Mills v Parkes [1914] HCA 34; (1914) 18 CLR 189 (21 May 1914)

HIGH COURT OF AUSTRALIA

Mills (Collector of Customs for New South Wales) Plaintiff; and Parkes and Another Defendants.

Mills (Collector of Customs for New South Wales) Plaintiff; and Parkes Defendant.

H C of A

21 May 1914

Griffith C.J., Isaacs and Gavan Duffy JJ.

Armstrong, for the plaintiff.

Brissenden, for the defendants.

Griffith C.J.

This action is brought upon a Customs security which was given by the defendant Parkes and the other defendant in conformity with sec. 42 of the Customs Act 1901 (No. 6 of 1901), which provides that "The Customs shall have the right to require and take securities for compliance with this Act and generally for the protection of the revenue of the Customs." The defendant Parkes was agent for the ship Birkenfels, and on the arrival of the ship he and his co-defendant gave security to enable the ship to be unloaded, by which they acknowledged themselves bound to the Customs of the Commonwealth in the sum of £500, subject to certain conditions, two of which were that if goods discharged from any vessel for which Parkes was agent should be safely and securely kept on a sufferance wharf or in a shed thereon, and there be preserved in good state and condition free from all loss and damage save such as might arise from unavoidable accident, and that if the duties due or to accrue due on the goods should be paid or the goods be exported, the defendants should be free. The goods in question were landed on the wharf. They disappeared. They were not safely and securely kept. All that can be conjectured is that they were stolen. There is nothing to show that the loss arose through unavoidable accident, proof of which, on the construction of the document, is on the defendants. Moreover, the duty was not paid. Therefore these two conditions of the bond were not complied with. There is therefore no answer to the action. It was agreed that the damages to be awarded in the case should be the amount of the duty, £68 12s., and that the costs should follow the event. There must therefore be judgment for the plaintiff for £68 12s., with the costs of the action 1913, No. 7, and the costs incidental to the special case. The second question raises an interesting point whether apart from the security Parkes would have been liable as the owner of the goods. It was not argued, and it was unnecessary to argue it, and there should be no costs on either side in the second action.

Isaacs J.

I agree.

Gavan Duffy J.

I agree.

First question answered in affirmative.

Second question not answered.

Solicitor, for the plaintiff, Gordon H. Castle, Crown Solicitor for the Commonwealth.

Solicitors, for the defendants, Priddle & Gosling.