Re Iris Annelli Williams v Collector of Customs of Queensland [1987] FCA 16 (30 January 1987)

FEDERAL COURT OF AUSTRALIA

Re: IRIS ANNELLI WILLIAMS
And: COLLECTOR OF CUSTOMS FOR THE STATE OF QUEENSLAND
No. G264 of 1985
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Evatt J.

CATCHWORDS

Administrative Law - application for Judicial Review of demand made by Collector of Customs under s.208A of the Customs Act 1901 - Whether such demand is a decision within the meaning of the Administrative Decisions (Judicial Review) Act 1977 - Time limit governing such application - Application filed out of time - No affidavit in support of application to extend time - Factors relevant to exercise of discretion - No acceptable explanation for delay.

Administrative Decisions (Judicial Review) Act 1977, ss. 11(1)(c), 11(3), 11(4)

Customs Act 1901, ss. 203, 205, 208A

Federal Court Rules O.54, r.3; O.19(1); O.33, r.2

Pearce v. Button (1986) 8 FCR 388

Pearce v. Button (1986) 8 FCR 408

Tetron International Pty Limited v. Collector of Customs (Victoria) (Northrop J, Unreported, Federal Court of Australia, 7 August 1985)

Seyfarth v. Luckman (Woodward J, Unreported, Federal Court of Australia, 4 October 1985)

Hunter Valley Developments Pty Limited v. The Minister for Home Affairs and Environment (1984) 58 ALR 305

Convery v. Ziino (Neaves J, Unreported, Federal Court of Australia, 27 May 1985)

Williams v. Collector of Customs (Burchett J, Unreported, Federal Court of Australia, 15 October 1985)

HEARING

SYDNEY
30:1:1987

Counsel for the Applicant: Mr Cooper

Solicitors for the Applicant: Morris, Fletcher & Cross, Brisbane

Counsel for the Respondent: Mr C.J. Stevens

Solicitors for the Respondent: Australian Government Solicitor

ORDER

The applicant's application to extend time under s.11(1)(c) of the Administrative Decisions (Judicial Review) Act 1977, so that the application filed herein on 13 September 1985 be deemed to have been filed within the time prescribed by s.11 of that Act be refused.

The applicant pay the respondent's costs of and incidental to the said application for extension of time.

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

DECISION

On 13 September 1985 the Applicant filed in the Sydney Registry of the Court an application under the Administrative Decisions (Judicial Review) Act 1977 (the Judicial Review Act) against the respondent dated 12 September 1985 headed:

ADMINISTRATIVE DECISIONS (JUDICIAL REVIEW) ACT 1977

APPLICATION FOR AN ORDER TO REVIEW

Application to review the decision of the Respondent to
retain and refuse to deliver up possession to the Applicant
of a Rolls-Royce Motor Vehicle Chassis No. LRH0041243, Engine
No. 0041243, imported by the Applicant at the port of Sydney,
New South Wales on 18 February 1984.

The Applicant is aggrieved by the decision of the Respondent
whereby she is precluded from the use, possession and
enjoyment of the said vehicle.

2. Thereafter are set out various grounds. Also filed that day was a document headed, "Statement of the Terms of the Decision - Rules of Court Order 54 Rule 3", which annexed seven separate documents. On the filing of that application an appointment for a directions hearing in the matter was made for 9.30am on 4 October 1985.

3. On 4 October the matter was listed before Burchett J.for directions when Mr Cooper of counsel appeared for the applicant and Mr Peters, a solicitor of the Australian Government Solicitor's Office, Sydney, appeared for the respondent.

4. When the matter was called on Mr Peters indicated that the application as filed did not in fact specify the date of the said decision of the respondent to retain and refuse to deliver up possession of the said motor vehicle. However, on his instructions, the date of such decision appeared to be 2 July 1984, some 15 months before the filing of the application, which of course, was well outside the 28 days referred to in s.11(1)(c) and s.11(3) of the Judicial Review Act. He further pointed out that even if it were claimed that the date of the decision complained of was not 2 July 1984, a perusal of the seven documents attached to the Statement of the Terms of the Decision showed that the latest document therein was dated 28 June 1985 which still meant that the application as filed was out of time. Mr Peters indicated that his instructions were such that should an application be made to extend time the respondent intended to oppose that application. Accordingly, he asked the Court to direct that if such an application was to be made by the applicant, a formal application under O.19 was to be made, that is a motion supported by an affidavit was to be filed and served on the respondent. Additionally, he also asked that the matter be adjourned in any event pending the hearing of a prosecution which had been issued against the applicant under the Customs Act 1901 (the Act) and which was then set down for plea or mention on 25 October 1985 at the Brisbane Magistrate Court.

5. Mr Cooper, in response, pointed out that the formal notice dated 21 May 1985 served on the applicant pursuant to s.208A(1) of the Act on that day gave the applicant four months in which to bring her action for recovery of the said motor vehicle and that the present application sought a declaration that the said vehicle was her property. Accordingly, so he argued, the applicant could not be said to be out of time as the application herein had been issued on 13 September 1985, a date within 4 months after 21 May 1985.

6. A discussion then ensued between the Bench and Mr Cooper as to how such a claim could be made in an application for review under the Judicial Review Act. Mr Cooper referred the Court to decisions of Pincus J. in Pearce v. Button (1985) 8 FCR 388, Neaves J. in Convery v. Ziino (Unreported, 27 May 1985) and Northrop J. in Tetron International Pty Limited v. Collector of Customs (Victoria) (Unreported, 7 August 1985). Having heard further submissions from Mr Cooper and Mr Peters first, as to what period of time was relevant and secondly, as to whether the fact that a proseuction was pending, was a sufficient reason for the adjournment of the application, Burchett J. suggested that the applicant amend her application to enable argument to be placed before the Court as to whether or not the application was out of time. The parties apparently agreed to this course and His Honour then made such orders, adjourning the matter in order to give short reasons.

7. On 15 October 1985 Burchett J. formally directed that the applicant on or before 23 October 1985 file and serve an amended application to raise any alternative claim under which she proposed to rely. His Honour refused the respondent's application to adjourn the matter pending the prosecution brought against the applicant and directed that the application be listed for further directions at 9.30am on 24 October 1985. His Honour then published short reasons for judgment which are not reported. A portion of those reasons are set out.

BURCHETT J. This is an application for an order to review,
brought under the Administrative Decisions (Judicial Review)
Act, 1977 in respect of certain decisions relating to the
seizure of a Rolls-Royce motor vehicle by the Collector of
Customs and the issue of a notice under s.208A of the Customs
Act, 1901, requiring the applicant to bring within four
months an action against the Collector for the recovery of
the motor vehicle. When the application came before me in
the directions list Mr Peters, for the Collector, submitted
any directions would be otiose since the application had not
been brought within time. His contention was that the four
month period nominated in s.208A is for the purpose of
detinue proceedings, such as might be brought in the Supreme
Court of a State, but could not affect the prescribed period
fixed under s.11 of the Administrative Decisions (Judicial
Review) Act in respect of an application under that Act.
Counsel for the applicant made it clear that he contested
this proposition, but also that if I were to rule against him
he would then ask leave to amend his application to seek an
extension of time to apply under the Administrative Decisions
(Judicial Review) Act. In that situation, I indicated that I
did not think it appropriate to make a ruling on the
application in its present form. It seemed to me that the
application should first be amended in the manner
foreshadowed so that all matters relevant, both to Mr Peters'
argument and the question whether the Court's discretion
should be exercised to permit an enlargement of time for the
bringing of the application, could be considered together.

Burchett J. then set out his reasons for refusing the respondent's application for an adjournment pending the hearing of the said prosecution.

8. On 14 October 1985, that is the day before His Honour gave his reasons for judgment set out above, the applicant filed in the Court an amended Application for an Order to Review dated 9 October 1985. The first two paragraphs of the amended application read:

Application to review the decision of the Respondent made the
Twenty-first day of May 1985 under Section 208A(1) of the
Customs Act 1901 retaining and refusing to deliver up
possession to the Applicant of a Rolls-Royce Motor Vehicle
Chassis No LRH0041243, Engine No 0041243, imported by the
Applicant at the port of Sydney, New South Wales on 18
February 1984 and whereby the Respondent required the
applicant to bring an action within the time prescribed by
Section 208A(2) of the Customs Act 1901.

Application in the alternative for an Order that the said
application is filed within time pursuant to Section 11 of
the Administrative Decisions (Judicial Review) Act 1977.

Thereafter the amended application follows the form of the earlier application filed on 13 September 1985. No fresh documents were then filed under O.54 nor was any motion and affidavit in support filed under O.19(1) to support any application that may have to be made to extend time under s.11(1)(c) of the Judicial Review Act.

9. The matter was again listed in the directions list on 24 October before the Court as presently constituted when appearances were as those before Burchett J.

10. Mr Peters again raised the question of whether the amended application was within time pointing out that the date of the alleged decision complained of, namely 21 May 1985, was clearly outside the 28 days prescribed in s.11 of the Judicial Review Act and that the respondent had still not been served with a notice of motion and/or an affidavit in support seeking an extension of time in which to bring the application under that Act. Further he informed the Court that his instructions were still to oppose any application for an extension of time and accordingly requested the Court to direct the applicant, if she intended seeking an extension of time, to file and serve an appropriate motion supported by affidavit.

11. Mr Cooper again claimed that the 28 day limitation prescribed by the Judicial Review Act did not apply in the instant case and that s.11(4) of the Judicial Review Act was applicable. He indicated that he also relied on the argument put to Burchett J. that the applicant had four months in which to bring the application but if the Court were against him on both submissions then the applicant would seek the Court's approval to bring the application out of time. He indicated that his argument may take some time and as the Court was then hearing matters in the directions list, the matter was fixed for hearing for the following Monday, 28 October 1985. It was again stressed by Mr Peters that he would be opposing any extension of time especially if an affidavit in support was not filed. The Court that day, being satisfied that Mr Cooper understood Mr Peters' concern in this regard, did not make the directions asked for by the respondent leaving the applicant to take such course as she may be advised.

12. When the matter was called on on 28 October 1985, Mr Cooper again appeared for the applicant whilst Mr C.J. Stevens of counsel appeared for the respondent. The respondent, having sought leave, filed an affidavit sworn by Mr Peters-Snow dated 28 October 1985. Again no motion or affidavit in support had been filed by the applicant seeking an extension of time under s.11(1)(c) of the Judicial Review Act.

13. The Court then pointed out to Mr Cooper that the only application being heard that day was whether or not the amended application as filed on 14 October was within time, whatever that time might be and if out of time, whether an extension should be granted. The exchange between the Bench and Mr Cooper was such that in my view, it would have been clear to the parties that the issues to be determined that day were: a) whether the application as filed was within time; b) if it were not, then any application for an extension of time would be dealt with that day by the Court as then constituted. If the Court found in favour of the applicant on either issue a) or b) then the matter would go over for the hearing of the substantive claim subject to further directions. On the other hand, if the Court found issue a) and b) against the applicant then the consequence was that the application was out of time and a notice of discontinuance would be directed to be filed thereafter.

14. The Court then pointed out to Mr Cooper that the application for review as filed under the Judicial Review Act prima facie should have been filed within 28 days. Mr Cooper submitted that in the particular circumstances of this case the application was not required to be filed within that time. The Court accordingly called Mr Cooper on first.

15. Mr Cooper first argued that the retaining of and the refusing to deliver up possession of the motor vehicle was a "decision" within the meaning of the Judicial Review Act and it was that decision that the applicant wished to challenge. The Court then asked, "When do you say that was made". In reply Mr Cooper stated, "Your Honour, could I now come to the facts. In filing the application in accordance with O.54 the applicant attached a series of documents 'The Terms of the Decision' and they are each with a back sheet numbered 1 through to 7."

16. Mr Cooper never did answer the Court's question directly] He then referred to some of the seven documents before making detailed reference to sections of the Act in order to enlighten the Court as to the scheme and operation of the Customs Act. During this discussion, Mr Cooper from time to time, would mention certain factual matters which caused Mr Stevens to interrupt and state that in applications of the type then before the Court it was not open to Mr Cooper to make factual statements from the bar table. The transcript then shows:

MR COOPER: I will draw your Honour's attention to the
evidence as we go through it, your Honour.

HIS HONOUR: This is an application which is really to see
whether, as I understand it ---

MR COOPER: The application is within time.

HIS HONOUR: --- the application as presently drawn is within
time. Your have made your point, Mr Stevens,
anyway.

17. Undaunted, Mr Cooper continued to go through sections of the Act. During this revelation, Mr Cooper made reference to certain negotiations pursuant to s.208 of the Act concerning the lodging of money and security by the applicant in order that the motor vehicle might be released to the applicant pending prosecution. Again Mr Stevens objected to the making of statements of fact by Mr Cooper which might bear upon any application to extend time under s.11(1)(c) of the Judicial Review Act. Mr Cooper submitted that O.33 r.2(1) of the Rules of Court permitted the acceptance of hearsay evidence in interlocutory matters. The Court then informed Mr Cooper that it would not stop him in his submissions but pointed out to him that in the circumstances of this case, the Court would not necessarily act on such statements without some confirmation by way of sworn evidence.

18. Apparently the said negotiations referred to above were still in train in early September 1985. Again Mr Stevens objected to statements in this regard on the basis of relevance pointing out that the amended application fixed 21 May 1985 as the date of the decision complained of. That being so the application was prima facie out of time and that the statements could only be relevant to an application for an extension of time. Once again, counsel for the respondent stressed that the Court should not allow any factual matters to be stated by counsel for the applicant which were not supported by affidavit as the respondent could be prejudiced. He pointed out that he had no instructions in respect of the alleged negotiations and it was impossible for him to get those instructions in a short space of time. Mr Cooper then informed the Court that the basis for the reference to the said negotiations was that those negotiations were still in train in early September 1985, and accordingly, in his submission, that date was the starting point for the calculation of the 28 day period referred to in s.11.

19. Further, the applicant submitted that should the Court be against the submission, then it was contended that the decision made on 21 May 1985 was not a decision which attracted the provisions of s.11(3) and accordingly s.11(4) applied.

20. Relevant parts of s.11 are:

(1) An application to the Court for an order of review -

(a) ...

(b) ...

(c) shall be lodged with a Registry of the Court and,
in the case of an application in relation to a
decision that has been made and the terms of which
were recorded in writing and set out in a document
that was furnished to the applicant, including such
a decision that a person purported to make after
the expiration of the period within which it was
required to be made, shall be so lodged within the
prescribed period or within such further time as
the Court (whether before or after the expiration
of the prescribed period) allows.

(2) ...

(3) The prescribed period for the purposes of paragraph
(1)(c) is the period commencing on the day on which the
decision is made and ending on the twenty-eighth day
after -

(a) if the decision sets out the findings on material
questions of fact, refers to the evidence or other
material on which those findings were based and
gives the reasons for the decision - the day on
which a document setting out the terms of the
decision is furnished to the applicant; or

(b) in a case to which paragraph (a) does not apply -

(i) if a statement in writing setting out those
findings, referring to that evidence or
other material and giving those reasons is
furnished to the applicant otherwise than in
pursuance of a request under sub-section
13(1) not later than the twenty-eighth day
after the day on which a document setting
out the terms of the decision is furnished
to the applicant - the day on which the
statement is so furnished;

(ii) if the applicant, in accordance with
sub-section 13(1), requests the person who
made the decision to furnish a statement as
mentioned in that sub-section - that day on
which the statement is furnished, the
applicant is notified in accordance with
sub-section 13(3) of the opinion that the
applicant was not entitled to make the
request, the Court makes an order under
sub-section 13(4A) declaring that the
applicant was not entitled to make the
request or the applicant is notified in
accordance with sub-section 13A(3) or 14(3)
that the statement will not be furnished; or

(iii) in any other case - the day on which a
document setting out the terms of the
decision is furnished to the applicant.

(4) Where -

(a) no period is prescribed for the making of
applications for orders of review in relation to a
particular decision; or

(b) no period is prescribed for the making of an
application by a particular person for an order of
review in relation to a particular decision,

the Court may -

(c) in a case to which paragraph (a) applies - refuse
to entertain an application for an order of review
in relation to the decision referred to in that
paragraph; or

(d) in a case to which paragraph (b) applies - refuse
to entertain an application by the person referred
to in that paragraph for an order of review in
relation to the decision so referred to,

if the Court is of the opinion that the application was
not made within a reasonable time after the decision was
made.

A summary of what the Court understands to be the applicant's submissions as to time limitations governing the amended application filed herein is:

1) the applicant had a period of four months, the period
mentioned in the formal notice issued pursuant to s.208A(1)
of the Act, commencing 21 May 1985 within which to bring the
present application.

2) If the Court was against that submission then, as
negotiations had taken place between the applicant and the
respondent pursuant to s.208 of the Act in respect of the
lodging of money and security for the return of the motor
vehicle pending prosecution, which negotiations were still in
train in early September 1985, then the period of 28 days
referred to in s.11(3) of the Judicial Review Act did not
commence to run until that time in September.

3) Although it was conceded that the formal notice dated 21 May
1985 made under s.208A of the Act was a decision within the
meaning of the Judicial Review Act, nevertheless, s.11(3) of
the Judicial Review Act was not applicable to that decision
and accordingly sub-section (4) of that section applied. In
that case, so it was argued, the Court would readily hold
that the application had been filed within a reasonable time
after the decision complained of had been made.

A brief history of the events leading up to the filing of the first application for an order to review dated 13 September 1985 is set out.

21. By Notice of Seizure dated 2 July 1984 issued pursuant to s.205 of the Act addressed to the applicant the respondent advised of the seizure as forfeited to the Crown in accordance with s.203 of the Act of a Rolls Royce motor vehicle (Engine and Chassis number given) for the reasons set out in Attachment A to the said Notice which read:

A statement was produced to an officer of Customs which was
false and wilfully misleading in that in the Australian
Customs statement for vehicle imported by a passenger, Form
G142, you did state:

(a) in reply to Section 2 - statement of ownership and value
'I purchased the vehicle on 1 May 1982' when in fact you
did not purchase the vehicle on 1 May 1982; and

(b) 'The vehicle was registered in my name on 1 May 1982'
when in fact the vehicle was not registered in your name
on 1 May 1982;
(c) In reply to Section 3 - Statement on use
The vehicle was continually in my use from the date I
took delivery until the date of departure of my self, or
shipment of the vehicle, to Australia except as follows
(give dates and reasons) '1 week July Holiday 5 weeks
Oct-Nov Holiday' when in fact it was not.

and therefore the vehicle is forfeited to the Crown in the
terms of Section 229(1)(i) of the Customs Act 1901."

22. By letter dated 5 July 1984 addressed to the respondent, Messrs Morris Fletcher and Cross, Solicitors for the applicant, after acknowledging service of the said Notice of Seizure in respect of the said motor vehicle, stated that, "our client reserves all her rights to claim the vehicle and at this stage no admission as to the accuracy of Attachment A (particulars of the reasons of the seizure) to the Notice of Seizure is given".

23. By letter dated 10 July 1984, the respondent advised the applicant's solicitors that their letter of 5 July 1984 had been accepted as a claim under s205(6) of the Act in respect of the said motor vehicle.

24. On 21 May 1985 the respondent by letter addressed to the applicant forwarded a formal notice in accordance with s.208A(1) of the Act requiring the applicant to bring an action against the respondent for the recovery of the said motor vehicle. That formal notice reads:

Whereas by notice in writing under Section 205(6) of the
Customs Act 1901 to the Collector of Customs for the State of
Queensland dated 5th March 1985 you have laid claim to:

ROLLS ROYCE MOTOR VEHICLE
ENGINE NO 0041243
CHASSIS NO LRH 0041243

referred to in the Notice of Seizure dated 2nd July 1984
served on you under Section 205(2) of the said Act seized
under Section 203 of the said Act as goods forfeited to the
Crown pursuant to Section 229(1)(i) of the said Act.

TAKE NOTICE that pursuant to Section 208A(1) of the said Act
I hereby require you to bring an action against me for the
recovery of the said goods and FURTHER TAKE NOTICE that if
you do not within four months after the date of the service
hereof bring such action the said goods shall be deemed to be
condemned as forfeited to the Crown without any further
proceedings.

Dated the 21st day of May 1985.

Signed: Collector of Customs for
the State of Queensland

On or shortly after 24 May 1985 the respondent received a letter dated 24 May 1985 from the applicant's solicitors which reads:

The Assistant Collection of Customs
Etc
Attention: Mr Heal
Q83/6493

Dear Sir

I.A. WILLIAMS - ROLLS ROYCE MOTOR VEHICLE

We refer to your letter of 22 May and to the writer's
telephone discussions with Mr Heal. We note that (a notice
under) Section 208A(1) was addressed to our client at her
Gold Coast address. As you know Mrs Williams is, in fact,
presently overseas and it is unlikely that the original of
the Notice will come to her attention in the near future. We
have previously advised you that we are authorised to accept
service of Notices on her behalf and that we have undertaken
to do so. When you indicated that the Notice would be issued
shortly, we had always understood that service would be made
on this firm and that copies only would be forwarded to Mrs
Williams' residential address.

We raise the point in the spirit of co-operation, which has
existed between the parties in this matter. We think that it
is arguable that the Notice will not be deemed to be served
until Mrs Williams is either served personally or her
Solicitors, having authority to accept service, are served.
We do not think, therefore, that the four (4) months' period
stipulated in the Notice will have commenced to run in the
present circumstances. As our client is as anxious as your
Department to have the matter finalised, we would suggest
that a fresh original Notice be issued and served on this
office and that the four (4) months' period be agreed to run
from the date of service of that Notice.

We have noted the contents of your letter in relation to the
giving of security and we shall be seeking instructions from
our client. As a matter of practicality, you will appreciate
that our client will have to consider the present market
value of the vehicle. Given the fact that the vehicle is a
Rolls Royce we think it may take two or three weeks to
properly assess that value. We shall let you know when we
have our instructions.

Nothing contained in this letter is to be considered any
admission of liability on the part of our client. At this
stage all our client's rights are reserved, as stated in our
letter of 5 July 1984.

25. Accordingly by letter dated 28 May 1985 addressed to her solicitors, the respondent forwarded a further formal notice pursuant to s.208A(1) in the form and terms as that set out above, the second notice being dated 28 May 1985.

26. Thereafter certain negotiations under s.208 of the Act took place between the applicant's solicitors and the officers of the respondent as to the lodging of money and security for the release of the motor vehicle to the applicant pending prosecution. Those negotiations were still in train in late June when the respondent wrote to the applicant's solicitors. His letter dated 28 June 1985 is document no. 7 in the bundle of documents filed by the applicant pursuant to O.54 r 3. This letter, omitting formal parts, reads:

You are advised that provided you abide by my letter of 22
May 1985 the vehicle will be released to your client.

The following information is confirmed:

1. The current Import Licence is still valid and will not
be revoked.

2. The valuation upon which the security has been
calculated is at the seizure date.

3. A prosecution will only proceed for an alleged offence
of Section 234(1)(e) of the Customs Act 1901.

4. Even in the event of a conviction your client will be
free to deal with the vehicle.

I also refer to my letter of 28 May 1985 whereby your client
was served with a Notice pursuant to Section 208A(1) of the
Customs Act and advise that, if the vehicle is released in
accordance with the above, Section 208A(3) will be
implemented because the Notice will be deemed not to have
been given (Section 208A(3)(a)) and a fresh Notice will be
served in accordance with Section 208A(3)(b) of the said Act.

If either -

a conviction is recorded against your client in relation
to the importation of the vehicle -

or

no action is taken within four months of the service of
the Notice vide para 3

it will result in the estreating (sic - sc. escheating) of
the Security with the sum of $68,000 being paid into
consolidated revenue and the cash security of $19,265.59
repaid to your client.

27. The Court accepted the tender by the applicant of a document, (objected to by Mr Stevens), stated by Mr Cooper to be a photostat of a memo in his instructing solicitor's file. The Court allowed this document into evidence pursuant to O.33 r.2 on the assumption that it was relevant to Mr Cooper's submission that the time period of 28 days did not commence to run until early September 1985 as a result of the said negotiations. That memo reads:

FILE MEMO:

WILLIAMS: MRS I.A.
re: Customs Advice
4838/84

Bernie Hall from the Australian Customs - 835.0395 - rang me
to see what we were doing. The Australian Government
Solicitor is in the process of preparing the Summonses, and
he wanted to tell them whether to proceed just on Section
234(1)(e) or whether to go on the higher charge of smuggling
under 233(1)(a). If we indicated that we were not taking any
action, they would proceed on the lesser charge, which would
involve condemnation of the motor vehicle and $100.00 fine,
and without any agreement, they will proceed with the higher
charge. They said they were open to negotiation.

If, in payment of the monies that we have to pay to release
the car, a bond is required, it would be a Bank security, so
something like a Bank Guarantee would have to be offered.
He said he needs an answer to our position quickly, and I
said that we could not give it to him before 12 September,
and he reluctantly agreed to accept that timing.

ARR
4/9/85

Having considered the matter, the Court is firmly of the view that each of the four submissions of the applicant set out above should not be accepted.

28. In my view the decision of the respondent to make a demand under s.208A(1) of the Act was a decision within the meaning of the Judicial Review Act. The terms of that decision were recorded in writing and set out in a document that was furnished to the applicant. That decision did not set out findings on material questions of fact or refer to the evidence or other material on which those findings were based. No s.13 particulars were sought by the applicant. Accordingly, the provisions of s.11(3), (a), (b), (i) or (ii) do not apply.

29. But s.11(3)(b)(iii) does apply. The formal notice under s.208A dated 21 May 1985 and repeated in the notice served on the solicitors for the applicant on 28 May 1985 was a "document setting out the terms of the decision" of the respondent as referred to in sub-paragraph (iii) of paragraph (b) of s.11(3) of the Judicial Review Act.

30. Accordingly in my view, the prescribed period referred to in s.11(1)(c) being the 28 days referred to in s.11(3)(b)(iii) commencing on the day on which the decision was furnished to the applicant, namely at the latest 28 May 1985, applies to the decision under review. That is the applicant should have lodged her application for review within 28 days after 28 May 1985.

31. I reject the applicant's argument that the only period which is relevant in ascertaining the date before which the application herein should have been filed is the period of four months referred to in the formal notice served on the applicant under s.208A of the Act. In this regard Mr Cooper submitted that as the application sought a declaration by the Court that the said motor vehicle is the property of the applicant (which issue, so it was claimed, could be determined by the Federal Court pursuant to s.16 of the Judicial Review Act (the applicant here relying on the decision of Pincus J. in Pearce v. Button (supra)) or as a result of the accrued jurisdiction of the Court under s.32 of the Federal Court of Australia Act (the applicant here relying on the decision of Northrop J. in Tetron International Pty Limited v. Collector of Customs (Victoria) (supra)), the Court should determine in all the circumstances that the proper time limitation in which the present application had to be brought was four months. The applicant, so it was claimed, had done what was demanded of her by the respondent, namely commence an action against him for the recovery of the said motor vehicle within four months.

32. In my view, when one is considering any question of time limitation in which an application under the Judicial Review Act is to be commenced, the only Act that is relevant is that Act. That Act provides that such period is either 28 days after the date of the decision as ascertained under s.11(3)(a) or (b)(i) or the date of giving or refusing to give s.13 particulars as ascertained under s.11(3)(b)(ii), or "a reasonable time" if s.11(4) of the Judicial Review Act applies.

33. In relation to this particular submission, the Court notes that a Full Court (Fox, Lockhart and Spender JJ) in Pearce v. Button (1985/86) 8 FCR 408, when dismissing the appeal from the decision of Pincus J. in that case (supra) expressed views as to the scope of s.16 of the Judicial Review Act in applications under s.5 of that Act. That Full Court also expressed views in respect of the reasons expressed by Northrop J. in the Tetron International Pty Limited case (supra) re the accrued jurisdiction of the Court in such applications.

34. Similarly, the Court is of the view that the fact that negotiations under s.208 of the Act were in train are completely irrelevant in ascertaining such time limitation. Perhaps the fact that such negotiations were in train in any particular case may be relevant in considering whether or not an extension of time should be granted. But, in my view, when one is considering the question of time limitation simpliciter one should only look to the Judicial Review Act to ascertain what that period is.

35. Finally, Mr Cooper asked the Court that should the Court be against him in respect of the three submissions set out above, the applicant sought an extension of time under s.11(1)(c) to 13 September 1985 so that the application as filed would be deemed to have been filed within time. As stated earlier herein, no formal motion supported by affidavit has ever been filed by the applicant in this regard despite the many warnings given to the applicant's legal representatives first by the respondent's legal advisers and subsequently in exchanges between the Court and the parties during directions hearings. Within one week of the filing and serving of the first application herein, the Australian Government Solicitor wrote on 20 September 1985 to the applicant's solicitors as follows:

I refer to my recent telephone conversation with your Mr Hope
on the 16th September 1985 regarding your client's
application under the Administrative Decisions (Judicial
Review) Act 1977 in the Federal Court, Sydney. I note that a
Directions Hearing has been set down for the 4th October
1985.

I have now obtained instructions from my client Department.

I advise that the Australian Government Solicitor has
instructions to apply to have the Application struck out as
not having been lodged within the prescribed 28 day period as
provided for under the Administrative Decisions (Judicial
Review) Act 1977. If successful this would result in the
Applicant not having an action on foot within the four month
period as provided by Section 208A of the Customs Act and the
vehicle would therefore be condemned.

Further, my instructions are that the Respondent considers
that the AD(JR) application is not an action to recover goods
under paragraph 208A(2)(b) of the Customs Act and
consequently the goods will be condemned in any case unless
such an action is commenced before 23 September 1985.

In view of this, the Applicant should consider commencing
proceedings in the Supreme Court of Queensland for recovery
of the goods.

The applicant's solicitors replied to this letter on 25 September 1985. That letter, omitting formal parts, reads:

Thank you for your letter of 20 September outlining the
attitude of the Collector of Customs in respect of the
proceedings issued under the Administrative Decisions
(Judicial Review) Act 1977.

We have taken Counsel's opinion in respect of the matters
raised in your letter and he has confirmed that the
proceedings which Mrs Williams has instituted are the
appropriate ones under Section 208A(2) of the Customs Act and
that the Federal Court is the appropriate venue for the
hearing of the matter. He has also confirmed that the
proceedings were instituted within the time prescribed by the
Judicial Review Act.

Would you please forward to us copies of the material upon
which the Collector is to rely in his application as soon as
possible but in any event no later than the time prescribed
by the Federal Court Rule.

36. It is unnecessary to repeat the warnings that were given by Mr Peters at the directions hearings before Burchett J. and the Court as presently constituted. Suffice it so say that the Court as presently constituted had the clear impression that the applicant, through her legal representatives, had made a firm decision not to file an affidavit in support of an application to extend time under s.11(1)(c) of the Judicial Review Act.

37. The Court is of the view that the circumstances of this case are such that it should not entertain an application for extension in the absence of such an affidavit. In this regard reference is made to the observations of Woodward J. in Seyfarth v. Luckman on 4 October 1985 wherein His Honour in an ex tempore judgement said:

In this matter I am called upon to exercise a discretion as
to whether or not leave should be granted to bring an
application for an order of review under the Administrative
Decisions (Judicial Review) Act 1977, which is clearly out of
time, (see s.11(1)(c)). I find that I am not persuaded by
the argument for the applicant that I should exercise my
discretion in his favour. I say that having considered the
various factors which are conveniently set out in the
decision of Wilcox J. in Hunter Valley Developments Pty Ltd v.
The Minister for Home Affairs and Environment, (1984) 58 ALR
305, at 310-311.

I think that it is clearly incumbent upon an applicant in a
case such as this to make out a positive and persuasive case
for the exercise of the Court's discretion in his favour.
That being so, it is simply not good enough for a solicitor
to aver on information and belief that delay is due to the
inability of the applicant to obtain the necessary funds to
enable him to commence proceedings - without any
particularity as to what efforts were being made or what
funds were required. It is not as though the amount needed
to commence proceedings, even in today's financial climate,
is of a very high order. I am told elsewhere in the
affidavit that the applicant is contemplating an early return
to the United Kingdom, which would tend to suggest that he
has access to some reasonable amount of funds.

The factor that weighs, however, most heavily with me in the
exercise of my discretion is that the procedure laid down in
the Customs Act 1901, s.208A, for challenging a decision such
as the one made in the present case, is for action to be
brought in the appropriate State court, which in this case
would appear to be the County Court. All the material before
me suggests that the real issues involved in this case are
questions of fact which would be appropriate for
determination in the County Court, and that broader issues
going to the propriety of decisions made by administrative
officers in the Commonwealth Public Service are not at all
obviously raised in these proceedings.

38. I respectively agree and adopt the above reasons expressed by Woodward J. in that matter. Of course it should be noted that in that matter, a formal motion with affidavit in support had been filed seeking an extension, the affidavit apparently being that of the applicant's solicitor. In the present case, the Court merely has (a) documents filed under O.54, r.3; (b) the affidavit of Mr Peters-Snow sworn 28 October 1985 to which are annexed certain correspondence and (c) statements made by Mr Cooper from the bar table.

39. The Court has considered the criteria ennunciated by Wilcox J. in Hunter Valley Developments Pty Limited v. The Minister for Home Affairs and Environment. Mr Cooper relied heavily upon those principles in his submissions in this regard. The Court finds it unnecessary to set out in detail those submissions. If the present applicant has in fact got herself out of time for the bringing of a claim in the Supreme Court of Queensland or the appropriate District Court in that State for the recovery of the said motor vehicle then she has but herself to blame. In this regard it should be noted that the Australian Government Solicitor wrote to the applicant's solicitor on 20 September 1985 drawing attention to the fact that the action referred to in the notice under s.208A addressed to the applicant should be commenced before 23 September 1985. The applicant's solicitors letter in reply has also been set out above.

40. Summarising, the Court determined that the period of 28 days referred to in s.11(1) of the Judicial Review Act applies to the decision made by the respondent on 28 May 1985 set out in the formal notice dated that day and served on the applicant's solicitors that day. Accordingly the application filed on 13 September 1985 and amended on 14 October 1985 was filed out of time, unless such time is extended. The Court has determined that the application made to extend such time should be refused.

41. The order of the Court should be that the applicant's application to extend time be dismissed with costs. The Court directs that a notice of discontinuance be filed in the matter on or before 27 February 1987 or such later date that the Court may order.