Baume v Commonwealth [1906] HCA 92

Baume v Commonwealth [1906] HCA 92 - HCA 1906 case summary — Zoe

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is a dealer in watches and jewellery, and an importer of these goods from England, through an agent who carries on business in Sydney and elsewhere in the Commonwealth. The goods, it is said, came originally from Switzerland through England. They were imported sometimes by parcels post, sometimes in the ordinary way as cargo. About November 1902 the Customs authorities in Melbourne detained some of the plaintiff's goods, and shortly afterwards the Customs officers went to the plain- tiff's agent in Sydney, and, assuming to act under the authority of the Customs Act 1901, sec. 214, demanded to see the plaintiff's books and documents. That section, so far as it is necessary to quote it, is as follows : - * Whenever any goods have been seized or detained, the owner shall immediately upon being required so to do by the Collector produce and hand over to him all books and docu- ments relating to the goods so. . . seized ordetained . . . and of all other goods imported by him at any time within the period of five years immediately preceding such request seizure or detention." 'The books were handed over tc the Customs authorities, and kept in their possession for a considerable time. A good deal of correspondence seems to have passed between the Customs Department and the plaintiff, with the result that entries were not passed for the goods the subject of the action until the following July; and in substance the action is for damages for depriving the plaintiff of the goods for that period, that is, so far as the goods are concerned. With respect to the books the action is for keeping them longer than was necessary, and for not supplying the plaintiff with copies of them as was the duty of the Customs under sec, 215 of the Customs Act 1901. That section provides : - * The collector may impound or retain any document presented in connexion with any entry or required to be produced under this Act, but the person otherwise entitled to such document' shall in lieu thereof be entitled to a copy certified

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Wiles J. in Bayley v. Manchester, Shefield and Lincolnshire mun coumox- Railway Co. (1). In such a ease, where the servant is charged weaurn. with the duty of exercising his independent discretion, the Grimth os. wrongfulness or unlawfulness of the act depends upon the con- clusions of fact actually drawn. The duty is not merely minis- terial, it is quasi-judicial. If it were merely ministerial other considerations would apply, as will be shown when I come to deal with that part of the case. In The Queen v. Commissioners of Income Tua (2), which has already been referred to by this Bench in dealing with another case, Lord Hsher M.R. made some observations which, if not precisely in point, serve as an illustration of the point to which I am referring. He said (3): - "When an inferior Court or tribunal or body, which has to exercise the power of deciding facts, is first established by Act of Parliament, the legislature has to consider what powers it will give that tribunal or body. It may in effect say that, if a certain state of facts exists and is shewn to such tribunal or body before it proceeds to do certain things, it shall have jurisdiction to do such things, but not otherwise. There it is not for them conclusively to decide whether that state of facts exists, and, if they exercise the jurisdiction without its existence, what they do may be questioned, and it will be held that they have acted with- out jurisdiction, But there is another state of things which may exist. The legislature may intrust the tribunal or body with a jurisdiction, which includes the jurisdiction to determine whether the preliminary state of facts exists as well as the jurisdiction, on finding that it does exist, to proceed further or do something more. When the legislature ave establishing such a tribunal or body with limited jurisdiction, they also have to consider, what- ever jurisdiction they give them, whether there shall be any appeal from their decision, for otherwise there will be none." In the same way if an officer of the Government is required to investigate facts and arrive at a conclusion and act according to

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There were some other points made with respect to these counts. The goods in question in these counts comprised four small lots of goods which arrived by parcels post in March and May 1903, of the total value of about £70, They were not delivered till 6th July when the entries were passed. The plaintiff by agreement with the defendant gave particulars of his claim. He might have been ordered to do so, but he did so without an order and the matter should be treated as if the particulars had been given under order of the Court. They were given under the first five counts of the declaration. Subsequently the plaintiff delivered another document which may be considered as an amendment of these particulars. In that the day of the wrong- ful acts complained of in the Ist, 2nd, 3rd and 4th counts was alleged to be 6th July. Evidence was tendered that the passing of the entries in respect of these goods which had been detained was not on 6th July but in March and May 1903. Objection was taken by the defendant that this was not a fair intimation of the dates of the wrongful acts complained of, and the learned Chief Justice thought the argument a sound one, and declined to allow an amendment. It was objected that he was bound to allow an amendment, but it appears to me to have been a matter entirely in his discretion. Bearing in mind that the evidence sought to be given related to transactions in March and May, the defendant may very well have been prejudiced by having been previously told that evidence would be required of matters that took place in July, and having prepared its evidence accordingly. The matter was entirely in the discretion of the learned Judge, and I see no reason for dissenting from the conclusion at which he arrived. But even if the evidence had been admitted with respect to these four lots of goods, the only damages the plaintiff could have recovered for their temporary detention would have been the actual pecuniary loss he had sustained by reason of the delay. Considering that the goods

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an unreasonable time. The seventh count will not lie for return of the goods, all the goods having been returned. The complaint would more properly form the subject of a count for trover, but that isa matter of form to which this Court is not in the habit of giving serious attention. As to the detention of the goods, if they were lawfully taken, the detention does not become unlawful until the time during which they might lawfully be detained has expired, and the person entitled to possession of them has demanded them. There was a demand for the books in March, but there was no further application to return them until July, when the matter was settled. It may, however, be taken that the demand in March was continuous, and that damages may be given for unreasonable detention of them after the time when the plaintiff became entitled to them. But no point was made as to that. Assuming, however, that the plaintiff is entitled to damages for detention of the books after the time when the Customs had done with them, for which I think an action would lie against the Commonwealth, it was contended for the Commonwealth that these damages would be nominal only. I think not. The distinction between nominal and real damages was pointed out very clearly by Lord Halsbury LC. inthe" The Mediana" vy. " The Comet": " The Mediana" (4) cited by Mr. Knox. He said: - "I wish, with reference to what has been suggested at the bar, to remark upon the difference between damages and nominal damages. 'Nominal damages' is a technical phrase which means that you have negatived anything like real damages, but that you are affirming by your nominal damages that there is an infraction of a legal right which, though it gives you no right to any real damages at all, yet gives you a right to the verdict or judgment because your legal right has been infringed. But the term 'nominal damages' does not mean small damages. The extent to which a person has a right to recover what is called by the compendious phrase damages, but may be also represented as compensation for the use of something that belongs to him, depends upon a variety of circumstances, and it certainly does not in the smallest degree suggest that

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because they are small they are necessarily nominal damages." Then he referred to various cases one of which was the taking away of a chair for which the damages would be small. So here I think the plaintiff is entitled to damages, not nominal. I think that there can be no doubt that if the maximum amount of damages recoverable were one shilling, that is, nominal,then this Court would have jurisdiction under its practice to reduce the verdict to that amount. But unless the amount is limited to what is called nominal damages, the Court has no jurisdiction to reduce them except by the consent of the parties. That was pointed out in Watt v. Watt (5). But the action being for a mere interference with a proprietary right there can be no vindictive damages. 'There is no element of wounded feelings or annoyance or any- thing of that kind. The only damages recoverable therefore are the pecuniary loss actually sustained by the plaintiff by reason of the wrongful acts of the defendant. They are two: first, the detention of the books for some period, not very long, after 6th July ; and, second, the delay in giving the plaintiff copies of the documents. There is no evidence whatever that he sustained any pecuniary loss in respect of either matter. The case seems to have gone to the jury as a case of general oppressive action on the part of the Customs for which the jury should give what damages they thought the defendant ought to pay. 'There was no evidence of any specific loss. It does not appear that the plaintiff sustained damages to the extent of one farthing. It is obvious, therefore, that the amount of damages awarded is excessive. The plaintiff was only entitled to be compensated for the actual pecuniary loss that he could prove that he sustained. I do not mean that that must be assessed in pounds shillings and pence, but there must be some proportion between the damages awarded and the possible injury sustained by the loss of these documents, most of which related to old transactions very likely long since closed and done with.

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Privy Council in Farnell vy. Bowman (1), as to the meaning of the Act in New South Wales which had brought about this change in the law. It was held in that case that the Act gave a subject the same rights against the Crown as he would have against a subject, with regard to all matters of tort and contract. That Act was in much the same language as sec. 54 of the Judiciary Act 1903, and it was held that a right of action for tort against the Crown was there given. The Constitution of the Commonwealth, sec. 48, gave power to Parliament to make laws regulatmg proceedings by subjects against the Common- wealth and against the State, and that power was at first exercised by the Commonwealth in passing a temporary Act in 1902, called the Claims against the Commonwealth Act 1902. In that Act, sec. 2 sub-sec. 3, the rights of the public in such an action were described by the same phrase as that used in sec. 64 of the Judiciary Act 1903. It was enacted that the rights of parties in actions against the Commonwealth should be as nearly as possible the same as in actions between individuals, following the words used in the New South Wales Act, which had been under consideration in Farnell vy. Bowman (1). The Act of 1902 was a temporary Act, and was repealed by the Judiciary Act 1903, which now contains the law on the subject. The temporary Act of 1902 gave a right merely to petition the Crown in the form of a petition of right and it was in the power of the Government to appoint a nominal defendant, but if the Govern- ment refused to do so the subject had no remedy. But the Judiciary Act 1903, as if to emphasize the equality of subject and Crown in litigation, gave the right directly to the subject to sue the Commonwealth or the State, and declared that when the action was brought, the rights of the person suing were to be the same as in an action against an individual. The law with regard to claims against the Commonwealth now stands in that position. The Commonwealth acts, as all Governments must act, by its servants, and whenever the relation of the Commonwealth to its servants is such that in a similar case an individual would be liable for the acts of his servant, the Commonwealth is liable for the acts of its servants. This applies to cases of

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signed, he contends that the collector was guilty of a breach of duty in not signing the entry. An examination of the sections relating to the duties of the collector will demonstrate that no such cause of action can be maintained. The principle underlying the whole of these sections relating to dealing with goods under Customs control is that the Customs shall keep control of the goods until duty is paid. In regard to duties which are specific in amount, and as to which the only questions of fact that are likely to arise are as to weight, quantity, or number, there is generally very little difficulty. But where duty is chargeable according to value altogether different considerations arise. The duty cannot be determined without the determination of the value, and the first question that must arise, in considering the rights of the importer and the rights of the collector is who is to determine for the time being, for the purpose of freeing the goods from Customs control, what the duty is. That responsibility is imposed upon the collector, and necessarily so, The collector, for the purpose of carrying out that duty, has a number of powers under different sections of the Act, to which I need not now refer in detail, for the purpose of ascertaining value in order that the proper amount may be demanded and paid before the goods are released from Customs control. In a case like the present the question of value is to be determined on the principle embodied in see. 154. The value shall be taken to be the fair market value of the goods in the principal markets of the country whence they were exported, and in order to ascertain what is the fair market value of the goods in the principal markets of the country whence they were exported, it may be necessary, as it may have been necessary in this case, for the collector to make inquiries. He is not bound to take the statement of the importer as to the value of the goods. He is entitled to make inquiry for himself. In this case it would be necessary to make inquiries in London as to the market value of goods of this kind, and to inquire into all the circumstances under which the goods were imported from Switzerland to London and sold there, and the value which under the circumstances they would have in the London market. While that inquiry was going on, the collector was justified in delaying delivery of the goods until he had

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satisfied himself as to their value. One of the complaints of the plaintiff is that the collector would not inform him what the duty was, and he says that, if he had been informed, he would have paid it. He contends that the collector was bound to inform him of the amount of duty claimed. I can see no such duty imposed by the Act upon the collector. He is not called upon to make a guess as to value, but to ascertain the value. If it is impossible to ascertain that without making inquiries which involve delay, it is unfortunate for the importer, but if it is the collector's duty to make those inquiries, there is no remedy. Looking, therefore, at the whole of these sections regulating the duty of the collector in dealing with imported goods, it is plain that the collector is appointed by the Act to adjudicate for the time being on the question of value. It is left to his judgment and discretion to decide, and so long as he uses his position in the inquiry honestly there can be no claim even against him for detaining the goods pending inquiry, nor is he under any obliga- tion to come to any particular conclusion as to value, or to pass the entry on presentation or tender of any particular duty by the importer. That being so, if this action had been against the collector, it seems to me impossible that the plaintiff could succeed in his allegation of a breach of duty. I may say, in regard to that part of the case, I agree with my learned brother the Chief Justice, that the cases that have been referred to - Barry v. Arnaud (1), and Barrow vy. Arnaud (2) - do not apply. Both those were cases in which the liability of the goods to duty was a pure question of law. Even if the question to be deter- mined by the collector here were a pure question of law, I very much doubt whether those decisions would apply to a case under the Customs Act 1901, but it is not necessary to decide that ques- tion. Certainly where the duty of determining the value is cast upon the collector as in the present case, they can have no application. But assuming that the collector would personally be liable, there still remains the question whether the Common- wealth is liable for the acts of the collector. As I stated in the earlier part of my judgment, with regard to the liability of the Commonwealth in a suit or action by a subject, the liability of (1) 10 A. & E., 646. (2) 8 Q.B., 595.

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the Commonwealth for the acts of its servants depends altogether upon the relation of the Commonwealth to its servants in regard to the particular matter in question. No doubt there are many cases in which the Commonwealth is liable for all the acts of its servants when acting within the scope of their authority. But where Parliament has regulated the administration of a Department, and has imposed duties upon the Commonwealth and special duties upon its officers, quite different considerations arise. If the Statute imposes a duty upon the Commonwealth, the Commonwealth is liable for the breach of that duty by its servants. But it does not follow that because the Statute imposes a duty upon the servants of the Commonwealth the Common- wealth is liable for the breach of the servant's duty. The obligation may be placed upon the servant in such a way that a duty on the Commonwealth may be necessarily implied. But the form of the Statute and the words of the legislature must be considered in every case. In this case the duty of passing of the entry, and the control of the goods while the amount of duty is being considered, are placed upon a desig- nated officer, the collector, who is invested not only with the carrying out of certain administrative duties in regard to the goods, but also with the responsibility of deciding according to his own diseretion as to the amount of duty chargeable, and as to how they are to be disposed of in the meantime. As that duty is imposed upon the collector and not upon the Commonwealth, it appears to me that the collector is the officer designated to dis- charge that duty, and, his duties being so particularly specified, the case comes within the principle of Tobin v. The Queen (1) and Enever v. The King (2), which were referred to by my learned brother the Chief Justice. Where the officer of the Government has imposed upon him a particular duty, the respon- sibility to discharge which, according to his discretion, rests upon him, the Commonwealth is not liable for his failure to discharge it, or for his failure to come to a correct conclusion where a matter of judgment is involved. That being so, it appears to me that there can be no claim in this case against the Commonwealth for the breach of duty alleged in regard to the passing of entries (1) 16 C.B.N.S., 310. (2) 8C.L.R., 969.

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of the books and invoices for an unreasonable time, although the claim in the declaration was not in that form. It must now be taken that that was substantially the claim. The rights of the importer and the rights of the Commonwealth with respect to these particular invoices depend entirely upon the construction of secs. 214 and 215. It is undoubted that, when the demand was made for these books, goods had been detained, and therefore the position had arisen in which sec. 214 justifies the collector in retaining possession of the books and invoices dealing with the same class of goods for a period of five years before. Therefore, in the original taking and dealing with these books, the Common- wealth were justified under sec 214. But it is said that the Commonwealth became liable for detaining the books unreason- ably beyond the period allowed by secs. 214 and 215. See. 215 gives power to the collector to impound or retain documents presented in connection with any entry and required to be pro- duced under the Act. It was contended by counsel for the Commonwealth that that section entitled the collector to keep possession of the documents as long as he liked without any question. I do not think that is the proper construction of the section. The words are "impound or retain." I think the collector is only entitled to retain the documents as long as is necessary for the purpose of dealing with the goods in relation to which the documenis were originally impounded, and if he retains them for an unreasonable time beyond that period the Commonwealth is liable. There are various purposes for which the books and invoices might be detained. In some cases it may be reasonable, where there are other questions arising with regard to the books and invoices, to detain them after the goods have been dealt with. But in other cases it might be quite unreason- able to detain them. There must be this implied limitation on the power of the collector to detain documents that he has only

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