Re Comptroller-General of Customs and Garrick William Hand v Kawasaki Motors Pty Limited [1991] FCA 519; 103 ALR 637; (1991) 32 FCR 219 (4 November 1991)

FEDERAL COURT OF AUSTRALIA

Re: COMPTROLLER-GENERAL OF CUSTOMS and GARRICK WILLIAM HAND
And: KAWASAKI MOTORS PTY. LIMITED
No. G355 of 1991
FED No. 653
Customs - Administrative Law - Practice and Procedure
[1991] FCA 519; 103 ALR 637
(1991) 32 FCR 219

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Beaumont(1), Hill(2) and Heerey(2) JJ.

CATCHWORDS

Customs - revocation of tariff concession order - application seeking judicial review of decision to revoke and recovery of duty overpaid as a result of allege invalid revocation - whether s.167 Customs Act 1901 provides an exclusive code for the recovery of overpaid customs duty - whether common law remedies removed as a matter of necessary implication - history of s.167 discussed.

Administrative Law - scope of s.16(1)(d) Administrative Decisions (Judicial Review) Act - whether power to order repayment of overpaid duty notwithstanding s.167 of Customs Act - whether power to order interest on overpaid duty.

Practice and Procedure - power to order interest under s.51A Federal Court of Australia Act - whether order under s.16(1)(d) Administrative Decisions (Judicial Review) Act to do justice between the parties includes an order for the payment of interest under s.51A - "proceedings for the recovery of money".

Administrative Decisions (Judicial Review) Act 1977: s.16(1)(d).

Customs Act 1857 (Vic.): ss.21 and 22.

Customs Act 1901: s.167.

Federal Court of Australia Act 1976: s.51A.

HEARING

SYDNEY
4:11:1991

Counsel and Solicitors for Appellant: A. Robertson

Instructed by: Australian Government Solicitor

Counsel and Solicitors for Respondent: Stevens and B.J. Sullivan

Instructed by: Baker and McKenzie

ORDER

The Appeal be allowed, with costs.

The orders made by Davies J. on 19 June 1991 be set aside and in lieu thereof it be ordered that the application be dismissed, with costs as from 20 July 1990.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

In proceedings for judicial review of an administrative decision to revoke a tariff concession order brought by Kawasaki Motors Pty. Ltd., (the respondent to this appeal ("Kawasaki")), a judge of the Court (Davies J.) made a final order for the payment to Kawasaki of a sum of money by way of interest on certain moneys paid by Kawasaki to Customs (see [1991] FCA 265; (1991) 102 ALR 258). In order to understand the issues which arise on the appeal, it is necessary to refer to the history of the litigation at first instance.
The proceedings at first instance

2. By its application for an order of review dated 2 May 1990, Kawasaki applied to the Court to review a decision ("the decision") of the Comptroller-General of Customs, the first appellant ("the Comptroller") or of his delegate, Mr Hand, the second appellant, made on 4 October 1989 to revoke tariff concession order No. 8439946 in respect of ski craft ("the TCO"). In its application, Kawasaki alleged that it was aggrieved by the decision because, since the date of revocation of the TCO, Kawasaki had been required to pay customs duty on the importation of its jet skis at the substantive tariff rate; and that, since that date, it paid more than $250,000 by way of customs duty which it would not otherwise have been liable to pay. Kawasaki alleged a breach of the rules of natural justice and other errors of law in the making of the decision. Kawasaki claimed an order setting aside the decision or declaring the revocation to be null and void. Consequential relief was also sought, including an order directing that the Comptroller repay to Kawasaki all customs duties paid by it as a consequence of the purported revocation of the TCO.

3. On 7 June 1990, Kawasaki amended its application by, inter alia, alleging, in addition to the other grounds relied on, that the decision was induced by fraud, and by seeking, as additional relief, a declaration that the customs duty payments made were payments made under a mistake of fact, and an order that the Comptroller pay compound interest to Kawasaki on the amount paid by way of customs duty.

4. On 7 June 1990, Kawasaki filed a statement of claim claiming that the proceedings were within the jurisdiction of the Court by reason of the provisions of the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act") and by reason of the provisions of s.39B of the Judiciary Act 1903. In its statement of claim, Kawasaki pleaded the facts and circumstances relied upon by it, presently unnecessary to mention, in support of the claim for relief made in its amended application.

5. The claim for principal relief did not proceed to a final hearing. On 20 July 1990, Davies J. ordered, by consent, that the TCO be set aside and reserved for further consideration the questions of the refund of the overpaid duty and of interest thereon. On 21 August 1990, the Comptroller repaid to Kawasaki the amounts of duty which had been overpaid. No payment was then made to Kawasaki on account of interest. Kawasaki then pressed its claim for interest before Davies J. For the reasons he then gave, his Honour ordered that the Comptroller pay Kawasaki the sum of $49,735 by way of interest at the rate of 21% p.a. in respect of the overpaid duty. The Comptroller and Mr Hand now appeal from this order.
The reasoning at first instance

6. Before Davies J., Kawasaki put its claim in a number of different ways,several of which were rejected by his Honour and are now the subject of a notice of contention by Kawasaki in the appeal. For present purposes, the judge's reasons for upholding Kawasaki's claim for interest may be summarised as follows:
(1) Although s.167(2) of the Customs Act 1901 provides that, in certain circumstances, an owner of goods may bring an action to recover duty paid, that provision was not available to Kawasaki here because it had made no protest in writing in accordance with s.167(3). (Relevantly, s.167 is as follows:
"167. (1) If any dispute arises as to the amount or rate of duty payable in respect of any goods, or as to the liability of any goods to duty, under any Customs Tariff, or under any Customs Tariff alteration proposed in the Parliament..., the owner of the goods may pay under protest the sum demanded by the Collector as the duty payable in respect of the goods, and thereupon the sum so paid shall, as against the owner of the goods, be deemed to be the proper duty payable in respect of the goods, unless the contrary is determined in an action brought in pursuance of this section.
(2) The owner may, within the times limited in this
section, bring an action against the Collector, in any Commonwealth or State Court of competent jurisdiction, for the recovery of the whole or any part of the sum so paid.

(3) A protest in pursuance of this section shall be made by
writing on the entry of the goods the words 'Paid under protest' and

adding a statement of the grounds upon which the protest is made, and, if the entry relates to more than one description of goods, the goods to which the protest applies, followed by the signature of the owner of the goods or his agent.

(4) No action shall lie for the recovery of any sum paid to
the Customs as the duty payable in respect of any goods, unless the

payment is made under protest in pursuance of this section and the action is commenced within the following times:

(a) In case the sum is paid as the duty payable under any
Customs Tariff, within 6 months after the date of the
payment;
...
(5) Nothing in this section shall affect any rights or powers
under section 163."

7. Section 163 provides that refunds, rebates and remissions of duty may be made in such circumstances and subject to such conditions and restrictions (if any) as are prescribed.)
(2) Although, in the light of Kawasaki's protest against what was being done, the duty was demanded ex colore officii, an owner who fails to comply with s.167(3) of the Customs Act cannot bring proceedings in the accrued jurisdiction of the Court (or by virtue of s.23 of the Federal Court of Australia Act 1976) for the recovery of the duty as money had and received, or as money paid under protest or under a mistake of fact or otherwise. The claim for recovery of the excess duty could therefore only succeed if it fell within the ambit of the ADJR Act proceedings.
If it did, the question would remain whether s.167 precluded recovery.
(3) The validity of the decision to revoke the TCO arose as a matter for determination by the Court under the ADJR Act. By s.9 of that Act, a court of a State does not have jurisdiction to review that decision. The claim for the recovery of the overpaid duty was "part and parcel" of the dispute involving the revocation of the TCO. "There was in reality one dispute." In its jurisdiction and power under s.16(1)(d) of the ADJR Act, the Court could order that the excess duty be repaid.
(By s.16(2)(d) it is provided that, on an application for an order of review, the Court may make orders, inter alia, "directing any of the parties to do...any act...of which the Court considers necessary to do justice between the parties.") An order that the duty overpaid be refunded "would not be in the nature of damages. It would be an order giving practical effect to the order by way of judicial review that the revocation decision be set aside."
(4) Although there was here a dispute "as to the amount or rate of duty payable" within the meaning of s.167(1) of the Customs Act, when s.167 is read as a whole, it does not deal with the present dispute, which must be determined under the ADJR Act, and not under the ordinary provisions of the Customs Act.
(5) Ordinarily, when a court orders that excess duty should be repaid by the Comptroller, interest would be payable pursuant to, e.g., Supreme Court Act 1970 (N.S.W.), s.94. (In this Court, s.5)A(1) of the Federal Court of Australia Act provides:

"(1) In any proceedings for the recovery of any money (including

any debt or damages or the value of any goods) in respect of a cause of action that arises after the commencement of this section, the Court or a Judge shall, upon application, unless good cause is shown to the contrary, either

(a) order that there be included in the sum for which

judgment is given interest at such rate as the Court or the Judge, as the case may be, thinks fit on the whole or any part of the money for the whole or any part of the period between the date when the cause of action arose and the date as of which judgment is entered; or

(b) without proceeding to calculate interest in accordance with

paragraph (a), order that there be included in the sum for which judgment is given a lump sum in lieu of any such interest."
(6) An application seeking, inter alia, an order under s.16(1)(d) of the ADJR Act for the repayment of excess duty is a proceeding "for the recovery of money" within s.51A(1). An order under s.16(1)(d) of the ADJR Act may, in the Court's discretion, include an order for the payment of interest in accordance with the general policy established by s.51A, if the Court "considers (it) necessary to do justice between the parties". The discretion should be exercised here.
The Comptroller's grounds of appeal

8. On behalf of the Comptroller, it is now submitted that: (a) s.167 of the Customs Act applies here so as to exclude, in the absence of a protest, the making of an order, pursuant to s.16(1)(d) of the ADJR Act, for the refund of the overpaid duty; (b) the duty was not demanded ex colore officii; (c) section 16(1)(d) of the ADJR Act did not confer a power to award interest; (d) the proceedings were not "for the recovery of any money" within the meaning of s.51A of the Federal Court of Australia Act; (e) the policy underlying s.167 of the Customs Act should have been taken into account, adversely, in the exercising of any discretion to award interest.
The history of s.167 of the Customs Act

9. The proper construction of s.167 of the Act is a central question in the appeal, and on behalf of the Comptroller, reliance was placed upon the history of that provision and its precursors.

10. Particular reference was made to ss.21 and 22 of the Customs Act 1857 (Vic.) which were considered in Sargood v R (1878) 4 VLR (L) 389. By s.21 of that Act, it was provided, in essence, that if any dispute shall arise as to any duty payable in respect of any goods imported, the importer "shall" deposit with the Collector the amount of duty demanded by the Collector; and such deposit shall be deemed and taken to be the proper duty payable, unless an action shall be brought by the importer within three months for the purpose of ascertaining whether any and what amount of duty is due; and upon payment of such deposit and passing a proper entry of such goods, the Collector shall cause the goods to be delivered in virtue of such entry. By s.22, it was provided, in essence, that in case no such action shall be brought within the time limit, the deposit shall be applied to the use of the Crown as if paid as the duty payable; and in case such action shall be so brought and it shall be determined that the deposit was not the proper duty payable, but that a less duty was payable, then the difference shall be returned to the importer with interest in satisfaction of all claims in respect of the importation and of all damages and expenses incident thereto.

11. In Sargood, there were petitions against the Crown under the Crown Remedies and Liability Statute 1865 (Vic.) for money had and received to recover the amount which the petitioners had paid, under protest, at the Customs House, upon certain goods which, they contended, were exempt from duty. It was held by the Full Court that the petitioners should have been nonsuited on the ground that their only remedy was under s.21 of the Customs Act. Stawell C.J. said (at 393-4):

"Hamel, in his work on the Laws of the Customs, 93, thus states
the origin of the enactment, from which the sections in question have
been taken: - 'These provisions were inserted to meet a great
difficulty that had occurred in dealing with disputes between importers
and the customs. The officers were formerly not only empowered, but
required, to detain the merchandise of any importer who, whether right
or wrong, had the misfortune to differ with the collector as to the
amount of duty imposed by the latter, and by which the merchant's goods
were unprofitably locked up pending the settlement of the dispute,
however advantageous it might be to bring them to market.' The Act, to
meet this difficulty, or, as it may be almost described, this injustice,
provides that, if any dispute arises as to the duty payable, a certain
course is to be pursued. The importer must deposit in the hands of the
collector the amount that the collector claims, whether that is the
right amount or not. After that sum is so deposited, the importer is
then to ascertain, by an action in the Supreme Court, whether any and
what amount of duty is payable, and he must bring his action within
three months. If not so brought, what becomes of the money? The amount
deposited is to be deemed and taken to be the proper duty. It is not
that it is the duty, but it is to be deemed and taken to be the duty,
and it is immaterial whether it is the duty imposed by the Act or not;
if the action is not brought within the time specified the money is paid
into the general revenue as Customs duty. If the importer succeeded, he
received either the whole amount deposited, or the difference between
what the jury found to be the proper duty, and the amount he had
deposited, with interest at the rate of 8 per cent. in lieu of damages.
It was obvious the Legislature intended that no action of trover could
wrought against the collector of customs.
In considering whether the remedy provided by the statute must be
pursued, the words used, it must be noticed, are throughout
mandatory - 'shall deposit,' 'such deposit shall be deemed,' 'upon
payment, such collector shall cause,' 'such payment shall be accepted,'
and."

12. Stawell C.J. went on to say (at 395):

"A reasonable mode of redress is provided for the importer. In
some respects he enjoys certain advantages, in others he is subjected to
certain limitations. He is given interest for his money, but he is to
bring his action within three months. This limitation is of great
advantage to the revenue, and so to the general public, as well as to
the individual importer. It is desirable in these cases to have the
dispute disposed of as rapidly as possible. Evidence may be difficult
to obtain, as well as retain, in litigation which may extend for years,
but which might easily be procured if that litigation commenced within a
few weeks. It is undesirable that where goods are supposed to have paid
duty, actions might be brought to recover back that duty at any time..."

13. By Act No. 6 of 1901, the Parliament of the Commonwealth enacted the Customs Act 1901, which was proclaimed to commence on 4 October 1901. Disputes as to duty were dealt with in Division 4 of Part VIII of that Act by s.167 which was as follows:

"Division 4 - Disputes as to Duty 167. If any dispute shall arise as to
the amount or rate of duty or as to the liability of goods to duty the
owner may deposit with the Collector the amount of duty demanded and
thereupon the following consequences shall ensue:-
(1) The owner upon making proper entry shall be entitled to
delivery of the goods.
(2) The deposit shall be deemed the proper duty unless action
commenced by the owner against the Collector within six months after
making the deposit the contrary shall be determined, in which case any
excess of the deposit over the proper duty shall be refunded by the
Collector to the owner with Five pounds per centum per annum
interested added.
The provisions of this section shall not apply to any goods which may be

detained or seized for undervaluation or in respect to which any attempt to evade the payment of duty may have been made."

14. The operation of the provisions of s.167 of the 1901 Act was considered in Alexander Cowan and Sons Ltd. v Lockyer [1904] HCA 19; (1904) 1 CLR 460. Prior to the passing of the Customs Tariff 1902, customs duties, in accordance with the draft tariff then before the Parliament, were demanded on the importation of certain goods. The importer refused to pay the duty, but deposited the amount claimed with the collector. By then, the 1901 Act had been passed and the deposit was paid in supposed compliance with s.167 which, in strictness, did not apply. The goods were not included as dutiable goods in the Customs Tariff 1902. After the passing of that Act, the importer brought an action in the High Court to recover the amount deposited. It was held that the money must be treated as paid under an agreement in the terms of s.167; and that agreement could be varied by the parties with respect to the time limit of six months for the institution of proceedings. It was further held that the duty demanded was not legally payable and that the plaintiff was entitled to recover the money deposited, notwithstanding s.6 of the Customs Tariff 1902, which provided that all duties of customs collected pursuant to any tariff shall be deemed to have been lawfully imposed.

15. Griffith C.J., in concluding (at 467) that the word "collected" in s.6 ought not to be held applicable to money deposited under an agreement that, if the money is not legally payable, it will be returned, said (at 466):

"The words (of s.6) are probably open to the construction contended for
by the defendant; but, if that construction were adopted, it would have
the effect of changing the ownership of this money on that day. Up to
that time the money had clearly been recoverable by the plaintiff if an
action had been brought for that purpose. If, therefore, the section
receives the construction contended for by the defendant, the effect
would be to deprive the plaintiff of a vested right. Such a construction
should never be adopted if the words are open to another construction.
Comparing that section with the two preceding sections it will be seen
that another construction is open."

16. Sargood v R above, was distinguished and Cowan v Lockyer, above, was considered, in Sargood Brothers v The Commonwealth [1910] HCA 45; (1910) 11 CLR 258. There, an importer sued the Commonwealth and the Collector of Customs to recover moneys paid to them by the importer without protest in respect of the importation of certain goods between 9 August and 12 December 1907 in the following circumstances. The goods were the subject of special exemption from duty under the Customs Tariff 1902. They were also exempt under the Customs Tariff 1908, which took effect retrospectively as from 8 August 1907. On 8 August 1907, a draft tariff was laid before the Parliament proposing to exempt certain goods, but the proposed exemption did not apply to the subject goods. However, the draft was not adopted in that form and under the Customs Tariff 1908, the goods remained exempt from duty as they had before Griffith C.J. noted (at 263) that "(i)t is a well known practice (sanctioned by necessity as well as usage), when duties of Customs have been proposed to Parliament, to exact the proposed duties in anticipation of the subsequent ratification of the collection by a retrospective statute." The Chief Justice went on to say (at 263-4)"

"In my opinion the payment of money demanded under such circumstances
ought to be regarded as being (as it is in fact) a provisional payment
to abide the event, the event being the adoption or non-adoption of the
proposal by Parliament. It is not seriously disputed that money exacted
under such circumstances is exacted colore officii, or that in the
absence of some statutory provision to the contrary it can be recovered
if the proposal is not adopted. Nor is it disputed that under sec.56 of
the Judiciary Act 1903 an action will lie against the Commonwealth to
recover it."

17. Griffith C.J. then rejected a defence raised by the Commonwealth relying upon s.167 of the Customs Act 1901, saying (at 264-5)"

"The defendants contend that when a demand is made by the Customs
authorities in accordance with the recognized practice to collect
proposed duties of Customs before their actual imposition a 'dispute'
arises within the meaning of the section.
In my opinion it is impossible to regard the circumstances as giving
rise to a dispute within the meaning of sec.167. Both parties were
aware that the goods were not by law liable to duty. The only
question upon which a difference of opinion could arise was whether
Parliament would or would not in the future ratify the collection.
The kind of dispute intended is clearly shown by the provision that
the deposit shall be deemed the proper duty unless by action brought
by the owner against the Collector within six months the contrary
shall be determined. It is suggested that the 'contrary' to be
determined, is the question of fact whether Parliament had before
the determination passed a retrospective Act. It may be from a
perverted sense of humour, but I feel a difficulty in treating the
argument with due gravity. The suggested action would be in the
nature of the old common law action on a wager, the wager being on a
future event. The dispute meant in sec.167 is, in my opinion, a
dispute upon a question which is fit for the determination of a
Court of justice, not a question to be ascertained by perusing the
pages of future issues of the Government Gazette. Such a fact is
one for constatation, not judicial decision."

18. O'Connor J. said (at 277-8):

"It was also argued by the defendants that the Customs Act 1901,
having provided in sec.167 a method of recovering back moneys paid
under an illegal demand of duty, had in effect enacted that that and
no other method could be followed, and had thereby deprived the
importer of the right to question his liability in any other way.
For this position Sargood v The Queen...was relied on. But that
decision is based entirely on the wording of secs.21 and 22 of the
Victorian Customs Act 1857. By the former, corresponding generally
with sec.165 of the Commonwealth Customs Act 1901, the adoption by
the importer of the method prescribed is compulsory, not optional as
under sec.165, and sec.22, for which no corresponding section is to
be found in the Commonwealth Customs Act 1901, makes it plain that
the procedure under sec.2) was intended by the legislature to be the
only permissible and the final method of dealing with questions of
disputed duty. The decision is therefore in no way applicable to
the present case. For these reasons I am of opinion that the moneys
paid as and for Customs duties were collected colore officii and
were not mere voluntary payments, and that the plaintiffs would have
the right, unless it has been taken away by the Customs Tariff 1908,
to recover them from the defendants."

19. Isaacs J. said (at 300-1):

"Accepting the legal operation of sec.167 it can, of course, be applied
only where the merchant disputes amount, rate, or liability. It is a
section for the relief of importers, and to enable them to obtain their
goods without payment of duties they dispute. Where they do not dispute
the claim they need no protection in respect of the true construction of
the tariff. The law says, in effect, to an importer 'If you dispute
liability, or amount, or rate, you are not forced to pay the Crown in
order to get your goods. You may if you choose get immediate possession
of them without payment to the Crown, by merely depositing the money
with a stakeholder, and may try the validity of the demand giving
security in the meantime to pay it, should it be found lawful.' If an
importer deliberately elects, in the face of such an intimation, to pay
at once, and finally close the transaction, having the means of avoiding
it, it is hard to detect any element of compulsion upon him to make the
payment to the Crown. Can the money paid in such circumstances
nevertheless be recovered back as extorted colore officii within the
meaning of Steele v Williams...? In my opinion clearly not."

20. Higgins J. said (at 308):

"In the first place, I am clearly of opinion that sec.167 does not
apply to this case. For no 'dispute' arose in fact 'as to the
amount or rate of duty, or as to the liability of goods to duty.'
What happened was that plaintiffs paid the money under the proposed
tariff in the belief that duty on ad valorem packages would be
imposed, retrospectively, by Parliament (see letter of 10th May
1909); and it is clear, on the admissions at the trial, that the
plaintiffs could not have got the goods unless they paid the duty
claimed. They paid without disputing; and, even if it could be
said that they disputed, they did not dispute on either of the two
subjects mentioned in sec.167 - on the facts.

21. Judgment in Sargood Brothers, above, was given in September 1910. Shortly thereafter, a Customs Bill was introduced into the Parliament. By Act No. 36 of 1910, the Customs Act 1901 was amended. Section 167 was repealed and a new provision, which so far as is presently relevant, is still in the form, was substituted in its stead. The mischief sought to be addressed by the new provisions was described in the course of the debate in the Senate on the Bill by Senator Pearce, the Minister in charge of the Bill as follows (see Hansard, 16 November 1910 at 6187):

Under clause 5, which repeals section 167 of the principal Act and
substitutes a new section, it is desired to bring about a change of
procedure in regard to payment of duty on articles as to which there
is a dispute as to the proper amount to be charged. Briefly, the
present procedure is this: In case of a dispute, first of all the
duty claimed by the Department has to be deposited. Then the
importer has to take action within six months. If his action be
unsuccessful, the amount is retained as the proper duty. If no
action be taken the amount is also retained. Under the existing
procedure, the amounts so deposited were required to be paid into a
trust fund; and it is alleged that if the importers had cared to do
so, and had come to a common understanding amongst themselves, they
could practically have held up the revenue of the Commonwealth by
simply claiming that the duties charged on their goods were not the
proper duties. At the end of six months they need not have taken
action, but in the meantime the Commonwealth could not have used the
amounts paid in as part of the revenue of the country.
Senator MILLEN. - There would have been no advantage to the importer
in doing that.
Senator PEARCE. - No; but it would have been an extremely awkward
thing for the Commonwealth if it had been done. What is proposed in
the amending clause is that the duty shall be paid under protest,
and the protest be marked on the entry. Then an action can be taken
within six months, and the result will determine what amount of duty
has to be paid.
Senator VARDON. - Unless the amount at stake is large, the costs of
an action are likely to be more than the sum in dispute.
Senator PEARCE. - Costs would go with the cause.
Senator VARDON. - But there are usually costs which a litigant
cannot recover.
Senator PEARCE. - The procedure here proposed is considered to be
more convenient for the Government. Another proposal made in this
amending clause will be welcomed generally by the trading public.
The jurisdiction which was previously confined to the High Court is
now to be extended to any Commonwealth or State Court of competent
jurisdiction; the jurisdiction, of course, being determined by the
amount of the claim. The only exception will be that the
Department, in its own interest, will, where any question of
principle is concerned, or any question involving a constitutional
issue, take the case to the High Court."

22. As has been said, the form of the legislation remains substantially the same. It may be noted here that when the ADJR Act was enacted in 1977, by Schedule 1 para (e), there were excluded from the operation of that Act the following, inter alia:

"decisions making, or forming part of the process of making, or
leading up to the making of, assessments or calculations of tax,
charge or duty, or decisions disallowing objections to assessments
or calculations of tax, charge or duty, or decisions amending, or
refusing to amend, assessments or calculations of tax, charge or
duty, under any of the following Acts:"

23. The Customs Act and the Customs Tariff Act are included in the Acts then mentioned.
The scope of s.167 of the Customs Act

24. In his work, Customs and Excise Law (1984), E.J. Cooper described the operation of s.167 as follows (at 451-2):

"Special provisions exist for disputes arising as to the rates of
duty applicable under the Customs Tariff Act... An importer of goods
is faced with the task of selecting an appropriate tariff item by
the Interpretive Rules..., ascertaining the rate of duty applicable
on the appropriate date, which information may not be in his
possession...and stating the value for duty as determined by the
commercial documents. This value may be subject to adjustment by
the Collector...and may be further amended...
These modern provisions negate old practices, whereby an onus was on
the importer to correctly state a number of facts...
...
Disputes are inevitable, and provision is made for the Collector to
determine the amount that, in his opinion, is the duty. As an
administrative act, the decision of the Collector is excluded from
review under the Administrative Decisions (Judicial Review) Act, but
provision is made for appeals. Under the Customs Act, a protest
must be made by writing on the entry 'paid under protest;' a
statement of the grounds on which the protest is made; and adding
the signature of the owner...
...
The dispute may be as to duties demanded in accordance with an
enacted provision of the Customs Tariff Act, or demanded in
accordance with a Tariff Proposal in the Parliament... It is not a
dispute within the meaning of s.167 of the Customs Act to claim that
the duties are not lawfully enacted, but existing merely by
Proposal, for in such a case, actions lie against the individual
officer, subject to the safeguards of s.226..." (Emphasis added)

25. (By s.226 of the Customs Act, time limits are imposed for the commencement of actions against an officer or otherwise for anything done for the protection of the revenue in relation to any Customs Tariff or Customs Tariff alteration proposed.)

26. The authority given by Mr Cooper for his last proposition, with which I agree, is Sargood Brothers, above, and Cowan v Lockyer, above.

27. In my opinion, s.167, properly construed, applies to any dispute which, as a matter of substance, may be characterised as a dispute as to the amount or rate of duty payable or as to the liability of any goods to duty. The provision does not, in my view, extend to a dispute which, in substance, is a dispute as to other matters, for instance, the constitutional validity of the Customs legislation in question, even if, as an incidental matter, consequential relief is also sought that duty, paid under the legislation claimed to be invalid, is sought to be recovered. In other words, that matter should, I think, properly be characterised as a dispute as to the validity of the Customs legislation, rather than a dispute as to the amount rate of duty or as to the liability of goods to duty, notwithstanding that an additional, consequential claim is made that, if the constitutional challenge were to succeed, duty paid under the invalid law should be repaid.
Did s.167 apply in the present case?

28. In my opinion, s.167(1) did not apply here. This was a dispute as to the validity of the administrative action in revoking the TCO. Although, consequentially, Kawasaki claimed a refund of duty overpaid as a result of the alleged invalid revocation, this claim was incidental to the main dispute which had a different character. The true character of the dispute between the parties is, I think, confirmed by reference to the nature of the proceedings brought to resolve that dispute. They were proceedings for judicial review, brought under the ADJR Act, challenging the validity of administrative action in an area other than the matters specified in Schedule 1 of that Act.

29. In my opinion, s.167(4) provided no answer to Kawasaki's claim for interest. It is clear, in my view, that the prohibition in s.167(4) is confined to disputes of the kind described in s.167(1).
What was the source of the Court's power to award interest?

30. In my opinion, s.16(1)(d) of the ADJR Act provided the source of the Court's power to award interest. As Mason C.J., Deane, Toohey, Gaudron and McHugh JJ. said in Park Oh Ho v The Minister of State for Immigration and Ethnic Affairs [1989] HCA 54; (1989) 167 CLR 637 (at 644):

The legislative purpose to be discerned in the conferral by
s.16(1)(c) and (d) of power to grant declaratory and injunctive
relief in addition to the power to quash or set aside (with effect
from a specified date) an impugned decision is clear. It is to
allow flexibility in the framing of orders so that the issues
properly raised in the review proceedings can be disposed of in a
way which will achieve what is 'necessary to do justice between the
parties' (s.16(1)(d)) and which will avoid unnecessary re-litigation
between the parties of those issues. The scope of the powers to
make orders which the sub-section confers should not, in the context
of that legislative purpose, be constricted by undue technicality.
In particular, the phrase 'any matter to which the decision relates'
in s.16(1)(c) should be construed as encompassing any matter which
is so related to, in the sense of connected with, the impugned
decision that it is appropriate that it be dealt with by the grant
of declaratory relief in judicial proceedings for the review of the
propriety of that decision."

31. For this purpose, it was not, in my view, necessary that Kawasaki demonstrate that the ingredients of a common law cause of action be made out. The power conferred by s.16(1)(d) is clearly discretionary but the provision is not, in my opinion, limited in its operation to cases where an applicant for judicial review can establish a cause of action under the general law. On the contrary, the rights, and 2-99 `remedies, given by the ADJR Act are statutory, even if they overlap the general law to an extent in certain areas. What s.16(1)(d) requires the Court to consider is how, if at all, justice can be done between the parties.
Should the discretion under s.16(1)(d) of the ADJR Act have been exercised so as to award interest?

32. In my view, Kawasaki was prima facie entitled to have the discretion under s.16(1)(d) exercised in its favour in respect of the loss it would suffer if it did not receive a proper amount by way of interest. Once it is accepted, as it must be, that Customs had no lawful authority to require payment of the duties, it follows that Kawasaki would suffer a loss if it did not receive interest on the amount overpaid. The claim for interest represented a real loss (see, e.g., Hungerfords v Walker (1988) 17) CLR 125 per Mason C.J. and Wilson J. at 144; per Brennan and Deane JJ. at 152). Further, in my view, there are no special circumstances present here to deprive Kawasaki of interest.

33. As has been noted, the Comptroller argues that the policy underlying s.167 of the Customs Act should have been taken into account as a reason for refusing to award interest on discretionary grounds. I cannot accept this analysis. In the first place, on the view I take, s.167 has no direct application here and, being restrictive of the rights of individuals, it would be wrong to allow the section to be used by the back door, as it were. Secondly, if policy is relevant, the evident mischief at which s.167 is directed is, as explained in the Parliament, the ordinary run of disputes as to the correct classification of goods for duty purposes. It is clear that, as a matter of policy, s.167 was never intended to be directed to extraordinary disputes such as challenges to the validity of legislation on constitutional grounds, or judicial review of administrative action of the present kind. Consistently with this approach, the ordinary kind of Customs disputes are excluded from the operation of the ADJR Act.

34. None of this is to suggest that s.16(1)(d) can be used to award compensation or damages in any case where no remedy is available under the general law. In the present case, where it is accepted that the principal moneys were unlawfully extracted, it is but a short step to take to exercise, in an incidental or consequential fashion, the wide discretion given by s.16(1)(d) (see Minister for Immigration and Ethnic Affairs v Conyngham (1986) 11 FCR 528 per Sheppard J. at 536-7).

35. It follows, in my view, that the discretion to award interest was properly exercised.
Orders proposed

36. I propose that the appeal be dismissed, with costs.

The appellants, the Comptroller-General of Customs ("the Comptroller") and Mr Hand, a delegate of the Comptroller, appeal against a judgment of a judge of this court (Davies J.) (reported at [1991] FCA 265; (1991) 102 ALR 258) given on 19 June 1991, wherein his Honour ordered the Comptroller to pay to the respondent, the applicant in the proceedings before his Honour, the sum of $49,735. That sum was, in effect, an award of interest to the applicant at the rate of 21% per annum in respect of the customs duty that had been paid by the respondent in respect of certain goods which had been imported into Australia by the respondent between 19 December 1989 and 23 April 1990. Also before the court is a notice of contention brought by the respondents.

2. The facts giving rise to the appeal between the parties are not in dispute. On 31 July 1984 there was issued a tariff concession order numbered TC 843996 with respect to Ski Craft. The consequence was that certain goods of the respondent could thereafter be imported into Australia without duty. On 4 October 1989, the concession order was purportedly revoked. If the revocation were valid, imports of the goods thereafter became dutiable.

3. The respondents disputed the validity of the revocation of the tariff concession order (TCO) and ultimately commenced proceedings in this court seeking judicial review of the decision to revoke relying, inter alia, upon the provisions of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act"). Among the orders sought by the respondent, was an order that the Comptroller repay to the respondent the amount paid by it by way of customs duty on the respondent's Jet Skis imported after the revocation of the TCO, and an order that the Comptroller pay interest to the respondent on the amount paid.

4. The application, so far as it concerned the duty claimed to have been overpaid as a result of the alleged invalid revocation, was compromised by the parties and on 20 July 1990 Davies J. ordered, by consent, that the revocation of TC 843996 be set aside ab initio. The order reserved for further consideration the question of repayment of the duty overpaid and interest thereon. On 21 August 1990, the Collector of Customs repaid to the respondent, without being ordered so to do, the duty overpaid. Thus there remained for consideration by Davies J. the question of interest.

5. His Honour held that in the circumstances of the case, the duty had been demanded ex colore officii, but held that the provisions of s.167 of the Customs Act 1901 (Cth) ("the Act") which confer a right to recover customs duty overpaid provided certain preconditions are observed, provided an exclusive code for the recovery of overpaid customs duty by action. This holding is the subject of the respondent's notice of contention. However, his Honour held that s.16(1)(d) of the ADJR Act would have authorised an order requiring the Comptroller to refund the overpaid duty and that the making of such an order would not have been precluded by s.167. His Honour held, indeed, that but for the repayment of the overpaid duty by the Comptroller voluntarily, his Honour would have made an order for the repayment. In these circumstances, his Honour was of the view that the court had power to order the payment of interest on the overpaid customs duty also pursuant to the provisions of s.16(1)(d) of the ADJR Act and that it was a proper exercise of that power to direct the Comptroller to pay the sum of $49,735, the rate of interest (21%) and the quantum involved not being in dispute.

6. Section 167 of the Act provides as follows:

"167. (1) If any dispute arises as to the amount or rate of duty
payable in respect of any goods, or as to the liability of any goods
to duty, under any Customs Tariff, or under any Customs Tariff or
Customs Tariff alteration proposed in the Parliament (not being duty
imposed under the Customs Tariff (Anti-Dumping) Act 1975), the owner
of the goods may pay under protest the sum demanded by the Collector
as the duty payable in respect of the goods, and thereupon the sum
so paid shall, as against the owner of the goods, be deemed to be
the proper duty payable in respect of the goods, unless the contrary
is determined in an action brought in pursuance of this section.
(2) The owner may, within the times limited in this section, bring
an action against the Collector, in any Commonwealth or State Court
of competent jurisdiction, for the recovery of the whole or any part
of the sum so paid.
(3) A protest in pursuance of this section shall be made by writing
on the entry of the goods the words `Paid under protest' and adding
a statement of the grounds upon which the protest is made, and, if
the entry relates to more than one description of goods, the goods
to which the protest applies, followed by the signature of the owner
of the goods or his agent.
(4) No action shall lie for the recovery of any sum paid to the
Customs as the duty payable in respect of any goods, unless the
payment is made under protest in pursuance of this section and the
action is commenced within the following times:
(a) In case the sum is paid as the duty payable under
any Customs Tariff, within 6 months
after the date of the payment; or
(b) In case the sum is paid as the duty payable under a
Customs Tariff or Customs Tariff alteration
proposed in the Parliament, within 6 months after
the Act, by which the Customs Tariff or Customs
Tariff alteration proposed in the Parliament is
made law, is assented to.
(5) Nothing in this section shall affect any rights or
powers under section 163."

7. It is agreed by the parties that no written protest was made by the respondent at the time of payment of the duty in dispute, so that if the dispute between the Collector and the respondent were one as to the liability of the goods to customs duty, proceedings brought for the recovery of the duty, relying upon s.167, in a court of competent jurisdiction were bound to fail.

8. For the appellant it was submitted:

1. That s.167 of the Act provided an exclusive code for the
recovery of overpaid duty.
2. That as the payments of duty were admittedly not paid under
protest as required by s.167, no action for recovery lay.
3. That s.16(1)(d) of the ADJR Act did not operate so as to
permit the circumvention of the mandatory requirements of s.167.
4. That since there was no right to recover the overpaid duty
there could be no right to "interest".
5. Alternatively, if s.167 of the Act were not an exclusive
code, the respondents had not satisfied the requirements of
a common law action for the recovery of money had and
received, and for that reason had no right to recover the
overpaid duty.
6. That no power existed in the court to award interest in the
proceedings, whether under s.51A of the Federal Court of
Australia Act 1976 (the proceedings not being for the
recovery of any money) or under s.16(1)(d) of the ADJR Act.

9. The appellants also sought leave to amend their grounds of appeal so that they could be permitted to argue that if s.16(1)(d) did authorise, in an appropriate case, an award of interest, his Honour's exercise of discretion miscarried in the present case in that his Honour should have had regard to the provisions of s.167 of the Act in exercising that discretion. We reserved, for later consideration, the question whether such leave should be granted. However, having regard to the fact that the argument involved no more than saying that, faced with the existence of s.167, his Honour would have been in error in exercising the power under s.16(1)(d) of the ADJR Act, whatever the particular factual circumstances, the respondents cannot be prejudiced by permitting the appellants to argue this additional ground. Accordingly, we would grant leave to the appellants to amend their notice of appeal accordingly.

10. We turn now to deal with the various arguments of the appellants.
Whether s.167 constitutes an exclusive code for actions to recover overpaid duty?

11. While moneys paid voluntarily under a mistake of law will generally not be recoverable: J. and S. Holdings Pty Ltd v NRMA Insurance Ltd [1982] FCA 78; (1982) 61 FLR 108; David Securities v Commonwealth Bank of Australia (1990) 23 FCR 1 at 33-37, it is, however, well established that amounts exacted by a public official colore officii may be recovered, at least where some element of coercion is involved in the demand for the payment. For present purposes it may be assumed, as his Honour held, that in the absence of a provision such as s.167, the respondent would, in the circumstances of the present case, have been entitled to recover the customs duty overpaid in an action at common law.

12. The question that then arises is whether the enactment of s.167 in its present form operated to exclude any common law right of recovery so that in any proceedings for recovery s.167 operates as an exclusive code, with the result that unless there has been compliance with that section, as for example, by the making of a protest in writing at the time of payment of the disputed duty, the action for recovery would fail.

13. Where a common law right exists and subsequently a right is created by statute, it may be accepted that the statute will be presumed not to take away the common law right unless that right is taken away expressly or by necessary implication. It is common ground that nothing in the Act operates expressly to take away the common law right to recover overpaid duty paid under compulsion to a statutory officer. The question is then whether the common law remedy has been removed as a matter of necessary implication.

14. Prior to Federation, the power to levy duties of customs was vested in the individual Colonies, each of which had legislation imposing customs duty. The Colonial legislation had its origin in the customs law of the United Kingdom. A feature of that law and the law of the States before federation, repeated in the present Commonwealth legislation, is that goods are not permitted to be entered for home consumption in the relevant territory unless the customs duty is first paid. Hamel, in his work "Laws of the Customs", 1854 discussed the origins of provisions such as s.167 as follows (at 93):

"These provisions were inserted to meet a great difficulty
that had occurred in dealing with disputes between
importers and the customs. The officers were formerly
not only empowered, but required, to detain the
merchandise of any importer who, whether right or wrong,
had the misfortune to differ with the collector as to the
amount of duty imposed by the latter, and by which the
merchant's goods were unprofitably locked up pending the
settlement of the dispute, however advantageous it might
be to bring them to market."

15. Sections 21 and 22 of the Customs Act 1857 (Vic) provided:

"21. If any dispute shall arise as to any duty payable in
respect of any goods imported into the said colony and
admissible for home consumption, the importer or
consignee or his agent shall deposit in the hands of the
collector at the port of importation the amount of duty
demanded by such collector; and such deposit shall be
deemed and taken to be the proper duty payable in
respect of such goods, unless an action or suit shall be
brought or commenced by the importer of such goods
within three months from the time of making such deposit
in the Supreme Court against such collector for the
purpose of ascertaining whether any and what amount of
duty is due and payable upon such goods; and upon
payment of such deposit and passing a proper entry of
such goods by the importer consignee or agent such
collector shall thereupon cause the said goods to be
delivered in virtue of such entry.
22. In case no such action shall be brought within the time
hereinbefore limited for that purpose, such deposit shall
be applied to the use of Her Majesty in the same manner
as if the same had been originally paid and received as the
duty due and payable on such goods: and in case such
action shall be so brought and it shall thereupon be
determined by due course of law that the duty so
demanded and deposited was not the proper duty due and
payable upon such goods but that a less duty was payable
thereon, then the difference between the sum so deposited
and the duty so found to be due or the whole sum so
deposited as the case may require shall forthwith be
turned to such importer with interest thereon after the
rate of eight pounds per centum per annum for the period
during which the sum so paid or returned shall have been
so deposited, and such payment shall be accepted by such
importer in satisfaction of all claims in respect of the
importation of such goods and the duty payable thereon
and of all or any damages and expenses incident thereto
except costs of suit as next hereinafter provided (that is
to say): Provided always that the party to such action or
suit in whose favor a verdict shall be given shall be
entitled to his costs of suit as between party and party
against the other party to such action or suit, such costs
to be taxed in the usual way; and if such verdict shall be
given against the plaintiff in such action or suit in such
court are recoverable by law; but if such verdict shall be
given gainst the collector as defendant in such suit, the
costs so taxed as aforesaid shall be paid out of the
consolidated revenue."

16. In Sargood v The Queen (1878) 4 VLR 389, an action was brought under the Crown Remedies and Liability Statute 1865 (Vic) for the recovery of overpaid duty. On an action for non suit, it was held that s.21 not having been complied with the action must fail. Stawell C.J. (at 39-94), after setting out the extract from Hamel above continued:

"The Act, to meet this difficulty, or, as it may be almost
described, this injustice, provides that, if any dispute arises as
to the duty payable, a certain course is to be pursued. The importer
must deposit in the hands of the collector the amount that the
collector claims, whether that is the right amount or not. After
that sum is so deposited, the importer is then to ascertain, by an
action in the Supreme Court, whether any and what amount of duty is
payable, and he must bring his action within three months. If not
so brought, what becomes of the money? The amount deposited is to
be deemed and taken to be the proper duty. It is not that it is the
duty, but it is to be deemed and taken to be the duty, and it is
immaterial whether it is the duty imposed by the Act or not; if the
action is not brought within the time specified the money is paid
into the general revenue as Customs duty.....
In considering whether the remedy provided by the statute must be
pursued, the words used, it must be noticed, are throughout
mandatory - `shall deposit,' `such deposit shall be deemed,' `upon
payment such collector shall cause,' `such payment shall be
accepted.' and c."

17. It is perhaps interesting to note that the Chief Justice found it unnecessary to decide whether, in the absence of ss.21 and 22, a petition for money had and received would succeed.

18. In the same case Barry J. said (at 397):

"The provisions in the Customs Act were enacted to facilitate
business, and to give relief to the mercantile community.
Considerable advantages are given to the merchant. He is allowed to
obtain his goods on depositing the amount of duty demanded, but he
is not prevented from having the matter fairly tried, because within
three months, he may bring an action against the collector. He is
not required to have the action tried within that time, because it
is recognised that he may find it necessary to obtain a commission
to examine witnesses absent from the country, and other
circumstances may prevent a speedy determination of the case."

19. At the time s.167 was initially enacted in 1901 the section read:

"167. If any dispute shall arise as to the amount or rate of duty
or as to the liability of goods to duty the owner may deposit with
the Collector the amount of duty demanded and thereupon the
following consequences shall ensue:-
(1) The owner upon making proper entry shall be
entitled to delivery of the goods.
(2) The deposit shall be deemed the proper duty unless
by action commenced by the owner against the
Collector within six months after making the
deposit the contrary shall be determined, in which
case any excess of the deposit over the proper duty
shall be refunded by the Collector to the owner
with Five pounds per centum per annum interest added.
The provisions of this section shall not apply to any goods
which may be detained or seized for undervaluation or in
respect to which any attempt to evade the payment of
duty may have been made."

20. It was in this form that s.167 came to be considered by the High Court in Sargood Bros. v The Commonwealth [1910] HCA 45; (1910) 11 CLR 258. In that case, duty was demanded on certain goods which at the time of entry were exempt, but in respect of which it was proposed that they be made dutiable retrospectively by legislation then before parliament. That legislation was never in fact passed. Action was thereafter brought to recover the amount paid and was met with the defence that s.167 had not been complied with. Griffith C.J. held that the dispute between the parties was not one which in any event fell within s.167, such a dispute being one which, by its nature, was fit for determination by a court. Hence, it was strictly unnecessary for his Honour to consider whether s.167 operated to extinguish any common law remedy. In reply to an argument of the Comptroller based on the comments in Sargood v The Queen (supra), however, his Honour said (at 266):

"I have so far assumed that sec. 167 would, if the case fell within
it, afford a defence to the action, that is to say, that the remedy
given by that section is exclusive. I must not, however, be
understood to express any opinion on that point. I will only point
out that the words the `owner may' are prima facie permissive and
not, like the words `the owner shall' in the corresponding section
of the English Customs Regulation Act, peremptory.."

21. O'Connor J., whose judgment may be thought to depend upon a matter not presently relevant, namely whether the words "duties of customs" in s.167 and other sections could extend to duties proposed to be levied under legislation not yet passed, but which when passed would operate retrospectively, nevertheless considered the question whether s.167 was an exclusive code for the recovery of overpaid duty. His Honour distinguished Sargood v The Queen (supra) on the basis that it depended on the wording of ss.21 and 22 of the Customs Act 1857 (Vic) which made it clear that actions for recovery under those sections were to be the only permissible and the final method of dealing with questions of disputed duty. His Honour expressed himself, therefore, to be of the opinion that the plaintiff did have the right to proceed at common law.

22. Isaacs J., who dissented in the result, was of the view that having regard to the enactment of s.167, providing as it did an alternative remedy, there was no longer a right to recover at common law. His Honour analysed the law with respect to the right of recovery after a demand colore officii and concluded that it depended upon the inability to obtain, otherwise than by payment, those services which the recipient was bound to provide without the payment. His Honour, however, was of the view that if there were a means of payment given by the legislation which did not involve the sacrificing of his rights, the payer could not thereafter aver coercion. His Honour concluded (at 303):

"No case has been brought to the notice of the Court
showing that, if any other mode of obtaining the goods
was open, the mere demand of duty constituted a
compulsory demand colore officii entitling them to claim
restitution.
Such a doctrine, it is evident, would throw the finances of
the country into utter confusion. After several years
questions might be raised which, on some suddenly
discovered interpretation of a taxing Act, whether internal
revenue or Customs, would unexpectedly require the
return of enormous sums of money, and quite disorganize
the public treasury. Indeed, it reduces sec. 167 to a dead
letter, depriving it of all efficacy whatsoever. No
merchant, so long as such a position prevails, would be
foolish enough to raise a dispute and act under a section
which requires him to sue within six months, when by
deliberately preserving silence he can sue within at least
six years."

23. Following upon the decision of the High Court, the legislature substituted a new s.167 in 1910 (Act No 36 of 1910). The parliamentary debates on the amendment are inconclusive as to the present question, although if anything they support the appellants. The following comments of Senator Pearce, the then Minister of Defence, presumably representing the Treasurer, are recorded in Hansard from the Second Reading Speech in the Senate:

"Under clause 5, which repeals section 167 of the principal Act and
substitutes a new section, it is desired to bring about a change of
procedure in regard to payment of duty on articles as to which there
is a dispute as to the proper amount to be charged. Briefly, the
present procedure is this: In case of a dispute, first of all the
duty claimed by the Department has to be deposited. Then the
importer has to take action within six months. If his action be
unsuccessful, the amount is retained as the proper duty. If no
action be taken the amount is also retained. Under the existing
procedure, the amounts so deposited were required to be paid into a
trust fund; and it is alleged that if the importers had cared to do
so, and had come to a common understanding amongst themselves, they
could practically have held up the revenue of the Commonwealth by
simply claiming that the duties charged on their goods were not the
proper duties. At the end of six months they need not have taken
action, but in the meantime the Commonwealth could not have used the
amounts paid in as part of the revenue of the country ... What is
proposed in the amending clause is that the duty shall be paid under
protest, and the protest be marked on the entry. Then an action can
be taken within six months, and the result will determine what
amount of duty has to be paid...
The jurisdiction which was previously confined to the High Court is
now to be extended to any Commonwealth or State Court of competent
jurisdiction ... The only exception will be that the Department, in
its own interest, will, where any question of principle is
concerned, or any question involving a constitutional issue, take
the case to the High Court..."

24. Following upon the amendments in 1910, s.167 was considered by the full court of the Supreme Court of New South Wales in Smith v Hudson (1921) 21 SR (NSW) 557. In that case the owner paid the duty at the time of entry, writing on the entry of the goods the words "under protest". Section 167, as in force at the relevant time, required that there be written the words "paid under protest". In an action for recovery of the overpaid duty, the court regarded the defence based on the need for strict compliance with s.167 as unmeritorious, but held nevertheless that Customs were entitled to succeed. No suggestion was made that there was an alternative cause of action available.

25. Act No. 12 of 1923 thereafter amended s.167 by adding the words now appearing in s.167(3). Nothing in the extrinsic materials of the time casts light on the present problem. Other amendments have been thereafter made which are not presently relevant.

26. The new s.167 in its post 1910 form, retained the word "may" in sub-sec.(1) in connection with the payment under protest. It was argued by the respondent that the word "may" indicated the conferring upon the importer of a discretion whether or not to adopt the procedure laid down by the section. It was said that this was in contradistinction to the mandatory "shall" used in s.21 of the Customs Act (Vic.) 1857 and to the equally mandatory form in which s.12A of the Sales Tax Procedure Act 1934 is cast. However, the meaning of each of these sections, just as the meaning of "may" in s.167, must be considered in its context.

27. It may be conceded that s.167 confers upon an importer, who is in a relevant dispute with the Collector, a choice whether or not to pay under protest, but it does not follow from that, that it also confers upon the importer a choice not to comply with the terms of the section but rather to take action freed from its limitations. Equally, of course, the owner of the goods is not required to bring an action against the Collector under sub-sec.(2). He may elect, for whatever reason, to bring no action at all. But if he does bring an action, that action will be governed by sub-sec.(4). The wording of sub-sec.(4) is in the widest form. It precludes any action for the recovery of any sum paid as customs duty unless the requisite protest has been made under sub-sec.(1) and further, unless the action is taken within the time limited by sub-sec.(4)(a).

28. In our opinion sub-sec.(4) makes the legislative intention clear, assuming that prior to the amendment it was open to doubt. Whenever there is a dispute of the kind described in sub-sec.(1), the owner of the goods, if he wishes to protect his position, must not only pay the duty, but also must protest in the manner provided by that section. The sum so paid is deemed by the section to be the proper duty and may accordingly be appropriated to general revenue, albeit that in the recovery action the contrary may be found, in which event the amount paid is to be refunded. Further, the action for recovery must be commenced within the relevant period provided in the statute. If it is not, the action for recovery will be statute barred. Thus the Commonwealth will know, by the formal procedure of protest and by the timely bringing of a recovery action, what duty it may become liable to refund. If s.167 were but an alternative procedure, it is hard to see, assuming that an action for money had and received could be brought against the Comptroller, why any person would adopt the procedure in s.167, which would seem to be greatly more restrictive than that applicable at common law. Further, the Comptroller has the advantage of the deeming of the duty to be correct in the statutory context of a s.167 action. There would be no such deeming provision applicable to a common law action.

29. It follows that s.167 represents the only method whereby an action for recovery of overpaid customs duty can be brought where there is a dispute between the owner and the Collector as to liability or matters affecting liability and that it operates to exclude the availability of any alternative common law remedy. This is consistent with the approach adopted by Brennan J., when sitting as President of the Administrative Appeals Tribunal in Re Carey (1978) 1 ALD 455 at 457 and 458, and by the Tribunal in Re Pilkington ACI Ltd and Collector of Customs (1985) 7 ALD 689 at 694 and also the decision of Giles J. in Dahlia Mining Co Ltd v Collector of Customs (1989) 17 NSWLR 688. What was said in the first two cases must, of course, be read in the context of an administrative appeal. In the last mentioned case, Giles J. held, as we understand his Honour, that where an owner elected, rather than to bring proceedings under s.167, to adopt the procedure under s.273GA(7) to seek review of the question of the proper duty payable, the prohibition under s.167(3) had no application. To hold otherwise was to render the right to obtain administrative review under s.273GA of the Act nugatory. It is not necessary here to consider the correctness of that decision, although we should not wish to be thought to suggest that the decision was incorrect. The result, is, however, to construe s.167 as inapplicable to a case arising under s.273GA, it is not to construe s.167 as providing no more than a general alternative remedy to the common law.

30. It was submitted by the respondent that the present was not a case which fell within s.167, that is to say that the present was a case where no protest was possible. No doubt if this were the case, an action at common law might be taken to be outside the prohibition in sub-sec.(4). The argument proceeds on the basis that there never was any "dispute as to duty" whether in terms of amount, rate or liability of goods to duty. Rather there was a dispute as to whether a TCO had been validly revoked. This argument places too narrow a construction upon the words of s.167 (1). The dispute was not an abstract dispute as to the validity of the revocation of the TCO. The consequence of that dispute being resolved in favour of the owner of the goods, was that there was no liability to pay customs duty. To characterise such a dispute as not being a dispute as to the liability of the relevant goods to duty is in our view pedantic and to prefer form over substance.

31. We would therefore accept both the first and the second of the appellants' submissions referred to above. This being the case, it is not necessary to decide whether, in the absence of sub-sec.(4), the respondents would have had an action for money had and received for the recovery of the duty. Such a question would have involved consideration, inter alia, of Mason v State of New South Wales [1959] HCA 5; (1958-9) 102 CLR 108; Bell Bros Pty Ltd v Shire of Serpentine-Jarrahdale [1969] HCA 63; (1969) 121 CLR 137 and Cam and Sons Pty Ltd v Ramsay [1960] HCA 82; (1960) 104 CLR 247, (the United Kingdom cases are discussed in "The Law of Restitution" Lord Goff and Gareth Jones, 3rd Ed., Sweet and Maxwell, 1986). Consideration would need as well to be given to the views of Isaacs J. in Sargood v The Commonwealth, as to whether the existence of an alternative procedure to permit payment under protest and a statutory action for recovery, converted a payment which was otherwise in the relevant sense, involuntary, into a voluntary payment which was irrecoverable.
Whether s.16(1)(d) of the ADJR Act authorised recovery of the duty and interest.

32. Where an application is made under the ADJR Act for judicial review of an administrative decision to which that Act applies, the court is given the power to make in its discretion the orders referred to in s.16(1). Paragraph (d) authorises:

"(d) an order directing any of the parties to do, or to
refrain from doing, any act or thing the doing, or
the refraining from the doing, of which the Court
considers necessary to do justice between the parties."

33. Davies J. relied upon s.16(1)(d) for the power to make an order for the recovery of the duty, notwithstanding his Honour's view, consistent with that we held, that the customs duty overpaid was not recoverable in an action for money had and received, being precluded by the express provisions of s.167.

34. Section 16(1)(d) of the ADJR Act was considered by the High Court in Park Oh Ho v The Minister for Immigration and Ethnic Affairs [1989] HCA 54; (1989) 167 CLR 637 at 644. In that case, a deportation order having been found to be null and void ab initio the question arose as to whether a declaration should be made under s.16(1)(d) that the detention of the applicant was unlawful. Mason C.J., Deane, Toohey, Gaudron and McHugh JJ. said:

"The legislative purpose to be discerned in the conferral by s16
(1)(c) and (d) of power to grant declaratory and injunctive relief
in addition to the power to quash or set aside (with effect from a
specified date) an impugned decision is clear. It is to allow
flexibility in the framing of orders so that the issues properly
raised in the review proceedings can be disposed of in a way which
will achieve what is `necessary to do justice between the parties`
(s 16 (1)(d)) and which will avoid unnecessary re-litigation between
the parties of those issues. The scope of the powers to make orders
which the subsection confers should not, in the context of that
legislative purpose, be constricted by undue technicality. In
particular, the phrase `any matter to which the decision relates' in
s (16)(1)(c) should be construed as encompassing any matter which is
so related to, in the sense of connected with, the impugned decision
that it is appropriate that it be dealt with by the grant of
declaratory relief..."

35. Their Honours, while expressing the view that declaratory or injunctive orders could readily be seen as appropriate remedies of judicial review of administrative decisions and actions, cast doubt upon whether an order for damages was of the same character.

36. In this court, in the same case (1988) 20 FCR 104, Morling J. considered the question whether the court, under s.16(1)(d), had power to award damages. In deciding that no such power existed, his Honour expressed the view that such an order was not necessary to do justice between the parties. His Honour said (at 126):

"It is justice in relation to the actual decision under review, and
not in relation to common law claims which might arise out of the
decision and which are not pleaded in the proceedings which is
referred to in s16(1)(d).
The award of damages has never been held to be a remedy available in
proceedings brought by way of judicial review..."

37. Section 16(1)(d) was considered by the full court of this court in Minister for Immigration and Ethnic Affairs v Conyngham (1986) 11 FCR 528 and in Pearce v Button [1986] FCA 51; (1986) 8 FCR 408. In the former, Sheppard J., with whose judgment Beaumont and Burchett JJ. agreed, expressed the view that the section should not be given a narrow or restrictive interpretation, suggesting that it was the intention of parliament to clothe the court with powers at least as wide as those which a court of law could exercise on a prerogative writ. As such, in an appropriate case it would empower an order directed at a decision-maker to exercise its powers or perform its duty according to law or even in a particular way. No doubt, in an appropriate case, this could extend to directing the decision-maker to make a payment that had been refused contrary to law, although this would be an exceptional case. However, as Fox J. remarked in Pearce, (supra at 414), s.16 did not confer upon the court jurisdiction in the strict sense, it dealt only with the power to grant relief, in collateral or related matters.

38. While it can be conceded that the legislative policy of s.16(1)(d) includes the granting of orders in the relevant sense connected with the judicial review so as to prevent multiplicity of actions, it cannot be said, even taking into account the remarks of Vaisey J. in Sebel Products Ltd v Commissioners of Customs and Excise (1949) 1 Ch 409 at 412, perhaps echoed by Lord Bridge in R v Tower Hamlets London Borough Council (1988) 1 AC 858 at 87), that the making of an order directed at the Collector where s.167 was not complied with, to refund the duty, would do justice between the parties to a review, let alone be necessary for that purpose. It could be different if, protest having been made under s.167 and an action having been commenced for recovery within time, it was found that the decision-maker had erred in law in exacting the customs duty required.

39. It is not strictly necessary to go so far. If s.167 is not complied with, there can be no right of action for recovery. If there is no right of action to recover the principal amount of duty, it must follow that there can be no right to recover interest upon it. Even if s.16(1)(d) authorised the making of an order directing the recovery of customs duty overpaid, notwithstanding the non-compliance with s.167, it is clear from the terms of s.16(1)(d) itself that the making of that order would be discretionary. No doubt it would be necessary for the court in determining whether to exercise its discretion to consider the existence of s.167 and its requirements. It is not necessary to decide whether this fact alone would, in all cases, preclude an exercise of discretion in favour of an applicant. What it does show is, that if the power under s.16(1)(d) were to be exercised in favour of an applicant directing the Collector to make a refund, the right to a refund would arise for the first time as a result of the order directing the making of the payment, so that until the making of the order, no interest would be payable.
Whether power existed under s.51A of the Federal Court Act to order the payment of interest.

40. Section 51A of the Federal Court of Australia Act 1976 authorises an order for interest being made in:

"... any proceedings, for the recovery of any money (including any
debt or damages or the value of any goods)."

41. His Honour, after observing that s.51A was not to be read in any narrow or technical way, said:

"In my view, an application which seeks, inter alia, an
order under s16 (1) (d) of the ADJR Act for the
repayment of excess duty, is a proceeding `for the recovery
of any money' within the terms of this section. I am
therefore satisfied that an order made under s 16 (1)(d) of
the ADJR ACT directing a party to do any act or thing
`which the Court considers necessary to do justice between
the parties' may include an order for the payment of
interest in accordance with the general policy established by s51A."

42. With respect, we do not agree. The present proceedings, brought for judicial review, were not proceedings for the recovery of money. They were proceedings seeking judicial review of an administrative decision. The present case is stronger for the appellants than the refusal by Jenkinson J. to order interest in a suit for specific performance which included orders for the payment of money: H 1976 Nominees Pty Limited v Joel Auctions Pty Ltd. (Jenkinson J., 18 July 1988, unreported). In Ausintel Investments Australia Pty Ltd v Lam (1990) 19 NSWLR 637, the question arose in the Supreme Court of New South Wales whether s.94 of the Supreme Court Act 1970 (NSW), for present purposes similar to s.51A of the Federal Court Act, authorised the payment of interest where proceedings had been brought for the winding up of a company consequent upon the non-issue of shares after payment of the subscription moneys for them. The moneys were ultimately repaid without order of the court. The Court of Appeal was of the view that there had been no breach of fiduciary duty in the circumstances of the case. It was held that proceedings for winding up were not proceedings for the recovery of money. Rather, the proceedings referred to in s.94 (the same may be said of the proceedings referred to in s.51A) must be proceedings which (at 649 per Meagher J.A.) -

"... if the plaintiff be successful, will result in a
judgment in his favour to recover a sum of money."

43. Absent pendent jurisdiction, this court would have had no jurisdiction to entertain an application for the recovery of overpaid customs duty. Such a proceeding could only have been brought in the courts of a State exercising federal jurisdiction. See Kodak (Australasia) Pty Ltd v Commonwealth of Australia [1988] FCA 438; (1988) 22 FCR 197. If so brought it would have been unsuccessful, having regard to s.167 of the Act. Section 16(1)(d), even if authorising an appropriate order, would not have authorised an order for the entry of judgment for the overpaid customs duty in favour of the respondent. At best, it would have authorised only an order directed to the Comptroller for the repayment of the duty.

44. It follows that the appeal should be allowed, with costs. Accordingly, the orders made by Davies J. must be set aside and in lieu thereof it should be ordered that the application be dismissed, with costs as from 20 July 1990.