Case: Repatriation Commission v Gordon (1990) 26 FCR 569
Outcome: considered
Repatriation Commission v Gordon (1990) 26 FCR 569 concerned a situation analogous to that in the present case. Service of a copy of a decision marked the commencement of the period within which an application for review could be made. Spender J held that the veterans' entitlements legislation did not evince an intention that service by post was not available. His Honour said at 577: "The object of service, in whatever form, is to bring the contents of the document or documents served to the attention of the person to be served. The mere fact that one might more confidently expect that aim to be achieved if personal service, as opposed to service by pre-paid post, is required, does not permit the conclusion that service by pre-paid post was intended to be excluded. Such a consideration would apply in every case. Accepting, as I do, that the veterans' entitlement legislation is benevolent in purpose, nonetheless in my view there is nothing in its provisions which manifests an intention to preclude service by pre-paid post of the documents that s 34(2) requires the Commission to cause to be served on the claimant or applicant." 23 My conclusions are that s 28A of the AIA was available to the respondent, the notice was served in accordance with s 29 , and was delivered on 30 June 2005. 24 In case it might be thought that the application of s 28A has produced a harsh result in this case, I note four matters. First, as I have said, the notice was delivered to the applicant's business premises on 30 June 2005. Second, it was received by him, in the sense that he read it, on 5 July 2005, which gave him almost four months in which to commence proceedings. The four month period did not expire until 31 October. Third, according to the applicant's statement of claim, on or about 29 June 2005 Mr Wohlers notified him that if he did not bring an action for recovery within four months of service of the notice, the objects would be forfeited. Fourth, the applicant's counsel contacted the Department on 20 October and was informed of the Department's view that the period expired on 31 October. The file note recording the conversation states that counsel responded that "they would contemplate (bringing the action) by the end of the following week [ie 28 October 2005]". Notwithstanding this, the proceeding was commenced out of time. 25 The action against the Commonwealth for which s 37 provides is available only if two conditions are satisfied. The first is that a protected object has been seized under the Act. The second is that the object has not been forfeited by s 36. The action that is authorised by s 37(1) is one to recover the object on the ground that it is not forfeited or liable to be forfeited. In a case such as the present, the ultimate task for the court is to decide whether the object is liable to forfeiture by virtue of s 14(1). That involves determining the three matters prescribed by s 14(1): whether a protected object has been exported from a foreign country, whether the export was prohibited by a law of that country relating to cultural property, and whether the object has been imported into Australia. Section 37(3) prescribes what the court is to do in certain events. If it determines that the object is liable to forfeiture under s 14(1), it is required to order that the object is forfeited. If it finds that the object is not liable to forfeiture, it may order its return. 26 There is an oddity in the drafting of ss 34 to 37. Section 34 confers power to seize a "protected object" where the relevant belief exists. Section 36(2) and (5) and s 37 also use these words. Although s 36(8) speaks of "an object" and "the object", it is clear from s 36(5) that what sub-s (8) calls an "object" is a "protected object". One of the questions for the Court under s 37(3) is whether what has been seized is a protected object. See par (b) and s 14(1)(a). Where the court finds that an object is not liable to forfeiture by virtue of s 14(1), it may order its return. This it may do if it is not liable to forfeiture because it is not a protected object within s 14(1)(a). Accordingly, it seems to me that "protected object" in s 37(1)(a) and "the object" in par (b) must include an object that is alleged to be a protected object. Similarly with s 34, which appears to contemplate that in some cases a seized object will not in fact be liable to be forfeited because, for example, it is not in fact a protected object within s 14(1)(a).