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[1998] HCA 20
High Court of Australia
1998-03-26
Brennan CJ, Kirby JJ
Original judgment source is linked above.
High Court of Australia Brennan CJ Gaudron, McHugh, Gummow and Kirby JJ Commonwealth v SCI Operations Pty Ltd (HCA 20/98) [1998] HCA 20
(a) goods serving similar functions to the particular goods are not produced in Australia; and
(b) goods serving similar functions to the particular goods are not capable of being produced in Australia by any person in the normal course of business.
An order made under sub-s (1) is known as a Commercial Tariff Concession Order (s 269C(1C) of the Act) (a CTCO). It must be in writing and declare that "particular goods are goods to which a prescribed item specified in the order applies" (s 269C(1)). The term "prescribed item" is defined (s 269B(1)) to mean - an item in Schedule 4 to the Customs Tariff Act 1987 that is expressed to apply to goods that a Commercial Tariff Concession Order declares are goods to which the item applies. 1. I refer to the provisions in Pt XVA of the Customs Act as they stood in 1987, the year in which the respondents applied for a Commercial Tariff Concession Order, in the present tense. Although a new Pt XVA had been enacted before 3 June 1994 when the Order was made, the case has been conducted on the footing that the rights and obligations of the parties consequent upon the making of the Order are to be determined by reference, inter alia, to Pt XVA as it stood in 1987.
Section 269N(1) provides that a CTCO "in respect of particular goods shall be deemed to have come into effect on such date before the making of the order as is specified in the order". Section 269N(3) provides:
Subject to sub-sections (4), (6) and (7), the date to be specified in a concession order for the purposes of sub-section (1) shall be -
(a) where, within the period of 28 days immediately preceding the date on which the application for the order was made the person who made the application gave notice under section 269H of his intention to make the application - the date on which he gave that notice; or
(b) in any other case - the date on which the application for the order was made.
Sub-sections (4), (6) and (7) had no application in the circumstances of the present case.
SCI and ACI had made application for a CTCO in respect of PET resin on 24 September 1987. The CTCO specified 1 September 1987 as the date from which the CTCO should be effective. Between that date and 3 June 1994 SCI and ACI had paid duty on the importation of PET resin entered for home consumption. Although the amounts paid were the amounts properly assessed in respect of PET resin at the times of the respective entries for home consumption, the effect of s 269N was to deem the PET resin in respect of which that duty had been paid to be liable only to the duty prescribed by item 50. Accordingly on 3 June 1994 the Comptroller paid to SCI the sum of $5,457,379.08 and paid to ACI a sum of $6,695,068.03, those amounts being the amounts of duty refundable consequent on the making of the CTCO.
Authority to make refunds of duty is found in s 163(1) of the Act. It provides:
Refunds, rebates and remissions of duty may be made:
(a) in respect of goods generally or in respect of the goods included in a class of goods; and
(b) in such circumstances, and subject to such conditions and restrictions (if any), as are prescribed, being circumstances, and conditions and restrictions, that relate to goods generally or to the goods included in the class of goods.
A regulation made under the Act [5] provides that the making of a CTCO having the effect that duty is not payable on goods on which duty has been paid is a prescribed circumstance for the purposes of s 163 of the Act. Regulation 127(1) provides: A refund of duty shall not be made unless an application for the refund in accordance with regulation 128 is delivered in accordance with that regulation within the period within which that application may, by virtue of regulation 128A, be made. The period prescribed by reg 128A is a period of twelve months after the date on which the CTCO was made (reg 128A(4)). 1. Customs Regulations, reg 126(f), now reg 126(1)(f).
The refunds to SCI and ACI were made without awaiting an application for a refund under the Customs Regulations.
On 3 June 1994, at a time earlier than the time when the refunds were made, SCI and ACI commenced proceedings in this Court, each claiming a refund of the amount that was subsequently received by it on that day together with interest. The matters were remitted to the Federal Court. No judgment for any principal sum was entered in that Court. Wilcox J dismissed the claims for interest but on appeal to the Full Court a majority (Beaumont and Einfeld JJ, Sackville J dissenting) allowed the appeal and made orders including the following:
(a) Declare that, unless good cause (in the form only of a "windfall" defence) is shown to the contrary, the appellants are entitled to an order for interest under s 51A(1)(a), or if this be inappropriate, an order for interest in a lump sum amount to be determined in accordance with the discretion conferred by the provisions of s 51A(1)(b) of the Federal Court of Australia Act 1976;
(b) Order that the matters be remitted to a single Judge of the Court to be dealt with in accordance with these reasons and as the justice of the case requires.
The Commonwealth appeals to this Court, seeking the setting aside of that declaration and order and a restoration of the order of Wilcox J. By cross-appeal SCI and ACI seek an amendment of the Full Court's declaration by deleting the reference to the "windfall" defence.
The claims for interest are based on s 51A of the Federal Court of Australia Act 1976 Cth which provides:
(1) In any proceedings for the recovery of any money (including any debt or damages or the value of any goods) in respect of a cause of action that arises after the commencement of this section, the Court or a Judge shall, upon application, unless good cause is shown to the contrary, either:
(a) order that there be included in the sum for which judgment is given interest at such rate as the Court or the Judge, as the case may be, thinks fit on the whole or any part of the money for the whole or any part of the period between the date when the cause of action arose and the date as of which judgment is entered; or
(b) without proceeding to calculate interest in accordance with paragraph (a), order that there be included in the sum for which judgment is given a lump sum in lieu of any such interest.
In my view it is unnecessary to decide whether the claims which SCI and ACI were respectively entitled to make for the refund of the duty paid are to be classified as causes of action for the recovery of money payable under the Act or as an entitlement to a public law remedy compelling the making of a refund [6] . Whatever be the nature of the relief to which SCI and ACI were respectively entitled, neither was entitled to a refund prior to the making of the CTCO. The effect of s 269N(3) was not to deem SCI and ACI to have been entitled to a refund at the moment when duty had been paid. The effect of s 269N was to deem the duty paid to have been not payable but an entitlement to a refund of that duty arose only at the time when s 269N was engaged and by reason of the engagement of s 269N and s 163, that is, when the CTCO was made on 3 June 1994 [7] .
"[w]here an Act repeals in the whole or in part a former Act the repeal shall not: (c) affect any right acquired accrued or incurred under any Act so repealed; or (e) affect any investigation legal proceeding or remedy in respect of any such right and any such investigation legal proceeding or remedy may be instituted continued or enforced as if the repealing Act had not been passed." Foster J further held that the transitional provisions in s 20 of the Customs Legislation (Tariff Concessions and Anti-Dumping) Amendment Act 1992 Cth, the Act which effected the repeal and substitution of Pt XVA, did not operate to deem that the application for the tariff concession order had been refused: see ACI PET Operations Pty Ltd v Comptroller-General of Customs (1993) 118 ALR 114 at 118-127
In any proceedings for the recovery of any money (including any debt or damages or the value of any goods) the Court or a Judge shall, upon application, unless good cause is shown to the contrary, either:
(a) order that there be included in the sum for which judgment is given interest at such rate as the Court or the Judge, as the case may be, thinks fit on the whole or any part of the money for the whole or any part of the period between the date when the cause of action arose and the date as of which judgment is entered; or
(b) without proceeding to calculate interest in accordance with paragraph (a), order that there be included in the sum for which judgment is given a lump sum in lieu of any such interest.
The issues raised by the Commonwealth with respect to s 51A(1) of the Federal Court Act
Section 51A: interest where moneys paid before judgment
(1) Refunds, rebates and remissions of duty may be made:
(a) in respect of goods generally or in respect of the goods included in a class of goods; and
(b) in such circumstances, and subject to such conditions and restrictions (if any), as are prescribed, being circumstances, and conditions and restrictions, that relate to goods generally or to the goods included in the class of goods.
Each of the following circumstances is prescribed for the purposes of section 163 of the Act, namely where:
(f) after duty has been paid on goods a Commercial Tariff Concession Order is made under Part XVA of the Act, the effect of which is that duty is not payable on those goods or duty is payable on those goods at a rate which is less than the rate which was applicable when the goods were entered for home consumption.
And reg 127(1) provides that: A refund of duty shall not be made unless an application for the refund in accordance with regulation 128 is delivered in accordance with that regulation within the period within which that application may, by virtue of regulation 128A, be made. By reg 128, it is necessary, amongst other things, for an application to be in a form approved by the Collector of Customs, for it to contain such information as is required by the form and for it to be delivered to a Customs Collector. Regulation 128A relevantly requires that an application under reg 126(1)(f) be made within twelve months of the making of the Commercial Tariff Concession Order in question. It is common ground that neither SCI nor ACI made application for a refund pursuant to reg 128.
The argument that the refund provisions do not confer a cause of action was not made by reference to any specific provision in the Act or in the Customs Regulations. Rather, it was made by reference to the decision in Royal Insurance. In that case, the duty to make a refund only arose upon the finding by the Comptroller of Stamps that duty had been overpaid. Where an obligation to pay a sum of money arises simultaneously with and by reason of an administrative determination as to the amount payable, as in Royal Insurance, it may be that the provision which creates that obligation should be construed as impliedly directing that the obligation is enforceable only by administrative law remedy. However, the right in issue in this case is not a right of that kind. It is a right conferred by statutory provisions which ascribe legal consequences to an administrative act which is not, itself, determinative of the amount to be paid. That being so, the argument that the refund provisions merely confer a legal entitlement enforceable by an administrative law remedy must be rejected.
It is clear from the terms of reg 127 of the Customs Regulations that there is no entitlement to a refund unless and until a claim is made in accordance with regs 128 and 128A. As earlier indicated, no such claim was made by SCI or by ACI. Accordingly, no cause of action had arisen under the refund provisions when these proceedings were commenced. And unless SCI and ACI are entitled to interest on restitutionary grounds, these proceedings are without foundation. Certainly, there is no foundation for judgment in a sum in which interest can be included under s 51A(1) of the Federal Court Act.
As earlier indicated, it is not in dispute that, the tariff concession order not having then been made, customs duty was payable at non-concessional rates on the goods which later became the subject of that order when those goods were entered for home consumption. The only right with respect to the moneys paid at that time is the right conferred by the refund provisions. And the refund provisions confer a right to a refund but not a right to interest on the amount refunded.
The right conferred by the refund provisions is a statutory right which has no counterpart in the general law. Being a right based wholly in statute, it can neither be cut down nor enlarged by resort to the general law or to restitutionary principles. More precisely, those principles cannot convert a statutory right to obtain a refund of money into a right to obtain a refund with interest. There is, thus, no substance in the claim that SCI and ACI were entitled to a judgment for interest by reason of restitutionary principles.
There being no right to interest either under s 51A of the Federal Court Act or on restitutionary grounds, it is unnecessary to consider the argument made on behalf of SCI and ACI that the Full Court erred in allowing that their claim might be defeated by a "windfall" defence.
The appeals should be allowed with costs, special leave should be granted to SCI and ACI to cross-appeal and the cross-appeals dismissed with costs. The orders of the Full Court of the Federal Court should be set aside and, in lieu thereof, the appeals to that court should be dismissed with costs.
These appeals were heard together. They are brought from decisions of the Full Court of the Federal Court [36] . By majority (Beaumont and Einfeld JJ, Sackville J dissenting), the Full Court allowed appeals by the present respondents, SCI Operations Pty Ltd and ACI Operations Pty Ltd ("SCI" and "ACI" respectively), against decisions of the primary judge (Wilcox J) [37] in favour of the Commonwealth.
Wilcox J had heard together two proceedings remitted from this Court. His Honour identified the issue in both proceedings as whether the Commonwealth was "bound to pay interest on certain customs duty it collected on the importation of goods that was refunded because of the making of a commercial tariff concession order under s 269C of the Customs Act 1901 Cth " (the Act) [38] .
In this Court, the Commonwealth seeks orders which would have the effect of reinstating the orders by the primary judge which dismissed the proceedings instituted by SCI and ACI.
The questions which arise in the appeals turn principally upon a construction of the provisions of the Act with respect to refunds of duty and upon the construction of s 51A of the Federal Court of Australia Act 1976 Cth (the Federal Court Act). Section 51A provides for the making of orders for the inclusion of interest in sums for which judgment is given.
The relevant facts are not in dispute and may be stated shortly. SCI and ACI imported certain resin for use in the production of plastic bottles for the packaging of carbonated beverages (the goods). The customs duty upon the goods was demanded and paid. Payment was not made under protest but SCI and ACI contended that without such payment they could not have obtained the release of the goods. In respect of periods commencing in each case on 1 September 1987 and ending on 3 June 1994, the amount of duty paid by SCI was $5,457,379.08 and by ACI was $6,695,068.03.
Part XVA of the Act (ss 269B-269S) is headed " Commercial Tariff Concession Orders " [39] . Section 269G provides for applications to the Comptroller-General of Customs (the Comptroller) for a commercial tariff concession order (CTCO) in respect of the particular goods specified in the application. Section 269C states:
(1) Subject to this Part, where the Comptroller, after considering an application under section 269G for the making of an order under this section in respect of particular goods, is satisfied that:
(a) goods serving similar functions to the particular goods are not produced in Australia; and
(b) goods serving similar functions to the particular goods are not capable of being produced in Australia by any person in the normal course of business;
the Comptroller shall make a written order, declaring that the particular goods are goods to which a prescribed item specified in the order applies. It follows that the benefit of a CTCO applies in respect of the particular goods and its enjoyment is not limited to the particular applicant under s 269G. A CTCO in respect of particular goods is deemed to have come into effect on such day before the making of the CTCO as is specified in the order (s 269N(1)). In the present case, s 269N(3) required that the day to be so specified was the day occurring twenty-eight days before the day on which the application for the CTCO was made. On 3 June 1994, a CTCO was made and it specified 1 September 1987 as the date upon which it came into effect. In the intervening period there had been lengthy litigation in the administrative review jurisdiction of the Federal Court. This history is recounted in the judgment of Beaumont and Einfeld JJ in the present litigation [40] and it is unnecessary to repeat it here. 1. Part XVA was repealed with effect from 1 November 1992 and a new Pt XVA inserted by s 10 of the Customs Legislation (Tariff Concessions and Anti-Dumping) Amendment Act 1992 Cth. However, as Gaudron J explains in her reasons for judgment, the parties have conducted the litigation on the footing that it involves accrued rights preserved by s 8 of the Acts Interpretation Act 1901 Cth. This judgment refers in the present tense to the form of the Act which is relevant to this appeal. 2. SCI Operations (1996) 69 FCR 346 at 351-353.
On the same day as the CTCO was made, SCI caused to be issued out of this Court a writ claiming the sum of $5,296,690 "being money payable by [the Commonwealth] to [SCI] as money had and received by [the Commonwealth] to the use of [SCI] or otherwise". ACI also caused to be issued on 3 June 1994 a writ claiming, otherwise in the same terms, the sum of $6,111,998. Later on 3 June, the Commonwealth paid SCI and ACI amounts equal to the sums paid for duty in respect of the periods commencing 1 September 1987. SCI received $5,457,379.08 and ACI received $6,695,068.03. These sums exceeded those claimed in the writs. Sums also were paid ($263,700.07 to SCI and $323,564.38 to ACI) in respect of interest for the period from 15 October 1993 to 31 March 1994. These interest payments were made pursuant to conditions imposed in earlier litigation. Nothing turns upon them for present purposes.
The Full Court granted a declaration in the following form [41] :
Declare that, unless good cause (in the form only of a "windfall" defence) is shown to the contrary, the [respondents] are entitled to an order for interest under s 51A(1)(a), or if this be inappropriate, an order for interest in a lump sum amount to be determined in accordance with the discretion conferred by the provisions of s 51A(1)(b) of the Federal Court of Australia Act 1976 Cth. The Full Court also ordered that the matters be remitted to a single judge "to be dealt with in accordance with these reasons and as the justice of the case requires". In addition to the appeals by the Commonwealth, there are before this Court cross-appeals by SCI and ACI [42] . They submit that their entitlement to interest is not subject to any "windfall defence" as stipulated in the above declaration. 1. SCI Operations (1996) 69 FCR 346 at 379. 2. Special leave in respect of the cross-appeals was sought at the hearing of the appeals and was not opposed. Special leave should be granted.
In each appeal to this Court the ultimate issue is whether, in respect of the moneys received by the respondents on 3 June 1994, in respect of the earlier payments of duty by the respondents, they are entitled to interest thereon for the periods 1 September 1987 to 14 October 1993 and 1 April 1994 to 3 June 1994. Interest in respect of the supervening period from 15 October 1993 to 31 March 1994 is covered by the payments made under the arrangement to which we have referred.
It is necessary first to determine the nature of the legal right or other entitlement of the respondents to recoup the duty in question. Section 269N(1) provides that the concession order "shall be deemed to have come into effect" on a day which, on the facts, was required to be 1 September 1987. However, the starting point is that at the times when the payments of duty were made by the respondents duty was properly exigible in those amounts under the law as it then stood.
The respondents stressed that s 269N(1) operates "retrospectively". However, in Coleman v Shell Co of Australia [43] , Jordan CJ pointed out that "there has been some ambiguity in the use of the word "retrospective" ". His Honour went on to distinguish between a statute which provided that as at a past date the law shall be taken to have been that which it was not, and the creation by statute of further particular rights or liabilities with respect to past matters or transactions [44] .
(1) Refunds, rebates and remissions of duty may be made:
(a) in respect of goods generally or in respect of the goods included in a class of goods; and
(b) in such circumstances, and subject to such conditions and restrictions (if any), as are prescribed, being circumstances, and conditions and restrictions, that relate to goods generally or to the goods included in the class of goods.
(1a) The regulations may prescribe the amount, or the means of determining the amount, of any refund, rebate or remission of duty that may be made for the purposes of subsection (1).
The Governor-General may make regulations not inconsistent with the Act and prescribing all matters which by the Act are required or permitted to be prescribed (s 270(1)). Regulation 126(f) of the Customs Regulations (the Regulations) stipulates as a prescribed circumstance for the purposes of s 163 the making, after duty has been paid on goods, of a CTCO under Pt XVA of the Act, the effect of which is that duty is not payable on those goods or duty is payable on them at a rate less than the rate applicable when the goods were entered for home consumption. Regulation 127(1) is as follows: A refund of duty shall not be made unless an application for the refund in accordance with regulation 128 is delivered in accordance with that regulation within the period within which that application may, by virtue of regulation 128A, be made. Regulation 128A(4) states: An application for a refund of duty in a circumstance specified in paragraph (f) of regulation 126 may be made within 12 months after the date on which the by-law, determination or Commercial Tariff Concession Order was made. Regulation 128 stipulates that an application for a refund of duty "shall" be in a form approved by the Collector, state as far as practicable the nature and particulars of the claim, and be delivered to a Collector. Paragraph (a) of s 8(1) of the Act provides that a reference to "the Collector" or "a Collector" shall be construed as a reference to any principal officer of Customs or any officer doing duty in the matter in relation to which the expression is used. Finally, reg 128B states:
(1) A refund, rebate or remission of duty may, subject to the Act and to these Regulations, be made by a Collector.
(5) A Collector may make arrangements with a person to whom a refund of duty may be made whereby the amount of the refund may be set off against the whole or part of that person's liability for duty, and an amount that has been so set off in pursuance of such an arrangement shall, for the purposes of the Act and these Regulations, be deemed to have been refunded to that person.
There was no evidence that, before the commencement of the actions in this Court on 3 June 1994, applications in the form stipulated by reg 128 had been made.
Where an Act assented to after the commencement of this subsection provides that a person, court or body may do a particular act or thing, and the word " may " is used, the act or thing may be done at the discretion of the person, court or body. However, sub-ss (1) and (1A) of s 163 of the Act took the form in which they are applicable to this litigation before the addition of sub-s (2A) to s 33 of the interpretation statute [47] . 1. Section 163(1) was enacted by the Customs Act 1971 Cth and s 163(1A) by Sch 1 to the Statute Law (Miscellaneous Provisions) Act (No 2) 1984 Cth.
Where the Comptroller finds in any case that duty has been over-paid he may refund to the company, person or firm of persons which or who paid the duty the amount of duty found to be overpaid. 1. cf Woolwich Building Society v Inland Revenue Commissioners [1993] AC 70 at 172 Commissioner of State Revenue (Vict) v Royal Insurance Australia Ltd (1994) 182 CLR 51 at 99 Commissioner of Stamps (SA) v Telegraph Investment Co Pty Ltd (1995) 184 CLR 453 at 465-466 2. (1994) 182 CLR 51.
There is applicable to the present litigation the statement of principle in the judgment of this Court in Mallinson v Scottish Australian Investment Co Ltd [51] which appears in the following passage:
The rule applicable here is stated in Shepherd v Hills [52] as follows, viz, "Wherever an Act of Parliament creates a duty or obligation to pay money, an action will lie for its recovery, unless the Act contains some provision to the contrary"; and where the amount is liquidated the action of debt is appropriate [53] . The obligation is none the less a debt because the statute gives no particular method of enforcing it [54] . In the present case, the legislation does not contain "some provision to the contrary" in the sense used by Parke B in Shepherd v Hills . In particular, the duty or obligation is not preconditioned by the exercise of an administrative discretion or the formation of an opinion which would attract judicial review [55] . However, as indicated, in the circumstances with which these appeals are concerned, on 3 June 1994 when SCI and ACI received the payments on account of duty, no completed cause of action lay for recovery of those amounts. This was because, on the evidence, SCI and ACI had not taken the necessary steps to comply with regs 127, 128 and 128A. 1. (1920) 28 CLR 66 at 70; cf Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 424, 461. See also Roy v Kensington and Chelsea and Westminster Family Practitioner Committee [1992] 1 AC 624 at 630, 649-650; Trustees of the Dennis Rye Pension Fund v Sheffield City Council [1997] 4 All ER 747 2. (1855) 11 Ex 55 at 67 [156 ER 743 at 747]. 3. Hopkins v Swansea (1839) 4 M& W 621 [150 ER 1569]; (1841) 8 M & W 901 [151 ER 1306]. 4. Booth v Trail (1883) 12 QBD 8 at 10 5. cf Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 274-275 Roy v Kensington and Chelsea and Westminster Family Practitioner Committee [1992] 1 AC 624 at 630, 636-637.
The duty or obligation created by the statute to pay money was quantified in s 163 and in the Regulations by reference solely to a refund of the duty paid. There was no component in that obligation which added a sum to represent the value of the use of the payments made by SCI and ACI on account of duty in the periods between their respective payments and the making of the CTCO on 3 June 1994. The statutory scheme embodied in Pt XVA of the Act represented a balance struck by the legislature between the competing interests of importers, local producers and the revenue. The Comptroller was required by s 269L not to make a CTCO unless the Comptroller had published a notice in the Gazette , inviting the submission of reasons why the order should not be made, and had considered any responses. Further, s 269E(1) conferred upon the Comptroller a discretion to refuse to make a CTCO if, in the Comptroller's opinion, the making thereof "would be likely to have a substantially adverse effect on the market for any goods produced in Australia".
In those circumstances, opposition by local producers and the pursuit of administrative law remedies might lengthen the period between application under s 269G and the making of a CTCO under s 269C. The solution adopted was to provide for a refund of duty paid so as to conform to the position settled with the making of the CTCO, but not to include an additional obligation to make a payment in the nature of interest in respect of any period before the making of the CTCO and the lodgment of an application in proper form for refund of duty.
In the present cases, the duty was refunded on the day on which the CTCO was made. There was no period in which debts in respect of the refunds were due and owing but unpaid. Therefore, there is no foundation for any application in the actions commenced on 3 June 1994, upon their remitter to the Federal Court, of s 51A of the Federal Court Act. So far as presently relevant, this states:
(1) In any proceedings for the recovery of any money (including any debt or damages or the value of any goods) in respect of a cause of action that arises after the commencement of this section, the Court or a Judge shall, upon application, unless good cause is shown to the contrary, either:
(a) order that there be included in the sum for which judgment is given interest at such rate as the Court or the Judge, as the case may be, thinks fit on the whole or any part of the money for the whole or any part of the period between the date when the cause of action arose and the date as of which judgment is entered; or
(b) without proceeding to calculate interest in accordance with paragraph (a), order that there be included in the sum for which judgment is given a lump sum in lieu of any such interest.
(a) authorize the giving of interest upon interest or of a sum in lieu of such interest;
(b) apply in relation to any debt upon which interest is payable as of right whether by virtue of an agreement or otherwise;
(c) affect the damages recoverable for the dishonour of a bill of exchange;
(d) limit the operation of any enactment or rule of law which, apart from this section, provides for the award of interest; or
(e) authorize the giving of interest, or a sum in lieu of interest, otherwise than by consent, upon any sum for which judgment is given by consent. (Emphasis added.)
In the present cases, the causes of action arose on 3 June 1994 and, the payments having been made on that day, there was no sum for which judgment was given or could be given within the meaning of s 51A(1). The statements of claim filed in the Federal Court on 7 November 1994 were relevantly in the same form and alleged that after the commencement of the proceedings the Commonwealth had paid to SCI and ACI the respective sums of $5,457,379.08 and $6,695,068.03. What was claimed was interest on those amounts for the periods 1 September 1987 to 14 October 1993 and from 1 April 1994 to 3 June 1994. We have set out earlier in these reasons the declaration made by the Full Court in favour of SCI and ACI. This reflected the situation established by the statements of claim that the subject matter of the litigation was confined to the claims for interest for periods preceding 3 June 1994.
In argument, reference was made to a statement by Lord Brandon of Oakbrook in President of India v La Pintada Compania [56] . The House of Lords there was dealing with the construction of legislation in some respects resembling s 51A of the Federal Court Act. His Lordship said [57] :
There are three cases in which the absence of any common law remedy for damage or loss caused by the late payment of a debt may arise, cases which I shall in what follows describe for convenience as case 1, case 2 and case 3. Case 1 is where a debt is paid late, before any proceedings for its recovery have been begun. Case 2 is where a debt is paid late, after proceedings for its recovery have been begun, but before they have been concluded. Case 3 is where a debt remains unpaid until, as a result of proceedings for its recovery being brought and prosecuted to a conclusion, a money judgment is given in which the original debt becomes merged. 1. [1985] AC 104. 2. President of India [1985] AC 104 at 122.
However, as we have indicated, the present appeals are concerned with neither case 1 nor case 2 nor case 3. Case 1 and case 2 are concerned with the situation where a debt is paid late. There was no late payment of the debts due on and from 3 June 1994 to SCI and ACI. A fortiori, case 3 has no application, there being no money judgment given in which there merges the original and unpaid debt.
Independently of their reliance upon s 51A as the source of curial authority to award the interest they seek in these proceedings, SCI and ACI assert a "free-standing" right to the recovery of interest where the defendant has had the use of the plaintiff's money in circumstances which indicate an unjust enrichment at the expense of the plaintiff. The existing state of authority does not favour acceptance of such a broad proposition.
The present is not a case where the assertion is that the appellant's breach of contract or negligence has caused the respondents to pay away or the appellant to withhold money and as a result the respondents have been deprived of the use of the money so paid away or withheld [58] . Nor do the respondents seek an award of damages representing compensation for a wrongfully caused loss of their money, which is assessed wholly or partly by reference to the interest which would have been earned by safe investment of the money [59] .
Moreover, even if it be accepted, despite the present state of authority, that there be a principle of the width advanced by SCI and ACI, it could not apply in the present case. The collection of the duty in question in the period before the making of the CTCO was required by statute. Such entitlements as SCI and ACI enjoyed in respect of repayment were the product also of statute. The restitutionary considerations which are present in various areas of the law cannot "purport to override statute by claiming a superior sense of injustice to Parliament's" [67] . In his dissenting judgment in the Full Court, Sackville J said [68] that the legislation did not evince an intention:
to expose the Commonwealth to a liability to pay interest to each and every importer of goods under the concessional scheme. What was intended was that the making of the CTCO would create an entitlement of the importer of goods to recover any duty paid on those goods after the date of the application. The entitlement was not to arise unless and until a CTCO was made.
I do not think it can be said that the Commonwealth was unjustly enriched at the [respondents'] expense by the fact that the duties were not repaid until the date the CTCO was made.
We agree. 1. National Australia Bank Ltd v Budget Stationery Supplies Pty Ltd (unreported; NSW Court of Appeal; 23 April 1997) at 12, per Mason P. See also the remarks of Lamer CJ in delivering the leading judgment in the Supreme Court of Canada in Reference re Goods and Services Tax [1992] 2 SCR 445 at 476-478. 2. SCI Operations (1996) 69 FCR 346 at 398.
The appeals should be allowed. Leave to cross-appeal should be granted but the cross-appeals dismissed. In place of the declaration and orders of the Full Court, it should be ordered that the appeals to that Court be dismissed with costs. The costs of the appellant of the appeals and cross-appeals in this Court should be paid by the respondents.
"One would expect to find, in any developed system of law, a comprehensive and reasonably simple set of principles by virtue of which the courts have power to award interest Sadly, however, that is not the position in English law." Thus said Lord Goff of Chieveley in Westdeutsche Bank v Islington LBC [69] . In that case the House of Lords divided on the question of whether, in the context of a given statute, the principles of equity might supplement a right to simple interest on a common law claim.
The principles applicable to the recovery of interest under Australian law, being derived from the same historical source, are no more certain. But where the interest is claimed to supplement entitlements under a detailed statutory scheme which makes no provision for interest, the first duty of a court to which a claim for interest is addressed is to decide whether such supplementation is consistent with the provisions of the statutory scheme.
After a measure of apparent reluctance, cured only by extensive litigation, the Comptroller-General of Customs (the Comptroller-General), by his delegate, made a commercial tariff concession order (CTCO) under the Customs Act 1901 Cth. The order operated retrospectively and, relevantly, entitled two large corporations to receive refunds of very large sums earlier paid by them as customs duty upon imported goods. The CTCO was made. The refunds were immediately paid. But the corporations say, in effect, that the Commonwealth has had the use of their moneys over an extensive period. They therefore claim interest. A comparatively small amount of interest was paid to them; but only pursuant to an express undertaking given to the Full Federal Court in the course of the earlier litigation. The corporations seek the balance of the interest which, they say, is required by law and commercial justice. Stated so broadly, the suggested merits of the corporations' claims may be appreciated. However, to establish a legal right (none being expressed in the Customs Act), a proper foundation in law must be shown.
The primary judge [70] considered that no such foundation existed. He rejected the claim [71] . The Full Court of the Federal Court of Australia set aside this conclusion [72] . By majority [73] , that Court ordered that, subject to an exception [74] , now contested in a cross-appeal, interest should be paid. A declaration was made [75] that the interest be paid under either s 51A(1)(a) or s 51A(1)(b) of the Federal Court of Australia Act 1976 Cth and that the calculation of it be remitted to a single judge of that Court. By special leave, appeals have now been brought to this Court. The Commonwealth seeks the restoration of the order of the primary judge rejecting the claim for interest.
simply that, the CTCO having been made, the duty was refundable on 3 June 1994 and [they] were entitled to interest on the amount of the refunded duty from the dates of the original payments, either on the basis of the law of restitution or s 51A of the Federal Court of Australia Act. 1. SCI Operations Pty Ltd v The Commonwealth (Federal Court of Australia; statement of claim; 7 November 1994; pars 14, 15); ACI Operations Pty Ltd v The Commonwealth (Federal Court of Australia; statement of claim; 7 November 1994; pars 14, 15); SCI Operations Pty Ltd v The Commonwealth (Federal Court of Australia; applicant's statement of facts, issues and contentions filed pursuant to the order of Wilcox J on 2 December 1994; 6 January 1995; pars 20A, 22A, B7, B8); ACI Operations Pty Ltd v The Commonwealth (Federal Court of Australia, applicant's statement of facts, issues and contentions filed pursuant to the order of Wilcox J on 2 December 1994; 6 January 1995; pars 20A, 22A, B7, B8). 2. ACI Operations (1995) 63 FCR 21 at 25. 3. ACI Operations (1995) 63 FCR 21 at 25.
Determining the nature and source of the entitlement to refund
[T]here was no mistake affecting the payment of the amount When paid, the Comptroller was entitled - indeed, she was bound - to retain it. But, by force of the operation attributed to the 1987 amendment, the Commissioner is retrospectively disentitled to retain what was paid under the Act as it had stood before the 1987 amendment commenced. What effect in law does the 1987 amendment have? I see no reason to treat the Commissioner's liability to refund the amount as other than statutory. There is no occasion to invoke notions of common law restitution in order to discover a cause of action entitling a payer to a refund.
It follows that, prima facie, all of the amounts claimed are recoverable. The Commissioner's liability to refund would have been enforceable by action if it were not for s 111(1) but, as that provision is clearly intended to prescribe the means by which the Commissioner's liabilities should be discharged, mandamus is the appropriate remedy to compel the Commissioner to refund overpayments which she is legally liable to refund.
The opinion of Dawson J was to similar effect [94] . 1. Royal Insurance (1994) 182 CLR 51 at 89-90 (footnote omitted). 2. Royal Insurance (1994) 182 CLR 51 at 99-100.
The statutory scheme excluded an entitlement to interest
Commonwealth
SCI Operations Pty Ltd
(1994) 179 CLR 226
(1994) 182 CLR 51
(1990) 26 FCR 531
(1993) 118 ALR 114
(1994) 49 FCR 56
(1995) 63 FCR 21
(1996) 69 FCR 346
(1994) 181 CLR 404
(1988) 165 CLR 268
(1992) 174 CLR 178
(1995) 184 CLR 265
(1997) 188 CLR 114
(1920) 28 CLR 66
(1960) 105 CLR 188
(1967) 116 CLR 537
(1986) 72 ALR 23
(1990) 169 CLR 515
(1993) 176 CLR 555
(1971) 127 CLR 106
(1996) 184 CLR 333
(1995) 184 CLR 453
(1922) 31 CLR 76
(1962) 108 CLR 471
(1988) 169 CLR 41
(1995) 185 CLR 410
(1996) 185 CLR 259
(1989) 171 CLR 125
(1955) 94 CLR 216
(1995) 182 CLR 544
(1995) 184 CLR 538
(1997) 188 CLR 449
(1991) 171 CLR 657
(1996) 186 CLR 20
(1996) 40 NSWLR 695
(1909) 9 CLR 693
(1993) 32 NSWLR 207
(1984) 158 CLR 447
(1910) 11 CLR 258
(1959) 102 CLR 108
(1969) 121 CLR 137
(1992) 175 CLR 353
(1995) 35 NSWLR 649
(1996) 62 FCR 371
(1997) 187 CLR 384
(1991) 32 FCR 219
(1914) 18 CLR 691
(1995) 56 FCR 354
(1995) 62 FCR 371
(1991) 32 FCR 243