exhibit "B") and in the cheque butts. The male applicant sought to explain away the fact that there were two cheque butts marked "B.M.W." by saying that one of them was a mistake by his secretary (who was not called) and in truth related to a Mercedes Benz. There was no corroboration of that story, nor are any documents produced relating to the Mercedes Benz. I think the only mistake the secretary made was in entering the correct make of vehicle on cheque butt 573963.

13. The next vehicle imported was the Toronado, the sales contract for which was dated 1 February 1984, as were all the other documents relating to it. That was, ostensibly, bought for HK$24,000, as shown in that document, but the true price, shown in debit note No. 3361 sworn to by Fitzpatrick, was HK$47,000. That is, there were two payments for that vehicle, the first of which was made pursuant to a requisition for a telegraphic transfer in the sum of HK$24,000, and the second produced the balance of HK$23,000. The evidence of these two payments was given (in the form of part of Exhibits "D" and "E" to Wynne's June 1985 affidavit) by the respondent at a culpably late stage and it would have been open to the applicants to apply to call further evidence to explain away the second payment and its date. Consideration was given to calling rebuttal evidence; none was called. The inference is, in my view, almost irresistible that the price shown on the debit note was in fact paid, rather than the price on the sales contract.

14. Next, a batch of three vehicles was imported which consisted of the Fleetwood, the Seville and the Cutlass; the sales contracts were dated 18 May 1984 for the first two and 21 May 1984 as to the last. According to those sales contracts, the prices of the three were respectively HK$103,000, HK$35,000 and HK$10,000. But the documents seen by Hume and Fitzpatrick in Hong Kong show that, as to each, there were two debit notes, one showing the ostensible price, that mentioned in the sales contract, and the other showing additional prices being respectively HK$50,000, HK$22,000 and HK$12,000. The debit notes were Nos. 4070 and 4071 as to the Fleetwood, 4066 and 4067 as to the Seville and 4061 and 4062 as to the Cutlass. As to these three vehicles, the inference is open that it was thought wise to use a different system, and instead of having one debit note only, showing the proper price, two were used, so that one could be produced to satisfy any enquiry. However, this new system, if such it was, could not work because all six vehicles were in fact seized, and each of the first three had only a single debit note. It is therefore, perhaps, not surprising that no debit notes at all were produced by the applicants. Yet there can be little doubt that the debit notes existed. There was evidence that German Motors used send debit notes to the applicants, which evidence was not denied. Further, Mr Cooper cross-examined witnesses who swore to the presence of debit notes issuing from German Motors, while the male applicant was in court, but did not suggest to them that the debit notes did not exist. His cross-examination appeared to assume that they did. I find that they existed, and that they were not produced because they did not suit the applicants' case - or to put that more precisely, that only three of the debit notes suited the applicants' case, namely one of the two prepared in respect of each of the last three vehicles imported.

15. These three vehicles were all seized in August 1984, after importation, but that phase of their history is attended by a complication which has led Mr Cooper, for the applicants, to argue that the respondents are estopped from asserting that they were not properly valued. That argument is dealt with in detail below.

16. Documents relating to a number of other vehicles were also placed before the Court. That was done in pursuit of the respondents' goal of showing that the applicants were engaged in a racket with German Motors involving persistent deception of the Customs authorities, including the preparation of false sales contracts of the kind just mentioned. Since I have taken the documents relating to these additional vehicles into account, as well as the oral evidence concerning those documents, it is necessary to mention its content, at least in outline.

17. Exhibit 1, which is admitted to be in the handwriting of the male applicant, sets out the prices of three other vehicles which were imported. The male applicant gave evidence that he made notes about these three vehicles while discussing them with German Motors. According to his evidence, the document sets out under three columns headed respectively "C", "I" and "B" the estimated total cost of each vehicle, properly repaired, the price agreed to be paid to German Motors and the cost of getting the vehicle into proper condition. For example, as to the first vehicle mentioned in the sheet, described as a "78 Trans-Am" under "C" one finds the figure 65,000, under "I" one finds 29,000 and under "B" 36,000. Mr Pearce swore that the last figure was given to him by German Motors as the estimated cost of doing the necessary work on the vehicle, at Hong Kong prices. I do not believe that version of events. Amongst other reasons, I reject it because the documents seen by Fitzpatrick (mentioned above) in Hong Kong refer to vehicles matching each of the three and show, as to each, the issue of debit notes corresponding to the amount in column "C". For example, Fitzpatrick perused in Hong Kong documents relating to a 1978 Pontiac Trans-Am in respect of which a debit note No. 3299 was issued in the sum of HK$65,000 on 13 December 1983, there being, on the same date, a sales contract showing a price of HK$29,000. A second, and less specific reason for rejecting Mr Pearce's evidence about these three vehicles is that I found his story as given unconvincing: while it is, no doubt, quite possible that a buyer of vehicles from an overseas vendor would obtain the vendor's estimate of the cost of restoring each vehicle to first-class condition, on Mr Pearce's own evidence the figure given was quite unreliable. That is able to be inferred from his statement that "re-conditioning costs in Hong Kong are very, very, expensive". He claimed that the figure under "C" was worked out because he wanted to find out "exactly how much the cars were going to owe me when I got them here ready for sale". It seems to me, firstly, unlikely that the "very, very, expensive" Hong Kong prices could give him that amount exactly, since he had no intention of having the vehicles worked on in Hong Kong and, secondly, unlikely that the Hong Kong vendor could have given him any more than a rough and round estimate of the cost of re-conditioning.

18. There are other features of the evidence concerning Exhibit 1 which, to my mind, told against the applicants but it is not necessary to go into them in detail, since they are of lesser importance. I am satisfied, and Mr Pearce seemed at one stage to admit, that when asked about the three columns "C", "I" and "B" by the Customs officers, he did not give them the explanation advanced to me. Further, there was evidence (which I accept) that when the diary containing Exhibit 1 was located Mr Pearce was reluctant to give it up and appeared to be attempting to write in it.

19. It appears that a similar set of notes concerning money sums associated with vehicles is in Exhibit 5. There, again, one finds sums set out in three columns opposite identification of vehicles, namely a total first, then an invoice price and then a further sum being the difference between the first two. The difficulty of satisfactory explanation of these figures is heightened by the fact that in each case the third, balance, figure has before it the word "cash". Asked about this, Mr Pearce gave a similar explanation, namely that the figure in the third column was "re-conditioning, body-work and repairs". He was unable to explain why the figures in the third column were described as "cash" saying, in answer to a question whether the costs were to be paid in cash: "No, in normal workshop procedure". This entry, too, is one which appears to me quite consistent with the respondents' case as to the system being operated, the word "cash" presumably alluding to the fact that there were to be payments in addition to those disclosed to the officials, whereas it is difficult to reconcile the entry with the version given by the applicants.

20. There are other aspects of the documents produced by the respondents, in the handwriting of the male applicant, which match to some degree the documents inspected in Hong Kong by Hume and Fitzpatrick. For example, in Exhibit 5 there is mention of a Corvette, almost opposite which is a figure "$55,000" and that ties in with a debit note, inspected by Hume and Fitzpatrick, in respect of a Corvette. Again, the same document shows a Lincoln Mark 5 at an invoice price of $21,000, opposite which in the next column is the figure "11"; both figures match documents, inspected in Hong Kong, relating to a Lincoln. However, these points are not of any real significance; the more important question is whether the evidence of Mr Pearce as to the significance of the figures shown in three columns in Exhibits 1 and 5 opposite various makes of vehicles is acceptable. I do not believe it.

21. The story told by Mr Pearce depended upon its being believed that considerable sums, speaking generally, had to be spent to bring the vehicles in question into saleable condition. The letter from Mr Pearce's solicitor, Exhibit AGP19, suggests that the vendors required the applicants to buy continental motor vehicles in a bad state, to obtain "the better American vehicles". Yet, if Mr Pearce is to be believed, each of the vehicles the subject of a precise estimate of the cost of repair needed a substantial sum spent on it, including the American vehicles. Of the six listed in Exhibits 1 and 5 four appeared to be American, yet Mr Pearce would have it that, on the average, each required to have spent on it about 80% of the purchase price, to bring it into saleable condition. Another, perhaps minor, matter which did not fit Mr Pearce's version of events well was that in Exhibit 5 he troubled to note that one of the vehicles had a broken windscreen, explaining that by saying that the windscreen price in Australia was cheaper than in Hong Kong. It seems more likely that the sum shown as "cash" in respect of that vehicle was not the cost of repair at all, but an additional price, and that the windscreen was noted down because the vehicle was thought to be otherwise in good condition.

SEARCHES AND SEIZURES

22. It was contended on behalf of the applicants that the processes of search and seizure undertaken by Customs were unlawful, that information obtained by those processes was "tainted" and could not be used against them and that the seized documents should all be returned. In dealing with this group of submissions, it is necessary to set out the steps taken by the Customs officers in investigating the matter.

23. On 5 July 1984, Jeffrey Joyner, an investigation officer, obtained a computer print-out purporting to set out information relating to motor vehicles imported into Australia from Hong Kong. That print-out was, according to the evidence of the respondents, prepared from enquiries of a number of importers and its purpose was to enable importers who appeared to be bringing cars in at remarkably low prices to be identified. Its importance in the present case was that, according to the evidence, it was the initial foundation of the investigation, so far as the applicants are concerned.

24. Mr Cooper for the applicants argued that the print-out, considered in the light of the evidence given in relation to it, could not have given the Customs reasonable cause to act against the applicants. He made a number of criticisms of it, one of which was that it was unclear whether it was intended to show what was described as an "average price" or a "low price" for each vehicle mentioned in it. I do not think it necessary to deal in detail with the rather complex question of the soundness of the material in the print-out; the conclusion I have come to is that, although the print-out gave grounds for suspecting that false prices had been given the Customs by the applicants, it could not provide a proper foundation for an information under s.214, which says nothing about suspicion. The Customs officers did not at this stage have access to any other evidence, in support of the information. Mr Joyner, who swore the information, said in his affidavit that as a result of seeing the print-out he had "reasonable cause to believe that Customs invoices produced to Customs by Mister Cars Gold Coast, relating to motor vehicles imported by them showed purchase prices that were under-stated". The information he swore under s.214 of the Customs Act did not say that, but said that "I have reasonable cause to believe and do believe that certain goods to wit motor vehicles have been unlawfully imported ...". Section 214 commences with the words:-

"Whenever information in writing has been given on
oath to the Collector that goods have been
unlawfully imported exported under-valued or
entered or illegally dealt with ..."

I think Mr Joyner was acting under the misapprehension that he was entitled to swear out an information if he merely had reasonable cause to believe the matters mentioned. That is not what the section says. The informant must commit himself to swearing that goods have been unlawfully imported, or whatever the allegation is. The difference is not, at least in this case, merely a matter of the mode of expression. I think Mr Joyner would not have been able to swear that any goods had been unlawfully imported by the applicants, as a matter of positive allegation. For this reason, the information was void; that is, it was necessary that the Collector be given information on oath by a person able to swear simply that goods had been unlawfully imported, entered or illegally dealt with; Mr Joyner was not such a person, nor did he swear to precisely what s.214 requires.

25. In arriving at this conclusion I have been reinforced by two matters. Section 214(1) says that on information being given as just mentioned, "the owner shall immediately upon being required so to do by the Collector produce and hand over" certain documents. There is a prescribed form for that, namely Form 61, and it contemplates that the date on which the goods have been unlawfully imported, under-valued, or entered or illegally dealt with shall be specified. That supports the view that only a positive allegation of unlawful importation or the like will do and that a mere general suspicion, however strong, will not. Secondly, I am reinforced by the circumstance that the consequences of the information may be, for the citizen, both onerous and drastic. In the end, the information may be the basis of a forcible entry by Customs officers "at any time of the day or night" to enable them to look for and seize books and documents. However, I have not looked to these consequences as a basis for reading the section down; I simply give it what appears to me to be its literal construction.

26. It follows that the steps taken in consequence of the information had no legal basis. However, in case I am wrong as to the validity of the information, I pass to consider the validity of later steps. On the basis of the information, requirements in Form 61 issued. I have mentioned that they should have stated the date of the alleged illegality; they did not. That appears to me to be fatal to their validity; the relevant regulation is No. 171 which reads as follows:-

"Notice to produce documents under s.214 of the
Customs Act 1901-1925 shall be in accordance with
Form 61."

It is true that there is a provision under the regulations concerning the efficacy of substantial compliance with the forms, but it does not cover the form in question. It is reg. 200:-

"The Collector may accept, in lieu of any
prescribed form other than a prescribed form of
declaration, or a prescribed form of security, any
document which is substantially in accordance with
the prescribed form."

Where the Collector himself issues the form, as in this case, no question of his acceptance of it arises.

27. Apart from that, I think a court should be disinclined to overlook the omission to state the date, because the requirements of the relevant section and regulation are meagre enough: it is not even stated that the information must identify the goods in question, or give a general description of them, or state the place at which the illegality is said to have occurred. The only means of identification required is the date, and that, in my view, is essential. It is not necessary to consider with what precision the date need be stated, or to consider whether it is enough to state dates between which the events complained of occurred; I leave that question aside.

28. It follows that the requirements in Form 61 which were issued, purportedly in reliance on s.214, were void because of lack of specification of the date, and not only because they were based on a void information.

29. The evidence showed that Customs officers, on the basis of the s.214 information I have mentioned, raided the applicants to search for documents on 6 July 1984, the officers involved being Messrs Gibbards, Parle, McCaffrey, Morley and Wynne. Of these officers three went to search the applicants' premises and two (those last-named) went to the applicants' bank. The system contemplated by s.214 is that when an information in writing has been given, and the Collector has made a requirement in Form 61, that is to be served on the "owner" and if he does not comply with the Collector's requirement, an officer holding a warrant in the form of Schedule V to the Act may enter, search and seize. The form of warrant is expressed to be operative in the event of the owner "failing to comply immediately with any requirement made in pursuance of s.214 of the Customs Act". Obviously, the legislature did not intend that the warrant be exercised with no proper opportunity voluntarily to comply. That is, the word "immediately" does not necessarily convey that compliance must be instant, for (as in this case) with the best will in the world it may take some considerable time to assemble the relevant documents. The difficulty of doing so is not likely to be lessened by the vagueness of the relevant forms. As I have pointed out, Form 61 makes no provision for identification of the goods, except by reference to the date of the illegality alleged. Since the requirement in Form 61 includes the handing over of all books and documents relating to goods the subject of the allegation, one would have thought that the recipient of the requirement might have a right to be told what the goods in question are, but no such right is given. However, that is a digression; the point is that the word "immediately" means "as quickly as possible", in this context. It is clear from the cross-examination of the Customs officers that the applicants were not subjected to the procedure the statute contemplates, namely service of the Form 61 requirement, followed by an opportunity of compliance. The officers appeared to be under the impression that possession of the relevant pieces of paper simply entitled them to search; it did not. The form of the Schedule V warrant, and the terms of s.214(3), make it clear that the warrant authorises action by its holder only in the event of failure to comply with the requirement in Form 61.

30. The officers who went to the bank initially produced there a requirement which on any view was ineffective, not being addressed to the bank. It was, rightly, ignored by the bank. Those who went to the applicants' premises searched there and obtained a number of the applicants' documents, some of which are referred to above.

31. On 9 July 1985 officers made a second visit to the bank to obtain documents and this time produced what purported to be a requirement under s.214, Exhibit AGP11. That document is also void, because as s.214(1) makes clear, as does Form 61 itself, the relevant requirement can be made only of the "owner"; on any view, the bank was not the "owner" of the goods imported. Nevertheless, under the misapprehension that Exhibit AGP11 had some legal effect, the bank produced documents and did likewise subsequently. Some of these have turned out to be of considerable importance, particularly those evidencing the making of payments by the applicants in respect of imported motor vehicles, in excess of the amounts which the applicants asserted to the Customs, and have since continued to assert, represented the true price.

32. On 12 July Customs officers again visited the applicants' office. There is a dispute between the Customs officers and Mr Pearce as to whether or not any requirement in Form 61 or warrant was produced on that occasion but, in the view I have taken, it is of no consequence. It is possible that the documents sworn to by the Customs officers were in fact produced and that Mr Pearce has simply forgotten that; they were in any event of no legal effect, for the reasons I have mentioned.

33. On 16 July 1984 a Customs officer in Canberra forwarded to the Brisbane office price lists for certain Hong Kong motor vehicles. I do not think it necessary to set out the details of what those lists contained; their importance is that on the basis of them notices of seizure dated 17 July 1984 were served in respect of the Porsche and B.M.W. mentioned above. A challenge was made to the form of notice used. Mr Cooper, who if I may say so exercised great ingenuity on behalf of the applicants, said that the content of the notice had to conform to s.25D of the Acts Interpretation Act, inserted by Act No. 27 of 1984, which provision is in the following terms:-

"Where an act requires a tribunal, body or person
making a decision to give written reasons for the
decision, whether the expression 'reasons',
'grounds' or any other expression is used, the
instrument giving the reasons shall also set out
the findings on material questions of fact and
refer to the evidence or other material on which
those findings were based."

It is clear enough that the notices did not comply with that, but the question is whether they had to. Section 204(2) of the Customs Act says that where goods are seized under s.203 there must be served a notice in writing:-

"(a) identifying the goods;

(b) stating that the goods have been seized
under s.203 and specifying the reason for
the seizure;

(c) setting out the terms of the provisions of
sub-s.(6);

(d) specifying, and setting out the address of,
an appropriate person and stating that any
notice under sub-s.(6) is to be given to
that person."

In my view, s.25D of the Acts Interpretation Act does not apply to the notice, because s.203(2) is not a requirement that a tribunal, body or person making a decision give written reasons for it; the seizure was not a "decision", in my view, but simply an action.

34. Counsel further suggested, of course, that the seizures were illegal on the ground that they were not permitted by s.203(2) which reads as follows:-

"An authorised person may seize any forfeited goods
or any goods that he believes on reasonable
grounds are forfeited goods."

In my view the goods in question fulfilled both descriptions. They were forfeited goods; they were also reasonably believed to be so, in the light of the further material which had come into the possession of the Customs since the swearing of the information.

35. On 24 July 1984 there occurred an interview between the applicants, their solicitor Mr Brown, and Customs officers. One purpose of the interview was to ask Mr Pearce about the three columns headed "C", "I" and "B". I do not think that Mr Pearce gave the explanation which was given in court, namely that "B" was the figure given to him as the likely cost of work to be done to put the vehicle in question in saleable condition. Mr Cooper argued that on that occasion, and others, the Customs officers unlawfully required answers to their questions. I find the contrary. The questions were not asked under a threat of application of sanctions in the event of failure to answer. I think Mr Pearce answered questions asked of him because he was anxious to persuade the Customs that the vehicles were lawfully imported, not because he believed that to do so might be an offence. On that occasion, he signed a statement at the request of Mr Curtin, one of the Customs officers, about three motor vehicles, the Fleetwood, the Cutlass and the Seville. In his affidavit, Mr Pearce explained that he was pressing for the release of these vehicles and I think the request for the statement, made by Mr Curtin, resulted from that. Mr Cooper argued that Mr Curtin asked for the statement simply to trap Mr Pearce. I am puzzled by Mr Curtin's action, as I think, in accordance with the submission of Mr Cooper, that Mr Curtin fully retained his suspicions with respect to the importation of the three vehicles in question. However that may be, Mr Pearce signed a statement as requested, confirming "the accuracy of the above particulars" and stating that "the values shown are true and accurate purchase prices, that no other monies were expended in the acquisition of such vehicles in Hong Kong and that no 'double-payment' has been made". In my view, the statement was false but I am not satisfied that it misled Mr Curtin. The result of its being executed, however, was that the three vehicles were cleared, the duty being paid the following day, 25 July 1984. The legal effect of that is discussed below under the heading "estoppel".

36. On 20 August 1984 a message was sent from the Canberra Customs office to Brisbane attaching papers which were said to contain details of "enquiries to date (HK) in respect of vehicles imported by Mister Cars". The document in question purported to set out what might be called for simplicity the ostensible price and true price of a number of motor vehicles purchased by the applicants from German Motors. The case for the respondents is that document prompted further seizures and, on the whole, I am satisfied that it did. In the end, all the six vehicles in issue were seized. By arrangement between the parties, another vehicle (a Pontiac) which was the subject of a notice of seizure was not pursued by Customs, and nothing appears to turn on that. One of the vehicles was in a dismantled condition and was not physically taken away. It was suggested by Mr Cooper that that gave rise to some point of which he could take advantage, but I do not well comprehend his submission in that respect.

CONSENT

37. As the searching process, insofar as it was based upon the information and Form 61, had no foundation, it was argued that the searches and seizures of documents were all unlawful. Counsel for the applicants said that there was no true consent to either the searches or the seizures.

38. Mr Pearce gave evidence that he co-operated with the Customs because their attendance at his premises was damaging to himself and to the reputation of his business. I think that was one of the reasons but that he was also influenced, very largely, by another consideration, namely that he thought his best chance of persuading Customs not to bother him further was to give at least the appearance of full co-operation. Some of his actions appear to me hard to reconcile with any other motive. According to Mr Pearce, when Mr Gibbards said (on 6 July 1984) that he had a warrant, Mr Pearce said there was no need for that. On the same occasion, he says, he offered to take the officers to his home, where the documents they were seeking were located. When he attended at the office of the Collector of Customs on 9 July, Mr Pearce said, he handed the Customs "more papers which I thought were relevant to their investigation that had been in a drawer in the office desk, and which had not been searched by them". That appears to me quite inconsistent with any theory that his co-operation was merely due to his being overawed, or desirous of avoiding public embarrassment. Mr Brown, his solicitor, in a letter of 25 July 1984 referring to this incident, said "additionally my client has volunteered further documents which were missed by your officers" and I think the word "volunteered" is accurate. The word also applies to Mr Pearce's actions at his home on 6 July 1984 when he gave substantial assistance to the officers. Further, Mr Pearce made it clear that he had no objection to their examining records at the bank. When Mr Wynne, who had been to the bank, went to the applicants' house on 6 July 1984, Mr Pearce invited him in, offered him a drink and suggested that he should turn the television on for Mr Wynne's entertainment. The evidence of the Customs officers was, speaking generally, such as to support a finding of a desire on the part of Mr Pearce to at least appear to help as much as possible. Nevertheless, it was argued, on the basis of authorities which I shall mention, that there was no true consent.

39. Cases cited on behalf of the applicants suggest that, even where the occupier of the premises the subject of the search has no objection to it, that can seldom be an answer to an allegation that the search was illegal, provided that the parties were under the impression that it was not. Indeed, there is authority suggesting that if submission to the search or seizure is induced by an apprehension that lack of submission would give rise to a suspicion of guilt, there is no consent. Lord Denning M.R., with whom the other members of the Court of Appeal agreed, said in his judgment in Ghani v. Jones (1970) 1 QB 693 at p 705:-

"The second thing to notice is that the police
officers kept the passport and letter without the
consent of the holders. Mr Leonard suggested that
they took them with consent. This is a little
far-fetched. Here were two police officers asking
a Pakistani for the passport of himself and his
wife. Of course he handed them to them. It would
look bad for him if he did not. He bowed to their
authority."

The emphasis is added by me.

40. In Meates v. A.G. (1981) 2 NZLR 335 at p 346 Cook J. relied upon Ghani v. Jones, saying:-

"... while consent may include acquiescence, it
must be a genuine consent and not a mere
acquiescence in what a person believes to be
another's lawful right."

One might deduce from these statements that there can be no binding consent where the person alleged to have consented was under the impression that the search or seizure could lawfully be carried out without consent. Further, it may follow from Ghani v. Jones that if there is a consent to search or seizure given to one in authority, motivated by a desire not to "look bad" in the eyes of authority, the consent is irrelevant. I note that Cook J. in the case just cited at p.347 said:-

"By the same token it seems that, before true
consent can be given in the situation which is
under consideration, there must be knowledge of
all the material circumstances and these will
include an understanding of the rights of Customs
officers in the absence of consent. To give
consent means to agree that a particular thing be
done and the person so agreeing must understand
that his consent is necessary."

Although, in the ordinary sense of the word, consent was here given by or on behalf of the applicants, there is difficulty in determining whether there was such consent as to satisfy the requirements of these authorities. There may well not have been. It is not clear to me why it is necessary, in order that true consent may be held to exist, that one must be able to find that the person the subject of the search accurately understood the rights of Customs officers in the absence of consent, as Cook J. held. That appears to be a test which would but seldom be satisfied. If, lacking such an understanding, a person whom it is proposed to search takes the warrant as read and displays anxiety to assist, not being overborne or bullied in any way, then I find it difficult to see why his consent should necessarily be disregarded. Here, no pressure appears to have been placed on Mr Pearce. It may seem unfair that the rights of one who behaves in a courteous and civilised fashion should be diminished, by comparison with a person who is rude and obstructive, yet I think, on the whole, that Mr Pearce did, having the authority of his wife, give a true consent. He did so because, as it appears to me, he thought it was in his own interests to waive formalities and to make a show of co-operation, thinking it unlikely that the officers would see documents which revealed the true position. Mr Pearce appears to me to be an intelligent and confident man, perfectly capable, if he saw fit, of informing the Customs officers that he objected to their searching. He did not do so either on 6 July when they first came or on 12 July when they returned.

DISCRETION TO EXCLUDE EVIDENCE

41. I am reluctant, in view of my conclusion that there was a consent on the part of Mr Pearce to the searches for and seizures of documents, to venture into the question whether there is a discretion to exclude illegally obtained evidence. It is, however, necessary to do so for two reasons. Firstly, there is no question of the bank's having consented; the relevant officer, Mr Waters, made it clear by his actions that he did not consent on behalf of the bank and refused to hand over any documents until he received a requirement in Form 61 which he thought, erroneously as I have held, to oblige him to do so. Secondly, it is necessary to venture into this ill-charted area because my holding that Mr Pearce consented may not be thought easy to reconcile with the two authorities just mentioned on which Mr Cooper mainly relied.

42. On the face of it, one would think there to be some ground for holding that at least the seizure of the documents from the bank was associated with such an illegality as to justify exclusion of the evidence so obtained. However, the cases suggest that the evidence in question is simply admissible. There is substantial authority for the view that there is, in civil cases, no discretion to exclude relevant evidence of an excessively prejudicial kind, or evidence improperly obtained: Stockfleth v. De Tastet 4 Camp 10 at p 11, Ibrahim v. R (1914) AC 599 at p 610, Hurst v. Evans (1917) 1 KB 352 at p 358, Manenti v. Melbourne and Metropolitan Tramways Board (1954) VLR 115, Cross on Evidence (2nd Aust. ed.) par. 1.62. It appears from Stockfleth v. De Tastet that if the maker of an admission "was imposed upon when he signed it, or was under duress, he will not be bound by it". That does not appear, however, to involve an exclusion of the admission on the ground of any exercise of discretion, but rather a refusal to treat it as proof of its contents, on the ground that it was obtained in circumstances making the admission of no weight.

43. Both the Australian work just referred to, and some American cases, throw doubt upon the universality of the proposition that a civil court cannot exclude relevant evidence on the ground that it was improperly obtained. To take an extreme example, it is difficult to believe that in civil proceedings there could be no discretion to exclude, on policy grounds, admissions obtained by violence or threats of violence. If the Customs officers had extracted the documents from Mr Pearce by threatening to shoot him, one cannot see any real likelihood of the documents being admitted. That is, despite the apparent lack of authority in England or Australia supporting its existence, there must surely be a discretion even in civil cases to exclude such evidence on policy grounds. Further, it is not clear why considerations of policy should necessarily be more favourable to the admission of illegally obtained evidence in civil matters than in criminal matters. The public purpose to be served in the former may be trivial or non-existent, whereas a prosecution usually has at least an ostensible public function. However, it cannot be unfair to the applicants to consider the admission of the evidence, assumed to be unlawfully obtained, as if there were such discretion as exists in criminal cases. Applying those tests in favour of the applicants, I am clearly of the view that the discretion should be exercised against them.

44. The tests applicable in criminal cases, to which I have referred, are mentioned in the decisions of the High Court in Bunning v. Cross [1978] HCA 22; (1978) 141 CLR 54 and Cleland v. The Queen [1982] HCA 67; (1982) 57 ALJR 15. In Bunning v. Cross at p 78 Stephen and Aickin JJ. point out that:-

"... it may be quite inappropriate to treat
isolated and merely accidental non-compliance with
statutory safeguards as leading to inadmissibility
of the resultant evidence when of their very
nature they involve no overt defiance of the will
of the legislature or calculated disregard of the
common law and when the reception of the evidence
thus provided does not demean the court as a
tribunal whose concern is in upholding the law."

In Cleland Gibbs J. (as he then was) said at p.18 that there is "... no general rule that the Court will reject evidence illegally obtained. On the contrary, the rejection of confessional evidence for this reason alone is most exceptional." Murphy J. thought that "Evidence obtained by unlawful or improper conduct should be almost automatically excluded on trials for minor offences, but otherwise in trials for the most serious crimes." (p.22). Both Deane J. and Dawson J., as I read their Honours' reasons, emphasised as a consideration in favour of excluding evidence unlawfully obtained the undesirability of encouraging such conduct or seeming to approve it. As to the unlawful conduct, as against the bank, to which I have referred above, enforcing the production of documents under a show of non-existent compulsory powers, I think there may have been a degree of carelessness in failing to ensure that the assumed powers truly did exist. The relevant powers appear to me, with all respect to the draftsman, to be contained in rather carelessly drawn provisions; for example, there is a plain lack of correspondence between the obligations imposed on the owner by s.214(1) and the rights of the Customs under s.214(3). It is not surprising that attempts on the part of the Customs officers to enforce such provisions should be riddled with irregularities but on the whole I am satisfied that they did not consciously break the law or consciously demand more of the bank, in particular, than they thought the law entitled them to. It does not appear to me a sound exercise of discretion to exclude the evidence, in those circumstances, despite the traditional reluctance of courts to permit searches and seizures going beyond the strict requirements of statute.

ESTOPPEL

45. Counsel for the applicants strongly urged upon me the view that, as to the three vehicles cleared on 25 July 1984, both in consequence of the signing of the statement of 24 July referred to above, it must be accepted that the proper duty had been paid. Mr Curtin gave evidence that he accepted the statement given by Mr Pearce that the vehicles were correctly valued but I am not persuaded that that is so; formal acceptance there may have been, but it does not appear to me likely that Mr Curtin was really convinced. In short, I do not think he was misled by the statement of 24 July 1984, which was as I have held false. Mr Wynne said that it seemed unfair to hold the cars any further in view of the statement made by Mr Pearce; while a desire to help Mr Pearce may conceivably have operated, it seems to me quite unlikely that any relevant Customs officer was truly convinced.

46. Counsel suggested that goods pass into the common stock if they are cleared by Customs, at least if the clearance is not procured by misrepresentation. I find that the Customs officers who decided to clear the three vehicles pursuant to the declaration made by Mr Pearce on 24 July then still thought that the vehicles had been unlawfully imported. It was said that, in those circumstances, The Queen v. Tan (1977) AC 650 required a conclusion in favour of the applicants. The respondents to that appeal had been convicted of a charge brought under the United Kingdom Customs and Excise Act of knowingly and with intent to defraud dealing with certain goods. The House of Lords unanimously held them not to be guilty, on the ground that although duty had been charged on a sum which was only a fraction of the value, that had occurred without any misrepresentation. It does not appear, however, that the foundation of the decision in the Tan case was estoppel at all; it was simply a construction of the English statute. I am by no means convinced that, under the Australian Act, clearance has that final effect which Tan's case attributes to clearance under the English Act. In particular, there appears to be no provision in England corresponding with s.161D, to which Mr Cooper very properly drew attention, and which permits a review of determinations of value within 12 months after their making. Nor have I found anything in the Australian cases, such as Carmody v. Sarah Coventry 48 ALJR 222, on which reliance was placed, which assists the applicants towards a finding of estoppel.

47. It is correct, as counsel submitted, that it was the duty of the Customs to determine the value and advise the owner: s.161C. That did not occur here and no reasonable excuse for that failure, on the part of the Customs, has been advanced. When the applicants' solicitors wrote to Customs, letters were sent in reply suggesting that further enquiries were being made overseas but, as I find, Customs were merely (after having seized all the vehicles in question) acting passively, on the theory that inaction was the best course. There should have been a determination of value and advice to the owner, as submitted by counsel. Nevertheless, it is a far step from that to hold that the clearance of the three vehicles gave rise to an estoppel. Insofar as Tan's case holds that once goods are cleared the determination of value cannot, in general, be reviewed, that is inapplicable in this country because of s.161D. Insofar as Tan's case lays down any other principle which might be argued to assist the applicants, it is of no assistance because it expressly applies only to instances in which the importation has been achieved without the making of false statements as to value.

TRANSFER OF OWNERSHIP

48. There was some debate as to the legal effect of occurrence of forfeiture under s.229. On the findings I have made, the goods were unlawfully imported within the meaning of s.229(1)(a) and they were also goods in respect of which false representations had been made, within the meaning of s.229(1)(i). They are thus forfeited to the Crown. It was argued that the only effect was that on the occurrence of appropriate proceedings ownership would pass.

49. The matter is of some significance in the present case, for if s.229 is self-executing, it seems to provide a complete answer to all the complaints about seizure of vehicles, and their detention, the answer being that they were seized and are detained by or on behalf of their present owner, the Crown.

50. In French v. O'Connor (unreported, 23 May 1985) Northrop J. remarked that:-

"Those provisions of ss.203, 205, 208A and 229 of
the Customs Act which are summarised above form
part of the scheme under that Act whereby the
ownership of goods may be vested in the Crown by
operation of that Act and in the absence of a
court order."

His Honour then referred to Powers v. Maher [1959] HCA 52; (1959) 103 CLR 478 at p 483 in which Kitto J., as I read his Honour's remarks, left open the question whether s.229 transfers ownership to the Crown immediately on the occurrence of such a situation as is mentioned in s.229(1).

51. In Bert Needham Automotive Co. Pty. Ltd. v. Federal Commissioner of Taxation (1976) 10 ALR 501, to which Northrop J. also referred, Rath J. considered the authorities with reference to this point and held, in effect, that s.229(1), of its own force, operates to transfer ownership of goods the subject of its provisions. The result was that the importer whose tax affairs were in issue was unable to claim depreciation under the Income Tax Assessment Act.

52. I would be content to express my agreement with Rath J., despite the fact that counsel on both sides urged upon me a contrary view. The matter is important enough, however, to warrant some brief explanation. It is my view that I am bound by the decision of the Full High Court Burton v. Honan [1952] HCA 30; (1952) 86 CLR 169 to hold that unlawfully imported goods are, by the very fact of their unlawful importation, forfeited to the Crown - i.e. vested in the Crown forthwith. Burton v. Honan was an action for damages brought by a purchaser of an imported motor car which had been seized as forfeited pursuant to the provisions of the Customs Act. The defendant denied the legality of the seizure and ultimately the matter was referred to the Full High Court. There the defendant argued that there was an automatic forfeiture without the necessity of any further proceedings and that the Customs Act, so read, was unconstitutional. Opposing counsel agreed with the submission as to the time at which forfeiture occurs under the Customs Act, so that the point under consideration was not debated. It was nevertheless considered by Dixon C.J., with whose judgment all the other members of the Court agreed:-

"On authority it is clear that under the provisions
of s.229, provided the facts exist which justify a
forfeiture, the title to the goods vests in the
Crown when the forfeiture takes place in
consequence of the occurrence of the facts. No
further proceedings are requisite to make title,
although of course further proceedings may be
necessary either to vindicate the title of the

Crown or to exclude the claim of some person asserting a right to

the

goods" (p.176).

I agree (with respect) with the view of Rath J. in the Bert Needham case (supra) that the statement I have quoted is not merely a dictum; as his Honour pointed out, the relevant provision of the Customs Act was held valid "with the operation as there stated". Even if the remarks of Dixon C.J. were not part of the ratio, I would, of course, be very reluctant to ignore the unanimous, and deliberately expressed, view of the Full High Court as to the operation of s.229.

53. I should add that the amendments to the Act since 1952 do not appear to me to affect the matter in question.

54. Considerations of convenience, and indeed simple justice, weigh against the construction of s.229(1) laid down in Burton v. Honan (above); these factors were, however, taken into account in the discussion of the point by Dixon C.J., especially at pp 178-180. It was argued by Mr Cooper on behalf of the applicants that, once cleared by Customs, imported goods pass into the common stock, subject to State laws. That very argument was plainly rejected in Burton v. Honan.

55. I therefore hold that before seizure all six vehicles passed into the ownership of the Crown; that is their present ownership.

MISCELLANEOUS MATTERS

56. Counsel for the applicants complained of the retention of documents illegally obtained. However, the application does not seek an order for the return of any documents. Presumably that is because the documents are to be sought in separate proceedings. I have noticed, however, that the Customs have, according to the evidence, retained copies of quite a number of documents which have nothing to do with the case. I do not know why that has occurred, but obviously such copies should be handed to the applicants.

57. As will appear clearly from my findings, these reasons rely in substantial part upon the veracity of the evidence of Mr Fitzpatrick as to his observations in Hong Kong. After argument, I determined to let in his affidavit of 24 June 1985, and my published reasons for doing so include a direction that the evidence the subject of the order made that day be "for the present admitted only on the issue of the information available to the respondents with respect to the vehicles". I reserved for further consideration the question of the admissibility of that evidence on the applicants' claim for a declaration, discussed above. I have, on reflection, decided that I should use the evidence in question on the claim for declaratory relief - to put that more fully, on the question whether the vehicles were in fact imported in breach of the Act, as opposed to the question whether the Customs reasonably thought they were. My reasons for taking that course appear in part in the interlocutory judgment of 24 June 1985. In addition, I have taken into account that there appears to be no reason whatever to doubt the accuracy of Fitzpatrick's evidence which is supported by that of R.W.G. Hume; nor, indeed, was any attempt made to challenge Fitzpatrick's assertions as to what he observed in Hong Kong, either by evidence or cross-examination. No reason appears why Fitzpatrick's evidence should not be relied on, with respect to any issue in the case. It follows, of course, from what I have said that the declarations sought by the applicants must be refused. I have given consideration to the question whether a declaration should be made in a contrary sense, in favour of the respondents. None was sought, however, nor does the making of such a declaration appear to be necessary.

58. I summarise the principal legal views expressed above:-

1. There is jurisdiction to make a declaration
under s.16(1)(c) of the Judicial Review Act
as to the question whether the goods were
lawfully imported or not and evidence on
that issue is admissible.

2. As to s.214 of the Customs Act:-

(a) The informant must positively swear to
the matter complained of, and cannot do
so merely do so on the basis of having
reasonable cause to believe or suspect
that matter.

(b) A requirement in Form 61 is invalid
unless it sets out the date of the
matter complained of.

3. A notice under s.204(2) of the Customs Act
as to seizure of goods need not comply with
s.25D of the Acts Interpretation Act.

4. There is a discretion even in civil
proceedings to admit, or to exclude,
evidence illegally obtained by purported use
of provisions of the Customs Act.

5. The clearance of goods by Customs officers
does not, in general, create an estoppel as
to the value of imported goods, at least
where there has been a false pretence with
respect to their purchase price.

6. Forfeiture under s.229 of the Customs Act
occurs by operation of the Act, there being
no necessity for a Court order to achieve
it.

59. In the result, I hold that the applicants are not entitled to any of the relief they seek and the application will be dismissed. In view of the history of the matter, I will hear counsel on costs.