Wynch v Ketchell [2001] QCA 391

SUPREME COURT OF QUEENSLAND

CITATION: Ketchell v Wynch & Anor [2001] QCA 391

PARTIES: GLENN ROBERT KETCHELL / (appellant/applicant) / v / GARY EDWARD DONALD WYNCH / (first respondent/first respondent) / OFFICIAL TRUSTEE / (second respondent/second respondent)

FILE NO/S: Appeal No 5994 of 2001 / DC No 113 of 2001

DIVISION: Court of Appeal

PROCEEDING: Application for leave s 118 DCA (Civil) / Application for Extension of time

ORIGINATING COURT: District Court at Townsville

DELIVERED ON: 21 September 2001

DELIVERED AT: Brisbane

HEARING DATE: 21 August 2001

JUDGES: Davies, Thomas and Williams JJA / Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER: Extend time for the application for leave to appeal to 21 August 2001;Grant leave to appeal against the decision of the District Court at Townsville given on 29 May 2001 in proceedings DC No 113 of 2001;Allow the appeal and set aside the order of the District Court dated 29 May 2001;Remit the matter to the District Court for determination according to law;Order that the first respondent pay the appellant’s costs of and incidental to the appeal.

CATCHWORDS: TAXES AND DUTIES – CUSTOMS AND EXCISE – PENAL PROVISIONS – FORFEITURE – JURISDICTION AND PROCEDURE IN CUSTOMS PROSECUTIONS - where applicant’s vehicles were alleged to contain forfeited goods and were seized by the first respondent pursuant to s 116(1)(e) Excise Act 1901 (Cth) – procedure in “taking” goods before a court of summary jurisdiction under s 9 Crimes Act 1914 (Cth) / POLICE – RIGHTS POWERS AND DUTIES – SEARCH, SEIZURE AND DETENTION OF PROPERTY - where respondent police officer instituted proceedings in Magistrates Court by way of an application for condemnation pursuant to s 9 Crimes Act 1914 (Cth) – procedures for state and federal police when seizing property discussed – regime under Police Powers and Responsibilities Act 2000 (Qld) abolishes former procedure under Justices Act – Police Powers and Responsibilities Act 2000 (Qld) s 425 – Justices Act s 39, s 222 / PROCEDURE – COURTS – EXERCISE OF JURISDICTION - EXERCISE OF JURISDICTION WHERE NO PROCEDURE SPECIFIED – FEDERAL JURISDICTION – INFERIOR COURTS – investing of state courts with federal jurisdiction – state procedure in respect of jurisdiction conferred by s 9 Crimes Act 1914 (Cth) - discussion of legislative regime governing condemnation of goods proceedings / PROCEDURE – INFERIOR COURTS – MAGISTRATES COURTS – PRACTICE – INITIATING PROCEDURES – whether mode of commencement by application under r 11 UCPR correct – where jurisdiction conferred directly on Magistrates Court as a court of summary jurisdiction by s 9 Crimes Act 1914 (Cth) – nature of a court of summary jurisdiction – jurisdiction and procedure conferred respectively by Justices Act 1886 (Qld) and Magistrates Court Act 1921 (Qld) – stream of procedure applicable to jurisdiction conferred by s 137 Excise Act 1901 (Cth) / PROCEDURE – INFERIOR COURTS – QUEENSLAND – MAGISTRATES APPEAL AND NEW TRIAL – FROM WHAT DECISIONS AND ON WHAT GROUNDS APPEAL LIES – whether applicant had no right of appeal under s 45 Magistrates Court Act 1921 (Qld) because proceedings were not an “action” - meaning of an “action” under s 45 (1)(a) – whether the term “action” ought to be read with s 4 of the Magistrates Court Act 1921 (Qld) – where it should be given its ordinary meaning – discussion of legislative intent and history of s 45 (1) (a), (b), (c), (d) – where rights of appeal created by s 45 considerably wider than the original jurisdiction of s 4 - where the present proceedings correctly regarded as an “action” / Acts Interpretation Act 1901 (Cth), s 26 / Acts Interpretation Act 1954 (Qld), s 6 / Crimes Act 1914 (Cth), s 9, s 9(1), s 9(2) / Customs Act 1901 (Cth), ss 244-248 / District Courts Act 1967 (Qld), s 118(3), s 144 / Excise Act 1901 (Cth), s 116(1)(e), s 133, s 134(1), s 134(1)(f), s 136, s 137, ss 139 – 141 / Justices Act 1886 (Qld), s 19, s 22, s 22A, s 39, s 222 / Landlord and Tenant Act 1948 (Qld) (repealed) / Magistrates Court Act 1921 (Qld), s 2, s 4, s 4(c), s 7, s 11, s 45(1)(a), s 45(1)(b)(i), s 45(1)(b)(ii), s 45(1)(c), s 45(1)(d), / Police Powers and Responsibilities Act 2000 (Qld), s 425, s 425(1), s 425(2), s 425(3), s 425(4), s 425(5) / Property Law Amendment Act 1999 (Qld), s 8 / Property Law Act 1974 (Qld), ss 140-152, ss 279-281, s 329 / Residential Tenancies Act 1975 (Qld) / Summary Ejectment Act 1967 (Qld) / Supreme Court of Queensland Act 1991 (Qld), s 118 / Termination of Tenancies Act 1970 (Qld) / Uniform Civil Procedure Rules, r 3, r 9, r 10, r 10(a), r 10(b), r 11, r 11(a), r 11(b), r 11(c), r 145(b), rr 782-792 / CEO of Customs v Labrador Liquor Wholesale P/L & Ors [2001] QCA 280, Appeal No 5617 of 2000, 20 July 2001, referred to / Commissioners of Customs and Excise v Jack Bradley (Accrington) Ltd [1959] 1 QB 219, considered / Crowley v McKay (1999) 21 Qld Lawyer Reports, distinguished / Customs and Excise Commissioners v Air Canada [1991] 2 QB 446, referred to / Denton v John Lister Ltd [1971] 1 WLR 1426, referred to / Forbes v Traders’ Finance Corporation Limited (1971) 126 CLR 429, referred to / Horne v Frank [2001] QDC 29, Appeal No 119 of 2001, 2 March 2001, distinguished / Johnson v Refuge Assurance Company Limited [1913] 1 KB 259, discussed / Martin v Commissioner for Employees’ Compensation [1953] St R Qd 85, distinguished / McCullough v Otto, Appeal No 709 of 1996, 10 December 1996, referred to / Norman v McPhee, Ex Parte Norman [1951] QWN 48, referred to / Preston v Chief Executive Officer of Customs [2000] QCA 186; CA No 1260 of 2000, 22 May 2000, referred to / Re Carter Smith, Ex Parte Taxation Commissioner (1908) 8 SR (NSW) 246, referred to / Witham v Holloway (1995) 183 CLR 525, considered

COUNSEL: S R Lewis for the appellant/applicant / M A Fellows for the first respondent and second respondents

SOLICITORS: Graham & Associates for the appellant / Australian Government Solicitor (Townsville) for the first and second respondents / No appearance for the second respondent

DAVIES JA: I agree with the reasons for judgment of Thomas JA and with the orders he proposes.

THOMAS JA: This is an application for leave to appeal and for an extension of time to do so in respect of a decision of Wall DCJ given on 29 May 2001. By that decision his Honour held that he did not have jurisdiction to entertain an appeal from the Magistrates Court, and ordered that it be struck out.

The original decision in the Magistrates Court was an order that two vehicles be condemned. The vehicles were respectively a prime‑mover owned by the applicant and an attached refrigerated trailer owned by Esanda Finance Corporation Limited. The value of these items is substantial. The prime‑mover is worth approximately $120,000 and the combined value of the items would seem to be in the order of $265,000.

Both parties have acted on the assumption that the magistrate was exercising civil jurisdiction conferred by the Magistrates Court Act 1921, and that the only right to appeal was that given by s 45 of that Act.

Jurisdiction under Crimes Act s 9

The vehicles in question were seized by the first respondent (Constable Wynch, a federal police officer) on 9 March 2001 in purported reliance upon s 116(1)(e) of the Excise Act 1901 (Cwth). That subsection relevantly provides that “all vehicles and animals conveying, or having packed therein or thereon, any forfeited goods, and all animals and harness used in drawing any such vehicle” shall be forfeited to the Crown. It was alleged that the trailer contained tobacco which was “forfeited” although the basis of the forfeiture is not clear on the material here available. Having seized the vehicles, the respondent became obliged by s 9(1) of the Crimes Act 1914 to take the forfeited goods before a court of summary jurisdiction. Section 9(2) of the Crimes Act provides:

“Where articles are taken before a court of summary jurisdiction under subsection (1), the court shall inquire into the matter and:

if the court is satisfied that the articles are forfeited – shall order that the articles be condemned; or

if the court is not so satisfied – shall order that the articles be delivered to such person as the court is satisfied is entitled to the articles.”

The first respondent filed an application in the Magistrates Court on 13 March 2001 asking for an order that the vehicles be condemned.

The Crimes Act contains no provision dealing with how such property is to be taken to a court of summary jurisdiction or the ensuing procedure. The argument before his Honour proceeded on the basis that the application to the Magistrates Court was an originating application under r 11 of the Uniform Civil Procedure Rules. The only provision in the Magistrates Court Act conferring a right of appeal upon a party who is dissatisfied with a judgment or order of a Magistrates Court is s 45. It relevantly provides:

“45.(1)Subject to this Act, any party who is dissatisfied with the judgment or order of a Magistrates Court -

in an action in which the amount involved is more than $5,000; or

in an action for the recovery of possession of land if -

the value of the land is more than $5,000; or

the annual rental of the land is more than $5,000; or

in proceedings in interpleader in which the amount claimed or the value of the goods in question is more than $5,000; or

in a proceeding under the Property Law Act 1974, part 19, division 4, subdivision 1;

may appeal to the District Court as prescribed by the rules.”

His Honour upheld the respondent’s submission that the proceeding was not an “action” and that no right of appeal was conferred by s 45 of the Magistrates Court Act.

However the parties, both in their submissions to his Honour and to this court did not refer to Part XI of the Excise Act which deals to some extent with the procedure to be taken in such matters. One such provision expressly contemplates that an appeal shall lie from an order for condemnation. The following provisions are relevant:

“133Proceedings by the Customs….for the condemnation of goods seized as forfeited are herein referred to as Excise Prosecutions.

134(1)Excise prosecutions may be instituted by the CEO in the name of the office of the CEO by action, information or other appropriate proceeding: …..

(f)in a court of summary jurisdiction of a state….

136Every Excise prosecution in a court referred to in s 134 (1) may be commenced prosecuted and proceeded with in accordance with any rules of practice (if any) established by the Court for Crown suits in revenue matters or in accordance with the usual practice and procedure of the Court in civil cases or in accordance with the directions of the Court or a Judge.

137Subject to the provisions of this Act the provisions of the law relating to summary proceedings in force in the State or Territory where the proceedings are instituted shall apply to all Excise prosecutions before a Court of summary jurisdiction in a State or Territory, and an appeal shall lie from any conviction order for condemnation or order of dismissal to the Court and in the manner provided by the law of the State or Territory where such conviction or order is made for appeals from convictions or orders of dismissal.”

It may be noted in passing that sections 133 to 137 of the Excise Act mirror sections 244 to 248 of the Customs Act 1901.

It seems desirable that something be said about provisions that currently apply in this state that enable proceedings for condemnation of goods to be prosecuted, and about the practice that ought to be followed in such matters.

Subject to any overriding requirements in federal legislation when a state court is invested with federal jurisdiction, the investing statute takes the court and the state law that governs the practice and procedure of the court as it finds it.¹ Section 137 of the Excise Act in any event contains an express requirement that the appeal there mentioned should be “in the manner provided by the law of the State”. Until recently applications in this State concerning the disposition and sometimes ownership of property that came into the custody or possession of police officers in the course of their duty were dealt with summarily under s 39 of the Justices Act. That section was regarded as the appropriate avenue for determination of questions concerning disputed forfeiture of goods under federal law such as s 9 of the Crimes Act (see Kennedy Allen, The Justices Act of Queensland 3rd ed, p 85). However under the Police Powers and Responsibilities Act 2000 a different regime was instituted, at least in respect of procedures to be taken by police officers who take possession of property. At the same time as the introduction of that Act, s 39 of the Justices Act was amended, limiting applications under that section to cases where property has come into the custody or possession of a "public officer". The term “public officer” is now defined in s 39 (with two minor exceptions which do not here matter) as not including a police officer. The term “public officer” in any event would not include officers other than Queensland officers (see Acts Interpretation Act 1954, s 35(1)).

Thus, State and Federal police officers alike have now been cut off from recourse to a Magistrates Court under s 39 of the Justices Act and in turn from the appeal that lay from such decisions under s 222 of the Justices Act. It seems that the new procedure in Part 3 of the Police Powers and Responsibilities Act (and in particular the procedure contemplated by s 425) is one of which only Queensland police officers may take advantage. Section 425 states:

"Application by police officer for order if ownership dispute

425(1)This section applies if there is a dispute about the ownership of a relevant thing.

(2)A police officer may apply to a magistrate for an order declaring who is the owner of the thing.

(3)The police officer must give anyone the police officer reasonably believes has a legal or equitable interest in the thing a copy of the application and notice of the day, time and place fixed for hearing the application.

(4)The magistrate may make the order the magistrate considers appropriate.

(5)If the magistrate cannot decide who owns the thing, the magistrate may make the orders the magistrate considers appropriate for the disposal of the thing."

The definition of "police officer" in Sch 4 of that Act includes officers of other States and of the Commonwealth for only very limited parts of the Act. They are not included in the definition of “police officer” for the purposes of Ch 11 Part 3 which confers the relevant “ownership dispute” jurisdiction on a magistrate.

Mode of commencement

The present proceedings were commenced in the Magistrates Court by Constable Wynch by "application" pursuant to r 11 of the Uniform Civil Procedure Rules. The primary method of commencement of an action under s 4 of the Magistrates Court Act 1921 was formerly by plaint, and is now by "claim". Rule 9 of the Uniform Civil Procedure Rules requires a proceeding to be started by claim unless the rules require or permit the proceeding to be started by application. Rules 10 and 11 provide:

"Application compulsory

[r10]A proceeding must be started by application if an Act or these rules require or permit a person to apply to a court for an order or another kind of relief and –

the Act or rules do not state the type of originating process to be used; or

a type of originating process (other than a claim or application) is required or permitted under a law.

Application permitted

[r11]A proceeding may be started by application if -

the only or main issue in the proceeding is an issue of law and substantial dispute of fact is unlikely; or

there is no opposing party to the proceeding or it is not intended to serve any person with the originating process; or

there is insufficient time to prepare a claim because of the urgent nature of the relief sought.”

Relief for a Queensland police officer under s 425 of the Police Powers and Responsibilities Act would appropriately be sought by means of an "application" under s 10, as that Act permits a person to apply for relevant relief. However Constable Wynch, who acted as a member of the federal police, does not have the benefit of s 425. It would seem that there may have been a legislative oversight. The Crimes Act is not "an Act" which may authorise a proceeding for the purposes of r 10 of the Uniform Civil Procedure Rules, as references in the rules to “an Act”, in the absence of contrary provision, is a reference to an Act of the Queensland Parliament and certain Imperial and New South Wales Acts that are not here material (Acts Interpretation Act 1954 s 6). It follows that the present proceeding was not required to be made by application under r 10.

Proceedings of the present kind might however fall within r 11(a) or 11(c). If upon return of such an application it emerged that there were substantial disputes of fact it would be open to the Magistrate to direct that pleadings be served (see r 145(b)).

Section 136 of the Excise Act further justifies the prosecution of such a matter “in accordance with the usual practice and procedure of the Court in civil cases,” even though such a matter is classed by the Act as an “Excise prosecution.”The prosecution of matters that are essentially criminal by means of civil process may sometimes raise problems, but it is a well recognised phenomenon (CEO of Customs v Labrador Liquor Wholesale P/L & Ors [2001] QCA 280; Witham v Holloway (1995) 183 CLR 525, 534; cf Halsbury’s Laws of England 4th Edn, Vol 12, para 633). Inclusion of the above provisions in the Excise Act was no doubt influenced by the longstanding English fiction that revenue offences and contraventions were in their nature civil.

Court of Summary Jurisdiction

In the present matter the jurisdiction of the Magistrates Court is conferred directly by s 9 of the Crimes Act which authorises “a court of summary jurisdiction” to make a determination when allegedly forfeited articles are “taken” before such a court. Further, s 137 of the Excise Act expressly applies to such a matter, the “law relating to summary proceedings” in force in Queensland, “subject to the provisions of this Act.”

Section 4 of the Magistrates Court Act, which confers jurisdiction on Magistrates Courts clearly requires such courts to proceed “in a summary way”. The term "summary" when applied to proceedings, has been regarded as

"a descriptive term without restriction to special tribunals and not in ordinary acceptation explicitly confined to courts of petty sessions. The term is in law used as a reference to a mode of dealing with certain matters expeditiously and without ordinary incidental formalities." (See Dowson v McGrath [1956] 58 WALR 27, 32 per Dwyer CJ).

The Magistrates Court properly meets the description "Court of summary jurisdiction” for the purposes of s 9 of the Crimes Act. Further, as it is a “court for the making of summary orders”, it satisfies the definition of “Court of summary jurisdiction” in s 26 of the Acts Interpretation Act 1901 (Cwth). It would therefore seem that such a proceeding could properly be brought as a civil proceeding in the Magistrates Court.

For the above reasons the commencement of the present matter in the Magistrates Court by application pursuant to r 11 of the Uniform Civil Procedure Rules was appropriate.

Who may commence such an application?

The application was brought, not “by the CEO in the name of the office of the CEO”, but by “federal agent Gary Edward Douglas Wynch Australian Federal Police”, who is described as the applicant. It is signed by Mr Starkey as “the solicitor for the applicant”. On the face of it the procedure authorised by s 134 of the Excise Act has not been followed. There may be answers to this apparent problem such as permitted delegation, although the statutory process by which that might occur is not immediately apparent. Whether this is fatal to the present proceedings or whether the proceedings may be amended (see sections 139 – 141 of the Excise Act) is not presently in issue in this court. Such matters may need to be dealt with by the learned District Court judge in due course if it is determined that an appeal lies to his Honour from the decision of the magistrate.

Availability of appeal in such matters

The submissions made to his Honour and to this court focused upon the question whether the present proceedings may be regarded as “an action” for the purposes of s 45 of the Magistrates Court Act, which was said to be the only relevant section conferring appeals from decisions in the civil jurisdiction of the Magistrates Court. A right of appeal from a magistrate in such matters is expressly conferred by s 137 of the Excise Act but that right is required to be exercised in the manner provided by Queensland law. The appeal referred to in s 137 does not specify the court to which it may be brought. As appeals are creatures of statute it is necessary that some state statutory provision be found that would permit such an appeal to be brought. Inter alia there needs to be identification of the Court that is to exercise the requisite appellate jurisdiction.

The question arises whether s 45 of the Magistrates Courts Act meets the description in s 137 of “law of the State or Territory….for appeals from convictions or orders of dismissal”. Prima facie an appeal under s 222 of the Justices Act more comfortably fits that description than an appeal under s 45 of the Magistrates Court Act. Whilst the jurisdiction conferred on Magistrates under the Justices Act and under the Magistrates Court Act is exercised by the Magistrates Courts (see Justices Act ss 19, 22 and 22A and Magistrates Courts Act s 4) there are still two separate streams of jurisdiction, procedure and enforcement. The former jurisdiction is largely derived from courts of petty sessions, statutory extensions under the Justices Act and very many other statutes that contain provisions for consequences of breaches of duty, or which make persons liable to be proceeded against in a summary way for a penalty or punishment. The Magistrates Courts Act on the other hand is concerned with the exercise of civil jurisdiction by Magistrates as the first tier of a three tier system of courts in this state exercising civil jurisdiction.

As earlier indicated (see paras [8] to [11] above) the right to hear and determine matters of the present kind under the Justices Act has been removed in Queensland by what can only be described as clumsy legislation. The appeal that would otherwise exist under s 222 of the Justices Act has been rendered nugatory.

Where then does the present matter lie? Although Queensland law now denies access to the Magistrates Court through the Justices Act, it permits access to the Magistrates Court under the Magistrates Court Act in such matters. The latter Act is the one to which primary recourse must now be had in considering “the manner provided by the law of the state…..for appeals from convictions or orders of dismissal” (Excise Act s 137). The civil side of the Magistrates Court is compatible with the permission that s 136 of the Excise Act gives to commence and proceed with such matters “in accordance with the usual practice and procedure of the court in civil cases”. This then is the background against which one considers whether an appeal lies under s 45 of the Magistrates Court Act. No other appeal is given by any statute, federal or state, from the Magistrates Court to the District Court, or to any other state court in such a matter. Counsel’s assumption that the only avenue of appeal is through s 45 would therefore seem to be correct.

Assuming that such an appeal lies, the rules applicable to it would be those in Ch 18 Part 3 of the Uniform Civil Procedure Rules viz r 782 – 792. (Supreme Court of Queensland Act 1991, s 118; UCPR r 3; Preston v Chief Executive Officer of Customs [2000] QCA 186; CEO of Customs v Labrador Liquor Wholesale P/L & Ors [2001] QCA 280, para [18]).

Whether an “action”

The question whether the present proceedings may be regarded as “an action” for the purposes of s 45 is a difficult one. The learned District Court judge considered that the term “action” in s 45 must be read with s 4 which confers jurisdiction upon Magistrates Courts. However the language used in those two sections is by no means co-terminous. For example, s 45(1)(a) refers to “the amount involved” whereas s 4(a) refers to “the amount claimed”. Section 4(a) is limited to “personal action(s)”, but s 45(1)(a) is not so limited. An action in rem might satisfy s 45(1)(a) whilst it would not satisfy s 4(a). It is of course the proper meaning of s 45(1)(a) with which the court is now concerned.

The term “action” is defined in s 2, but only in an inclusionary way, so as to include proceedings in replevin or interpleader and garnishee proceedings. The question then is whether the present proceedings may be regarded as “an action” for the purposes of s 45.

On the natural meaning of the term “action” prima face these proceedings may be so regarded.

“Whatever the popular signification of the word ‘action’ may be, it is clear, as was pointed out by Bramwell and Lush, LJJ., in Clarke v Bradlaugh [(1881), 7 QBD 38, AT PP 50, 57] and by the Earl of Selborne, LC and Lord Blackburn in the same case on appeal to the House of Lords [supra] that in its proper legal sense it is a generic term or nomen generale, and includes every sort of legal proceeding. When used by the Legislature it must….be construed according to its true legal meaning unless it is apparent upon the fact of the Act in which it is used that it is intended to bear a more restricted meaning.” Re Carter Smith, ex parte Taxation Comrs (1908) 8 SR(NSW) 246, per Street J at p 248.

It is true that the term “action” has been given a range of meanings in a variety of contexts. Before the Judicature Acts the term was generally used to refer to a proceeding in a common law court, in contradistinction to a suit in equity. In more recent times, it became recognised that the term was not appropriate to describe criminal proceedings. Counsel for the respondent referred to Martin v Commissioner for Employees’ Compensation [1953] St R Qd 85 as supporting a narrow construction of the appellate jurisdiction conferred by s 45. In that case, Mack J held that an appeal heard by a magistrate under s 20 of the Commonwealth Employees’ Compensation Act was not an “action” and accordingly, that s 11 (the forerunner of the present s 45) of the Magistrates Court Act conferred no appeal from such a decision. That, with respect, was plainly a correct decision (cf Goward v The Commonwealth (1957) 97 CLR 355, 359), but it hardly bears upon the question whether the proceeding in which original jurisdiction of the kind exercised in the present matter should be regarded as an “action” in the Magistrates Court.

The learned judge in the present matter was referred to, and seems to have placed, some reliance on two decisions of McGill DCJ (Crowley v McKay [1999] 21 Qld Lawyer Reports, 5 November 1999 and Horne v Frank [2001] QDC 29, 2 March 2001). The first of these was concerned with an attempt to appeal from an appeal to a magistrate against a decision under the Weapons Act (Qld) 1990 (as amended). His Honour held that no appeal lay under s 45 of the Magistrates Court Act and made reference to Martin v Commissioner for Employees’ Compensation. Apart from the observation that such appeals are limited to cases where there is “an action” in the technical sense, there is little discussion of relevance to the present question. The second matter, Horne v Frank, was concerned with the unavailability of any appeal under s 222 of the Justices Act against an application pursuant to s 425 of the Police Powers and Responsibilities Act. The decisions to which I have referred, Martin, Crowley and Horne, were those relied on by the learned District Court judge for concluding that no appeal exists in the present matter. I do not think that they support such a result. It may be mentioned that counsel for the respondent sought to rely on Horne v Frank as authority for the proposition that no appeal lies from the decision of a magistrate upon an application made under s 425 of the Police Powers and Responsibilities Act. I do not think that decides more than that no appeal lies under s 222 of the Justices Act. If it were thought to suggest that in such matters no appeal lies under s 45 of the Magistrates Court Act I would respectfully hold it to be incorrect.

The present proceedings, founded upon s 9 of the Crimes Act, are analogous with proceedings that could formerly have been brought under s 39 of the Justices Act. Such proceedings were held to be judicial proceedings to be determined upon evidence, and requiring notice to be given to any person who may have a claim to the property. A right of appeal was recognised to exist from such decisions (Norman v McPhee, Ex parte Norman [1951] QWN 48). It was recognised that the ownership of property may be altered by means of the procedure (McCullough v Otto Appeal No 709 of 1996, 10 December 1996). The relevant determination that the magistrate is entrusted with making by s 9 of the Crimes Act is whether the articles have been validly forfeited. That would require the making of a determination upon potentially disputed facts, and the application of relevant law including the Excise Act and the laws that are relied on to justify the forfeiture. It is a particular example of a determination of right and its consequence is a determination of the final owner of the property in question. I find nothing inappropriate in regarding such a curial proceeding as an action.

The wider phrase with which we are concerned in s 45 of the Magistrates Court Act is “judgment or order….in an action in which an amount involved is more than $5,000”. As earlier noted, the words “in which the amount involved” are wider than the words in s 4 (“in which the amount claimed….”). The jurisdiction which was exercised in the present matter of course did not arise under s 4 of the Magistrates Court Act; it arose under s 9 of the Crimes Act. In my view the rights of appeal created by s 45 are plainly wider than the original jurisdiction of the Magistrates Court stated in s 4. This is made plain not only by s 45(1)(a), but also by sub-paragraphs (b), (c) and (d) of s 45(1). If the present matter may be regarded as an action for determination of the question of forfeiture and condemnation of the relevant vehicles, it would be right to regard it as an action in which “the amount involved is more than $5,000”.

In Johnson v Refuge Assurance Company Limited² Kennedy LJ considered that the natural meaning of “action” is “any proceeding in the nature of a litigation between a plaintiff and a defendant”. This statement was made in the context of a proceeding in the County Court where proceedings were not commenced by writ. Kennedy LJ described the matter thus:

“In this case there was a civil proceeding in the county court which was, according to the ordinary understanding of language, not merely a matter, but a litigation between a plaintiff and defendants in the nature of an action”.

This approach is consistent with the wide meaning of “action” recognised by Street J in Re W Carter Smith ex parte the Commissioner of Taxation above.

Under somewhat comparable customs and excise legislation in England, proceedings for condemnation have been regarded as actions in rem, whether brought before a court of summary jurisdiction or the High Court (Commissioners of Customs and Excise v Jack Bradley (Accrington) Ltd [1959] 1 QB 219; Customs and Excise Commissioner v Air Canada [1991] 2 QB 446; Denton v John Lister Ltd [1971] 1 WLR 1426; cf Halsbury’s Laws of England 4th Ed, Vol 12, page 155, footnote 2). The term “action” in s 45(1)(a) of the Magistrates Court Act is wide enough to embrace such a proceeding.

Mr Fellows (for the respondent) submitted that if the word “action” in s 45 means any type of legal process, it would have been unnecessary to insert subsection (d) which gives express recognition to an appeal in respect of judgments or orders in a proceeding under the Property Law Act 1974 Part 19 Division 4 subdivision (1) (viz ss 279 to 281 of that Act). However I do not think that any particular legislative intent to limit the meaning of “action” in s 45(1)(a) should be discerned by reference to any of subparagraphs (b), (c) and (d) of s 45(1). To support this view it will be necessary to say something about each of those subparagraphs.

It is immediately apparent that subparagraph (c) is tautologous in view of the express inclusion in s 2 of interpleader proceedings within the definition of “action”.

Further, the inclusion of subparagraph (b) is, to say the least, perplexing. Actions for recovery of possession of land may now be brought in the Magistrates Court under Part 8 Division 5 (viz ss 140 to 152) of the Property Law Act 1974, but such proceedings are required to be heard and determined under the Justices Act 1886. The right of appeal in such matters is that given by s 222 of the Justices Act. However, from the very commencement of the Magistrates Court Act in 1921, s 45(1)(b) existed (as s 11) substantially in its present form (see the Queensland Statutes Vol 11 1921 pp 9713, 9720, s 11(3)(ii)). There is no provision in the Magistrates Court Act which gives jurisdiction in matters of ejectment, and it therefore seems curious that there is a provision in this Act for appeals from Magistrates Courts on such matters. The explanation would seem to be that s 11(3)(ii) (now s 45(1)(b))) was taken from s 144 of the District Courts Act 1891. Part VI of that latter Act dealt with recovery of possession of land, but no similar jurisdiction was conferred upon Magistrates by the Magistrates Court Act. The possibility that such jurisdiction might in due course be conferred was contemplated by s 14(1)(i)(b) of the Magistrates Court Act which empowered the Governor-in-Council to make rules of court conferring such jurisdiction upon Magistrates. However, in the event, no such jurisdiction was ever conferred. The relevant remedies for recovery of possession in courts of summary jurisdiction have continued under a combination of statutes (primarily the Summary Ejectment Act 1967, and subsequent regulatory statutes such as the Landlord and Tenant Act 1948, Termination of Tenancies Act 1970, Residential Tenancies Act 1975 and the Property Law Act 1974 as amended). The procedure for such a remedy has continued to be governed by the Justices Act under which a separate stream of appeal has always been available. It would seem then that s 45(1)(b) (formerly s 11(3)(ii)) has been a dead letter since its inception. I would add that despite the theoretical nature of s 45(1)(b), its use of the word “action” is, if anything, confirmatory of the giving of a broad connotation to that word.

Subparagraph (d) was added to s 45(1) of the Magistrates Court Act by the Property Law Amendment Act 1999 (see schedule enacted under s 8). That Act introduced a new part (Part 19) into the Property Law Act with a view to facilitating the resolution of property and financial matters arising between members of a de facto relationship. Section 329 of the Act as amended conferred jurisdiction upon the Supreme, District and Magistrates Courts to determine such matters. With one exception (namely the making of a special declaration that a de facto relationship exists or does not exist) it would seem that for the first time jurisdiction was conferred upon Magistrates Courts to make declarations concerning an interest in property, subject of course to the value of the interest being within the courts monetary limit. There was further provision for declarations to be made in cases where the interest was beyond the court’s monetary limit if a consent jurisdiction form is filed.

In the above circumstances it is unsurprising that the legislature would see fit to add a provision such as s 45(1)(d) to the Magistrates Court Act to ensure a right of appeal in respect of an entirely new jurisdiction of an equitable kind. It must be remembered that the Magistrates Court had (and still has) very limited equitable jurisdiction, confined to that conferred by s 4(c), and further restrictions are imposed by ss 7 and 11. The new jurisdiction conferred by the Property Law Amendment Act would not satisfy any part of s 4 of the Magistrates Courts Act. No similar amendments were needed for the District Court or the Supreme Court in view of the nature of their existing jurisdiction and of existing appeal provisions (Queensland Acts 1999 Vol 2 Explanatory Notes pp 2114-2115).

In the less than well-ordered scheme of s 45(1), I find it difficult to discern any particular significance other than abundance of caution in the insertion in 1999 of s 45(1)(d) providing for an appeal in respect of the jurisdiction then conferred for the first time by the Property Law Amendment Act 1999 in respect of declarations of rights of de facto spouses about existing title or rights in property. I do not think that the inclusion of s 45(1)(d) is sufficient reason to give “action” in s 45(1)(a) other than its ordinary meaning.

For the above reasons I have concluded that the present proceedings may be regarded as an “action” notwithstanding that they are commenced by application rather than claim. I conclude that there is jurisdiction for the bringing of an appeal in the present matter from the Magistrates Court to the District Court.

Extension of time

An extension of time for the making of the present application is necessary. The delay was a relatively short one and it seems to have been brought about by late notification by the applicant’s solicitors to the applicant of his Honour’s decision accompanied by what would seem to be incorrect advice to the effect that the only avenue of appeal was directly to the High Court. Soon afterwards the applicant changed his solicitors and matters have proceeded thereafter with reasonable expedition. I would be prepared to grant the necessary extension of time.

Leave to appeal

Counsel for the respondent further submitted that the appellant’s ultimate prospects must be regarded as very slim, having regard to the line of authority holding that in respect of a similar provision under the Customs Act the forfeiture of a vehicle may be valid even if its owner is completely ignorant of the fact that the vehicle was carrying the prohibited import. This may well be so, but other questions may be raised concerning the validity of the magistrate’s condemnation, including sufficiency of evidence and the desire of the appellant to challenge the validity of this particular line of authority. Strict proof is required of the statutory requirements for the exercise of such a forfeiture (see remarks of Gibbs J in Forbes v Traders Finance Corporation (1971) 126 CLR 429, 447.) There is also some cause for concern in relation to the fact that no opportunity to be heard was given to the owner of the trailer (Esanda). Furthermore, the apparent failure of the Chief Executive Officer of Customs to commence the proceedings in the manner authorised by s 134 will no doubt require close examination. This Court is not in a position to make any assessment concerning merits or prospects of success. The important matter from this Court’s point of view is that the applicant should have a proper opportunity to challenge the magistrate's decision. As this right has been denied I would grant leave under s 118(3) of the District Court Act.

Orders

In the event I would make the following orders:

Extend time for the application for leave to appeal to 21 August 2001.

Grant leave to appeal against the decision of the District Court at Townsville given on 29 May 2001 in proceedings DC No 113 of 2001.

Allow the appeal and set aside the order of the District Court dated 29 May 2001.

Remit the matter to the District Court for determination according to law.

Order that the first respondent pay the appellant’s costs of and incidental to the appeal.

WILLIAMS JA: I have read the reasons of Thomas JA. I agree with them and with the orders proposed.

Footnotes

1. Le Mesurier v Connor (1929) 42 CLR 481 at 496 and 498; R v Riley (1940) 40 SR (NSW) 111; Russell v Russell (1976) 134 CLR 495, 516, 535; Brown v The Queen (1986) 160 CLR 171, 198; McMahon v State of Queensland [2000] QCA 483; CEO of Customs v Labrador Liquor Wholesale P/L & Ors [2001] QCA 280. ↩

2. (1913) 1 KB 259, 264. ↩