27 OCTOBER THE NEW ZEALAND GAZETTE 3567

The principle laid down in that case has been followed by the
Divisional Court of the Probate, Divorce and Admiralty Division
in two subsequent cases to which we were referred, namely Scutt
v Scutt [1950] WN 286 and Walker v Walker [1967] 1 Appl ER
412. It is, I think, clear that the principle must apply with full force
where the order made is of a penal character as it was here. It seems
to me that in this case the learned magistrate ought to have given
the mother an opportunity of being heard, and for that purpose,
on 29 November 1967, notwithstanding the short notice and the
flimsy excuse which she gave, he ought to have granted an
adjournment.

Bearing those principles in mind we think that the following factors
lend some support to the importer's application for an adjournment.

1. Essentially the importer faces criminal proceedings in the
   District Court. Once the Tribunal makes a finding as to the
   appropriate classification of the books, the matter will then revert
   to the jurisdiction of the District Court for final determination. It
   appears that if convicted the importer could face a maximum fine
   of approximately $51,339. Mr LeLoir advised us that the penalty
   under section 48 of the Customs Act (which is the section under
   which the importer is charged) is a $1,000 fine or a fine 3 times the
   value of the goods seized, whichever is the greater. We were further
   informed that under section 261 of the Customs Act the Department
   has calculated that the 3215 paperbacks seized are worth $17,113.

Three times this figure gives the large sum already mentioned,
as the potential maximum penalty for the offence. In circumstances
where an importer faces a penalty of this magnitude, in a criminal
proceeding, we would feel obliged to give the importer every
opportunity to make representations relating to one of the essential
elements of the offence, namely the issue of whether the publications
are indecent.

2. Under section 16 of the Indecent Publications Act the Tribunal
   is given the power to make such order as to costs as it thinks fit.
   If the Tribunal were to find the majority of these publications
   manifestly indecent (although of course the Tribunal expresses no
   view on the matter at this stage) the Tribunal might well, having
   regard to the number of publications, impose an order for costs on
   the importer.

It should be borne in mind that the cost to the taxpayer of the
Tribunal's adjudication on this particular reference is approximately
$22,000. But, in the absence of hearing any submissions from the
importer on the question of the indecency of the publications, or
on the question of costs, the Tribunal would be reluctant to make
any such imposition of costs.

In expressing this view we bear in mind the Court of Appeal's
recent action in quashing the order made by the Royal Commission
for $150,000 costs against Air New Zealand in Re Erebus (No. 2)
[1981] 1 NZLR 618, 666. Although the factual situations between
the 2 cases are far removed, we nevertheless think there is some
connection in principle: namely that where a party affected may
have been denied an adequate opportunity to be heard, or where
there may be a possibility that a breach of natural justice may have
occurred, costs or a financial penalty imposed on the "injured" party
may subsequently be quashed, as being inappropriate in the
circumstances.

3. Although Mr Travis has been seized of the proceedings since
   February 1982, we heard through Mr Brooks that he was prepared
   to swear an affidavit that he had only heard of the date of the present
   hearing on 7 June 1983. We accept what Mr Travis says without
   the need for an affidavit. It is also true that the notice of hearing
   was sent to Mr Stapleton, in error, and that the notice of hearing
   sent to the importer himself was never received by him because he
   had shifted addresses since 1981.

Consequently the importer's legal advisor may have had short
notice at a substantial hearing further complicated by the fact that
his client was overseas at the time of notification.

4. It appears in this case that there have already been significant
   delays, which cannot be attributed to the fault of the importer. The
   chronology of events shows that for almost a year the Customs
   Department did nothing about the publications, and in the end Mr
   Nicholas was moved to complain at ministerial level about the delay.
   It further appears that after March 1982 the conduct of the
   proceedings in the Auckland District Court fell into some sort of
   limbo and that matters were not put into train again until February

In these circumstances we feel that another 2 months' delay will
not unduly distort the due process of justice, especially considering
that more than 3 years has elapsed since the official seizure of these
publications.

5. The final matter is that although the Customs Department were
   ready to proceed before the Tribunal on 15 June 1983, Mr LeLoir
   made no objection to the application by the importer for the
   adjournment.

In conclusion therefore we reluctantly agree to adjourn the present
hearing until Tuesday, 16 August 1983 when the hearing of this
reference will definitely proceed. It is obvious that the importer's
solicitor must avail himself of the earliest opportunity to peruse the
balance of the books seized in this importation. We have directed
the Comptroller to make the balance of the books available as soon
as possible.

We also note that we will be unimpressed with any argument
(save for the most cogent evidence) that Mr Travis was unable to
get adequate instructions from Mr Nicholas because he is presently
overseas. The sums of money involved in the importation of the
present publications, and the sums involved in any penalty upon
conviction, or in the form of any costs that might be imposed, are
likely to be substantial. Those costs would seem to us to merit
attempts to obtain instructions that perhaps would not otherwise
be justified, were the stakes not as high as in the present proceedings.

Therefore, unless the most exceptional circumstances prevail to
the contrary, the hearing of this reference will definitely proceed on
Tuesday, 16 August 1983.

Our purpose in setting out at this length our reasons for granting
the application for adjournment is to ensure that the importer and
his solicitor are properly placed on guard as to the possible
consequences at their failure to be in a position to proceed on the
next hearing of this reference from the Auckland District Court.

District Court Judge W. M. WILLIS, Chairman.

CHRONOLOGY OF EVENTS IN RELATION TO 341 PAPERBACK
BOOKS IMPORTED BY N. H. NICHOLAS

19 September 1979: Information received by Customs that
Nicholas would shortly be importing
indecent books.

30 November 1979: 341 paperback books forming part of a
larger shipment of 10,000 books (stacked
on three pellets) were imported at the
Port of Auckland on vessel "ACT 4".

17 December 1979: Entry for home consumption was made in
relation to the books.

January 1980: The books were examined twice by
examining officers during this month.

8 February 1980: Memorandum sent to Head Office
Research Division from Auckland,
enclosing 35 books.

21 February 1980: Books examined in Research Division and
considered to be indecent and reply sent
to Auckland.

26 February 1980: A further 258 titles were sent to Head
Office by Auckland.

28 February 1980: Decision to prosecute Nicholas was agreed
to by Assistant Comptroller of Customs.

3 March 1980: Memorandum sent to Auckland approving
prosecution.

30 April 1980: Auckland seized 3,215 paperback books.
Seizure notice sent with letter to
Nicholas indicating that he would be
prosecuted for importing indecent
publications.

2 May 1980: Nicholas filed notice to dispute forfeiture
with Auckland office (copy enclosed).

15 October 1980: Memorandum from Auckland regarding
delays. Officer in charge of books
indicates that he has been away from
job for 3 months.

23 October 1980: Letter sent by Auckland office to Nicholas
acknowledging notice to dispute
forfeiture and regretting delay in
replying.

7 October 1981: Letter from Auckland office to Crown
Solicitor enclosing prosecution file.

5 November 1981: Crown Solicitor reports that informations
had been filed in October 1981.

17 November 1981: Letter to Auckland office from R. J.
Stapleton, solicitor, acting for Nicholas,
indicating that a not guilty plea would
be entered and indicating that the matter
should be set down for defended hearing
in early 1982.

14 December 1981: Case is first called and adjourned for
defended hearing on 22 February 1982.

22 February 1983: The case is adjourned until 15 March so
that Mr B. Travis, counsel for Nicholas,
can inspect alleged indecent books.

15 March 1982: Mr Travis appeared and the Court made
an order pursuant to section 12 of the
Indecent Publications Act 1963 to have
the books referred to the Indecent
Publications Tribunal and case
adjourned until 5 July 1982 so as to give
Indecent Publications Tribunal time to
classify books.

19 April 1982: 341 books were sent to Miss T. Spain,
Crown Solicitor, Auckland.

28 May 1982: Mr Travis requests Crown Solicitor for 12
books to be sent to him.