Bainbridge-Hawker v Minister of State for Trade and Customs

Bainbridge-Hawker v Minister of State for Trade and Customs - [1958] HCA 60 - HCA 1958 case summary — Zoe

[6]

The present action purports to be brought in accordance with the usual practice and procedure of the Court in civil cases. But for s. 249 of the Customs Act, the first point of law would be of a highly technical and artificial character because it would not be difficult to cure the defect if any in the title of the plaintiff by an amendment: Pleasants v. East Dereham Local Board [1] . There was at the date of the writ on 1st December 1955 a Minister of State for Trade and Customs for the Commonwealth of Australia, namely Senator the Honourable Neil O'Sullivan, and he was the Minister of State administering "The Customs", which is defined by s. 4 of the Customs Act to mean the Department of Trade and Customs, pursuant to s. 6 of that Act which provides that until it is otherwise lawfully determined the Customs Acts shall be administered by the Minister of State for the Commonwealth administering the Customs. Sections 17, 19A and 19B of the Acts Interpretation Act 1901-1950 are also material. Section 17 provides that in any Act, unless the contrary intention appears, (i) "The Minister" shall mean the Minister for the time being administering the Act or enactment in which or in respect of which the expression is used. Section 19A provides, so far as material, that where in any Act it is provided that the Act shall be administered by a specified Minister of State of the Commonwealth the reference to that Minister shall be read as a reference to any Minister to whom the administration of the Act is allotted by order of the Governor-General and shall be deemed to include any Minister or Member of the Executive Council for the time being acting for and on behalf of the Minister to whom the administration of the Act is so allotted. Section 19B provides that: "Where in any Act, reference is made to a specified Minister of State of the Commonwealth or a specified Department of State of the Commonwealth, and there is no longer any such Minister or Department - (a) the reference to the Minister shall be read as a reference to such Minister as is specified by order of the Governor-General, and shall be deemed to include any Minister or Member of the Executive Council for the time being acting for and on behalf of the Minister so specified in the order; and (b) the reference to the Department shall be read as a reference to such Department as is specified by order of the Governor-General."

[7]

Section 245 of the Customs Act, as has been seen, authorises customs prosecutions to be instituted "in the name of the Minister" and, where the penalties sought to be recovered do not exceed five hundred pounds or the excess is abandoned, "in the name of the Collector". Section 4 of the Customs Act provides that except where otherwise clearly intended "Collector" includes the comptroller and any collector of customs for the State and any principal officer of customs doing duty at the time and place and any officer doing duty in the matter in relation to which the expression is used. "Officer" means a person - (a) employed in the service of the customs; or (b) authorised in writing by the Minister to perform the functions of an officer of customs. The word "Collector" in s. 245 of the Customs Act would therefore, in accordance with this definition, if it is applicable to this section, include quite a large group of persons any of whom could institute a prosecution "in the name of the Collector". It was however held in Christie v. Permewan, Wright & Co. Ltd. [1] that the definition of collector does not apply to s. 245 and it was decided by a process of reasoning which I find it hard to follow that the word "Collector" in the section means the collector for the State or his deputy. Griffith C.J. said: "Now, the object of the section being to define who is to be the prosecutor, if it was intended that any officer may prosecute, what would have been easier than to say so?" [1] . But the definition s. (4) applies except where otherwise clearly intended and the legislature does appear to have said that customs prosecutions where a penalty not exceeding five hundred pounds is sued for may be instituted in the name of any person who is included in the definition of "Collector". There is nothing startling in this because, as it will be seen later, s. 245 appears to have had its genesis principally in s. 11 of the Customs and Inland Revenue Act 1879 Imp. and that section provided that prosecutions for penalties under the Customs Acts before justices in the United Kingdom should be prosecuted by information in the name of some officer of customs or excise. In Robertson's Civil Proceedings by and against The Crown (1908), p. 729, there appears a form of information by an officer of customs in the following words: "Be it remembered, that A.B., an officer of Customs, under the direction of the Commissioners of Customs, informs me, (name) one of Her Majesty's Justices of the peace etc." At the time of Christie's Case [2] , s. 8 of the Customs Act 1901 provided that there should in each State be a collector of customs who subject to the comptroller should be therein the Chief Officer of the Customs and should be called the Collector of Customs for the State. Since then a proviso to s. 8 and a new s. 8A have been added to the Act which make it even more difficult to believe that Christie's Case [2] gives effect to the true intention of the legislature. Apparently, if Christie's Case [2] is correct, the Comptroller-General of Customs, though he is made by s. 7, under the Minister, the permanent head of the customs and has the chief control of the customs throughout the Commonwealth, would not be entitled to institute a customs prosecution in his own name as "The Collector" within the meaning of the section, although he could direct a collector of customs for a State to do so. I must however accept the decision in Christie's Case [2] as a single Judge. Even then, there would still be six collectors of customs for the States, and presumably the principal officer of customs doing duty in the Northern Territory if duly authorised, in whose name customs prosecutions could be instituted and to distinguish between them it would be necessary for the personal name of the collector for the particular State to appear in the originating process. This seems to be borne out by the statement of Griffith C.J. [1] that the object of s. 245 is to define the person in whose name customs prosecutions are to be instituted. Even a prosecution instituted "in the name of the Minister" may be instituted by the Minister whose duty it is for the time being to administer the Department of Trade and Customs or any Minister or Member of the Executive Council for the time being acting on behalf of that Minister.

[9]

Customs prosecutions for the recovery of penalties instituted under Pt. XIV of the Customs Act are proceedings instituted on behalf of her Majesty in right of the Commonwealth. In Anonymous [1] we find it said as far back as 1793 that "an information for the duties is nothing more than the king's action of debt" [2] . And in books such as Maddox's Exchequer and Gilbert's Exchequer we are told how the Court of Exchequer became the court to which all cases concerning the revenue, that is cases which touched the profits of the Crown, were removed for trial. Thus in Attorney-General v. Constable [3] Kelly C.B. said: "The case of the Attorney-General v. Barker [4] clearly shows that it was settled law before the Judicature Acts that it was part of the prerogative of the Crown that the Sovereign was entitled to be an actor in any litigation affecting the rights of the Crown, and to determine in the Court of Exchequer any matter in which the Crown is interested" [5] . Later, revenue cases were removed to the Exchequer Division and later still to the King's Bench Division of the High Court of Justice on its revenue side. By the Crown Suits &c. Act 1865, (28 & 29 Vict. Ch. 104), intituled an Act to amend the Procedure and Practice in Crown Suits in the Court of Exchequer at Westminster, provision was made for the practice and procedure of the Court of Exchequer in proceedings by English information in the Court of Exchequer and proceedings at law on the revenue side of that Court. Section 6 defined information to mean an information, styled an English information, exhibited in the Court of Exchequer in the name of Her Majesty's Attorney-General as the informant. In the Annual Practice 1912, vol. II, Pt. X, pp. 1097 et seq. notes appear upon the procedure and practice on the revenue side of the King's Bench Division. On p. 1098 of the notes, which were supplied by an officer of the King's Remembrancer's Department, Royal Courts of Justice, a form of information is set out, the title being "Between His Majesty's Attorney-General (on behalf of His Majesty) Informant and A.B., Defendant". Immediately under the title appear the words: "Information. To the Right Honourable (name) Lord Chief Justice of England, and to the rest of the Judges of the King's Bench Division of the High Court of Justice, Informing, showeth unto their Lordships, Sir A.B., Knight, His Majesty's Attorney-General on behalf of his Majesty as follows." The information then proceeds to state the facts of the case). Section 247 of the Customs Laws Consolidation Act 1876 provides that all suits, prosecutions, or informations for recovery of penalties under the Customs Acts in the High Court of Justice in England may be commenced either by writ of subpoena or capias as the first process at the election of the Commissioners of Customs, in which shall be specified the amount of the penalty or penalties sued for. The prosecution proceeded by way of information and it was not necessary that the information should be filed before the writ of capias issued: Attorney-General v. Reilly [1] . Order 68 of the rules of the Supreme Court in England excepts the procedure or practice in proceedings on the revenue side of the King's Bench Division of the High Court of Justice from the operation of these rules except to the extent provided for in that order. So that, as I understand it, it remained the practice in England for the Attorney-General to institute revenue proceedings on behalf of the Crown first in the Court of Exchequer, then in the Exchequer Division, and finally in the King's Bench Division on its revenue side by information until informations were abolished by the Crown Proceedings Act 1947. For present purposes the significant fact is that in the form of information set out on p. 1098 of the above notes the personal name of the Attorney-General appears - presumably in accordance with, as will appear, immemorial tradition and the requirement of the Crown Suits &c. Act 1865 that an information should be exhibited in the name of Her Majesty's Attorney-General.

[14]

A precedent for the form of information in the name of the Attorney-General under the Customs Laws Consolidation Act 1876 is set out in Robertson's Civil Proceedings by and against the Crown, (1908) p. 261; and provides, so far as material, that Sir J. L. W. Knight the Attorney-General of our Sovereign Lord the King who prosecutes for His Majesty in this behalf informs the Court that etc. There is a precedent to the same effect in Short and Mellor: The Practice of the Crown Office, 2nd ed. (1908) p. 515. In Halsbury's Laws of England, 2nd ed., (1931) Crown Practice, vol. 9, at p. 670 (the 3rd ed. is subsequent to the Crown Proceedings Act 1947), in reference to the practice in proceedings at law on the revenue side of the King's Bench Division, it is stated that the information is in the form of a declaration. "After giving the Court to understand and be informed regarding the matters of claim, the Attorney-General prays the consideration of the Court in the premises and judgment for the amount claimed." The reader is referred to note (s) on the same page where he is told to see the forms in Robertson's Civil Proceedings by and against the Crown (1908) pp. 261-263. In all the precedents of forms of information that I have been able to find the personal name of the Attorney-General appears and this is in accordance with immemorial traditional practice as a glance at any of the precedents of forms of information in equity such as that given in Daniell's Chancery Forms, 2nd ed. (1871) Form 159, will show. There the general words are: "Informing, showeth unto his Lordship, Sir A. B., Knight, Her Majesty's Attorney-General (or Sir C. D., Knight, Her Majesty's Solicitor-General) on behalf of Her Majesty, as follows". It would be difficult for a person to give the Court to understand and be informed concerning the matters of claim other than in his personal name, to which his official title was added to explain his qualification. It could not be otherwise in the case of an information because the information, after being drawn by junior counsel and settled by the Attorney-General, was engrossed and the Attorney-General's signature obtained thereto: Short and Mellor: The Practice of the Crown Office, 2nd ed. (1908), p. 170.

[15]

The words in s. 245 of the Customs Act "by action information or other appropriate proceeding" are the same words as those in s. 218 of the Customs Laws Consolidation Act 1876 Imp.. It could not have been intended in either section that the word "name" should have a different meaning depending upon whether the proceedings were instituted by action or by information or by some other appropriate proceeding. If the word "name" in the case of an information refers to the personal name of the Attorney-General for England or Ireland or the Lord Advocate of Scotland, then it must also refer to the personal name of the Attorney-General or Lord Advocate where the penalty is sued for in an action or some other appropriate proceeding. In ordinary language, and that is prima facie the language of a statute, the word "name" means the personal name of a person. In Wharton's Law Lexicon, 14th ed. (1938) "name" is defined as "the discriminative appellation of an individual". Under s. 245 of the Customs Act the words "the Minister" could, as had been seen, refer to more than one person. They could refer to the Minister appointed to administer the customs or to the Minister or Member of the Executive Council administering the customs on his behalf. Unless the personal name of the Minister appeared on the writ, the plaintiff could be any one of the Ministers who answered this description. When one comes to the words "in the name of the Collector" the plaintiff could not, for the reasons already stated, be identified unless the personal name of the prosecutor appeared. Assuming the definition of Collector in s. 4 of the Customs Act does apply to s. 245, the proceedings could hardly be commenced, for instance, in the name of "any principal officer of Customs doing duty at the time and place". Yet this is the only way the principal officer of customs in the Northern Territory could be officially described. Mr. Windeyer sought to distinguish the meaning of the word "name" in the words "in the name of the Minister" from its meaning in the words "in the name of the Collector" because of the importance of a Minister of State compared to anyone who came within the definition of collector. That distinction is of course obvious. It arises from the very nature of the two offices. It is reflected in the inclusion in s. 245 itself of two limbs, the first of which provides that the more important prosecutions may be instituted in the name of the Minister and the second of which provides that the less important prosecutions may be instituted in the name of the collector. But this consideration would not justify a different meaning being given to the word "name" in the two limbs of the section. The word must be given its ordinary natural grammatical meaning in the absence of any context to the contrary, and the context, so far from being to the contrary, supports that meaning. It is also supported by the presence of the personal name of the Attorney-General in all the precedents of informations filed by the Attorney-General on behalf of the Crown to which I have referred. It is true that many cases will be found to be reported simply under the name of the Attorney-General v. (name of defendant) but this is presumably because it is customary to report cases in which the Attorney-General is a party under this short title. If the papers were available, it would be found, I think, that the personal name of the Attorney-General or of the Lord Advocate always appeared on the information or other originating process. An example of an information by the Attorney-General in a reported case will be found in Attorney-General v. Johnstone [1] . There the information is set out in full and the personal name of the Attorney-General appears. Examples of proceedings by the Lord Advocate in Scotland in reported cases will be found in Lord Advocate v. General Commissioners of Income Tax of Cunninghame Division of Ayrshire [2] and Jackson's Trustees v. Lord Advocate [3] and in these cases, where the petition and summons respectively are set out in full, the personal name of the Lord Advocate appears. Further examples, if required, will be found in Attorney-General v. The Mayor of Plymouth [4] , and Lord Advocate of Scotland v. Dunglas [5] . The words of s. 245 are "in the name" not "by the name" or "may be so described, without more" or "may be styled", expressions which occur in English Acts referred to in Robertson's Civil Proceedings by and against the Crown (1908) pp. 25, 31, 38, where it was intended that persons or bodies representing the Crown should sue or be sued by their official titles.

[18]

The cases where amendments of writs or pleadings have been refused because at the time of the application the cause of action has become barred by some statute of limitations would appear to fall into three broad categories. (1) Where there is a proper plaintiff but it is sought to add to the causes of action being sued upon a new cause of action which is out of time at the date of the application. In this category a leading case would appear to be Marshall v. London Passenger Transport Board [6] , where Lord Wright M.R. said that where it was sought to amend the existing causes of action the rule was interpreted very strictly and a very strict limitation was placed upon what was meant by a cause of action or a new cause of action. (2) Where the writ has not been served within twelve months and has become ineffective and it is sought to renew the writ after the causes of action which it includes would have become barred. In this category a leading case would appear to be Battersby v. Anglo-American Oil Co. Ltd. [7] , where it was said that the court will not exercise its discretion in favour of the renewal of a writ after the period allowed for service has expired if the effect of doing so will be to deprive a defendant of the benefit of a limitation which has accrued. (3) Where there is a defect in the title of the plaintiff because either he is the wrong plaintiff or he is a fictitious person there being no such person alive at the date of the writ, and it is sought to add a new plaintiff after the causes of action included in the writ have become barred. In this category a leading case would appear to be Mabro v. Eagle, Star & British Dominions Insurance Co. Ltd. [1] , where Scrutton L.J. said: "In my experience the Court has always refused to allow a party or a cause of action to be added where, if it were allowed, the defence of the Statute of Limitations would be defeated. The Court has never treated it as just to deprive a defendant of a legal defence. If the facts show either that the particular plaintiff or the new cause of action sought to be added are barred, I am unable to understand how it is possible for the Court to disregard the statute." [2]

[20]

The present case does not fall within any of these categories. If it fell within any of them it would fall within the third category. But it is outside even this category. There was on 1st December 1955 a Minister of State for Trade and Customs for the Commonwealth of Australia. He was a living person. He was a person occupying the very office which it was necessary for him to occupy to qualify as a person having authority to institute the prosecution on behalf of Her Majesty. Thus the plaintiff in the writ was the right person. But instead of that person being identified by his personal name, the plaintiff was described by the office he held as the Minister of State for Trade and Customs. The offences set out in the writ were all offences which were still current on the date on which it was issued and served in the sense that none of them were then barred by s. 249 of the Customs Act. To amend the writ it will not be necessary to substitute for a plaintiff who was the wrong plaintiff because he was not authorised to institute the prosecution a plaintiff who is authorised to do so. The plaintiff will still be the same person. His description needs to be amended, that is all. Indeed, even his description in the title of the writ does not necessarily need to be amended because it would be sufficient if the commencement of the endorsement on the writ was amended so as to state that the plaintiff Senator the Honourable Neil O'Sullivan, the Minister of State for Trade and Customs for the Commonwealth of Australia on behalf of Her Majesty, claims etc. And it would be neater to commence the endorsement in this way whether the personal name of the Minister appeared in the title or not. And if this was not stated in the endorsement on the writ, the defect could be cured by the insertion of an amendment to the same effect in the statement of claim: Hill v. Luton Corporation [3] ; Grounsell v. Cuthell and Linley [1] . At the date of the writ the Minister administering the Customs Acts was Senator the Honourable Neil O'Sullivan, the Minister of State for Trade and Customs, but on 12th January 1956 His Excellency the Governor-General in Council, in pursuance of s. 64 of the Constitution, abolished, inter alia, the Department of Trade and Customs and established, inter alia, the Department of Customs and Excise and also made an order under s. 19B of the Acts Interpretation Act 1901-1950 that any reference in any Act (other than the Tariff Board Act 1921-1953) to the Department of Trade and Customs should be read as a reference to the Department of Customs and Excise, and since that date the Minister administering the Customs Acts has been the Minister of State for Customs and Excise. This Minister is the Honourable Frederick Meares Osborne. It will be necessary to amend the statement of claim so as to allege these events.

[22]

The whole extent of the attack that can be made upon the regularity of the writ is that it describes the plaintiff by his official instead of by his personal name. This is not sufficient to make the writ a nullity - it is a mere irregularity. It is at most a misnomer of the plaintiff. Nil facit error nominis cum de corpore vel persona constat. It is a misnomer of the same character as that discussed in such cases as Noble Lowndes & Partners (A firm) v. Hadfields Ltd. [2] ; W. Hill & Son v. Tannerhill [3] and Bowler v. John Mowlem & Co. Ltd. [4] . In Hill's Case [3] the real plaintiff was W. Hill and he carried on business under the name of W. Hill & Son. It was held that to describe the plaintiff as "W. Hill & Son" instead of as W. Hill was a mere misnomer and that, as he was an actually existing person and the real plaintiff in the action, he was entitled to an order substituting for "W. Hill & Son" as the plaintiff in the action "W. Hill trading as W. Hill & Son" (the words "trading as W. Hill & Son" being treated as mere surplusage) although at the date of the application for the amendment the period of time prescribed by the Limitation Act 1939 Imp. within which the action must be brought had expired. Scott L.J., after referring to the passage in the judgment of Scrutton L.J in Mabro's Case [5] , which I have already cited, said : "That is a very well-known principle but it depends on the fact that the amendment turns an action which has become ineffective by reason of the passage of time into an effective action by the addition of a new plaintiff after the date when the limitation period has elapsed" [1] Later on in the same passage his Lordship, after referring to the mistake that had been made in the writ, said :"The question is whether that mistake is more than a mistake in form. In my opinion, it is not" [2] In Bowler's case [3] Denning L.J. said: "A misdescription in the title is never fatal; it can be always cured by amendment in the same way as a misnomer. The thing which cannot be cured is the bringing of an action in a representative capacity when that capacity does not exist." [4] . The case resembles Christie v. Bell [5] where the personal names of the plaintiffs and the defendants appeared in the record but not their official characters and the Court allowed the record to be amended by stating the characters in which the plaintiffs sued and the defendants were sued, although at the date of the application for the amendment the action against the defendants as public officers was barred by a statute of limitations. Alderson B. said: "It is perfectly clear, that before my brother Parke allowed the amendment, he must have been satisfied that the service was on these defendants, not in their private capacity, but as public officers, and was so understood by all parties. Then the only error was in the description of the parties. Where is the injury in putting in the writ the words "public officers", when everybody understood that the defendants were sued as public officers?" [6] .

[26]

Rule 1 of O. 29 provides that (1) The Court or a Justice may, at any stage of the proceedings, allow a party to amend his endorsement or pleadings in such manner, and on such terms, as is just. (2) All such amendments shall be made as are necessary for the purpose of determining the real questions in controversy between the parties. Rule 6 of the same Order provides that in a case not provided for by the preceding rules of this Order, application for leave to amend may be made by a party to the Court or a Justice and the amendment may be allowed upon such terms as to costs, or otherwise, as are just. Rule 12 of the same Order provides that the Court or a Justice may at any time, and upon such terms as to costs or otherwise as the Court or Justice thinks just, amend a defect or error in any proceedings, and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on the proceeding. The amendments that I have suggested can be allowed, I think, under the authority of the two last-mentioned rules. But, if they cannot, they can be directed under the third limb of s. 247 of the Customs Act. The alternative procedures in customs prosecutions authorised by this section are not in my opinion mutually exclusive. There are no rules of practice established by this Court for Crown suits in revenue matters. If there were such rules, Customs prosecutions might have to be conducted under them or there might still be an option to proceed under them or in accordance with the usual practice and procedure of the Court in civil cases. But, whichever procedure was adopted, the Court or a Judge would still be at liberty to act under the third limb and give directions whenever they were required to meet a situation not otherwise provided for. And, in the last resort, there is s. 79 of the Judiciary Act 1903-1955 Cth. which provides that the laws of each State, including the laws relating to procedure shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State in all cases to which they are applicable. Doubts have been expressed whether this section applies to the High Court but I fail to see why it should not, an opinion supported by Dixon J. (as the Chief Justice then was) in Cohen v. Cohen [1] . This section would co-opt s. 75 of the Common Law Procedure Act 1899 N.S.W. as amended, and this section provides that no plea in abatement for a misnomer shall be allowed in any action; but the defendant may cause the declaration to be amended at the cost of the plaintiff upon a judge's summons founded on an affidavit of the right name.

[33]

The offences are laid as having taken place on specified dates between early in December 1950 and the middle of October 1951. Section 249 of the Customs Act provides that Customs prosecutions may be instituted at any time within five years after the cause thereof. The writ of summons was in fact issued on 1st December 1955, that is to say within the period of limitation. It was issued in this Court by the Commonwealth Crown Solicitor and, in accordance with what appears to have long been the practice in such cases of that officer, the plaintiff was simply designated by the name of his office viz. the Minister of State for Trade and Customs for the Commonwealth of Australia. Section 244, with which Pt. XIV of the Customs Act commences, provides that proceedings for the recovery of penalties under that Act and certain other proceedings are to be therein referred to as customs prosecutions. Section 245, although it was enacted two years before the passing of the Judiciary Act 1903 by which the notional existence of this Court under the Constitution was converted into an actual existence, provided that customs prosecutions may be instituted in the High Court of Australia or in the Supreme Court of any State. If the prosecution is for a penalty not exceeding £500, or the excess is abandoned, it may be instituted in a county district or local court or a court of summary jurisdiction. It is to be noticed that the section is expressed in enabling or permissive language. But the provision is not concerned alone with the courts in which customs prosecutions may be brought: it is concerned also with the form of proceedings. This is dealt with in the opening words of s. 245: "Customs prosecutions may be instituted in the name of the Minister by action or other appropriate proceeding" in the High Court or a Supreme Court. In a similar way when the section goes on to give jurisdiction to the inferior courts where the penalty does not exceed £500 or the excess is abandoned, it provides "the customs prosecution may be instituted in the name of the Collector". By definition "the Minister" means the Minister for the time being administering the Act: s. 17 (i) of the Acts Interpretation Act 1901. The Customs Act itself defines "Collector": s. 4. The word includes the Comptroller and any Collector of Customs for the State and any principal officer of customs doing duty at the time and place and any officer doing duty in the matter in relation to which the expression is used.

[34]

The defendant objects that the action is improperly brought and is incompetent because the plaintiff is designated by the title of his office and is not identified by his personal name. For this reason, according to the defendant, the cause is not a customs prosecution instituted in the name of the Minister by action. Williams J. considered that because the Minister's personal name had not been given there had been a failure to comply with the requirements of s. 245, but that it was a matter for amendment. His Honour amended the proceedings accordingly. Assuming that s. 245 does require the use of the personal name of the Minister with or without the designation of his office, I can entertain no doubt that his Honour was entirely right in regarding the matter as one for amendment. Indeed I should doubt whether even on that footing an amendment was necessary. For the defendant appeared to the writ, allowed much time to pass, received a statement of claim and sought particulars. He then delivered a defence. He raised his point for the first time then and by the inappropriate course of taking an objection in point of law in that pleading. The last paragraph of the statement of claim, par. 83, alleged that the matter is within the original jurisdiction of the High Court for the reason that it is a customs prosecution instituted as provided for by s. 245 of the Customs Act 1901. It may perhaps be remarked that a sufficient ground of jurisdiction is that the matter is one in which a person suing on behalf of the Commonwealth is a party. However, by par. 4 of his defence the defendant denied par. 83 of the statement of claim and said that the action was not brought in the name of the Minister pursuant to the provisions of s. 245 of the Customs Act 1901-1954. It would seem to me that by that time the defendant had waived any objection to the manner in which the plaintiff was named, identified or designated, and that in any case the objection required an independent application and not an objection in point of law to the maintainability of the action. The pleader of course sought to elevate the objection into one as to the maintainability of the action. For the use which the defendant desired to make of it was to defeat the present action and, should a new action be instituted, to plead that more than five years has elapsed since the cause thereof arose so that the action would be barred by s. 249 of the Customs Act. The objection having been thus taken recourse was had to r. 16 of O. 26 which says that a party is entitled to raise by his pleading any point of law and that a point so raised shall (b) by consent of the parties or by order of the Court or Justice on the application of either party be set down for hearing and disposal at any time before the trial. The order of Williams J. recites that at the request of the parties the Court had ordered that the following points of law raised by the defence delivered and filed by the defendant be set down for hearing namely (1) whether the action is brought "in the name of the Minister" within the meaning of s. 245 of the Customs Act 1901-1954 and (2) if it is not, whether the plaintiff should be allowed to amend the writ of summons and pleadings by adding the personal name of the Minister. It will be noticed that the second of these questions goes beyond the objection in the pleading and deals with a question arising on the hypothesis that the objection is upheld. Further it may be said that by its very form this question assumes the power to amend and inquires whether it should be exercised, which is hardly a matter of law. But what is more important the first of these two questions treats the matter as one of expressed legislative intention; do the words "in the name of the Minister" as a matter of actual meaning necessitate the use of the personal name? I think that to ascribe to the provision an actual intention to prescribe the manner in which the Minister shall be designated is rather to misconceive the purpose of s. 245. Its purpose in using the words "may be instituted in the name of the Minister by action information or other appropriate proceeding" was to make it unnecessary to sue in the name of the Crown and at the same time to appoint the Minister administering the customs rather than the Attorney-General as the Minister in whose name the Crown proceeding should be instituted. I do not think that in the words "in the name of the Minister" is to be found any actual intention to require the personal name in preference to or in combination with the official name. The point of the material words of the provision is the designation by the section of the responsible officer of the Crown who is to sue on behalf of the Crown, not the prescribing of the manner in which he must be named or described in the writ or information.

[42]

The prior question for decision is raised by the cross-appeal. The question is whether this action was instituted in accordance with s. 245 of the Customs Act 1901-1954. The action was instituted by the respondent for the recovery from the appellant of penalties under the Act. Cases of this kind are spoken of in s. 244 as "proceedings by the Customs". A proceeding for the condemnation of property is included in the same description. All such proceedings are by s. 245 referred to as "Customs prosecutions". These are essentially proceedings on behalf of the Crown. Section 245 prescribes a manner of instituting any Customs prosecution. The material words of the section are: "Customs prosecutions may be instituted in the name of the Minister". If no more than £500 is claimed a similar provision of s. 245 enables the prosecution to be instituted "in the name of the Collector". The name of the plaintiff in the present action is apt to describe the Minister who was administering the Customs Acts when the action was entered. With the Minister suing in his official name, the action appears more like "proceedings by the Customs" than if he sued only in his proper name. The point at issue in the cross-appeal is whether it is necessary to supply the Minister's proper name before his official title in the writ of summons in order properly to comply with s. 245. The words of the section "in the name of" are defined as a whole in the dictionaries. The English Oxford Dictionary, vol. 7, at p. 14, says that a meaning of the phrase is "implying that action is done on account or on behalf of some other person or persons. Hence by contrast to this, in one's own name". See also Webster's International Dictionary, p. 1,434. But in the case of Christie v. Permewan Wright & Co. Ltd. [1] the effect of the words "in the name of the Collector" is explained. It would appear that the customs prosecutions which may be instituted by the collector must be instituted by his direct agency, not by another person in his behalf. This decision is applicable to the construction of the Minister's authority under the section, because the words creating it are similar. But it is not settled whether "in the name of the Minister" means in his official or proper name. In its ordinary meaning the name of a person may be his proper name or denote an office which he holds. It would not be a satisfactory construction of s. 245 to say that it is enough to institute a customs prosecution if the Minister's proper name only is used to identify the person who is plaintiff. The more appropriate interpretation of the word "name" in the present context is one denoting the title or office of the person who is the party instituting the customs prosecution. This does not mean of course that it would be a departure from the manner which the section prescribes for instituting such a proceeding if both the official and proper name of the Minister are used to identify the person who is the plaintiff. I am of opinion that the manner in which the present action is instituted satisfies the terms of s. 245 creating the authority of the Minister to institute a customs prosecution. In this view the point involved in the appeal does not arise. I would dismiss the appeal and allow the cross-appeal.

[67]

As already appears, s. 245 was originally enacted in 1901 and it was to be found in Pt. XIV of the Act as it then stood. That Part of the Act contained a number of special provisions dealing with customs prosecutions. By s. 245 it was provided that customs prosecutions might be instituted in the name of the Minister by action, information or other appropriate proceeding in the High Court of Australia or in the Supreme Court of any State, and when the prosecution should be for a pecuniary penalty not exceeding £500, in the name of the collector in any county court, district court, local court or court of summary jurisdiction. Unlike the English Act it contains no express reference to the "name" of any person described merely in general terms and it may, therefore, be argued that there is nothing in the section to exclude the view that it authorises, or permits, the institution of proceedings in the official names of the persons occupying the designated offices. But by s. 17 (i) of the Acts Interpretation Act 1901, which became law a few months before the Customs Act, the word "Minister" was defined to mean, unless the contrary intention should appear, the Minister for the time being administering the Act or enactment in which or in respect of which the expression is used. Accordingly it has been held that a provision that offences against the War Precautions Act 1914-1916 should not be prosecuted upon indictment except in the name of the Attorney-General did not preclude prosecution upon indictment in the personal name of the Minister for Works and Railways of the Commonwealth of Australia who was said to be acting for the time being for and on behalf of the Attorney-General of the Commonwealth: R. v. Judd [1] . On the other hand the extended meaning of the expression "Collector", as appearing in the definition section of the Customs Act, has been held not to apply to s. 245: Christie v. Permewan, Wright & Co. Ltd. [2] . By definition the word "Collector" included, except where otherwise clearly intended, the Comptroller and any Collector of Customs for the State and any principal officer of customs doing duty at the time and place and any officer doing duty in the matter in relation to which the expression is used. Clearly if the extended meaning did apply precisely the same situation would arise as in the case of s. 218 of the English Act. But even though it does not apply there is sufficient in the fact that the word "Minister" is to bear the extended meaning given to it by the Acts Interpretation Act to enable it to be said that the word "name" was intended as a reference to a proper name, that is to say, to the name of the Minister of State for Trade and Customs or of any Minister for the time being administering the Customs Act. Perhaps it may be said that this view is again capable of some reinforcement by a consideration of the practice by which proceedings upon indictment are instituted in the name of the Attorney-General.

[69]

Understood in this sense s. 245 bears a marked resemblance to s. 69 of the Judiciary Act 1903-1955. This section, which was enacted in 1903, provides that indictable offences against the laws of the Commonwealth shall be prosecuted by indictment in the name of the Attorney-General of the Commonwealth or of such other person as the Governor-General appoints in that behalf. There can be no question, I should think, that this section contemplates the use of the personal name of the Attorney-General or of such other person who may have been so appointed. But there is a marked dissimilarity between ss. 245 and 44 of the Income Tax Assessment Act 1915 (now ss. 208 and 209 of the Income Tax and Social Services Contribution Assessment Act 1936-1956) which provided that income tax should be deemed on becoming due and payable to be a debt due to the King on behalf of the Commonwealth and payable to the commissioner in the manner and at the place prescribed and, further, that any income tax unpaid might be sued for and recovered in any court of competent jurisdiction by the commissioner or a deputy commissioner suing in his official name. (See also s. 221YDB (1A) (2).) However when special provisions with respect to taxation prosecutions were inserted in the Income Tax Assessment Act 1922 (now ss. 233 to 251 of the Income Tax and Social Services Contribution Assessment Act) it was provided that taxation prosecutions might be instituted in the name of the commissioner by action, information or other appropriate proceeding in the High Court of Australia or in the Supreme Court of any State and, in the case of prosecutions for a pecuniary penalty not exceeding £500, in the name of the deputy commissioner in a county court, district court, local court or court of summary jurisdiction. These provisions, no doubt, were adapted from the provisions then appearing in Pt. XIV of the Customs Act and the deliberate choice of the word "name" for one purpose and of the expression "official name", for the other is not without significance.

At a glance

Court

Decision date

Before

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Judgment (71 paragraphs)

Parties