37Court proceedings

37 Court proceedings

(1) Where: (a) a protected object has been seized under this Act; and (b) the object is not forfeited by section 36 or by or under this section; the owner, or the person who had the possession, custody or control of the object immediately before it was seized, may bring an action against the Commonwealth in a court of competent jurisdiction for the recovery of the object on the ground that the object is not forfeited or liable to be forfeited. (2) Where: (a) a protected object has been seized on the grounds that it is liable to forfeiture by virtue of subsection 9(2) or 14(1); (b) a person brings an action for recovery of the object; and (c) the person discontinues the action; the object is forfeited. (3) Where an action is brought for recovery of a protected object, the court shall determine, on a balance of probabilities, whether: (a) the object is forfeited by virtue of subsection 9(1); or (b) the object is liable to forfeiture by virtue of subsection 9(2) or 14(1); and the court: (c) where paragraph (a) applies—shall reject the claim for recovery; (d) where paragraph (b) applies—shall order that the object is forfeited; or (e) in any other case—may order the return of the object. (4) Where a person is convicted of attempting to export a protected object in contravention of subsection 9(3) or of an offence against subsection 14(2) in relation to a protected object, the court shall order that the object is forfeited.