Administrative Law - Review of a decision of an officer of customs to seize certain items of mining equipment on the ground that he believed on reasonable grounds that they were forfeited goods.

Decision - Meaning of - in a consideration of the provisions of the Customs Act 1901 (Cth) the relevant decision is the act of seizure - not the enquiries and internal determinations and conclusions that precede the act of seizure.

Seizure - What amounts to - under the Customs Act 1901 (Cth) an act of seizure is discretionary and requires the making of a decision - such a decision is reviewable under the provisions of the Administrative Decisions (Judicial Review) Act 1977 (Cth).

Forfeiture - The concept of forfeiture in the Customs Act 1901 (Cth) does not evolve out of any administrative decision to which the provisions of the Administrative Decisions (Judicial Review) Act 1977 (Cth) might attach - it arises by force of the Statute upon the happening of certain prior events - "forfeited" is to be contrasted with "liable to be forfeited" - as forfeiture occurs by force of law, title vests in the Crown as from the date of the event or omission which gave rise to the forfeiture.

Trial - Conduct of - a trial Judge is not limited to or constrained by the arguments and submissions that have been advanced in the interest of a particular litigant when making findings of fact that are based on the evidence adduced during the course of the trial.

Administrative Decisions (Judicial Review) Act 1977 (Cth) ss.3 and 5

Customs Act 1901 (Cth) ss.4, 30, 33, 39, 40AA, 203, 205, 208, 208A,208B,229,244

Hotop: Principles of Australian Administrative Law 6th Ed.

R. v Lyon [1906] HCA 17; (1906) 3 CLR 770

Tetron International Pty. Ltd. v Luckman (1983-86) 8 ALD 243

Pearce v Button [1986] FCA 51; (1986) 65 ALR 83

Murphy v KRM Holdings Pty. Ltd. [1985] FCA 495; (1985) 8 FCR 349

Sandery v Commissioner of Police (1986) 65 ALR 181

Vickers v Young [1982] FCA 72; (1982) 65 FLR 260

Willey v Synan [1935] HCA 76; (1935) 54 CLR 175

Bert Needham Automotive Co. Pty. Ltd. v Federal Commissioner of Taxation (1976) 10 ALR 501

Little's Victory Cab Co. Pty. Ltd. v Carroll [1948] VicLawRp 42; (1948) VLR 249

Burton v Honan [1952] HCA 30; (1952) 86 CLR 169

Lyons v Smart [1908] HCA 34; (1908) 6 CLR 143

De Keyser v British Railway Traffic and Electric Company Limited (1936) 1 KB 224

Commissioners of Customs and Excise v Trustee of the Property of Sokolow (1954) 2 QB 336

Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 94 ALR 11

O'Neil v Wratten (1986) 65 ALR 451

Powers v Maher [1959] HCA 52; (1959) 103 CLR 478

Johnston v Hogg (1883) 10 QB 432

Scott v Gere (1988) WAR 377

Gladstone v Padwick (1871) LR 6 Exch 203

Bessicks v The Bath Colliery Co. Ltd. (1877-80) 3 Ex D 174

Watson v Murray and Co (1955) 2 QB 1

Lloyds and Scottish Finance Ltd. v Modern Cars and Caravans (Kingston) Ltd. (1966) 1 QB 764

Stincovic v Commissioner of the Australian Federal Police (Federal Court, unreported, judgment delivered 29 June 1990)

Davison v Vickery's Motors Limited (In liquidation) [1925] HCA 47; (1925) 37 CLR 1

Metwally v University of Wollongong (1985) 60 ALR 68

Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141

Re Association of Architects of Australia; Ex parte Municipal Officers Association of Australia [1989] HCA 13; (1989) 63 ALJR 298

Valeriani v Gibson (1962) 79 WN 779

Sullivan v Department of Transport (1978) 20 ALR 323

Turner v Owen [1990] FCA 358; (1990) 96 ALR 119

Birmacley Products Pty. Ltd. v Holland [1939] VicLawRp 62; (1939) VLR 447

Re Willes Trading Pty. Ltd. (1978) 1 NSWLR 463

Allen Properties (Queensland) Pty. Ltd. v Encino Holding Pty. Ltd. (1985) 3 ACLC 817

Re Wimborne (1979) 24 ALR 494

Brunetto v Collector of Customs [1984] FCA 383; (1984) 4 FCR 92

Frost v Collector of Customs (1985) 63 ALR 297

Toy Centre Agencies Pty. Ltd. v Spencer [1983] FCA 34; (1983) 46 ALR 351

Roebuck v Mayor of Geelong West (1876) 2 VLR 189

Commissioner of Police v Tanos [1958] HCA 6; (1957-58) 98 CLR 383

Kioa v West [1985] HCA 81; (1985) 159 CLR 550

SS Hontestroom v SS Sagaporack (1927) AC 37

Abalos v Australian Postal Commission [1990] HCA 47; (1990) 96 ALR 354

Westpac Banking Corporation v Spice (1990) ATPR 41-024

Board of Education v Rice (1911) AC 179

Whyte v Ryde Municipal Council (1977) 2 NSWLR 909

Haoucher v Minister for Immigration and Ethnic Affairs [1990] HCA 22; (1989-90) 169 CLR 648

Haoucher v Minister for Immigration and Ethnic Affairs (1988) 83 ALR 530

Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1985-86) 162 CLR 24

Padfield v The Minister of Agriculture Fisheries and Food [1968] UKHL 1; (1968) AC 997

Counsel for the Appellant: Mr R. Macaw QC and Mr Dean

Solicitors for the Respondents: Australian Government Solicitor

The appellant pay the costs of and incidental to the appeal.

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

I have had the benefit of reading in draft form the reasons for judgment of O'Loughlin J. I agree with them and with the orders he proposes.

I agree with O'Loughlin J. and generally for the reasons he has expressed that this appeal should be dismissed with costs.

The appellant, Whim Creek Consolidated N.L. ("Whim Creek") instituted proceedings by way of application pursuant to the provisions of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the Judicial Review Act"). In their final form, those proceedings sought the review of the decisions of the first respondent, an officer of Customs, that related to the seizure of certain mining equipment; they also sought relief under s.39B of the Judiciary Act 1903. The application was heard by a single judge of this Court (Lee J.) who found against the appellant and dismissed the application; it is from the order of dismissal that the present appeal is brought. In the Court below and on appeal, no special or additional arguments were addressed with respect to the possible application of the Judiciary Act and it will not therefore be necessary to make further reference to its provisions.

2. The grounds of appeal fall into four broad groupings. First, the question of what amounts to a "decision" was raised; then it was said that the decisions of the first respondent that related to the seizure of the mining equipment were not, for a variety of reasons, properly implemented and that, as a matter of fact as well as of law, no seizure had taken place. Within this second grouping there were also several grounds of appeal that related to the notices of seizure that were issued and allegedly served by Customs. It was argued that these notices were flawed by fatal deficiencies. Next, it was argued that, in respect of the alleged seizure, the appellant had been denied procedural fairness by the respondents; and finally, the appellant challenged the findings of the learned trial Judge about the nature of the relief that is or might be available to a party in the position of the appellant. Before addressing any of the specific grounds of appeal, it is first necessary to summarise the relevant facts and to note the appropriate statutory provisions.

3. In mid-1988, Whim Creek decided to acquire two ball mills as part of the expansion of its gold mining operations in Western Australia. A ball mill is a rotating cylinder that contains a number of metal balls; the cylinder is partially filled with gold-bearing aggregate and then rotated. The combination of rotation and movement of the metal balls within the cylinder breaks down or crushes the aggregate thereby preparing it for the next stage in the grinding operation.

4. Westmont Equipment Pty. Ltd. ("Westmont Equipment"), having been retained for that purpose by Whim Creek, found two second-hand mills of Russian origin, together with all necessary spare parts, in Finland; it will be convenient to refer to these mills and the spare parts as "the equipment" or "the mining equipment". By letter dated 13 September 1988, Westmont Equipment submitted a formal quotation to Whim Creek the effect of which was that Westmont Equipment would acquire the equipment and thereafter sell it to Whim Creek, F.O.W. Fremantle, for AUD $1,796,000 (the letter did not disclose Westmont Equipment's cost of acquisition which, it was subsequently discovered, was only about AUD $900,000). Whim Creek accepted the quote and the parties entered into a contract for sale and purchase on 27 September 1988. Clause 3 of that contract called for Whim Creek to make a payment of AUD $1,086,206 to Westmont Equipment on account of the purchase price within 24 hours of the execution of the contract and clause 4 provided that title in the equipment would pass from Westmont Equipment to Whim Creek contemporaneously with that payment. Clause 3 also contained a timetable for additional payments by Whim Creek that totalled the balance of the purchase price; the last of those payments fell due "within one (1) day of berthing at Fremantle wharf of the vessel carrying the equipment".

5. Consistent with the relationship of vendor and purchaser, the contract called for Westmont Equipment to meet the expenses of dismantling the equipment at the mine site in Finland and the costs of transporting it to Fremantle. Clause 12 of the contract made it clear, and it was common ground, that it was the responsibility of Westmont Equipment to pay all customs duty. Yet prior to accepting the quotation, Whim Creek had sought from Westmont Equipment information about the likely duties and fees that would be payable on the importation of the equipment into Australia. On about 21 September 1988 Westmont Equipment gave its written reply to Whim Creek stating that the "Estimate for Govt charges and Wharf clearance" was $80,000. Bearing in mind that it was a lump sum contract (or a fixed price contract) it is not readily apparent why Whim Creek was seeking this information. Another matter that generated some interest was the decision of Whim Creek to retain, at its own cost, a Finnish engineer, Mr Ossi Murto, to supervise the dismantling of the equipment and its loading into containers for shipment to Australia. These matters were the responsibility of Westmont Equipment.

6. The equipment was entered for home consumption on 24 November 1988. But the entry was false in a material particular; it deliberately understated the purchase price of the equipment by listing it at AUD $142,755.17 (that being the equivalent of 500,000 Finnish Marks). Duty on the false purchase price was assessed at $19,985.72 and was paid by Westmont Equipment on the following day, 25 November.

7. When goods are imported into Australia for home consumption (as was the case in these proceedings) they remain subject to the control of the Customs from the time of importation until the goods are dealt with in accordance with the relevant entry: (sub-para 30(a)(i) of the Customs Act 1901 (Cth) ("the Act")). As O'Connor J. pointed out:-

"The object of that provision, if it were necessary to give any

reasons for its enactment, is obvious; if once goods go into

home consumption, that is, into circulation, it becomes almost

impossible to trace them."

(R v Lyon [1906] HCA 17; (1906) 3 CLR 770 at 784)

8. The normal practice, when an entry in respect of goods has been made, is for Customs to give an authority under sub-s.39(1) of the Act for the goods to be dealt with in accordance with that entry. That was done in the present case but, within a short time, Customs officers presumably became suspicious; in any event, the s.39 authority was quickly suspended. The mining equipment therefore continued to remain under the control of Customs and no-one could move it except as authorised by the Act: s.33. A few days later Westmont Equipment lodged separate applications with Customs seeking permission under sub-s.40AA(1) to move the equipment - in part to "ANI-Hoskins" and in part to "Sadliers Bond Store"; permission was granted in each case. Nevertheless, the provisions of that sub-section make it clear that, even though an applicant may be granted permission to move goods from one place to another, those goods still remain under the control of Customs; in fact, sub-s.40AA(3) entitles Customs to impose conditions for the protection of the revenue when giving permission to move any goods.

9. On the 2nd December 1988 officers of Customs attended at Whim Creek's offices and advised representatives of that company that there had been an understatement of the value of the equipment on which Custom duties had been payable. On that occasion, certain documents relating to the transaction were seized from Whim Creek; one such document was the contract of sale and purchase, the material provisions of which have already been summarised. On 7 December 1988, Customs officers interrogated Lawrence Michael Hastie, a director of Westmont Equipment and of its associated company, Westmont Holdings Pty. Ltd; it was he who was personally and directly involved in acquiring the equipment and arranging for its importation into Australia. The respondents led evidence, which was not disputed, that during his interrogation Mr Hastie admitted, in the presence of his legal adviser, that he had deliberately undervalued his company's purchase price of the equipment with the intention of defrauding the revenue.

10. Thereafter there was further contact between representatives of Customs and Whim Creek. In late December, the question of seizing the equipment was addressed. However, at that stage, Whim Creek was told that a decision about seizure had not yet then been taken by Customs and that Whim Creek would be advised before any such decision was made.

11. A most important meeting occurred on 6 January 1989 between Messrs Stitt and Platell, officers of Customs, and senior representatives of Whim Creek. The learned trial Judge found that at that meeting the representatives of Whim Creek were advised that Customs intended to seize the equipment. The case for the respondents was that seizure of the equipment was effected four days later on 10 January 1989; as that claim has been disputed by the appellant it is necessary to have close regard to the events of that day.

12. It is agreed that the respondent, Mr Colgan, as an "authorised person" within the meaning of s.203 of the Act, attended at the place of business of Westmont Equipment and Westmont Holdings Pty. Ltd. on 10 January 1989. It was the case for the respondents in the Court below and in their notice of contention in this Court that this attendance and the events surrounding it constituted, as a matter of law and for the purposes of the Act, the "seizure" of the equipment. The learned trial Judge found that Mr Colgan spoke with Mr Hastie, saying to him "I have come to seize the ball mills". Mr Colgan then handed to Mr Hastie two notices of seizure purportedly in compliance with the requirements of sub-s.205(2) of the Act. Each notice was erroneously addressed to "Westmont Holdings Pty. Ltd. trading as Westmont Equipment Services". Each of the two notices had attached to it a document of seven pages described as "Statement of Reasons for Seizure". The notices claimed respectively that goods which were therein described and which were respectively situated at the premises of "ANI-Hoskins" and "Sadliers Bond Store" had been seized under s.203 of the Act. It is sub-s.(2) of that section which contains the express power to seize:-

"(2) An authorised person may seize any forfeited goods

or any goods that he believes on reasonable grounds are

forfeited goods."

13. In due course it will be necessary to return to the subjects of "forfeiture" and "forfeited goods" but at this stage it is preferable to continue with the summary of Mr Colgan's movements on 10 January.

14. Subsequent to the service of the two notices on Mr Hastie, Mr Colgan then went to the premises of "Sadliers Bond Store" and "ANI-Hoskins". He saw and spoke to representatives of each company; in each case he informed the representative that the goods that were stored on that company's premises had been seized and that storage charges would thereafter be met by the Customs; he also told the representative of ANI-Hoskins that his company was not to continue engineering work on the equipment. Mr Colgan gave each representative a complete copy of the notice of seizure that related to equipment that was on his company's premises. In the Court below, the learned trial judge found that Mr Colgan's attendance on Mr Hastie was insufficient to amount to seizure. However he concluded that the equipment had been lawfully seized as a consequence of Mr Colgan's two visits to the two stores.

15. Mr Colgan's final act on that day was to deliver copies of the two notices of seizure to Whim Creek. However the respective annexures detailing the reasons for seizure were not attached to either notice. Hence the documents so served on Whim Creek would not constitute notices that complied with the provisions of sub-s.205(2) as the information contained in the papers that were served failed to comply with the provisions of that sub-section. That sub-section provides:-

"Subject to this section, where goods are seized under

section 203, the responsible person shall, as soon as is

practicable, serve on the owner of the goods or the

person who had possession, custody or control of the

goods immediately before they were seized, either

personally or by post, a notice in writing:

"(a) identifying the goods;

(b) stating that the goods have been seized under section

203 and specifying the reason for the seizure;

(c) setting out the terms of the provisions of sub-section

(6); and

(d) specifying, and setting out the address of, an

appropriate person and stating that any notice under

subsection (6) is to be given to that person."

In each case, the reason for the seizure and all information with respect to the provisions of sub-s.205(6) were to be found in the annexure to the notice. Sub-section 205(6) provides that where a notice under sub-s.205(2) has been served, the relevant goods "shall be deemed to be condemned as forfeited" unless within 30 days of service the owner or the person who had possession, custody or control gives to Customs an appropriate notice claiming the goods. (I will hereafter refer to that latter person, for the sake of brevity, as "the custodian").

16. Despite the deficiencies in the notices to which reference has just been made, Whim Creek's solicitors gave notice of the company's claim pursuant to sub-s.205(6) by letter dated 2 February 1989. Earlier they had sought and obtained copies of each "Statement of Reasons for Seizure". The consequences that flowed from the giving of that notice pursuant to sub-s.205(6) are best understood by now turning to the "forfeiture" provisions of the legislation and considering their inter-relationship with the facts of this appeal.

17. At the time when the mining equipment was entered for home consumption, the relevant provisions of sub-s.229(1) of the Act were:-

"229. (1) The following goods shall be forfeited to the Crown:

(a) All goods... which are smuggled, or unlawfully imported,

exported, or conveyed.

(b) - (h) ...

(i) All goods in respect of which an entry,

invoice, declaration, answer, statement or

presentation which is false or wilfully

misleading in any particular, has been

delivered, made or proceeded.

(j) - (r) ...

(note: para (i) has subsequently been omitted from the

legislation: see Act No. 24 of 1989).

18. The word "smuggled" appearing in para 229(1)(a) has been given an extended operation by virtue of the definition of "smuggling" in s.4 of the Act. It means (among other things) the "importation... of goods with intent to defraud the revenue".

19. For the purposes of these proceedings, Whim Creek has conceded that the conduct of Westmont Equipment and its principal officer, Mr Hastie, attracted the operation of both paras 229(1)(a) and 229(1)(i) of the Act; in other words, Whim Creek has conceded, but only in these proceedings, that the equipment was smuggled (in that it was imported with intent to defraud the revenue) and it has further conceded that, in respect of the equipment, an entry that was false had been made. In turn, this would mean that any officer of Customs who, being an authorised person, was aware of the facts that have been recited thus far in these reasons would be entitled to have, for the purposes of sub-s.203(2), a belief on reasonable grounds that the equipment constitute d "forfeited goods".

20. Historically the word "forfeiture" and its derivatives has meant an immediate loss of all interest in property as well as a loss of the right of possession. On the other hand, to say that property is "liable to forfeiture" is different for that merely imports a probability that may or may not eventuate. Hence, when para 229(1)(a) of the Act states that all smuggled goods "shall be forfeited to the Crown", the legislation is not talking of probabilities. Even so, that statement leaves unanswered who is to determine whether goods have been smuggled or have been the subject of a false entry and how any such determination is to be made. It is clear from a consideration of the Act and from earlier cases that no unilateral power is reposed in any officer of Customs to make a declaration of forfeiture. Indeed, the concept of forfeiture does not evolve out of any administrative decision to which the provisions of the Judicial Review Act might attach; on the contrary, it arises by force of statute upon the happening of certain prior events. That this is so has already been recognised on several occasions. For example, Northrop J. has said: "No person makes a decision that goods are forfeited...": Tetron International Pty. Ltd. v Luckman (1983-86) 8 ALD 243 at 246; whilst in Pearce v Button [1986] FCA 51; (1986) 65 A.L.R 83 Fox J., when presiding on the Full Court, explained it in these terms:-

"Forfeiture follows directly from the existence of facts

falling within s.229 of the Customs Act, and does not

involve a decision." (p85)

(See also Murphy v KRM Holdings Pty. Ltd. [1985] FCA 495; (1985) 8 FCR 349 at 350 per Fox J. and Sandery v Commissioner of Police (1986) 65 ALR 181 at 184 per Jackson J.)

21. Seizure however, is to be distinguished from forfeiture. An officer of Customs, and any other person who is "authorised" under s.203 of the Act, is, by virtue of sub-s.(2) of that section, entitled, but not bound, to seize "any forfeited goods or any goods that he believes on reasonable grounds are forfeited goods". Such an act of seizure is therefore wholly discretionary and requires the making of a decision; that decision is reviewable under the Judicial Review Act: (Vickers v Young [1982] FCA 72; (1982) 65 FLR 260; Murphy v KRM Holdings Ltd. (supra) and Sandery v Commissioner of Police (supra)).

22. No statutory consequences flow merely from the act of seizure; it is that act coupled with the subsequent service of a notice of seizure (that complies with sub-s.205(2)) that sets in train a series of statutory possibilities. One consequence of the service of a notice of seizure is that "the goods shall be deemed to be condemned as forfeited to the Crown" unless within thirty days the owner or former "custodian" of the goods gives a notice pursuant to sub-s.205(6) "stating that he claims the goods". A notice under sub-s.205(6) therefore staves off statutory condemnation - perhaps permanently, perhaps only temporarily. What happens thereafter will depend upon an evaluation by Customs of the claim that has been made in the sub-s.205(6) notice; for example Customs might accept the claim and return the goods to the claimant.

23. But if the claim is not accepted there are (broadly) two courses of action open to Customs. In the first place it may do nothing; there is no requirement in the Act that the Customs take any further action at all; Customs might choose to retain the equipment and rely upon forfeiture and seizure as events and conduct that lawfully vested title in and gave possession of the equipment to the Crown. In such a case the claimant to the goods would be left to enforce his common law rights. On the other hand, Customs might elect to follow one or other of the courses that is open to it under the Act. For example, the Collector of Customs might determine to retain possession of the seized goods without taking proceedings for condemnation whilst serving upon the claimant a notice requiring the claimant to bring an action "within four months of the service of the notice" for the recovery of the goods. In adopting that course of action, the Collector would be availing himself of the procedures contained in s.208A of the Act, sub-s.(2) of which states that "the goods shall be deemed to be condemned as forfeited to the Crown" if the relevant proceedings are not instituted by the claimant within the period of 4 months.

24. Dixon J. (as he then was) described a similar notice given under another section of the Act as "... a step taken (by Customs) directed at obtaining a condemnation. It is a statutory substitute for judicial proceedings by the Crown against the goods": (Willey v Synan [1935] HCA 76; (1935) 54 CLR 175 at 186). As Fox J. pointed out in Pearce v Button (supra) at pp 85-86, the Act says little about civil proceedings for condemnation; even so, it remains clear that in any such proceedings, the term "condemnation" refers not to a proceeding which has the effect of vesting title in the Crown, but to a proceeding which determines that upon some cause previously arising title had vested in the Crown: (Bert Needham Automotive Co. Pty. Ltd v Federal Commissioner of Taxation (1976) 10 ALR 501 at 506 per Rath J.). However, the provisions of ss.208, 208A 208B and 244 of the Act all point, in varying degrees, to the fact that declarations of condemnation may be made by an appropriate Court in proceedings that have been instituted either by or against Customs. The prosecution of those proceedings would ultimately determine whether the former acts or omissions of some party were such as to attract the forfeiture provisions of the Act. If they did not then the claimant would be successful in his application for the recovery of the goods - and this would be so because a Court would have determined that those goods were not, and never had been, forfeited goods. If however the Court was satisfied that the relevant goods were forfeited goods, a declaration of condemnation would be the expected consequence. On the subject of proceedings for a judicial condemnation Barry J. pointed out in Little's Victory Cab Co. Pty. Ltd. v Carroll [1948] VicLawRp 42; (1948) VLR 249 at 253 "... it seems that it must rarely be necessary for the Crown to institute condemnation proceedings, although it may do so if it wishes."

25. There is yet another procedure that might follow from a seizure of goods under s.203. The Comptroller or a Collector or Customs might decide not to retain possession of the goods under s.208A; he might, instead, authorise the delivery of the goods to the person who has claimed them under sub-s.205(6). However that authorisation will only be given upon the claimant giving security to pay the value of those goods if they are condemned as forfeited to the Crown and to pay the outstanding duty (if any) if they are not so condemned; (see generally s.208). This, in fact, is what occurred in this case. On 20 February 1989, Whim Creek gave security in terms of s.208 and two days later obtained delivery of the equipment. The company has since installed the equipment as part of its mining operations. The company has also instituted proceedings in the Supreme Court of Western Australia against Customs seeking a declaration that the equipment was not forfeited. By agreement between the parties, the prosecution of that action has been deferred pending the outcome of these proceedings.

26. Thus it is not presently known - as a matter of law - whether the mining equipment was forfeited to the Crown in late November 1988 when it was imported into Australia. The respondents have claimed that Mr Colgan believed on reasonable grounds that it was; Whim Creek was, on the one hand, prepared to concede in these proceedings that forfeiture had occurred but, on the other hand, it has not yet made that concession in the proceedings that it instituted in the Supreme Court. One may question what chance of success Whim Creek may have in those proceedings but that is not to the point. At this stage it is clear that the equipment is not, and cannot be regarded as, condemned as forfeited to the Crown. But notwithstanding what has just been said, in the event that Whim Creek is unsuccessful in this appeal and is also unsuccessful in the Supreme Court proceedings, the effect of s.229 is such that forfeiture would have occurred by force of law, and hence title would have vested in the Crown in November 1988. The immediacy of forfeiture was recognised by Dixon C.J. in Burton v Honan [1952] HCA 30; (1952) 86 CLR 169 at 176 in these words:

"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."

27. Those remarks support the view earlier expressed by O'Connor J. in Lyons v Smart [1908] HCA 34; (1908) 6 CLR 143 at 161:-

"The forfeiture effected by the operation of sec.229

vests the property in the goods in the Crown immediately

on importation."

28. The same concept of immediate forfeiture and subsequent condemnation formerly existed in the United Kingdom. In De Keyser v British Railway Traffic and Electric Company, Limited (1936) 1 KB 224 the Court of Appeal was called upon to consider a particular provision - s.202 of the Customs Consolidation Act, 1876 (Imp) - which dictated that in appropriate circumstances, certain goods "... shall be forfeited". Lord Hewart C.J. described such a forfeiture as "an inchoate forfeiture" (p 230), adding that it would be "completed by the combined forfeiture and condemnation". This concept of an "inchoate" forfeiture was picked up and repeated by Hilberry J. in Commissioners of Customs and Excise v Trustee of the Property of Sokolow (1954) 2 QB 336. That case also concerned the 1876 Act, s.177 of which provided for the forfeiture of prohibited goods that had been imported into the United Kingdom. Operating under that and other sections, the plaintiff Commissioners had seized certain securities; the act of seizure had led to the institution of proceedings, the need for which was explained by Hilberry J. in these terms:-

"Section 207 provides that unless within one month from

the date of such seizure the master or owner or some

person authorized by him gives notice in writing that he

claims or intends to claim the things so seized, the

seizures made shall be condemned and taken to be

condemned and may be sold. In such circumstances no

suit for condemnation by the court is necessary, because

the forfeiture which was inchoate at the time of the

seizure is completed by a condemnation which follows by

operation of law, and the Commissioners of Customs are

empowered to sell the goods and to pass a statutory

title to them. If, on the other hand, within one

calendar month of seizure notice in writing is given by

the person from whom such seizure is made, or by the

master or owner of the things seized, or by some person

authorized on his behalf, that he claims the things so

seized or intends to claim them, the section enacts that

thereupon proceedings shall be taken for the forfeiture

and condemnation of the goods either by information

filed in the Exchequer Division of the High Court of

Justice on the Revenue side or exhibited before any

justice of the peace."

(p344)

29. Counsel for the appellant submitted, and it is readily apparent, that there will be cases where seizure may be thought to be inappropriate. For example, a decision not to seize may be made because the act or omission giving rise to forfeiture under s.229 may have occurred in circumstances where the conduct of the relevant party was accidental and innocent. This of course, would be eminently fair but it does have a consequence that is quite unsatisfactory; it means that the original owner of the goods retains possession of the goods but that the title to those goods, by force of Statute and the concept of forfeiture, has vested in the Crown. This problem, would become an embarrassment if the owner, intending to sell the goods, were called on to warrant title to them. It could be overcome by amending s.229 so that it no longer stated that goods are forfeited but, instead, stated that goods are liable to forfeiture. That was the device that appeared in the Customs and Excise Act, 1952 (Imp). which substantially repealed the 1876 legislation; it also appears in the current Customs and Excise Management Act 1979 (Imp) and is one of the alternative recommendations advanced by the Australian Law Reform Commission in its Discussion Paper No. 43: "Customs and Excise: Seizure and Forfeiture".

30. The first ground of appeal raises, once more, the identification of what constitutes a "decision" for the purposes of review under the Judicial Review Act. It was the case for the appellant that there were, in fact, two reviewable decisions; it was argued that the first was the process of administrative conduct that crystallised with the formation of a determination that the equipment would be seized whilst the second was said to be the act of seizure itself. The learned trial judge concluded that there was only one decision involved, that being the one that was evidenced by the act of seizure. And in view of the decision of the High Court in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 94 ALR 11, notwithstanding views to the contrary in O'Neil v Wratten (1986) 65 ALR 451 at 456, this must clearly be right. That case resulted from an inquiry that had been conducted by the Tribunal into the conduct of Mr Bond and certain of his companies who were also respondents to the proceedings. It had been argued that the Tribunal had made certain "decisions". These were said to include decisions that Mr Bond and certain of his companies would not be found to be fit and proper persons to hold licences; other decisions were said to be refusals by the Tribunal to consider the imposition of conditions on the licences and refusals to accept proffered undertakings.

31. In one sense it accords with grammatical usage to speak of a "decision" when referring to that which represents the conclusion of a thought process or a process of inquiry. Take, for example, a statement such as this: "Having reviewed all relevant material I have decided to...". An announcement, so stated, could, as a matter of grammar, be called a decision. As Deane J. has said:-

"The word 'decision' is a word of indeterminate meaning.

In some contexts, it can refer to the mental process of

making up one's mind." (Director-General of Social

Services v Chaney [1980] FCA 87; (1980) 31 ALR 571 at 590)

32. But the judgment of the Chief Justice in Bond's case now makes it clear that something more is generally required which thereby gives to the word "decision", as used in the Judicial Review Act, a "relatively limited field of operation". (p 23). His Honour advanced four reasons for this view:-

"First, the reference in the definition in s 3(1) to 'a

decision of an administrative character made ... under

an enactment' indicates that a reviewable decision is a

decision which a statute requires or authorises rather

than merely a step taken in the course of reasoning on

the way to the making of the ultimate decision.

Secondly, the examples of decision listed in the

extended definition contained in s 3(2) are also

indicative of a decision having the character or quality

of finality, an outcome reflecting something in the

nature of a determination of an application, inquiry or

dispute or, in the words of Deane J, 'a determination

effectively resolving an actual substantive issue'.

Thirdly, s 3(3), in extending the concept of 'decision'

to include 'the making of a report or recommendation

before a decision is made in the exercise of a power',

to that extent qualifies the characteristic of finality.

Such a provision would have been unnecessary had the

Parliament intended that 'decision' comprehend every

decision, or every substantive decision, made in the

course of reaching a conclusive determination. Finally,

s 3(5) suggests that acts done preparatory to the making

of a 'decision' are not to be regarded as constituting

'decisions' for, if they were, there would be little, if

any, point in providing for judicial review of 'conduct'

as well as of a 'decision'."

(emphasis added).

33. The application of the principles thus expressed to the facts of this case is best understood by considering "the character or quality of finality" that is to be found in the extended definition of "decision" in sub-s.3(2) of the Judicial Review Act. It will be sufficient to refer to and compare one item only. For example para.3(2)(a) provides:-

(2) In this Act, a reference to the making of a decision

includes a reference to -

(a) making, suspending, revoking or refusing

to make an order, award or determination."

34. The legislative recognition that the making of an order is to be regarded as a decision points to the activity along the way that preceded its making being relegated in most, if not all cases, to "conduct". Hence, in this case, the various inquiries that were made by Customs officers, the various reports and submissions that were submitted, the attainment of a concluded determination and the stated intention to implement that determination are to be treated as procedural matters that, in the absence of any specific legislative mandate to the contrary, are to be treated as "conduct" and not as a "decision". So expressed it becomes clear that in this case it is the act of seizure that constitutes the only relevant reviewable decision.

35. The findings of the learned trial Judge on the subjects of seizure and service of the notices of seizure are the subject of the next seven grounds of appeal. The respondents in their notice of contention maintain that his Honour was incorrect when he declined to find that seizure occurred at the time of and as a consequence of Mr Colgan's visit to Mr Hastie but the appellant has argued that no acts of seizure occurred at all. The appellant further claimed that the learned trial judge, in finding that acts of seizure had occurred at the two stores, had "acted procedurally unfairly" for the reason that Customs had pitched its case exclusively upon the premise that one act of seizure occurred when Mr Colgan told Mr Hastie that he had come to seize the equipment. Whim Creek further claimed that any seizure (if indeed there was any seizure) was bad because of the inclusion of the wrong name in the notices of seizure and it additionally argued that the absence of the two seven page annexures meant that there had been no effective service of any notice of seizure on it (Whim Creek) on 10 January. It claimed that the failure by Mr Colgan to comply with the provisions of s.205(2) was fatal and that it materially affected any possessory title that might otherwise have been obtained by the Crown as a consequence of any alleged seizure. Finally, the last of the grounds dealing with the subject of "seizure" can be described as a challenge to some comments of Kitto J. in Powers v Maher [1959] HCA 52; (1959) 103 CLR 478. Based on that authority, the learned trial Judge had concluded that, to the extent to which there had been any deficiencies in the service of the notices of seizure, those deficiencies had been overcome by the conduct of Whim Creek in making its claim for the equipment in the exercise of its statutory rights as contained in sub-s.205(6).

36. Before examining these various issues, it will be helpful to consider the authorities that have discussed what is necessary to constitute a "seizure". The ordinary and natural meaning of "seizure" is a forcible taking of possession: Johnston v Hogg (1883) 10 QBD 432 at 434: Scott v Gere (1988) WAR 377 at 386. But in Gladstone v Padwick (1871) LR 6 Exch 203, where the question was whether the actions of the Sheriff's officer had amounted to a seizure, Bramwell B.said:-

"It is admitted, and it is clear, that it is not

necessary for the sheriff to lay his hand on a single

article..." (p 212)

In Bessicks v The Bath Colliery Co. Ltd. (1877-80) 3 Ex D 174 the issue was whether the sheriff had earned his poundage. He could only get poundage if he had seized; hence it was necessary to review his actions to see if they amounted to seizure. Accompanied by his assistant, the sheriff had gone to the debtor's home with a warrant of fi. fa. He showed the debtor the warrant, demanded payment of the judgment debt and threatened to leave his assistant on the premises. Apparently all this was too much for the debtor who made payment. The Court of Appeal concluded that on those facts there had been a seizure. Much the same set of facts gave rise to a similar decision in Watson v Murray and Co (1955) 2 QB1. The shopkeeper/debtor signed a document that was known as a walking possession agreement. It was directed to the sheriff and to the judgment creditor and it said: "In consideration of your not keeping the man in charge of the goods seized herein in close possession...". In fact nothing had been seized in the physical sense but Hilberry J. was satisfied "that there was what amounted to a seizure" (p 10).

37. "Seizure" is not defined in the Act but the following definition appears in Hal(bury's Laws of England 4th Edit. Vol.17 para 489. p 296:-

"For an act of the sheriff or his bailiff to constitute

a seizure of goods it is not necessary that there should

be any physical contact with the goods seized, nor does

such contact necessarily amount to seizure. An entry

upon the premises on which the goods are situate,

together with an intimation of an intention to seize the

goods, will amount to a valid seizure, even where the

premises are extensive and the property seized widely

scattered, but some act must be done sufficient to

intimate to the judgment debtor or his employees that a

seizure has been made, and it is not sufficient to enter

upon the premises and demand the debt. Any act which,

if not done with the court's authority, would amount to

a trespass to goods will constitute a seizure of them

when done under the writ. Whether or not there has been

a seizure is a question of fact."

38. That passage has been quoted with approval in the United Kingdom in Lloyds and Scottish Finance Ltd. v Modern Cars and Caravans (Kingston) Ltd. (1966) 1 QB 764 at 776 and in this Court in O'Neil v Wratten (supra) at 457.

39. The authorities seem to make it clear that a mere oral announcement of seizure is not enough. In the passage from Halsbury there is reference to "some act" which must be done "sufficient to intimate... that a seizure has been made". In Bessick's case it was the threat to leave the assistant on the premises and in Watson v Murray and Co it was the signing of the walking possession agreement. Examples of conduct that has fallen short of seizure appear in O'Neil v Wratten (supra), Scott v Gere (supra), a decision of the Western Australia Full Court on the seizure provisions of that State's Misuse of Drugs Act and the unreported decision of Neaves J. in Stincovic v Commissioner of the Australian Federal Police (29 June 1990). In Scott v Gere the police had seized banknotes from the appellant in the belief that they derived from drug offences. The appellant was duly convicted of certain drug offences but an application for forfeiture of the banknotes was dismissed because the offences with which the appellant had been charged did not include one that was connected with the money. On the day following the dismissal, the police sought and obtained a second holding order on different grounds but the appellant successfully argued that there had been no fresh seizure to ground the second holding order. As the Full Court pointed out the banknotes were seized on only one occasion; thereafter they were deposited in a bank account where the money remained:-

"In our opinion the moneys in this case, having already

been seized and the amount thereof credited to a

suspense account in the Treasury, became the subject of

a contingent chose in action of the appellant. The

physical cash had been converted into a chose in

action. The moneys in that form were not capable of

seizure so long as that position remained." (p387).

40. O'Neil v Wratten and Stincovic's case both dealt with motor cars: importing a car into Australia on a false invoice in the first case and using a vehicle in a drug offence in the second case. In O'Neil v Wratten Customs had, on 17 July, served a notice on the applicant stating that the vehicle had that day been seized. In fact no physical action was taken by Customs to obtain possession of the car until a week later. Thereafter Customs accepted security from the applicant pursuant to s.208 and released the car to him; he thereafter sold it. Jackson J., speaking of the events of 17 July, concluded that "no step whatsoever was taken to effect seizure" adding that he was "of the view that the vehicle was not seized in accordance with the Act" (p457). His Honour pointed out that a review of the provisions of sub-s.205(2) disclosed that its terms drew a distinction between "seizure" and service of the notice that is required by the sub-section. Hence "seizure" does not occur, without more, by the mere service of the Notice and in terms of time, seizure must be effected before the service of the notice.

41. Neaves J. came to the same conclusion in Stincovic's case; on 20 December 1987, Detective Constable Tompsett stopped and searched the applicant's car when it was being driven by the applicant's friend, a man called Tomici; heroin was found: the police took possession of the heroin and the car: Tomici was arrested and subsequently convicted. On 8 March 1988 Mr Tompsett signed a document entitled "Notice of Seizure"; he served it on Mr Tomici in the Remand Centre. The notice included this statement:- "... on the eighth day of March 1988 at Forrest Lodge Motor Inn... the following... goods were seized as forfeited to the Crown ..." The motel at the address stated was the address at which Mr Tompsett had searched the car and found the heroin on 20 December 1987. It was common ground that the car had not thereafter been returned to the motel. Speaking of the interval of time from first apprehension in December to the issue of the notice in March Neaves J. said:-

"... the evidence does not disclose that between those

dates Detective Constable Tompsett took any action in

relation to the vehicle which can properly be

characterised as a seizure of it." (p17)

42. Citing O'Neill v Wratten, his Honour held that the act of serving the notice of seizure on Mr Tomici "was not an act of seizure" (p19). He also rejected the further argument that, as the car had been in the possession of the police as part of the Crown's case in the criminal proceedings, no further action would be necessary to achieve seizure. His Honour followed Scott v Gere saying that it was authority for the view that "some action" must be taken which will amount to a seizure.

43. Adopting the reasoning and conclusions of the cases thus far reviewed, it is apparent that seizure can be effected even though there is no laying of the hands upon the goods nor any physical movement of them. But an oral announcement of seizure is insufficient as is the service (without more) of a notice that advises that seizure has been effected. There must be some act of dominion which, of its nature, is such that there would be no doubt in the mind of a reasonable observer that seizure has taken place. As the learned trial Judge said:

"... there must be some demonstrable exercise of

dominion over the goods that will amount to seizure of

the goods at law."

44. Turning to the events of 10 January 1989 it becomes apparent that when Mr Colgan attended at the premises of Westmont Equipment and Westmont Holdings and spoke to Mr Hastie, there was neither action nor conduct which could be classified as the necessary act of dominion. The oral statement that he had come to seize the equipment was insufficient as was the service of the two notices of seizure. As the learned trial Judge pointed out, these equivocal acts were equally consistent with a statement of an intention to seize. But what of Mr Colgan's conduct at the premises of "ANI-Hoskins" and "Sadliers Bond Store"? Not only was he then present at the premises where the goods were stored, he was also addressing representatives of the two business houses who were then the only parties (apart from Customs) who were lawfully entitled to have custody of the equipment: s.40AA. What is more, Mr Colgan exhibited the necessary degree of dominion when he told each representative that henceforth Customs would be responsible for storage charges and when he told "ANI-Hoskins" that no further engineering work was to be carried out on any of the equipment. In my opinion, the learned trial judge was correct in his findings that acts of seizure occurred at the premises of "ANI-Hoskins" and "Sadliers Bond Store" on 10 January 1989; he was also correct in concluding that no act of seizure occurred as a result of Mr Colgan's visit to Mr Hastie.

45. Although those findings of fact were clearly open to the learned trial Judge on the evidence, the appellant has nevertheless complained of "unfairness". The complaint is grounded on the argument that counsel for the respondents in the Court below submitted, in both his opening and closing address, that the act of seizure occurred when Mr Colgan attended on Mr Hastie. Hence, so the submission proceeded, counsel for Whim Creek did not address - or at least, did not address sufficiently - the facts and circumstances surrounding the two visits to "ANI-Hoskins" and "Sadliers Bond Store". It would appear that this submission strives to apply to a trial the general rule of holding a party to an appeal to his conduct in the Court below (Davison v Vickery's Motors Limited (in Liquidation) [1925] HCA 47; (1925) 37 CLR 1 Metwally v University of Wollongong (1985) 60 ALR 68 at 71).

46. The proposition that the learned trial Judge did not act fairly when he decided that seizure took place at the two stores does not stand up to scrutiny. The appellant's complaint amounts to a claim that his Honour should have regarded himself as restricted to accepting either the appellant's submission that no seizure had taken place at all or the respondents' submission that seizure had occurred when Mr Colgan called on Mr Hastie; as the appellant would have it, there was no middle ground: there were no other avenues open. Sometimes, as in Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 this might be the case. There the trial Judge had made a statement during the course of final addresses that he was not impressed by the evidence of a certain expert and would not be relying on it. Based on that firm intimation counsel refrained from addressing on that subject and, in particular, refrained from commenting on the opposing evidence that he had led. The High Court held that the trial Judge should not have thereafter changed his mind and relied on the evidence of the expert witness without inviting further submissions from counsel. In Re Association of Architects of Australia; Ex parte Municipal Officers Association of Australia [1989] HCA 13; (1989) 63 ALJR 298 Brennan J., in his dissenting judgment, had found that counsel for the prosecutors for prerogative relief had made certain concessions. Based on the existence of such concessions, his Honour concluded that it "was procedurally unfair" (p 302) for the Conciliation and Arbitration Commission to make findings that were inconsistent with those concessions. (The majority view was that the concessions were immaterial as they were contingent only and the contingency had never arisen).

47. But in these present proceedings there was no intimation in the Court below from the learned trial Judge nor was there any concession from counsel for the respondents. Rather, a body of evidence was led by both sides and each side made its submissions about what findings were open to his Honour on that evidence. The trial Judge's hands were not thereby tied so that he was compelled to accept one or other of the opposing submissions of counsel. If there was a third avenue that was properly open on the evidence, the learned trial Judge was entitled to accept it, notwithstanding the manner in which the opposing parties had presented their cases. By way of analogy, Brennan J. in the Architect's case (supra) acknowledged that this may be appropriate in the context of an issue of statutory interpretation:

"Of course, if the true construction of s.142 differed

from either of the constructions contended for, the

Commission was not thereby precluded from adopting the

true construction." (p301)

48. The fact that counsel for the respondents limited himself to a particular view of the facts during the course of his opening and closing addresses is not the end of the matter. It is true that the object of an opening is to give the Court a summary of the facts of the case, the substance of the evidence that will be led and its effect on the case that the party seeks to establish. It is also true that the quality of a litigant's claims may well be tarnished if, in the ultimate, the accepted evidence is materially different from that to which reference was made during the course of an opening address. But the respondents were not limited to those matters upon which their counsel had opened: Valeriani v Gibson (1962) 79 WN 779 at 782; and the appellant had "a reasonable opportunity to present his case": (Sullivan v Department of Transport (1978) 20 ALR 323 at 343 per Deane J.). In the absence of any clear concession or undertaking from counsel and any contrary intimation from the presiding Judge, there is no reason to suggest that a Judge is restricted in making his findings of fact and stating his rulings on the law to those matters which have been delimited by counsel in their addresses. This ground of appeal cannot succeed.

49. The remaining grounds of appeal in this second grouping are devoted to the notices of seizure as distinct from the acts of seizure. Before turning to them, it is important to reflect upon the conclusions that have been reached to this stage. Leaving aside the question whether this court could have, in these proceedings, addressed the question of forfeiture (as to which see the views of Pincus J. in Turner v Owen [1990] FCA 358; (1990) 96 A.L.R 119 at 130 that the court has the necessary jurisdiction and the contrary views in Pearce v Button) there was an abundance of evidence that would have justified an authorised person believing on reasonable grounds that the mining equipment constituted "forfeited goods" within the meaning of sub-s.203(2): it is sufficient to make reference to Mr Hastie's admissions. Hence, the condition precedent to the making of a decision to seize (that is, the requisite belief on reasonable grounds) was present. There was no argument about Mr Colgan's capacity: he was an authorised person and the learned trial Judge found, correctly, in my opinion, that the mining equipment had been seized when Mr Colgan attended at the respective premises of "ANI-Hoskins" and "Sadliers Bond Store".

50. But the appellant has argued that even if the equipment had been seized and even if the seizures were originally lawful, they ceased to be so by virtue of the failure by the Customs to serve notices of seizure as required by sub-s.205(2) of the Act. In Birmacley Products Pty. Ltd. v Holland [1939] VicLawRp 62; (1939) VLR 447, a case dealing with the power of seizure under the Victorian Health Act, it was held that the statutory requirement that written notice of the seizure be given was "a condition" (p455) of the exercise of the power of seizure. Hence it was held that the failure to give the requisite notice rendered the seizure bad.

51. In my opinion, the decision in Birmacley's case is to be distinguished for two reasons: first, there was no question of forfeiture to be considered in the Victorian legislation; in matters involving seizure under s.203 of the Act there must always be, at the least, a belief on reasonable grounds that the goods are forfeited goods. Such common law rights to the goods as may have previously existed in an individual have either been challenged because of that belief or destroyed because of proven or admitted forfeiture. Title to the goods has therefore been attacked by the force of the forfeiture provisions of s.229 of the Act before the question of seizure arose. Secondly, by its nature, the Customs legislation recognises that there will or might be cases where goods are seized in circumstances where the authorities do not know to whom a notice of seizure should be addressed. Such a possibility is specifically addressed by sub-s.205(4) of the Act which relieves the responsible person from effecting service "if, after making such inquiries as he thinks appropriate, he does not have sufficient information to enable him to serve the notice". I have therefore concluded that due and proper service of a notice of seizure pursuant to sub-s.205(2) of the Act is not a condition of lawful seizure. In other words, a seizure can still be lawful even though the Customs fail, subsequently, to meet their statutory obligations with respect to service.

52. The appellant is therefore before this Court, having conceded in these proceedings that the mining equipment was forfeited (even though it is disputing that issue in the Supreme Court proceedings); subject to a determination of the remaining grounds of appeal it is faced with a finding that, over and over the question of forfeiture, the equipment has been lawfully seized. It is against that background that the further grounds of appeal dealing with the notices of seizure and their service should be considered.

53. It is true that each notice of seizure was incorrectly addressed to Westmont Holdings Pty. Ltd. trading as Westmont Equipment Services. It is clear that the correct addressee within the Westmont group was Westmont Equipment Pty. Ltd. trading as Westmont Equipment Services. It is also clear that Customs knew or ought to have known of the correct name; there was evidence that someone on behalf of Customs had, on 25 November 1988, conducted a search which revealed the details of the correct owner of the business name. But it is also true that clear reference is made in the body of each notice of seizure to both companies; and one of the stated reasons for seizure was:-

"That either Westmont Equipment Services or Westmont

Equipment Pty. Ltd. deliberately breached customs

legislation by defrauding the revenue of more than

$100,000 for the subject shipment." (Emphasis added)

54. It is hard to see any merit in this ground of appeal. Who was affected by it and in what manner? What were the prejudicial consequences of the mistake? Neither of these issues benefit from a ready answer.

55. If indeed the legislation allowed for the notices of seizure to be directed to a company in the "Westmont Group", I do not see how the reference to "Holdings" instead of "Equipment" would have caused any confusion or misunderstanding. In bankruptcy and liquidation matters, errors in names can, at times, be fatal. For example, in Re Willes Trading Pty. Ltd. (1978) 1 NSWLR 463, a notice directed to Willis (instead of Willes) Trading Pty. Ltd. was held to be bad: (c.f. Allen Properties (Queensland) Pty. Ltd. v Encino Holding Pty. Ltd. (1985) 3 ACLC 817 where the addition of an "s" to "Holding" was not regarded as sufficient to invalidate the relevant Notice). Speaking of sub-s.306(1) of the Bankruptcy Act which provides that proceedings are not invalidated by a formal defect or an irregularity unless there is a possibility of a substantial injustice, Lockhart J. said in Re Wimborne (1979) 24 ALR 494 at 498-499:-

"A 'formal defect or any irregularity' is one that could

not reasonably mislead the debtor. If the defect is of

such a kind as could reasonably mislead the debtor upon

whom it was served the defect is fatal to the notice:

see Re a Debtor; Ex parte The Debtor v Bowmaker Ltd.

(1951) Ch 313 and Pillai v Comptroller of Income Tax

(1970) AC 1124 at 1135.

The test is not whether the debtor was in fact misled.

It is sufficient that he could be misled. In James v

Federal Commissioner of Taxation supra, Williams, Kitto

and Taylor JJ. said (93 CLR at 644): 'The court cannot

inquire whether the debtor has in fact been misled or

not. In this case it is probable that he was not

misled. It is sufficient that he could be misled'."

56. In these proceedings, viewed objectively through the eyes of any member of the Westmont Group, it is hard to see how the incorrect name could have possibly misled. Viewed through the eyes of Whim Creek or either of the two stores, the matters of importance were to be found, not in the name of the addressee, but in the contents of the documents. The incorrect name would not have misled any of them.

57. However there is, in my opinion an issue of greater magnitude that subsumes the incorrect name in the notices of seizure. I have come to the conclusion that the notices of seizure should never have been served on any member of the Westmont Group. There was information in the possession of Customs which pointed quite clearly to the need to serve the notices of seizure on Whim Creek as "owner" and/or "ANI-Hoskins" and "Sadliers Bond Store" as "custodians" of the equipment. The relevant provision of sub-s.205(2) requires the responsible person to serve the owner of the goods or "the custodian" of the goods.

58. There is no doubt that Whim Creek was, at the time of the seizures (subject always to the question of forfeiture) the owner of the equipment and that Customs were well aware or ought to have been well aware of that fact. They had seized the contract for sale and purchase of the equipment about six weeks earlier when they visited the premises of Whim Creek on 2 December 1988 and they were, regularly thereafter, in contact with officers of the company.

59. The word "owner" is expansively defined in s.4 of the Act to include:-

"... any person (other than an officer of Customs) being

or holding himself out to be the owner, importer,

exporter, consignee, agent, or person possessed of, or

beneficially interested in, or having any control of, or

power of disposition over the goods."

60. The inclusion of a reference to "the importer" would, prima facie, bring Westmont Equipment within the expanded definition of the word "owner". But the definition is qualified by the words: "In this Act except where otherwise clearly intended". Thus the expanded definition is susceptible to being read down in appropriate circumstances. If the use of the word "owner" in sub-s.205(2) was intended to have its expanded meaning, it is difficult to understand why the draftsman would have added the unnecessary reference to "the custodian"; for any such person would be picked up by the expanded definition. If, on the other hand, the draftsman was concerned to ensure that the appropriate person was given notice of any seizure of any goods, he would understandably direct his mind, in the first place, to the owner of the goods (using the word "owner" in its conventional sense) and next to the "custodian" of the goods (that is the person who had possession, custody or control of the goods immediately before they were seized).

61. So stated, it seems to me that the expansive definition of the word "owner" should not be applied to its presence in sub-s.205(2) of the Act. It is true that Dixon J. (with whom Rich J. agreed) in Willey v Synan (supra) treated the word as having the wider meaning but I do not believe that his remarks are binding; the question of the proper meaning of the word "owner" was not material to a consideration of the issue that had to be decided - that issue was whether a claimant for goods (such as Whim Creek) could be compelled to give security for costs. The claimant in Willey v Synan had found some silver coins whilst working as a seaman on a ship. Dixon J. examined the meaning of the word "owner" only because, as he pointed out, that "(w)idely expressed as this definition is, it contains no words which aptly describe the possessory title of a finder of lost goods" (at p182). Latham C.J. and McTiernan J. the remaining members of the Court did not address the subject.

62. I have therefore concluded that the particular circumstances of this case mean that there was no justification or need to serve any company in the Westmont group with the notices of seizure. It could not be said that either Westmont Equipment or Westmont Holdings was the owner of the equipment as the contents of the contract for sale and purchase established the contrary. Nor could it be said that either of those companies had control of the equipment. For reasons already stated, control of the equipment remained, by force of statute, with Customs. There remains therefore the questions of possession and custody. Arguably one of the Westmont companies might have had possession and custody at the moment of importation and for some short time thereafter; however it is quite clear that it was "ANI-Hoskins" and "Sadliers Bond Store" who had possession and custody on 10 January 1989 when the two notices of seizure were issued. For the reasons that I have endeavoured to explain it was wholly inappropriate to address these notices to any company in the Westmont group but I do not believe that such a mistake was fatal. As it transpired, a complete copy of the relevant notice was served by Mr Colgan on each of the two stores. I am therefore of the opinion that, subsequent to each act of seizure, a notice that sufficiently complied with the provisions of sub-s.205(2) was served on "the custodians" of the equipment.

63. Subject always to a consideration of the grounds of appeal that alleged a lack of procedural fairness in deciding to seize the equipment, there are two further reasons that would otherwise justify the validity of each notice of seizure. On 6 January 1989, senior representatives of Whim Creek were informed by officers of Customs that the mining equipment would be seized; on 10 January Whim Creek became aware that seizure had taken place that day as a result of Mr Colgan leaving with the company copies of the first pages of the two notices of seizure. Although that action did not amount to service of the notices of seizure, it nevertheless amounted to Whim Creek having de facto knowledge of the seizures. Thereafter Whim Creek, as it was entitled to do, gave notice through its solicitors under sub-s.205(6) that it claimed the goods. It is to be noted that the making of a claim under sub-s.205(6) is not conditional upon the claimant having first been served with a notice of seizure; the right to claim the goods is wholly independent of any conduct on the part of Customs.

64. On the other hand Whim Creek did not have to follow the course of action that it did: it did not have to give a notice of claim under sub-s.205(6). If, as now, it challenged the validity of the seizures and the validity of the service of the notices of seizure it could have instituted proceedings in January 1989 seeking appropriate declarations of invalidity. It would have, in such proceedings, argued that there could be no statutory or judicial condemnation of the equipment as forfeited to the Crown because condemnation could only occur as a result of proper and lawful seizure and proper and lawful service of a notice of seizure; it would have, in that context, raised the issues of seizure and service of the notices of seizure that have instead, been argued on this appeal. If the decision to seize had been set aside in those notional proceedings the provisions of the Act that are otherwise triggered by seizure and the service of a notice of seizure (and in particular the risk of statutory condemnation) would have been inoperative (Brunetto v Collector of Customs) [1984] FCA 383; (1984) 4 FCR 92 at 95 per Toohey J.) and would have remained so until such time, if at all, as a fresh and valid act of seizure took place. Even so, the position of Customs would have been preserved for there is authority to the effect that an unlawful decision to seize can be cured by a subsequent lawful decision: Frost v Collector of Customs (1985) 63 ALR 297 at 310 per Wilcox J.). But Whim Creek did not do that: rather, so it would seem, it proceeded, as if there had been a seizure and as if there had been effective service, by utilising the rights given to it under sub-s.205(6) - it proceeded within 30 days to give "notice, in writing, to the appropriate person specified in the notice under subsection (2) stating that (it) claims the goods".

65. If this course of conduct was not sufficient to commit Whim Creek to accepting that seizures and notices of seizure had been validly implemented the next step in this matter assuredly did so. Although the giving of a notice under sub-s.205(6) did not compel any action on the part of Customs, ss.208 and 208A of the Act gave Customs two statutory alternatives. Under s.208A Customs could have decided, upon receipt of the claim, to retain the goods, requiring the claiming party, Whim Creek, to take proceedings for the recovery of the goods. If Customs had elected to follow that option, the goods would have remained in the possession of Customs and, in all respects, Customs would have maintained and preserved such possessory and proprietary rights as had theretofore vested in the Crown.

66. But the alternative scheme under s.208 calls for Customs returning the seized goods to the claimant. That scheme will never be implemented unless it is at the request of or, at least, with the consent of, the claimant. More importantly, it will never be implemented unless the claimant gives security:

"(a) to pay the value of those goods if they

are condemned as forfeited to the Crown;

and

(b) where the whole or part of the duty on the

goods has not been paid, to pay the duty

or the balance of the duty payable on the

goods if they are not condemned as

forfeited to the Crown."

67. The interesting facet about s.208 is that nowhere does it contemplate the claimant being able to obtain a discharge of his security by returning the goods to Customs. Hence, even though sub-para 208(1)(a) refers to payment of the value of the goods "if they are condemned as forfeited to the Crown" the requirement for payment of the value of the goods and the absence of any reference to Customs getting back the goods indicates that title to seized goods passes to a claimant when Customs agrees to the implementation of the security provisions of s.208. If Whim Creek was now permitted to question the validity of the seizures and the notices of seizure, it would be questioning the fundamental premise that it used to obtain possession of and title to the mining equipment. It did not have to participate in the exercise of the rights under s.208. It could have refused to give security and it could have, of its own volition, instituted common law proceedings in detinue and conversion. Perhaps, commercial needs for the equipment outweighed the nicety of legal arguments. In a sense, the reason why it acted as it did is not important. The importance lies in assessing the consequences of its conduct. That assessment calls for an acknowledgment that Customs gave up, at the request of Whim Creek, its possessory and proprietary rights to the mining equipment. Furthermore, it calls for an acknowledgment that those rights ceased for all purposes to be available thereafter to Customs. Neither the Statute nor Common Law gives to Customs another right of seizure or another cause for forfeiture.

68. Powers v Maher [1959] HCA 52; (1959) 103 CLR 478 was a case dealing with an attempt to import a motor car into Australia on false documents. Kitto J. at first instance found that there had been a seizure but he doubted "whether the notice was effectual as a notice under s.205" (p 479). Nevertheless he proceeded to determine the issues on their merits commenting:

"There is no need, however, to express a concluded

opinion as to the efficacy of the notice, for the

plaintiff notified the defendant of his claim to the

goods six days after the date of seizure." (p 480)

69. The views of his Honour lend support to the conclusion that I have reached to the effect that the subsequent conduct of a claimant will, in appropriate circumstances, remedy defects in a notice of seizure.

70. It was said, during the course of argument that to prevent Whim Creek raising the questions of seizure and service of the notices was akin to the raising of an estoppel. I cannot agree. The choice was, and always had been, Whim Creek's; it could have raised its present challenges immediately following the alleged seizures; it could have declined the benefits of taking delivery and giving security. It chose not to do so and it is not now appropriate for it to raise those issues. It therefore follows that I am of the opinion that each of the remaining grounds of appeal in the second grouping should be dismissed.

71. The next eight grounds of appeal (which comprise the third group) appear in the Notice of Appeal under the Heading "Natural Justice/Duty to Act Fairly/Legitimate Expectation". The first of them claimed that the learned trial Judge erred in holding that Whim Creek had no right to be heard before the exercise of the power of seizure. This was expressed alternatively as a claim that the appellant had "a legitimate expectation that it would not be deprived of its goods without an opportunity to put its case". The short answer to this point is that there were findings made by the learned trial Judge, the effect of which justify the inference that Whim Creek was given every opportunity to be heard. After the initial attendance at the company's premises by officers of Customs on 2 December 1988, there was ongoing contact between the Department and the company culminating in the oral advice given on 6 January 1989 that seizure would be effected. It is reasonable to infer that in that period Whim Creek would have had, and could have utilised, opportunities to make submissions to Customs.

72. In any event, it is not clear that his Honour stated assertively that Whim Creek had no right to be heard. That was a view expressed by Lockhart J. in Toy Centre Agencies Pty. Ltd. v Spencer [1983] FCA 34; (1983) 46 ALR 351 at 357. But what the learned trial Judge in the Court below said in his reasons was qualified in the second part of the following sentence:-

"That is not to say that a person whose goods have been

forfeited by the operation of the Act has a right to be

heard before the exercise of the power for seizure under

s.203 of the Act (see Toy Centre Agencies at p 357), but

the circumstances of a particular case may require such

an opportunity to be afforded if a decision-maker is to

be seen to be acting in accordance with requirements of

procedural fairness."

73. I do not believe that it is necessary to express a concluded view on the question whether a person has, absolutely, a right to be heard in every case before seizure. On the one hand, consideration must always be given to such a serious inroad into the rights of the citizen:

"It is a well-established rule of law that a man - and a

corporation is on the same footing - is entitled to be

heard before any Order can be made by which his purse or

person can be affected, even though the statute under

which the Order is made does not, in terms, require a

hearing: Painter v The Liverpool Gas Company 3 A and E,

433. This principle is not limited in its application

to proceedings which are, strictly speaking, judicial.

Cooper v Wandsworth Board of Health [1863] EngR 424; 14 CB (NS), 180;

[1863] EngR 424; 32 LJ (CP), 185."

(Roebuck v Mayor of Geelong West (1876) 2 VLR 189 at 191-192 per Stawell C.J.).

74. Eighty years later Dixon C.J. and Webb J. stated in The Commissioner of Police v Tanos [1958] HCA 6; (1957-1958) 98 CLR 383 at 395 that it was "... a deep-rooted principle of the law that before any one can be punished or prejudiced in his person or property by any judicial or quasi-judicial proceeding he must be afforded an adequate opportunity of being heard". But to this statement of principle their Honours added this important qualification:-

"But it is in a broad sense a procedural matter and

while the general principle must prevail it is apparent

that exceptional cases may be imagined in which because

of some special hazard or cause of urgency an immediate

declaration is demanded." (p 396)

75. On the other hand, the objectives of the Customs legislation and the protection of the Revenue must be recognised. Once goods are passed into the home market, the chances of tracing them may dissipate quickly. The very nature of the goods or the circumstances under which they came to the attention of Customs may give rise to the requisite belief concerning forfeiture, and may, in turn, justify immediate seizure without a hearing. I would prefer to avoid laying down an arbitrary rule, thereby leaving each case to be resolved on its merits. This in fact is what Customs has sought to do in compiling its internal guidelines of which more will be said later.

76. A further ground of appeal is somewhat of a curiosity. The learned trial Judge made the following findings:-

"Upon the hearing of this matter, it was put to the

respondent, the seizing officer, that he had understood

some employees of Whim Creek to be involved in

fraudulent activity at the time he made the decision to

seize, but it was Colgan's clear response to that

cross-examination that he would not have regarded it as proper

for such suggestions to have influenced his seizure of

the goods and he rejected any suggestion that he had

given any consideration to such a possibility. I accept

his evidence in that regard." (Emphasis added)

77. The appellant complained of this finding; the relevant ground of appeal included the following proposition:-

"(T)he possible subconscious influence of such material

rendered the eventual decision to seize and seizure in

breach of natural justice and the requirements of

fairness."

78. It would seem that this ground of appeal has its genesis in the following remarks of Brennan J. in Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 629:-

"Nevertheless in the ordinary case where no problem of

confidentiality arises an opportunity should be given to

deal with adverse information that is credible, relevant

and significant to the decision to be made. It is not

sufficient for the repository of the power to endeavour

to shut information of that kind out of his mind and to

reach a decision without reference to it. Information

of that kind creates a real risk of prejudice, albeit

subconscious, and it is unfair to deny a person whose

interests are likely to be affected by the decision an

opportunity to deal with the information. He will be

neither consoled nor assured to be told that the

prejudicial information was left out of account."

79. But unlike the position to which the remarks of Brennan J. were directed, such information as touched upon the possibility of some employees of Whim Creek being involved in any fraudulent activity came to the attention of the Customs officers as a result of statements made by senior representatives of Whim Creek. This is an entirely different situation to that which would arise as a result of information, adverse to a claimant, emanating from an independent third party. And added to this, of course, was the finding of the learned trial Judge in which he accepted Mr Colgan as a credible witness. His Honour had the advantage of evaluating his evidence as he gave it and of observing his demeanour in the witness box. He accepted what Mr Colgan had to say. That, in the overwhelming majority of cases, would be the end of the matter: (SS Hontestroom v SS Sagaporack (1927) AC 37 at 47 per Lord Sumner; Abalos v Australian Postal Commission [1990] HCA 47; (1990) 96 ALR 354 at 362 per McHugh J.). If the appellant seeks, from this Court, a decision overturning any such finding on credibility it must point to clear demonstrable error on the part of the trial Judge: (Westpac Banking Corporation v Spice (1990) ATPR 41-024). This it has failed to do.

80. The appellant also complained that there had been a failure to afford it such fairness of procedure as the contents of the Act and the Customs guidelines required. In particular, it was said that there had been a breach of the rule: "He who decides must hear". This converts into the following complaint: it was Mr Colgan who was the authorised person under sub-s.203(2) and it was he who made the decision to seize; yet Mr Colgan was not present at the important conference of 6 January when other officers of Customs (Messrs Stitt and Platell) informed representatives of the company that the mining equipment would be seized. So, it was argued, Mr Colgan, the decision-maker, did not hear such submissions as were put by Whim Creek at the meeting of 6 January 1989. It has been said that anyone who decides anything "must act in good faith and fairly listen to both sides": (Board of Education v Rice (1911) AC 179 at 182 per Lord Loreburn L.C.). But this "hearing rule" has been qualified by what is described as "institutional decision-making": (see Hotop's Principles of Australian Administrative Law 6th Ed. 193 where the learned author suggests that the general rule that the decision-maker must conduct the relevant hearing is not strictly applied); reference is thereafter made in the text to White v Ryde Municipal Council (1977) 2 NSWLR 909 and to the following passage from the judgment of Reynolds J.A. at pp 923-924:

"As a general proposition, it is plain enough that he

who decides must hear. However, this must be understood

in the sense that the decision maker has before him the

evidence and submissions of those entitled to be heard.

It is by no means a universal requirement that the

decision-making body must see and hear witnesses, much

less actually hear submissions or representations. So

much appears from the leading authorities on this

subject: Local Government Board v Arlidge (1915) AC

120 and Jeffs v New Zealand Dairy Production and

Marketing Board (1967) 1 AC 551."

81. I respectfully endorse those views adding, in my opinion, that they have particular application to the administrative functions of large organizations; it would be illogical and impracticable to require a government or semi-government organisation to so arrange its affairs that a particular officer was, at all stages, personally involved in every aspect of the decision-making process. The absence of Mr Colgan at the meeting of 6 January, 1989 did not, in my opinion, affect the validity of the decision that he made four days later.

82. The remaining five grounds of appeal in this third group mostly deal with aspects of the Customs Operational Guidelines for Seizure. However, before considering the specific complaints, it is necessary to revert back to the written reasons given by Mr Colgan in support of his decision to seize. It is also necessary to comment briefly on segments of the guidelines and to spend some time on "Guideline (11)".

83. In his "Statement of Reasons for Seizure" Mr Colgan listed his "findings of fact". First, he concluded that Mr Hastie had been instrumental in importing the mining equipment "with the intention of defrauding the Revenue". He also found that both the entry for home consumption and an invoice from Oy Dumanto Ltd. (the Finnish vendor) in the sum of FIM 500,000 were false and "were created at the direction of Lawrence Michael Hastie". These findings have not been challenged.

84. Then he found that Whim Creek came within the definition of the word "owner" in s.4 of the Act. However, he considered that it was "not to be considered an innocent third party under the Customs Operational Guidelines for Seizure". He gave as his reasons for concluding that the company was not to be considered an innocent third party the explanations that are contained in paragraph 13 of his "Statement of Reasons for Seizure". (The references to "they" are references to Whim Creek).

"13.(i)

As a result of receiving the document referred to in

item 9 '(that is the written reply from Westmont

Equipment of 21 September 1988)' they were aware or

alternatively there was sufficient information to have

put them on notice to make further enquiry in relation

to the figure of $A80,000 estimated as the cost of

government charges and wharf clearance charges. The

correct duty payable on the purchase price FOB Finland

of A$1,300,000 (sic) was in the vicinity of $180,000

with additional wharf charges of approximately $10,000.

(ii) They remitted funds on an instalment basis

to coincide with the acquisition of the

goods overseas, loading, delivery of

shipping documents on arrival in Fremantle, W.A.

(iii) They arranged for a third party '(the

Finnish engineer, Mr Murto)' to supervise the

dismantling, packing, transporting and loading

loading of the goods in Finland.

(iv) They were a party that was directly

connected with the import transaction in

that they had knowledge of, and an

involvement in overseeing aspects of the

importation of the goods."

85. Whim Creek conceded their involvement in terms of paragraphs (ii), (iii) and (iv) as set out above, but they claimed that Mr Colgan could not justifiably take an adverse view of Whim Creek's involvement in any actual or constructive sense because of the false information that it had received about Customs and wharf charges. This then leads to a consideration of the question of Whim Creek's "innocence" and the use of that word in the guidelines.

86. The Australian Customs Service Manual (Officers' Edition) contains "Operational Guidelines" that relate to the seizure of goods. These guidelines, which correctly recognise that the power of seizure that is contained in s.203 of the Act is a discretionary power, exhort officers to:-

"... apply the general policy with discretion and common

sense and at all times (to) be conscious of what is

equitable and fair."

87. They also emphasise that seizure should not be instituted "arbitrarily", that "the full circumstances" of each case should first be examined before any decision is made and that "normally" the owner of the relevant goods should first be given an opportunity to show cause why the goods should not be seized.

88. Guideline (11) is entitled "seizure from third parties"; it states that it may not be appropriate to seize goods that have been "purchased in good faith by innocent third parties...".

89. Although it was not suggested that Whim Creek had actual knowledge of these guidelines prior to seizure, such knowledge was not necessary to ground a legitimate expectation that Customs would have due and proper regard to them: (Haoucher v Minister for Immigration and Ethnic Affairs [1990] HCA 22; (1989-1990) 169 CLR 648 at 669 per Toohey J.). Mr Macaw QC, counsel for Whim Creek, argued that the word "innocent" was used in the guideline in its ordinary and conventional sense. However this is not so. The draftsman of the guideline has inappropriately used the word "innocent" to identify a third party who would or might qualify for leniency. If one reads the guideline as if the word "qualifying" appeared wheresoever the word "innocent" presently appears it becomes apparent that Whim Creek, whilst being entirely innocent in the fraud on the Customs, was not necessarily a "qualifying" third party. As notionally amended, Guideline (11) would read as follows:-

"To be classed as 'qualifying', third parties must be

independent of the import transaction. Persons

connected with, involved in or having knowledge of, the

ordering, purchase or the act of importation of the

goods are not to be classed as 'qualifying' third

parties. Similarly the continued involvement of the

importer with the goods concerned (e.g. leasing back of

goods after the sale to an independent finance company,

etc) is not to be classed as a sale to a 'qualifying'

third party."

90. The example of the involvement of an independent finance company - which might well be expected to be innocent - establishes quite clearly that the draftsmen intended that the exemption from seizure would be directed towards purchasers in good faith who were wholly removed from both the importer and the act of importing. In this case Whim Creek had an exceptionally close connection, involvement and knowledge of the act of importation. Propositions that Mr Colgan misinterpreted or misconceived the policy of the guidelines cannot be sustained.

91. Mr Colgan then gave his reasons for seizure, saying that he had formed the view that there were reasonable grounds for believing that the goods were forfeited. He then concluded:-

"17. That either Westmont Equipment Services or Westmont

Equipment Pty. Ltd. deliberately breached customs

legislation by defrauding the revenue of more than

$100,000 for the subject shipment.

18. Having regard to the Customs Operational Guidelines for

Seizure which indicate that it may not be appropriate in

respect of goods purchased in good faith by innocent

third parties to exercise the power of seizure I formed

the view on the evidence available that Whim Creek

Consolidated N.L. could not be classed as an innocent

third party for seizure purposes."

92. I return then to the last mentioned five grounds of appeal; these, individually and collectively, amount to allegations that the making of the decision to seize was an improper exercise of power - that being a ground justifying an order of review under the Judicial Review Act - see para 5(1)(e). Subsection 5(2) of that Act gives an expansive meaning to the expression "an improper exercise of the power". It provides that any reference to that expression is to be construed as including any one or more of the ten subject matters there listed. The last mentioned grounds of appeal pick up four of those ten subjects. The first of them complained that the learned trial Judge should have held that Mr Colgan, when he made his decision to seize the equipment, exercised a discretionary power "in accordance with a rule or policy, namely Customs Guideline 11, without any or any proper regard to the merits of the appellant's case": para 5(2)(f) of the Act. Then it was said (in two separate grounds of appeal) that Mr Colgan took into account irrelevant considerations - para 5(2)(a) - and that he failed to take into account a consideration that was relevant: para 5(2)(b). The irrelevant considerations were said to be the contents of Guideline 11, the fact that Whim Creek did not supervise the importation of the equipment and the fact that the company did not seek from another (authoritative) source proper particulars of the Customs duties. The relevant consideration that was not taken into account was said to be the actual absence of involvement on the part of Whim Creek in the act of fraud. Finally, it was said that the decision was so unreasonable that no reasonable person could have exercised the power: para 5(2)(g).

93. Once it has been established that goods are forfeited goods or that an authorised person has formed the belief on reasonable grounds that goods are forfeited goods, it is important to bear in mind that the discretionary power of seizure that is contained in sub-s.203(2) of the Act is completely unfettered. Nevertheless, Customs has seen fit to publish guidelines that are intended to serve as a guide to those persons who are lawfully entitled to exercise this statutory power of seizure. In speaking of a Criminal Deportation Policy, Northrop J. said in Haoucher v Minister for Immigration and Ethnic Affairs (1988) 83 ALR 530 at 533 that the publication of such a policy statement was not only "permissible, but in many cases desirable. This is so especially when the power conferred is unfettered." That does not however elevate policy statements or guidelines to such a position of prominence as to prevent a review of a decision. But such a review is made bearing in mind that no matters, relevant to the manner in which the discretionary power of seizure is to be exercised, are set out in the Act. In such circumstances it is appropriate to exercise the discretion and to conduct the review in terms that are compatible with the statutory framework of the legislation.

"... where a statute confers a discretion which in its

terms is unconfined, the factors that may be taken into

account in the exercise of the discretion are similarly

unconfined, except in so far as there may be found in

the subject-matter, scope and purpose of the statute

some implied limitation on the factors to which the

decision-maker may legitimately have regard."

(Minister for Aboriginal Affairs v Peko-Wallsend Ltd. [1986] HCA 40; (1985-1986) 162 CLR 24 at 40 per Mason J. (as he then was); see also Padfield v The Minister of Agriculture Fisheries and Food [1968] UKHL 1; (1968) AC 997 at 1030 per Lord Reid and 1060 per Lord Upjohn).

94. The first of these five grounds - the complaint that Mr Colgan fettered the exercise of his discretion by referring to Guideline 11 without any or any proper regard to the merits of the appellant's case is, for reasons previously expressed, misconceived, as is the claim that he failed to have regard to a relevant consideration - that is, the actual absence of involvement on the part of Whim Creek in the act of fraud. The findings of the learned trial Judge justifiably put each of these matters to rest for he said:-

"I am well satisfied that Customs understood Whim

Creek's position and that fairness of procedure was

afforded Whim Creek in the circumstances".

95. In my opinion there was evidence before the trial Judge which wholly justified that finding.

96. There remains then the complaints of unreasonability and that irrelevant considerations were taken into account. Mason J. (as he then was) discussed these subjects in Minister for Aboriginal Affairs v Peko Wallsend Ltd. (supra) at p 41 in these terms:-

"... in some circumstances a court may set aside an

administrative decision which has failed to give

adequate weight to a relevant factor of great

importance, or has given excessive weight to a relevant

factor of no great importance. The preferred ground on

which this is done, however, is not the failure to take

into account relevant considerations or the taking into

account of irrelevant considerations, but that the

decision is 'manifestly unreasonable'. This ground of

review was considered by Lord Greene M.R. in Wednesbury

Corporation (1948) 1 KB, at pp 230,233-234, in which

his Lordship said that it would only be made out if it

were shown that the decision was so unreasonable that no

reasonable person could have come to it. This ground is

now expressed in ss.5(2)(g) and 6(2)(g) of the

A.D.(J.R.) Act in these terms".

97. However, the function of a court that is reviewing the exercise of an administrative decision is limited: "... it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power" (Peko-Wallsend's case at 41).

98. Mr Colgan had proper regard to the role played by Whim Creek with respect to the importation of the mining equipment. He balanced the absence of involvement in the fraud on the revenue against the fact that there was a degree of involvement on the part of Whim Creek in the act of importation; in fact Whim Creek had acquired title to the mining equipment prior to its importation. In so far as Customs had published a Guideline that was said to deal with the subject of "Seizure" and "Innocent Parties" it was highly proper for Mr Colgan to apply his mind to this subject - indeed it would have been positively wrong of him to ignore it. But the subject of "Innocence", as that word was used in the guideline, was directed to parties who, unlike Whim Creek, were totally removed from the act of importing and the conduct of the importer and the importer's involvement in the act of importing. I have therefore concluded that there is no substance in these remaining grounds of appeal.

99. In view of the conclusions that I have reached it is not necessary to address the last bracket of grounds of appeal that appear under the hearing "Denial of Relief"; they have either been indirectly answered or they do not fall to be considered.