Alexander Cowan and Sons Ltd v Lockyer [1904] HCA 19

Alexander Cowan and Sons Ltd v Lockyer [1904] HCA 19 - HCA 1904 case summary — Zoe

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into New South Wales of certain envelope folding machines. At that time the goods in question were not liable to duty under the tariff of New South Wales, which was, as a matter of law, the only tariff then in force in that State. When the goods were imported, duty upon them was demanded by the defendant on the ground that under the tariff proposals then before the Parlia- ment such goods were proposed to be made dutiable. The money was paid under protest, and as was understood by the parties, under the provisions of sec. 167 of the Customs Act 1901, which had come into operation on 4th October, 1901. Goods of the class in question were included in the draft tariff as laid upon the table of the House of Representatives on Sth October, 1901. When the tariff had passed through both Houses and the Customs Tariff 1902 came into force on 16th September, 1902, those goods were exempt from taxation. So that,as a matter of law, no duty was ever payable upon the goods ; they were not taxable under the tariff of New South Wales, and they were not taxable under the Commonwealth Customs Tariff, and the only claim that could be set up was that they were taxable under the draft tariff laid on the table of the House of Representatives. When the goods were imported the importers claimed that they were not liable to duty, and deposited this sum of money. Sec. 167 of the Customs Act, which had then been passed, is in these words : - "Tf 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 follow- ing 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 com- menced 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." Now that section occurs in Part VIII. of the Act, beginning at sec. 130, which provides : - " This Part of this Act shall not affect any duties payable under any State Act." Therefore sec. 167 had, according to the law as it then existed,

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no application to any duties that could then be collected. But, 'as we know, duties were being collected, as is usual in such cireum- stances, in accordance with the draft tariff. The parties, however, acted as if the section then applied as a matter of law. In my judgment, the proper conclusion of law to be drawn from these circumstances is that the money was paid, not under the legal conditions imposed by sec. 167, but upon terms similar to those expressed in the section, and as a matter of agreement between the party paying and the party receiving the money. That construction gets over the difficulty that this action was not brought within the limit of six months after the deposit was made, sec. 167 expressly providing that the deposit shall be deemed the proper duty unless an action is commenced within six 'months. Regarding the matter as we do in the light of an agree- _ ment between the parties, there can be no difficulty in extending

the time for bringing this action, as has in fact been done, as 7 Fitated i in the pleadings. These being the circumstances under which the deposit was _ made, it is clear that, at the time when it was made, no duty was "payable by the plaintiff. It is also clear that no duty was payable under the Customs Tariff assented to on 16th September,

Therefore the duty was never collectable under any exist- _ ing tariff. But the defendant claims to be entitled to retain the _ money by virtue of sec. 6 of the Customs Tarif', which provides that: - * All duties of Customs collected pursuant to any tariff or tariff alteration shall be deemed to have been lawfully imposed and collected, and no additional duty shall be payable on any goods on which duty was so collected, merely by reason that the rate at which the duty was so collected is less than the rate of "duty specified in this Act, and no duty shall be payable in respect of goods delivered for home consumption free of duty pursuant _to any tariff or tariff alteration." "Tariff" is defined as the tariff proposed on 8th October, 1901. "Tariff alteration" is defined as "any alteration of the tariff since proposed in the Parliament," which means, I suppose, any alteration made by resolution in committee of ways and means. The item in question 'as in the tariff as proposed. It is contended that these duties ere "collected" within the meaning of that section, that they

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_ The legislature deliberately exercised that power in sec. 5 as to the duties mentioned in the schedule. If sec. 6 receives the construction which will support the defendant's contention, the _ result will be that the tariff laid on the table of the House of Representatives on Sth October, 1901, thereupon became a _ valid existing tariff, and the duties mentioned in it were thereupon imposed according to it and according to the alterations in it as the tariff was varied from time to time. Mr. Pigott admits that he must put his contention as high as that. If that was the intention of the legislature it was a very singular way to express it. I think if the legislature had been invited to pass such a law ; it would have hesitated to do so, Full meaning can be given to sec, 6 without that extraordinary construction, by holding that the legislature intended to deal with the practical difficulty which _ always arises under such circumstances. 'That is to say, the draft _ tariff was being varied from time to time. Some merchants were _ refusing to pay duties demanded of them,while others did not think it worth while to object to pay them. A great deal of money was eollected under the draft tariff under circumstances which would : probably have given those who paid it no right to recover it, as _ they would have paid it under a mistake of law. The legislature ' may very well have desired that all questions of that sort should be set at rest by that declaration. It was a very natural provision to make, and the language is very natural to express that intention. This is an intelligible construction of the section, and

does not lead to the result of depriving anyone of vested rights. For these reasons I have come to the conclusion that the word "collected" ought not to be held applicable to, or to include, money _ deposited under an agreement that if it is not legally payable it _ will be returned. I therefore think that the plaintiff is entitled to judgment for the amount claimed and interest thereon at 57/ er annum, with costs of the action.

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Judgment (45 paragraphs)