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High Court of Australia |
H C of A
17 September 1937
Starke J.
E. M. Mitchell K.C. and Henchman, for the plaintiff.
Spender K.C., A. R. Taylor and Allen, for the defendant.
Starke J
. entered judgment in the action for the plaintiff for £345 15s. and subsequently gave his reasons therefor as follows:—On 6th September 1937 I entered judgment in this action for the plaintiff, the Collector of Customs, for £345 15s. in respect of customs duties which he claimed to be due from the defendant. All that remains is for me to state shortly the reasons for that judgment. The facts, as I find them, were these:—A Chinese seaman on the s.s. Marella, called variously Jang Sang or Jong Seng, brought cigarette papers into Australia in the years 1934 and 1935, none of which were entered at the customs. In June 1934 the defendant obtained from Jang Sang 59 boxes of these cigarette papers described as "Zig Zag" cigarette papers and paid him therefor the sum of £41 6s. and sold 50 of these boxes to an hotel-keeper for £46 5s. In August 1934 the defendant obtained from Jang Sang 189 boxes of these cigarette papers described as "Zig Zag" cigarette papers, and they were invoiced to it for £163 16s. The defendant paid Jang Sang £132 6s. for these papers, and sold 140 of them to the hotel-keeper, who paid the defendant £119 therefor. About March 1935 the defendant also obtained from Jang Sang 107 boxes of these cigarette papers, described as "Zig Zag" cigarette papers, and also 259 boxes of these cigarette papers, described as "Repeater" cigarette papers, and paid him therefor £181 14s. 9d.
The customs duties payable in respect of these cigarette papers amount to £345 15s. The defendant knew that the cigarette papers had not been entered at the customs and that no duty had been paid in respect of them. The question is whether the defendant is liable to pay that duty. The customs duties were imposed by the Customs Tariffs 1933, sec. 6. The Customs Act 1901-1935, sec. 153, provides that all duties shall constitute Crown debts charged upon the goods in respect of which the same were payable, and payable by the owner of the goods and recoverable at any time in any court of competent jurisdiction by proceedings in the name of the collector. Sec. 4 provides that, except where otherwise clearly intended, "owner" in respect of goods includes any person (other than an officer of the customs) being or holding himself out to be the owner, importer, exporter, consignee, agent or person possessed of or beneficially interested in or having any control of or power of disposition over the goods. Sec. 132 provides that all import duties shall be paid at the rate in force when the goods are entered for home consumption. The customs duties are charged upon the goods and become a debt due to the Crown immediately upon importation. The Customs Tariffs 1933 does not explicitly provide who is liable to pay the duties, but primarily the importer is liable (Brook's Wharf and Bull Wharf Ltd. v. Goodman Brothers[1] ). The levying of the duties is regulated by the Customs Act 1901-1935. And, as already mentioned, those Acts prescribe that the duties shall be payable by the owner of the goods.
It was contended for the defendant that the owner of the goods liable for the duties is the person importing the same into Australia, and, further, that the duties only become payable upon the entry of the goods for home consumption. It must be observed, however, that the cigarette papers were at all times material subject to the control of the customs (See sec. 30), and it was the duty of the owner to enter them at the customs (See secs. 68-71 and sec. 37). It would seem that a person possessed of or having any control of or power of disposition over goods subject to the control of the customs could not move or interfere with them except in accordance with the Act (See sec. 33). And such a person can and should enter the goods at the customs, because he is the owner thereof within the meaning of the Act. Now when sec. 153 charges the duties upon the goods in respect of which the same are payable, and payable by the owner of the goods, there is no reason why the word "owner" should not have the extended meaning given to it by sec. 4 and include persons possessed of or having control of or power of disposition over the goods. In my judgment these words are not limited to an owner, within the extended meaning of the Act, at the moment of importation, but extend to all persons who have goods in their possession, control or disposition charged with customs duties which have not been paid.
The defendant became possessed of uncustomed goods and exercised control and a power of disposition over them, and thus, in my opinion, became liable for the duties. The other argument based upon sec. 132, that the duties shall be paid at the rate in force when goods are entered for home consumption, is met, I think, by the reasons given for the decision in Attorney-General v. Ansted[2] . It was the duty of the defendant when it became possessed of uncustomed goods to enter them at the customs, and it cannot excuse itself by neglecting to perform this duty.
Certain convictions were tendered by the plaintiff and admitted in evidence in this action, but I have not acted upon them, for they may have been based upon the provisions contained in sec. 255 of the Customs Act, which I think are inapplicable to this action, and also because a conviction for an offence is not, I think, relevant evidence in a civil proceeding of the matters of fact involved in that conviction.
From that decision the defendant appealed to the Full Court.
Appeal dismissed with costs.
Solicitor for the appellant, Harold F. James.
Solicitor for the respondent, H. F. E. Whitlam, Commonwealth Crown Solicitor.
H C of A
6 June 1938
Latham C.J., Rich and Dixon JJ.
E. M. Mitchell K.C. and Henchman, for the plaintiff.
Spender K.C., A. R. Taylor and Allen, for the defendant.
Starke J
. entered judgment in the action for the plaintiff for £345 15s. and subsequently gave his reasons therefor as follows:—On 6th September 1937 I entered judgment in this action for the plaintiff, the Collector of Customs, for £345 15s. in respect of customs duties which he claimed to be due from the defendant. All that remains is for me to state shortly the reasons for that judgment. The facts, as I find them, were these:—A Chinese seaman on the s.s. Marella, called variously Jang Sang or Jong Seng, brought cigarette papers into Australia in the years 1934 and 1935, none of which were entered at the customs. In June 1934 the defendant obtained from Jang Sang 59 boxes of these cigarette papers described as "Zig Zag" cigarette papers and paid him therefor the sum of £41 6s. and sold 50 of these boxes to an hotel-keeper for £46 5s. In August 1934 the defendant obtained from Jang Sang 189 boxes of these cigarette papers described as "Zig Zag" cigarette papers, and they were invoiced to it for £163 16s. The defendant paid Jang Sang £132 6s. for these papers, and sold 140 of them to the hotel-keeper, who paid the defendant £119 therefor. About March 1935 the defendant also obtained from Jang Sang 107 boxes of these cigarette papers, described as "Zig Zag" cigarette papers, and also 259 boxes of these cigarette papers, described as "Repeater" cigarette papers, and paid him therefor £181 14s. 9d.
The customs duties payable in respect of these cigarette papers amount to £345 15s. The defendant knew that the cigarette papers had not been entered at the customs and that no duty had been paid in respect of them. The question is whether the defendant is liable to pay that duty. The customs duties were imposed by the Customs Tariffs 1933, sec. 6. The Customs Act 1901-1935, sec. 153, provides that all duties shall constitute Crown debts charged upon the goods in respect of which the same were payable, and payable by the owner of the goods and recoverable at any time in any court of competent jurisdiction by proceedings in the name of the collector. Sec. 4 provides that, except where otherwise clearly intended, "owner" in respect of goods includes any person (other than an officer of the customs) being or holding himself out to be the owner, importer, exporter, consignee, agent or person possessed of or beneficially interested in or having any control of or power of disposition over the goods. Sec. 132 provides that all import duties shall be paid at the rate in force when the goods are entered for home consumption. The customs duties are charged upon the goods and become a debt due to the Crown immediately upon importation. The Customs Tariffs 1933 does not explicitly provide who is liable to pay the duties, but primarily the importer is liable (Brook's Wharf and Bull Wharf Ltd. v. Goodman Brothers[3] ). The levying of the duties is regulated by the Customs Act 1901-1935. And, as already mentioned, those Acts prescribe that the duties shall be payable by the owner of the goods.
It was contended for the defendant that the owner of the goods liable for the duties is the person importing the same into Australia, and, further, that the duties only become payable upon the entry of the goods for home consumption. It must be observed, however, that the cigarette papers were at all times material subject to the control of the customs (See sec. 30), and it was the duty of the owner to enter them at the customs (See secs. 68-71 and sec. 37). It would seem that a person possessed of or having any control of or power of disposition over goods subject to the control of the customs could not move or interfere with them except in accordance with the Act (See sec. 33). And such a person can and should enter the goods at the customs, because he is the owner thereof within the meaning of the Act. Now when sec. 153 charges the duties upon the goods in respect of which the same are payable, and payable by the owner of the goods, there is no reason why the word "owner" should not have the extended meaning given to it by sec. 4 and include persons possessed of or having control of or power of disposition over the goods. In my judgment these words are not limited to an owner, within the extended meaning of the Act, at the moment of importation, but extend to all persons who have goods in their possession, control or disposition charged with customs duties which have not been paid.
The defendant became possessed of uncustomed goods and exercised control and a power of disposition over them, and thus, in my opinion, became liable for the duties. The other argument based upon sec. 132, that the duties shall be paid at the rate in force when goods are entered for home consumption, is met, I think, by the reasons given for the decision in Attorney-General v. Ansted[4] . It was the duty of the defendant when it became possessed of uncustomed goods to enter them at the customs, and it cannot excuse itself by neglecting to perform this duty.
Certain convictions were tendered by the plaintiff and admitted in evidence in this action, but I have not acted upon them, for they may have been based upon the provisions contained in sec. 255 of the Customs Act, which I think are inapplicable to this action, and also because a conviction for an offence is not, I think, relevant evidence in a civil proceeding of the matters of fact involved in that conviction.
From that decision the defendant appealed to the Full Court.
Appeal dismissed with costs.
Solicitor for the appellant, Harold F. James.
Solicitor for the respondent, H. F. E. Whitlam, Commonwealth Crown Solicitor.
2. [1844] EngR 152; (1844) 12 M. & W. 520; 152 E.R. 1304.
4. [1844] EngR 152; (1844) 12 M. & W. 520; 152 E.R. 1304.
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URL: http://www.austlii.edu.au/au/cases/cth/HCA/1938/71.html