Goben Pty Ltd v The Chief Executive Officer of Customs & Anor [1996] FCA 641

C A T C H W O R D S

CUSTOMS & EXCISE - Customs Act 1901 (Cth) - meaning of "subject to the control of Customs" - application to move goods lodged by second respondent under s. 71E - approved - whether valid - whether a duty to investigate claim - whether power exercised in accordance with a rule or policy without regard to merits of case - whether the Chief Commissioner (NSW) an "owner" for the purposes of s. 71E of the Act.

Business Franchise Licences (Tobacco) Act 1987 (NSW) - s. 33 - whether reasonable grounds to believe goods were evidence of an offence - whether tobacco in applicant's "possession, custody or control" - meaning of "taken and kept in custody" under s. 58 - whether seizure valid.

Business Franchise Licences (Tobacco) Act 1987 (NSW) - ss. 3(1), 27A, 33, 58

Customs Act 1901 (Cth) - ss. 4(1), 30, 30(1), 33, 35A, 71, 71A, 71B, 71E, 71G, 71J, 79 and 153

Federal Court of Australia Act 1976 (Cth) - s.32

Judiciary Act 1903 (Cth) - ss. 39B

Attorney-General (NSW) v Quin (1990) 170 CLR 1

Collector of Customs (NSW) v Southern Shipping Co Ltd (1962) 107 CLR 279

Federal Commissioner of Taxation v The Australian & New Zealand Banking Group Ltd Johns v Australian Securities Commission (1993) 178 CLR 408

Kioa v West (1985) 159 CLR 550

(1979) 143 CLR 499

Kitano v The Commonwealth (1973) 47 ALJR 757

McNeill v Whitton (1915) 20 CLR 573

Rochfort v Trade Practices Commission (1982) 153 CLR 134

Wing On & Co Ltd v Collector of Customs (NSW) (1938) 60 CLR 97

GOBEN PTY LIMITED v THE CHIEF EXECUTIVE OFFICER OF CUSTOMS and THE CHIEF COMMISSIONER FOR BUSINESS FRANCHISE LICENCES (TOBACCO) NEW SOUTH WALES

No NG 814 of 1995

Davies J

29 July 1996

Sydney

IN THE FEDERAL COURT OF AUSTRALIA )

)

NEW SOUTH WALES DISTRICT REGISTRY ) No NG 814 of 1995

)

GENERAL DIVISION )

BETWEEN: GOBEN PTY LIMITED

Applicant

AND: THE CHIEF EXECUTIVE OFFICER OF CUSTOMS

First Respondent

THE CHIEF COMMISSIONER FOR BUSINESS FRANCHISE LICENCES (TOBACCO) NEW SOUTH WALES

Second Respondent

Coram: Davies J.

Date: 29 July 1996

Place: Sydney

MINUTES OF ORDER

THE COURT ORDERS THAT:

The application be dismissed with costs.

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

IN THE FEDERAL COURT OF AUSTRALIA )

)

NEW SOUTH WALES DISTRICT REGISTRY) No NG 814 of 1995

)

GENERAL DIVISION )

BETWEEN: GOBEN PTY LIMITED

Applicant

AND: THE CHIEF EXECUTIVE OFFICER OF CUSTOMS

First Respondent

THE CHIEF COMMISSIONER FOR BUSINESS FRANCHISE LICENCES (TOBACCO) NEW SOUTH WALES

Second Respondent

Coram: Davies J.

Date: 29 July 1996

Place: Sydney

REASONS FOR JUDGMENT

This application, brought under s. 39B of the Judiciary Act 1903 (Cth), seeks orders by way of declaration, mandamus and injunction. An amended statement of claim has, however, sought not only those orders but damages for breach of duty of care and for conversion. At the trial, the allegations as to breach of care and conversion were limited to the matters raised under the Judicial Review counts.

The applicant, Goben Pty Ltd ("Goben"), which did not hold a licence under
the Business Franchise Licences (Tobacco) Act 1987 (NSW) ("the Tobacco Act") to sell tobacco products by wholesale in New South Wales, imported into Australia a quantity of cigarettes having an Australian Customs Service ("Customs") value of $22,728.26. The goods arrived at Mascot on 12 October 1995 and were placed in the warehouse of J.A.S. International (Aust) Pty Ltd at Alexandria, which was a warehouse licensed under s. 79 of the Customs Act 1901 (Cth).

From the time of their importation, the goods were, pursuant to s. 30(1) of the Customs Act, subject to the control of Customs until delivered into home consumption in accordance with an authority to deal under s. 71B of the Customs Act.

There was, I think, some misapprehension in the submissions presented on behalf of Goben as to the nature of the control of Customs. Customs does not enter into possession, custody or control of the goods, as those words are understood in ordinary parlance. That is clear enough from the definition of "owner" which appears in s. 4(1) of the Customs Act and which reads:-

"`Owner' in respect of goods includes 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."

The Customs Act places no restriction upon the dealings which may take place with respect to goods which are in Customs' control. The property in the goods may pass. Rights to possession, custody or control may pass. The Customs Act requires, however, that until the goods are delivered into home consumption in accordance with an authority to deal or under s. 71B or under certain other permissions, the goods
must be placed in a licensed warehouse and may not be moved without the authority of Customs. The Customs Act directs its attention to ensuring that goods which are imported for home consumption are not released until duty has been paid thereon, or the payment has been properly secured, and that goods which are prohibited imports do not find their way into home consumption.

Wollaston on Customs Law (1904) at p. 21 described the concept "the control of Customs" in s. 30 of the Customs Act, as follows:-

"This term [a new and comprehensive one used throughout this Act to express the rights of the Customs in regard to goods] is not limited to the actual control or possession of the goods.

All goods which have not been duly or formally passed through the Customs, or in regard to which all prescribed formalities have not been complied with, are subject to the control of the Customs, even though not in the hands of the latter, and though in the actual possession or custody of others. Goods which have been illegally landed or removed, are still under such control in the sense of this Act."

In Kitano v The Commonwealth (1973) 47 ALJR 757 at 763-4, Mason J similarly commented:-

"Goods subject to the control of customs are not as such in the possession of the customs (see s. 35A). The provisions of the Act which spell out what is involved in the control of the customs include those `giving the customs a right of examination (ss. 32, 49(3)), forbidding any movement, alteration or interference except by authority of a customs officer (s. 33), requiring `for the purpose of securing the due importation of goods' that they be entered and unshipped (s. 49(3)), and making elaborate provisions for ensuring that the unshipping is subject to adequate safeguards for the revenue (ss. 36-41, 68-77)' (Collector of Customs (Vic.) v. Wilh Wilhelmsen Agency Pty. Ltd. (1956), 102 C.L.R. 147, at p. 156, per Kitto J.)."

Thus, the term "the control of Customs" refers to and comprehends the totality of the rights which the Customs Act confers upon Customs. Ordinarily, the rights which Customs exercises are rights which are expressed in other provisions of the Customs
Act rather than flowing from the term itself. An important element of the control is that expressed in s. 33 of the Customs Act which provides that, "[e]xcept as authorized by this Act, a person shall not move, alter or interfere with goods that are subject to the control of the Customs."

On 12 October 1995, the Customs' agent for Goben lodged on its behalf an entry for home consumption in respect of the goods. The entry was lodged in accordance with s. 71 of the Customs Act. The goods were passed by Customs "Ready for Payment" on 16 October 1995.

Before the duty was paid, however, the matter came to the attention of Mr Terence Serrao, a delegate of the second respondent, the Chief Commissioner for Business Franchise Licences (Tobacco) ("the Chief Commissioner").

The Tobacco Act provides, inter alia:-

"27A. In this Part:

`sell' includes the following:

(a) barter and exchange;

(b) deal in, agree to sell, or offer or expose for sale;

(d) send, forward, deliver or receive for sale or on sale;

(e) authorise, direct, cause, suffer, permit or attempt any of those acts or things.

28. A person shall not sell tobacco unless the person is the holder of a licence.

Maximum penalty: 100 penalty units.

29. (1) A person shall not carry on tobacco wholesaling unless the person is the holder of a wholesaler's licence or a group wholesaler's licence.

Maximum penalty: 100 penalty units.

(2) This section does not prohibit the sale by wholesale, by a person who is the holder of a retailer's licence or a group retailer's licence, of tobacco sold by wholesale to that person by the holder of a wholesaler's licence or a group wholesaler's licence."

Mr Serrao was aware of a statement dated 9 October 1995, which had been taken from a retailer of tobacco, which read, inter alia:-

"I will now be selling cigarettes still under my own name but at

60 McCauley Ave Bankstown. Telephone - 793-7557.

Business was due to commence - Thursday 5-10-1995.

I will be purchasing the tobacco from Goben Pty. Ltd.

of 39 Ernest Street Lakemba

I have purchased, "and have put quantity".

The tobacco will be stored at the address no:

60 McCauley Avenue Bankstown, and stored at the same address

and collected by the vehicle registration no: K01-384"

(emphasis added)

Mr Serrao became aware that the goods imported by Goben exceeded a "prescribed quantity" as defined in s. 3(1) of the Tobacco Act. He turned his mind to the following provisions of the Tobacco Act:-

"33. If tobacco in a quantity that exceeds the prescribed quantity is in a person's possession, custody or control, it shall be presumed in any proceedings for an offence under this Part, unless the court is satisfied to the contrary:

(a) that the tobacco is in the person's possession, custody or control for sale; and

(b) that the person is carrying on tobacco wholesaling.

...

58. (1) Any tobacco:

(a) in a quantity that exceeds the prescribed quantity; and

(b) which the Chief Commissioner reasonably believes is evidence of an offence by any person,

may be taken and kept in custody by the Chief Commissioner until proceedings for any such offence have been heard and dealt with.

(2) When taking the tobacco, the Chief Commissioner shall tender a receipt to the person from whom it is taken.

... "

Mr Serrao formed the view that the tobacco was evidence of an offence by Goben and should be seized under s. 58 of the Tobacco Act.

The decision to seize, or, more strictly, the formation of the belief that the tobacco was evidence of an offence by Goben, was challenged on a number of grounds. The jurisdictional basis for this challenge was not debated at the hearing. I assume, without considering the matter for myself, that this Court has jurisdiction either under the extended jurisdiction given by s. 32 of the Federal Court of Australia Act 1976 (Cth) or under the Cross-Vesting Legislation to make an order by way of judicial review setting aside the seizure of the goods if this included an error of law. As I consider that the challenge to the seizure was not well-founded, however, it is not necessary for me to consider the jurisdictional aspects further.

An issue in these proceedings is whether Mr Serrao had reasonable grounds for believing that the subject goods held by J.A.S. International were evidence of an offence by Goben under the Tobacco Act. The expression "possession, custody or control", which appears in s. 33 of the Tobacco Act, is a common one. It is used by courts in relation to subpoenae duces tecum: see eg. Rochfort v Trade Practices Commission (1982) 153 CLR 134 at 143, per Mason J. The term appears in s. 35A of the Customs Act. A similar term "possession, custody or power" is used in Rules of Court with respect to discovery of documents.

Such terms have a wide denotation. In Federal Commissioner of Taxation v The Australian & New Zealand Banking Group Ltd (1979) 143 CLR 499, where the
term in question was "in his custody or under his control" in s. 264(1) of the Income Tax Assessment Act 1936 (Cth), Mason J said at 532-3:-

"The primary definition of `custody' in the Shorter Oxford English Dictionary is `Safe keeping, protection; charge, care, guardianship.

...

The content of `control' is somewhat different from that of `custody'; however, both are `wide enough to include many types of possession which are not commensurate with full ownership' (Johnston Fear & Kingham v. The Commonwealth (1943) 67 C.L.R. 314, at p. 324), per Rich J.). It is difficult to ascribe a precise meaning to `control' in s. 264 as the content of the word is normally dictated by its context and can vary from sole absolute dominion over the object `controlled' to `something weaker than `restraint', something equivalent to `regulation'' (Bank of New South Wales v. The Commonwealth (1948) 76 C.L.R. 1, at p. 385), per Dixon J.). Although the use of the composite expression `in his custody or under his control' does not assist us in determining the precise limits of the meaning of `control', it does evidence a legislative intention to employ the words in their widest sense.

...

There is to my mind no reason to limit the scope of `custody and control' to `exclusive custody and control'."

As his Honour pointed out, the term may comprehend both an agent who has actual corporeal control of goods or documents and the person on whose behalf those goods or documents are held. And the custody or control need not be exclusive.

The term must be read and applied having regard to the context in which it appears. Thus, in Collector of Customs (NSW) v Southern Shipping Co Ltd (1962) 107 CLR 279, where s. 35A of the Customs Act was considered, the Court held that certain goods had been in the "possession, custody or control" of a shipper when they disappeared. At 287, Dixon CJ expressed doubt that the owner of the goods, a manufacturer, would have been encompassed by the section. That was because of the subject matter of s.35A. Section 33 of the Tobacco Act would appear to look not to the proprietor of a warehouse in which goods are stored, but at the person on whose
behalf the goods are there kept, for it looks to the situation that the tobacco is evidence of tobacco wholesaling by the person having the possession, custody or control of the goods.

In the present case, as "possession, custody or control" need not be exclusive, it appears to me that the goods were in the "possession, custody or control" of J.A.S. International and of its principal, Goben, notwithstanding that the owner's rights were subject to the obligations due to Customs, that is to say, to the making of an entry for home consumption and the payment of duty. An owner of goods may deal in them notwithstanding that they are under the control of Customs. Section 33 of the Tobacco Act uses the term "for sale", which is prospective. The presumption is not that the goods have been sold but that the person who has "possession, custody or control" is carrying on tobacco wholesaling in New South Wales.

In this light, as the goods were at the time in New South Wales and the entry for home consumption had given no indication that they were to be trans-shipped, and, having regard to the retailer's statement of 19 October 1995, I am of the view that there were reasonable grounds for the belief which Mr Serrao formed that the tobacco was evidence of a breach of the Tobacco Act by Goben.

Mr Serrao gave evidence that he had had regard to these matters and that he had been informed by another officer, Mr David Martin, that:-

"... he [Mr Martin] had been informed by a Mr Harry Shoebridge of the Customs Office that Goben had 38 cartons of tobacco products at the JAS Bond Store for release to the New South Wales market."

In his evidence, Mr Shoebridge denied that he had informed any officer with the Chief Commissioner that the goods were for release to the New South Wales market. I see nothing of importance in this matter. By 19 October, the goods had been entered in Sydney for home consumption and had been cleared for payment. No application for trans-shipment had been lodged. An inference which flowed from those facts was that the goods were to be delivered to Goben in New South Wales. And, taking into account the statement dated 9 October 1995, the inference was available that the goods were to be used by Goben in the course of a business of wholesaling tobacco in New South Wales. Mr Serrao's belief was based on reasonable grounds.

It was submitted by counsel for Goben that the tobacco was not at the time in the possession, custody or control of Goben as it was in Customs' control or, to use the words of s. 30 of the Customs Act, "subject to the control of the Customs". However, for the reasons I have already given, I think it is not inconsistent with the concept of Customs' control that goods, subject to such control, should be in the possession, custody or control of others. Section 35A of the Customs Act has this precise fact as its foundation.

It was further submitted by counsel for Goben that goods which were in Customs' control could not be "taken and kept in custody by the Chief Commissioner" whilst they were under Customs' control, for they could not be moved without the permission of Customs. The matters put forward under this head have already been debated before and rejected by Beazley J in a judgment given in these proceedings on
24 April 1996. A constitutional question concerning inconsistency between s. 58 of the Tobacco Act and ss. 30, 33 and/or 153 of the Customs Act was posed for her Honour's consideration. Her Honour considered that there was no inconsistency. It was put to me that the real issue of the proceedings was, however, not one of inconsistency but of the true meaning of s. 58 of the Tobacco Act. It was submitted that goods could not be taken and held in custody by the Chief Commissioner when they were both subject to the control of Customs and could not be moved without the permission of Customs.

As I am in agreement with the approach taken by Beazley J, I need not determine whether her Honour's findings strictly cover the issue which is before me. Her Honour considered that the goods could be "taken and kept in custody" for the purposes of s. 58 of the Tobacco Act without there being any movement of the goods or interference with the goods which required the permission of Customs. I agree with her Honour. The taping and marking of the packages was not an interference with the goods: McNeill v Whitton (1915) 20 CLR 573.

The seizure was effected on 19 October 1995 when officers of the Chief Commissioner, Mr Serrao and Mr Martin, entered the licensed warehouse of J.A.S. International and placed on the packages containing the subject tobacco labels identifying them as having been seized by the Chief Commissioner. The packages or shippers were also marked. In my opinion, that was a sufficient step to satisfy the provisions of s. 58(1).

At the time of the seizure, a receipt was given to employees of J.A.S. International. The tender of the receipt is alleged to have been defective in two ways. In the first place, the receipt was written on a form which dealt with "records, documents and statements", not goods. However, details of the goods were written in. I consider that the document was and would be understood to be a receipt for goods. Secondly, the receipt was given not to Goben itself, but to J.A.S. International. In my opinion, J.A.S. International was the person from whom the goods were taken, for the purposes of s. 58(2) of the Tobacco Act. The receipt proffered took the place of the goods taken. Thus, there was compliance with the requirements of s. 58. A proper receipt addressed to Goben was prepared on the following day but apparently it was never delivered.

On 19 October 1995, an application was lodged with Customs on behalf of the Chief Commissioner, seeking permission to move the goods to another licensed warehouse, operated by Interport Pty Ltd ("Interport") at Alexandria. Section 71E of the Customs Act provides, inter alia:-

"71E. (1) Where particular goods, or goods of a particular kind, are, or after their importation will be, subject to Customs control, application may be made to Customs, by document or by computer, in accordance with this section, for permission to move those goods, or goods of that kind, or to move them after their importation, to a place specified in the application.

(2) A documentary movement application must:

(a) be made by the owner of the goods concerned; and

(b) be communicated to Customs by giving it to an officer doing duty in relation to import entries or to the movement of goods subject to Customs control.

...

(3) When an application is communicated to Customs under subsection (2) or (2A), an officer of Customs must, by notice in writing:

(a) give the applicant permission to move the goods to which the application relates in accordance with the application either absolutely or subject to such conditions as are specified in the notice; or

(b) refuse the application and set out in the notice the reasons for that refusal.

...

(3B) If a person moves goods otherwise than in accordance with the requirement of a permission to which the goods relate, the movement of the goods is, for the purposes of paragraph 229(1)(g), taken not to have been authorised by this Act.

..." (emphasis added)

Permission to move the goods was granted on the same day and the goods were accordingly moved to the warehouse operated by Interport Pty Ltd.

It was submitted on behalf of Goben that Customs had not been empowered to grant permission to move the goods as the Chief Commissioner was not "the owner" of the goods as s. 71B(2) required. It was submitted that the Chief Commissioner was not the proprietor or importer of the goods and that the Chief Commissioner had not been identified as "the owner" in the entry for home consumption which had been lodged with Customs. It was submitted that a person identified in the entry for home consumption as the owner remained "the owner" for all purposes of the Customs Act whilst that entry for home consumption was in force.

There are sections of the Customs Act which support that interpretation. They include ss. 71A, 71B, 71E, 71G and 71J, all of which were introduced into the Customs Act by Act No. 34 of 1992. However, other sections of the Act point to the contrary. Section 167, which deals with disputes as to duty, uses the term "the owner of the goods" and, in this context, one would think that the term "the owner" would encompass whoever was in fact the owner at the time and paid the duty. Wollaston
states, at p. 10, "[t]he Customs accept the duty from whomsoever tenders it." Moreover, s. 183 provides, inter alia:-

"183. (1) Where a person is, holds himself out to be or acts as if he were the agent of an owner of goods for the purposes of the Customs Acts, that person shall, for the purposes of the Customs Acts (including liability to penalty), be deemed to be the owner of those goods.

...

(4) Nothing in this section shall be taken to relieve any owner from liability."

Although the section has been recast, provisions to the same effect appeared in s. 182 of the original Act. Section 153 of the Customs Act, which remains in the form in which it was first enacted in 1901, reads:-

"153. All duties shall constitute Crown debts charged upon the goods in respect of which the same are payable and payable by the owner of the goods and recoverable at any time in any court of competent jurisdiction by proceedings in the name of the Collector."

A person may be held liable under this provision although the person was not noted on the entry for home consumption as the owner. Thus, in Wing On & Co Ltd v Collector of Customs (NSW) (1938) 60 CLR 97, Latham CJ said at 106:-

"By whom then are the duties so charged to be paid? They are `payable by the owner of the goods'. The charge on the goods follows the goods until the duties are paid, and the liability of the owner to pay, if he becomes liable to pay at all, lasts until the duties are paid. So, also, a personal liability arises in the case of any person who becomes owner of the goods before the duties are paid."

See also Rich J at 107, Dixon J at 109-110. Moreover, a provision such as s. 35A(1B) of the Customs Act, which uses the phrase "the person to whom the permission [under s. 71E] was given", shows that the words "the owner" in s. 71E do not refer to
one specific person but rather to the range of persons falling within the description of "owner" in s. 4(1).

It follows that Customs was not limited in the exercise of the discretion conferred by s. 71E to approving an application lodged by the person who was expressed to be the owner of the goods in the entry for home consumption. The Chief Commissioner claimed to have taken the subject tobacco into his custody. He was a person having control of the goods and was an "owner" as defined in s. 4(1) of the Customs Act. In my opinion, the officers of Customs were entitled to treat the Chief Commissioner as, relevantly, "the owner", especially as the step to be taken was merely that of moving the goods to another licensed warehouse, the licensee of which was an agent of the Chief Commissioner.

The grant of approval to move the goods was not invalid because the officer of Customs failed to investigate or failed to investigate in depth whether or not the Chief Commissioner was entitled to seize the tobacco under s. 58 of the Tobacco Act. It was not a function of the officer of Customs to investigate that matter. The officer granting the approval was entitled to rely upon the presumption omnia praesumuntur rite et solemniter esse acta donec probetur in contrarium, and to assume, in the absence of material showing the contrary, that the Chief Commissioner had seized and been entitled to seize the goods as he claimed.

The statement of claim raises the argument, along with many others, that, before acting under s. 71E, Customs was bound to afford to Goben an opportunity to
present reasons why its goods should not be moved and had not done so. I accept that there is, in general, a duty to accord to the proprietor of goods, under whose direction goods have been placed in a licensed warehouse, an opportunity to express a view as to whether the goods should be moved to a different warehouse at the behest of another who is not his agent. See Kioa v West (1985) 159 CLR 550 at 584; Johns v Australian Securities Commission (1993) 178 CLR 408. However, as Brennan J said in Kioa v West at 615, the content of the principles of natural justice may be reduced to nothingness by the circumstances in which a power is exercised. See also Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 21 per Mason CJ.

In the present case, as the power was exercised to assist the Chief Commissioner to keep securely in his custody goods taken under s. 58 of the Tobacco Act, it would have been entirely inappropriate to give prior notice to Goben or to its agent of the removal, for the effectiveness of the seizure might have been frustrated. In the circumstances, the content of the duty was reduced to nothingness.

Another ground of challenge was that the office of Customs exercised the power under s. 71E at the behest or direction of the Chief Commissioner without giving any consideration as to whether it was proper to grant the permission sought and, further, that the power was exercised in accordance with a rule or policy without regard to the merits of the case. This challenge was made in the absence of any evidence supporting it. I reject the challenge. The decision made was, on its face, a sensible and proper decision. The Chief Commissioner claimed to have taken the goods under s. 58 of the Tobacco Act and wished to move the goods to a warehouse
of his own choosing. This was an appropriate reason for granting the permission. So far as the evidence goes, it is against the challenge. Mr G.L. Wainwright, who made a later decision under s. 71E, gave this evidence in cross-examination:-

"I didn't receive any instructions from anyone in the service. There's no policy that I'm aware of in relation to the Office of State Revenue. The decision I made was just purely on the facts in front of me."

The statement of claim raises some additional grounds of challenge. I do not propose to deal with them as they appear to have no merit. I should add that it is the duty of counsel to assist courts by identifying the issues which have substance. The pressures upon courts are too great to enable Judges to discuss every possible point which has been or could be raised. Counsel and solicitors have a duty to assist courts to promote efficiency.

In the result, I am not satisfied that there was any error in the course taken under s. 58 of the Tobacco Act, including the seeking of and the grant of permission to move under s. 71E of the Customs Act, or for any unlawful conversion by the Chief Commissioner of the goods.

After the goods had been passed as ready for payment on 16 October 1995, all that remained to achieve the authority to take the goods into home consumption was the payment of the duty. This could have been done at any time. The grant of the permission to move, under s. 71E, in no way inhibited Customs from clearing the goods under s. 71B.

On 25 October 1995, Goben's Customs' agents applied on behalf of Goben under s. 71E of the Customs Act for authority to trans-ship the goods under Customs' authority to AEI Bond, Adelaide, South Australia. By a tenancy agreement dated 19 October 1995, Goben had entered into a lease of premises in Brooklyn Park, South Australia. It appears that, if criminal charges are ever brought against Goben, it will be Goben's defence that the subject tobacco was not held for sale in New South Wales, but was intended for sale in South Australia. I need not deal with that issue of fact which, if it arises, will be one for another court.

The application for trans-shipment was refused by an officer of Customs, Mr G.L. Wainwright, on the ground that the goods were held in Interport's warehouse for the Chief Commissioner, and that the Chief Commissioner had advised that, until the question of offences under the Tobacco Act had been resolved, the goods were to remain in his custody.

The decision made by Mr Wainwright was challenged on the ground that Mr Wainwright merely acted in accordance with a rule of practice or a policy of Customs to assist the Chief Commissioner and did so without giving consideration to the circumstances of the case or the rights of Goben. This submission falls down on the evidence, to which I have already referred. I would observe that, in any event, it is difficult to imagine that an officer of Customs, knowing that permission had been given to the Chief Commissioner to remove the goods to Interport's warehouse, would give an inconsistent permission to Goben to remove the goods to South Australia. The grant of such conflicting permissions would not assist the orderly control of goods
within Customs' control. It would have been clear to Mr Wainwright that Goben had only to pay the duty and the goods could have been removed from Customs' control, leaving Goben and the Chief Commissioner to dispute the matter between themselves. I see no error in the approach taken by Mr Wainwright.

I need not deal with other grounds raised. The reasons for my rejection of them appears clearly enough from what I have written.

The application therefore fails with respect to all the matters which the applicant has sought to raise in these proceedings. I see no error in the acts and decisions of the Chief Commissioner and his officers and I see no error in the decisions of the officers of Customs. It follows that the application, based as it is on the ordinary principles of judicial review, although extending to the alleged breach of duty and the alleged wrongful conversion, must fail.

There remain issues between the parties which may yet have to be litigated if the parties wish to litigate them, but they are not issues for this Court. The first is that, whilst the goods were in the custody of the Chief Commissioner, most were stolen or otherwise disappeared. Accordingly, Goben may have a claim for conversion based upon a failure to take due care of the goods. But that is not a matter which is raised in these proceedings or a proper matter for this Court. The second matter which arises is that, as most of the goods have been lost, Customs may yet wish to recover duty under s. 35A of the Customs Act. I say nothing as to that matter.

The order I shall make is that the application be dismissed with costs.

I certify that this and the 18 preceding pages

are a true copy of the reasons for judgment herein of

the Honourable Justice Davies.

Associate:

Date: 29 July 1996

Counsel for the applicant: C.G. Gee QC

J.T. Gleeson

Solicitors for the applicant: Warren F. Ball & Co.

Counsel for the 1st respondent: P. Roberts

Solicitor for the 1st respondent: Australian Government Solicitor

Counsel for the 2nd respondent: N. Perram

Solicitor for the 2nd respondent: Crown Solicitor

Date of hearing: 19-20 June 1996

Date of judgment: 29 July 1996

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