Ketchell & Anor v Wynch & Anor
[2001] QDC 323
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- Unreported Judgment
- Appeal Determined (QCA)
- Ketchell & Anor v Wynch & Anor[2001] QDC 323
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Ketchell & Anor v Wynch & Anor[2001] QDC 323
Ketchell & Anor v Wynch & Anor[2001] QDC 323
[2001] QDC 323
DISTRICT COURT
REVISED COPIES ISSUED
State Reporting Bureau
Date: 6 / 12 / 01
APPELLATE JURISDICTION
JUDGE C F WALL QC
Appeal No D113 of 2001
GLENN ROBERT KETCHELL First Appellant
and
ESANDA FINANCE CORPORATION LTD Second Appellant
and
GARY EDWARD DONALD WYNCH First Respondent
and
OFFICIAL TRUSTEE IN BANKRUPTCY Second Respondent
TOWNSVILLE
DATE 05/12/2001
JUDGMENT
HIS HONOUR: The facts relating to this appeal are referred to in the judgment I delivered on 29 May 2001 in relation to jurisdiction, and in the judgment of the Court of Appeal in considering an appeal from that decision delivered on 21 August 2001, see Ketchell v Wynch & Official Trustee (2001) QCA 291, and I need not repeat them here.
Leave was given at the outset for the appellants to file an amended notice of appeal. I have now heard the appeal on the merits. Two grounds only were argued, whether knowledge or mens rea on the part of the innocent owners need be proved and whether the proceeding was an excise prosecution which should have been but was not instituted by the Chief Executive Officer (CEO) of Customs. The grounds relying on the absence of notice of the proceedings in the Magistrates Court to Esanda and whether a distinction should be made between the prime mover and the trailer were abandoned.
At the outset of the hearing, Esanda was added as an appellant to the proceeding. Mr Lewis of counsel appeared for both appellants. Mr Fellows of counsel appeared for the first respondent. There was no appearance for the second respondent, nor did there need to be.
I will deal with each ground of appeal separately.
Knowledge
Section 116(1) of the Excise Act is in the following terms:
"The following goods shall be forfeited to the Crown:
- (a)all excisable goods manufactured or partly manufactured by a person who is not a licensed manufacturer;
- (b)all tobacco seed, tobacco plant or tobacco leaf found on any premises where the manufacture of excisable goods is unlawfully carried on;
- (ba)all tobacco leaf that has been moved without permission under section 44;
- (bb)all tobacco seed, tobacco plant (whether or not in the ground) or tobacco leaf found in the possession, custody or control of a person (other than a licensed producer, licensed dealer or licensed manufacturer) without permission;
- (bc)all tobacco seed, tobacco plant (whether or not in the ground) or tobacco leaf kept or stored at a place that is not specified in a producer licence, dealer licence or manufacturer licence;
- (c)all goods used, or capable of being used, in, or in connexion with, the manufacture of excisable goods, found on any premises where the manufacture of excisable goods is unlawfully carried on;
- (d)all excisable goods subject to the CEO's control that are moved, altered or interfered with except as authorized by this Act;
- (e)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; and
- (f)all packages in which forfeited goods are contained."
Whilst there are apparently no decisions on section 116(1) of the Excise Act, there are decisions on section 229(j) of the Customs Act which is comparable and on other analogous provisions. Reading the words of such provisions strictly (because of their "draconian", "drastic", "harsh" and "oppressive" consequences and recognising the "hardship" they may cause), they have been for more than 100 years interpreted consistently against an innocent owner and in this appeal I feel compelled, albeit reluctantly, to adopt the same approach.
The high water mark of liability for forfeiture is probably the case of the innocent owner whose vehicle is stolen and used for an activity such as the present vehicles were used for. In this respect, Gibbs J in Forbes v Traders' Finance Corporation Limited (1971) 129 CLR 429 said at 447:
"The provisions of s. 229(j) of the Customs Act 1901-1968 (Cth) are especially severe in that they effect the forfeiture of a carriage or animal that was in fact used in smuggling or in the unlawful importation, exportation or conveyance of any goods even though the owner of the carriage or animal was quite unaware that it was intended to be so used and took no part in the unlawful user, and indeed even if it had been so used by someone who had stolen it from the owner."
I also appreciate that it is likely to be of little solace to an innocent owner to be told that "his remedy lies in an action for damages against the user whose wrongful conduct deprived him of his property" (Windeyer J in Forbes at 439).
The decisions in favour of the first respondent's submission "that forfeiture occurs on the happening of the nominated facts irrespective of the culpability or knowledge of the owner or others persons", which I accept, include Forbes v Traders' Finance Corp Ltd (1971) 129 CLR 429, Customs and Excise Commissioners v Air Canada [1991] 2 QB 446, Lord Advocate v Crookshanks (1988) 15 R 995, Little's Victory Cab Co Pty Ltd v Carroll [1948] VLR 249, Burton v Honan (1952) 86 CLR 169, Cheatly v R (1972) 127 CLR 291 and Ex Parte Lawler (1993) 179 CLR 270, the last two being in relation to fisheries legislation.
Knowledge is not a requirement of section 116(1)(e) either expressly or by necessary implication. I agree that the injustice of confiscating the property of an innocent person is no reason to modify the clear wording of section 116(1)(e). The meaning and effect of words such as are used in section 116(1)(e) is well established.
In Canada, (see Forbes at page 440), there is (or was) a provision protecting the owner of a vehicle against forfeiture if he established that he was innocent of any complicity in its unlawful use and that he had taken all reasonable care that it was not likely to be used in that way. There is no comparable provision in the Excise Act.
I also agree that a proceeding for condemnation of goods (here vehicles) seized as forfeited either under section 9A of the Crimes Act or Part XI of the Excise Act is a civil proceeding in rem against the vehicles and not a proceeding against the owner notwithstanding that it is the owner who suffers. See Air Canada at pages 586-7 and 589-590 and Thomas JA in the Court of Appeal paragraph [32]. This is so notwithstanding that the owners of the vehicles here are entirely innocent of any wrongdoing.
I appreciate that in Air Canada one of the reasons relied on by the Court there for concluding as it did was the discretion entrusted by Parliament in the commissioners whether to invoke the process of seizure and condemnation and that there may be no such discretion in the present case but this cannot in my view detract from the "clear and unambiguous wording" of section 116(1)(e) in view of the way such a provision has invariably been interpreted. The same applies to the reasoning relying on a power to remit forfeiture or mitigate the severity of the forfeiture provisions.
Section 151 of the Excise Act is consistent with this approach. It provides as follows:
"Where the committal of any offence causes a forfeiture of any goods the conviction of any person for such offence shall have effect as a condemnation of the goods in respect of which the offence is committed."
This provision can effect condemnation of the vehicles as a result of the culpability only of the driver regardless of the innocence of the owner, see Burton v Honan and Commissioner of Australian Federal Police v Craven (1989) 20 FCR 547. In the present case I am told that an excise prosecution has recently been commenced against the driver of the prime mover arising out of the present circumstances.
The appellants sought to gain comfort from the fact that sections 117-117F of the Excise Act (which were inserted by the Excise Amendment (Compliance Improvement) Act 2000, in force 7 September 2000) use the words "knowing or being reckless" and for this reason similar words should be implied or read into section 116(1)(e). The reasoning in Forbes is against this submission. The fact that those words are found in those sections and not in section 116(1) is an added reason for concluding that they are not to be read into section 116(1).
The rationale for the forfeiture provisions in section 229 of the Customs Act is that they are "a necessary measure to vindicate the right of the Crown and to ensure the strict and complete observance of the Customs laws which are notoriously difficult of complete enforcement in the absence of strong provisions supporting their administration", Dixon CJ Burton v Honan. See also Barry J Little's Victory Cab Co Pty Ltd v Carroll at 252 and Barwick CJ Cheatley v R at 296. The same reasoning applies to section 116(1) of the Excise Act.
In my view the authorities which I have mentioned provide a conclusive answer to the submissions of the appellants that the word "convey" "inherently requires knowledge by the conveyor that he or she is conveying something" and that "some form of knowledge of the wrongness of the act is required".
Lyons v Smart (1908) 6 CLR 143 relied on by the appellants is distinguishable on its facts and on the legislative provision that was considered. It was a decision on a provision imposing personal liability for an offence rather than a forfeiture provision. It was also referred to in Forbes v Traders' Finance Corporation Limited and was not considered an impediment to the decision in that case.
The general thrust of the appellants' submissions, including the authorities relied on such as Lyons v Smart and Maher v Musson (1934) 52 CLR 101 is related to offences rather than forfeiture provisions and in relation to the latter it is clear in my view, in the context of the present appeal, that a vehicle conveying or having packed therein or thereon any forfeited goods is forfeited to the Crown whether or not the owner of the vehicle knows of the use to which it is being put.
The fact that the consequences for the innocent owner "may greatly exceed the penalty imposed" upon the offending driver is but one of the draconian consequences of these types of provisions.
Prosecutions for offences against sections 117-117F are personal in nature and expressly require proof of knowledge or recklessness, whereas proceedings for condemnation of goods seized as forfeited are in rem against the particular object and not its owner, notwithstanding, as I have already said, that it is the owner (who may be innocent) who suffers in the end.
The appellants also relied on Murphy v Farmer (1988) 165 CLR 19 but that involved the meaning to be attributed to the word "false". The authority of Forbes v Traders' Finance Corporation Limited was accepted dealing as it did with a forfeiture provision rather than the construction of a word.
Deane, Dawson and Gaudron JJ said at page 28:
"It may not be permissible to read into a forfeiture provision, such as s. 229(1)(i), a word such as 'knowingly' or a requirement of mens rea if the words which the Parliament has used are not of themselves capable of conveying such a meaning or such a requirement: cf. Forbes. It is however, in our view, proper to approach the construction of the actual words of the Act on the basis that it is to be presumed that clear words would have been used if it were intended to impose automatic forfeiture as the penalty for 'any' wrong 'answer' regardless of whether it was knowingly or innocently given. Such a prima facie presumption supports reading the word ' false' in s. 229(1)(i) as meaning purposely or intentionally untrue."
I do not think this judgment suggests that the High Court today would depart from the approach taken in Forbes to a forfeiture provision such as section 116(1) of the Excise Act and "read into it a word such as 'knowingly' or a requirement of mens rea" which is what the appellants asked me to do. I decline their invitation.
For these reasons the absence of knowledge of wrongdoing on the part of the appellants cannot assist them and this ground fails.
Excise Prosecution
This is an issue of some complexity.
The amendments to the Excise Act relating to search and seizure made by the Taxation Law Amendment (Excise Arrangements) Act 2000 (sections 107AA to 107GA) did not come into force until 4 May 2001 which was after the date the vehicles the subject of this appeal were seized and dealt with by the Magistrate, hence this issue must be determined according to the Act as it existed when the vehicles were seized and dealt with. The new provisions do though recognise the separate operation of section 9 of the Crimes Act which is a position at variance with the case advanced by the appellants under the legislative scheme which existed before the amendments.
Sections 133 and 134(1) of the Excise Act provide as follows:
"133. Proceedings by the Customs for the recovery of penalties under any Excise Act or 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:
- (a)in the Supreme Court of a State;
- (b)in the Supreme Court of the Australian Capital Territory;
- (c)in the Supreme Court of the Northern Territory;
- (d)in a County Court or District Court of a State;
- (e)in a Local Court, being a Local Court of full jurisdiction, of South Australia or of the Northern Territory; or
- (f)in a court of summary jurisdiction of a State, of the Australian Capital Territory or of the Northern Territory."
The appellants' argument is that the application to the Magistrate was an excise prosecution as defined in section 133 of the Excise Act and as such it should have been, but was not instituted by the CEO in accordance with section 134(f); it was therefore, so the argument went, incorrectly commenced and should be set aside. This issue was referred to but not decided by the Court of Appeal.
The first respondent contended that the proceeding is not an excise prosecution but a separate and distinct proceeding provided for by section 9 of the Crimes Act.
Section 9 is in the following terms:
"Seizure and condemnation of forfeitable goods
- (1)Any constable may, without warrant, seize any articles which are forfeited or which he has reasonable ground to believe are forfeited under any law of the Commonwealth, and take them before a court of summary jurisdiction.
- (2)Where articles are taken before a court of summary jurisdiction under subsection (1), the court shall inquire into the matter and:
- (a)if the court is satisfied that the articles are forfeited - shall order that the articles be condemned; or
- (b)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.
- (2A)A court of summary jurisdiction may, before inquiring into a matter under subsection (2), require notice of the inquiry to be given to such persons as the court thinks fit.
- (3)Where any prosecution is pending, an order for the condemnation or the delivery to any persons of any articles relating thereto shall not be made until the prosecution is determined.
- (4)All articles that are condemned as forfeited must be transferred to the Official Trustee to be dealt with under section 9A."
The appellants submit that the Crimes Act procedure is predicated on forfeiture by virtue of other legislation, here the provisions of the Excise Act, and is dependent upon those provisions and that an application under section 9 must be in the form of an excise prosecution instituted in accordance with section 134 of the Excise Act and this was not.
There is no dispute here that the vehicles were conveying forfeited goods. By section 116(1)(e) of the Excise Act those vehicles were for that reason forfeited to the Crown. The proceedings before the Magistrate (however they should be categorised) were condemnation proceedings.
The vehicles were taken before the Magistrate under section 9 by a federal constable. The constable made the application which was filed in the Magistrates Court. The proceedings before the Magistrate were by the constable. They were not, in my view, proceedings by the Customs for the condemnation of goods seized as forfeited pursuant to section 133. There is no requirement for the constable to institute via the CEO an excise prosecution, nor do I think sections 133 and 134 of the Excise Act require this. Likewise I do not think that section 133 deals with two separate types of proceedings, namely "proceedings by the Customs for the recovery of penalties" and "proceedings (generally, but not necessarily by the Customs) for the condemnation of goods seized as forfeited". In my view the correct interpretation is that both types of proceedings are "proceedings by the Customs".
Section 9(2) requires the Magistrate to determine whether the vehicles are forfeited or not. Such a determination no doubt can involve an issue such as is presented by this appeal (knowledge). Had the Magistrate not been satisfied that the vehicles were forfeited, section 9(2)(b) requires him to order their delivery "to such person as the Court is satisfied is entitled" to them, presumably the owners or persons lawfully entitled to possession of them. On the other hand, and subject to a limited exception, part XI of the Excise Act (the part dealing with Excise Prosecutions) does not provide any procedure to be followed or issues to be determined by the Court should the proceedings be instituted by the CEO. The exception is that section 137 of the Excise Act speaks of an order for condemnation or an order of dismissal, the latter being different to the power contained in section 9(2)(b) of the Crimes Act. This may be thought to be a reason why the proceedings should be instituted by the CEO by way of an excise prosecution under section 9, but section 9 does not contemplate proceedings being instituted by anyone other than a constable or being instituted in the form of an "excise prosecution".
That there are two different ways of proceeding also appears apparent from the end result depending on which course is taken. Section 9(4) of the Crimes Act requires the transfer to the Official Trustee of articles condemned as forfeited and section 9A then provides as follows:
"Where articles are transferred to the Official Trustee under subsection 9(4), the Official Trustee must, subject to any direction by the Attorney-General given in a particular case:
- (a)sell or otherwise dispose of the articles; and
- (b)apply the proceeds of the sale or disposition in payment of the Official Trustee's remuneration and other costs, charges and expenses of the kind referred to in section 9B payable to or incurred by it in connection with the sale or disposition; and
- (c)pay the remainder of those proceeds to the Confiscated Assets Reserve as required by section 34B of the Proceeds of Crime Act 1987."
On the other hand, section 153 of the Excise Act (also in part XI) provides as follows:
"All penalties and forfeitures recovered under any Excise Act shall be applied to such purposes and in such proportions as the CEO may direct."
Further, section 9(3) of the Crimes Act appears to contemplate proceedings pursuant to section 9 without a prosecution.
I do not think that a proceeding before a Magistrate pursuant to section 9 (whilst probably achieving the same initial result or at least having the same aim (but not the same end result) as "proceedings by the Customs for the condemnation of goods seized as forfeited" under sections 133 and 134 of the Excise Act) is to be categorised as an "excise prosecution".
In the present case the vehicles were seized by a federal constable not a customs officer and this I think probably determines the procedure to be thereafter followed.
In the present case the Court of Appeal agreed that "the commencement of the present matter in the Magistrates Court by application pursuant to Rule 11 of the Uniform Civil Procedure Rules was appropriate " (paragraph [17]). I agree though that this does not necessarily mean that another way may not also be "appropriate". Read together, sections 136 and 137 of the Excise Act on the other hand may in fact equate an excise prosecution (under part XI) with a summary criminal proceeding under the Justices Act.
The two sections do not in all respects however sit easily side by side. They provide as follows:
"136. Every Excise prosecution in a court referred to in subsection 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.
- Subject 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 that if an excise prosecution is instituted in a Court of summary jurisdiction as opposed to a higher Court, then section 137 provides the way in which it is to be categorised and dealt with. Perhaps another interpretation is that it is a civil proceeding subject to the rules applying to summary prosecutions in the Magistrates Court and this is what I consider it probably is.
Both views are consistent with the conclusion of the Court of Appeal in Labrador Liquor Wholesale Pty Ltd & ors v The Chief Executive Officer of Customs (2001) QCA 280 that in excise prosecutions for offences against sections 61 and 120(1)(iv) of the Excise Act (in that case instituted by a civil proceeding in the Supreme Court), the standard of proof required in order to obtain convictions is proof beyond reasonable doubt and that such excise prosecutions are criminal proceedings for the purposes of the Evidence Act 1977. In that case, unlike the present, the proceedings alleged personal offences and their purpose was "not simply to recover moneys but to punish offenders" (Thomas JA, at paragraph [69]).
If the present proceedings are in fact an excise prosecution, albeit incorrectly commenced, then section 137 of the Excise Act appears to contemplate an appeal proceeding in accordance with the rules applying to appeals against summary convictions, namely the Justices Act and the powers of the Court on appeal would be those contained in section 225 of the Justices Act. On the other hand, section 9 of the Crimes Act does not appear to contemplate criminal liability or criminal consequences (and this is consistent with the approach by Courts to forfeiture cases simpliciter) and if the correct way to commence the proceeding under section 9 is by application pursuant to Rule 11 of the Uniform Civil Procedure Rules, then presumably the civil standard of proof applies, (which is consistent with how such proceedings have historically been approached), and any appeal (like the present) is a civil appeal and the powers of the Court on appeal are those contained in section 47 of the Magistrates Court Act.
The existence of two separate and different streams for securing condemnation of goods seized as forfeited may seem anomalous but that in itself is no reason for concluding that the proceeding contemplated by section 9 of the Crimes Act is in fact an excise prosecution under part XI of the Excise Act. Each exists under different legislation and the initiating officer for each will not necessarily be the same or working to the same agenda. Likewise there is no legislative requirement that they cooperate or consult in their investigations or in how the fruit of those investigations is to be dealt with and finally disposed of. A federal constable seizing articles which are forfeited cannot initiate an excise prosecution, he can only proceed via section 9 notwithstanding that it is the Excise Act which effects the forfeiture.
Part XI of the Excise Act is not expressed to be exclusive in relation to proceedings for the condemnation of goods seized as forfeited. It does not, for example, say that such a result can only be achieved by an excise prosecution. The amendments made by the Taxation Laws (Excise Arrangements) Act 2001 clearly indicate recognition by the legislature of both ways of proceeding. Condemnation can also occur independently of an excise prosecution for condemnation of goods seized as forfeited, see section 151 of the Excise Act.
I also agree with the first respondent's submission that section 138 of the Excise Act recognises a different type of proceeding than section 9 of the Crimes Act. Section 138 provides that an excise prosecution in the present case for the condemnation of the articles sized as forfeited could be instituted at any time within five years after the seizure. On the other hand it could not seriously be contended that the respondent here could have waited up to five years before taking the vehicles before the Magistrate. The only course open to the respondent was that provided for by section 9 of the Crimes Act and that did not make his application an excise prosecution within the meaning of part XI of the Excise Act notwithstanding that the object sought to be achieved - condemnation - is the same as could be achieved by an excise prosecution.
It is probably also the case that the respondent had no other course open to him in that he had to proceed in accordance with section 9 of the Crimes Act and could not have delivered the articles to the CEO for the purpose of the CEO instituting proceedings for condemnation of the vehicles seized as forfeited under part XI of the Excise Act. Section 9(1) is not mandatory so far as seizure is concerned, but having decided to seize the goods, I think the respondent was obliged to then follow the procedure set out in section 9.
Curiously, the Excise Act at the time relevant to seizure of the vehicles in this case does not appear to contain any provisions authorising an officer of Customs to seize forfeited goods. Whilst there are sections which recognise that goods may have been seized (sections 108, 118, 124(1)(a) and (c) and 133, for example) no section seems to confer a power of seizure on an officer of Customs. If this is so it is difficult to see how there could be an excise prosecution for the condemnation of goods seized as forfeited by a constable under section 9 of the Crimes Act because that provision requires the constable to take the goods to a Court of summary jurisdiction rather than cause an excise prosecution to be instituted. On the other hand, this state of affairs may be thought to somehow support the view that a proceeding under section 9 is in fact to be categorised as an excise prosecution but I am unable to agree that that is so.
In the absence of a power of seizure on the part of an officer of Customs it is difficult to see how the CEO could institute a customs prosecution for the condemnation of goods seized as forfeited notwithstanding section 133 of the Excise Act when no power of seizure is conferred on an officer of Customs. This state of affairs supports a conclusion that a proceeding in accordance with section 9 of the Crimes Act is not an excise prosecution. Only a constable and not also an officer of Customs may seize articles which are forfeited and having done so he is required then to proceed in accordance with section 9. No other course is open. This may be why sections 107AA-GA were inserted by the Taxation Laws Amendment (Excise Arrangements) Act 2001. See in particular sections 107CA and 107CB. Sections 107EA-GA establish a new regime by which goods seized under a seizure warrant or section 9 of the Crimes Act are to be dealt with (which is the same in either case unlike the position at the time the events the subject of this appeal occurred) and sections 107FJ and 107FM confer power on the CEO only to decide what is to happen to condemned goods. Curiously, as best I can see, sections 9 and 9A of the Crimes Act were not also amended to accord with this new regime and remain in all respects as I have already set them out. Presumably, so far as concerns goods seized as forfeited under the Excise Act, the Taxation Laws Amendment (Excise Arrangements) Act 2001 impliedly effects amendments to those sections or to the procedure provided by them. Section 107FA, for example, now requires a police officer who seizes any forfeited goods under section 9 of the Crimes Act to deliver them into the custody of an officer of Customs which bypasses or supplants completely the procedure laid down in section 9. Likewise, if no claim is then made for return of the goods they are by section 107FE taken to be condemned (without any Court order) as forfeited to the Crown.
There is perhaps another way of approaching the matter and that is that having seized the vehicles as forfeited and taken them before a Court of summary jurisdiction pursuant to section 9 of the Crimes Act, the effect of sections 133 and 134 of the Excise Act is that the CEO then commences an excise prosecution for condemnation. I think though in view of what I have already said that this would be reading too much into the relevant provisions of both the Crimes Act and the Excise Act. In my view, part XI of the Excise Act deals with proceedings instituted by the Customs and section 9 of the Crimes Act deals with proceedings instituted by a constable and the two cannot be satisfactorily mixed together.
For these reasons I consider the application in this case to have been properly commenced. This ground therefore also fails.
If I am wrong in that conclusion the first respondent submits that by reason of sections 140 and 141 of the Excise Act this is not fatal to the proceedings. The appellants submit that to commence an excise prosecution in the wrong name is fatal as not being merely a defect in substance or form. Accepting that the form and substance of the application is correct the only defect is that the applicant is described as Mr Wynch rather than the "CEO in the name of the office of the CEO" (section 134(1) of the Excise Act). This defect can be cured by a simple substitution of parties. Relevant considerations on whether that should be allowed, include the fact that the evidence is the same and there would be no change to the result, and no prejudice would therefore accrue to the appellants. If "the usual practice and procedures of the Court in civil cases" (section 136 of the Excise Act) apply, Rule 69(1) of the Uniform Civil Procedure Rules is ample warrant for substituting a party. See also section 47 of the Magistrates Court Act. Section 137 of the Excise Act in applying the provisions of the law relating to summary prosecutions is expressed to be "subject to the provisions of this Act" which would include section 136. (If the provisions of the Justices Act apply, and I do not think they do, section 48 of that Act is in similar terms to section 140 of the Excise Act. See also section 225 of the Justices Act). I think that the proceedings are civil in nature and as such the Uniform Civil Procedure Rules apply. This is what I previously decided and that is also the effect of the decision of the Court of Appeal and I see no reason to change my view. The proceeding is for condemnation of vehicles seized as forfeited, rather than a prosecution of an individual for an offence. For these reasons had I concluded that the proceeding was in fact an excise prosecution, I would have allowed the substitution of the CEO for the first respondent as applicant.
Conclusion
For the reasons I have given, the appeal should be dismissed and the decision of the Magistrate confirmed.
Before dealing with the question of costs, I should say that if there does exist any discretion to remit the forfeiture of these vehicles or mitigate the severity of forfeiture, I would commend to the Attorney-General in exercising his discretion under section 9A of the Crimes Act, and to the CEO if he has any say in the matter, the remarks of Barry J in Little's Victory Cab Co at pages 225-256.
...
HIS HONOUR: I am not inclined to grant the respondents' costs of the appeal. I recognise that the normal rule is that costs should follow the event. However, for the reasons which I gave in my judgment on 29 May 2001, I propose to exercise my discretion and not make any order for costs in favour of the respondents.
The formal orders will be:
- (1)The appeal is dismissed;
- (2)Each party is to bear their own costs of the appeal.
Like I said at the conclusion of the judgment I delivered on 29 May 2001, I would urge the Official Trustee not to take any steps to sell or dispose of the vehicles until the appellants have exhausted any further appeal rights which they may have.