The Tribune

By NEIL HARTNELL Tribune Business Editor THE Supreme Court has left Grand Bahama Port Authority (GBPA) licensees and their $80-$120 million 'bonded economy' "without any recourse" against alleged Customs abuses, a leading QC telling Tribune Business he was set to launch yet more legal proceedings against the Government's main revenue agency. Pledging to appeal the two recent decisions that refused to grant him leave to bring Judicial Review proceedings, Fred Smith QC, the Callender's & Co attorney and partner, disclosed that he was also set to file another Supreme Court action over Customs' alleged interference over what GBPA licensees could import duty-free. Arguing that Freeport's 'over-the-counter' bonded goods economy had "been severely mangled" over the last three years by Customs' "arbitrary" impositions and demands, Mr Smith said the Supreme Court's decisions over his Judicial Review applications had created an "almost farcical state of affairs". The QC had brought the two actions over, first, Customs' demand that all GBPA licensees provide a National Insurance Board (NIB) 'letter of good standing' before their annual 'bonded letter' - allowing them to purchase duty-free goods from other licensees for use in their own business - was renewed. The second action came after Customs, the following year, asked GBPA licensees to provide it with records detailing all their bonded goods purchases for 2011 - a pre-condition for getting their 2012 'bonded letters'. In both cases, Customs promptly withdrew its demands after Mr Smith filed Judicial Review proceedings. But he wanted to obtain a Supreme Court ruling that the Government's main revenue collection agency had acted illegally, so that it would not ever again revert to its previous demands. The Supreme Court, as revealed by Tribune Business, has refused to do so, finding on both occasions that Customs' move to rescind its demands had left no case to answer, essentially rendering Mr Smith's filings "moot". "I am very disappointed that leave has been refused in both of these cases," Mr Smith told Tribune Business. "It certainly sends a message to Customs that they are a law unto themselves. "Customs and any other central government agency can simply avoid liability by purportedly rescinding their decision any time it is challenged, leaving licensees who have been abused without any recourse. "That is certainly not the intention behind Judicial Review, which is a public law remedy to hold public authorities accountable. It is regrettable the courts are allowing Customs to get away with this process, and I can confirm that in both the applications of Smith's Point and Callender's we will be appealing both decisions." Mr Smith added that the concerns harboured by GBPA licensees of a 'repeat performance' by Customs had proved well-founded, given that the 'bonded purchases record' demand of 2011 had followed a year behind the 'NIB letter' request. "The fears of licensees were realised when Customs repeated its abusive behaviour, simply cloaked differently," the QC told Tribune Business. "I do hope we meet with some success at the Court of Appeal, and this situation of licensees being left with almost no remedy is almost a farcical state of affairs." Asked about the current state of Freeport's 'over-the-counter' bonded goods economy, Mr Smith said: "Obviously the bonded letters are back in vogue with no reporting requirements and other inappropriate, arbitrary impositions, but we don't know what new conditions Customs may impose next December/January. That seems to be their habit. "The effect on the economy is that the bonded economy is functioning again, although it has been severely mangled in the last few years." Mr Smith estimated that the bonded goods trade was worth between $80-$120 million annually, "although it's probably substantially less now because many people got frustrated and purchased abroad. "I know that a number of local businesses reliant on bonded purchases suffered quite dramatically in the last few years, and it's regrettable that so few licensees tried to hold Customs accountable, particularly retailers and wholesalers. I urge them to take action against Customs. The only way to maintain rights is always to vigilantly uphold them." Above all, Mr Smith said Customs' actions had increased the uncertainty associated with doing business in Freeport. "The continuous see-saw, up and down, back and forth, yes you can, no you can't, government interference does great disservice, and is tremendously disruptive to a flexible, free-flowing, duty-exempt economy in Freeport," he added,. Pointing out that this was not solely confined to the 'bonded letters' issued to GBPA licensees, Mr Smith revealed the new impending legal action he is set to initiate on behalf of his client, Smith's Point. "On every single import, licensees are bitterly complaining that Customs is arbitrarily dictating what they can and can't import [duty free]," he told Tribune Business. "Very shortly, Smith's Point will be launching an action against Customs for their refusal to permit the entry of goods necessary for Smith's Point, which is housing rentals. Customs is arbitrarily deciding what can and can't be imported." The Hawksbill Creek Agreement, not Customs, determined all import-related issues, Mr Smith added.