GlbrichvR "Appl vod are v ute v CBE 1998) 103 Og Wena

GlbrichvR "Appl vod are v ute v CBE 1998) 103 Og Wena - [1926] HCA 15 - HCA 1926 case summary — Zoe

[46]

the meaning of sec. 68. Both these extremes are inconsistent with the working provisions of the Customs Act. In my opinion, having regard to the various sections of the Act - and needless to say the question must be solved by reference to that Act and not to other Acts - the expression "' imported goods," in sec. 68, means goods which in fact are brought from abroad into Australian territory, and in respect of which the carriage is ended or its continuity in some way in fact broken. The underlying concept appears to me to be as follows: Where, within our territory, some act takes place with regard to goods arriving from abroad, whether in fact they are or are not dutiable or prohibited, which in the absence of some new or further arrangement for carrying them away would make the place of arrival their destination and would therefore result in the goods remaining in Australia, then they are " imported goods" and it is the duty of the " owner " to comply with the provisions of sec. 68. I do not think a mere agreement of sale between two merchants in Australia, even though the property passes, is sufficient in itself to constitute importation. If such an agreement were made before the ship arrived in Australian waters, it could not possibly operate as an importation. If afterwards the goods arrived and were allowed to remain en route, for instance to New Zealand or in the other direction to India, with the actual carriage undisturbed, I do not see how the position would be altered. But in this case there are additional circumstances. The agreement was made with the shipowner; the delivery was accelerated ; not only the property, but the right to possession also, was transferred. The contract of carriage was completely ended, and the shipowner's character in which he held the goods was transformed from that of carrier to that of proprietor. What follows is important vis-a-vis the Customs. The goods were, as it is found, taken into ships' stores and were allowed by arrangement, constituted by permission of the Customs and guarantee to the Customs, to be taken on to Melbourne as ships' stores. That involved the result that, not only was the character of the shipowner's possession altered as between the parties, but the character of the goods themselves was also altered as regards the Crown. What was the legal consequence of

[52]

mentioned case Parke B., who was in accord with Lord Abinger C.B., referring to the Warehousing Act 3 & 4 Will. IV. c. 57, which is the prototype of Part V. of the Customs Act, in effect stated the law to be that, apart from the warehousing provisions, the duty was payable, and that those provisions when complied with suspended the Crown's remedy by giving time for payment until the happening of events mentioned in those provisiors for requiring actual payment. He also held that, where by the importer's own fault those provisions were not complied with, the original liability stood and the time for payment had arrived. The commercial necessities that led to the enactment of the warehousing provisions, and that to some extent at least exist in Australia, are found stated in Sir George Stephens' work on Commerce and Commercial Law (1853), at pp. 108 et seqg. The statement is interesting as supporting practically the principles laid down by the above- mentioned authorities. Applying those principles, confirmed by sec, 153, to the present case, the time for payment had arrived. Did, then, the defendant evade payment ? It depends on what is meant by the word " evade " in the particular context. The word itself is not rigid. As was said by Lord Hobhouse in Simms v. Registrar of Probates (3), "everybody agrees that the word is capable of being used in two senses: one which suggests underhand dealing, and another which means nothing more than the intentional avoidance of something disagreeable. Beyond this, nothing is to be found having much bearing on the construction of the word, which depends entirely upon its use in the Colonial Acts." That is to say, we start with the alternative possible meanings of the word itself and as to anything further we are thrown upon the construction of the statute in hand. Before proceeding to construe the statute for the purpose of ascertaining what precisely is there meant by the word "evade " - a process involving important consequences both to the revenue and to the mercantile community - it is necessary to understand properly the observations of Lord Hobhouse. The "something disagreeable" to which he refers may or may not, so

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other than William which constituted in law the instant liability to payment of the duty. The respondents (other than William) unquestionably determined not to pay any duty at Port Kembla but to proceed as above stated. The arrangement included a guarantee. Even apart from the special terms of that guarantee, what was actually done was to remove from Port Kembla without payment of duty goods in respect of which duty was instantly payable and on which there existed by statute a charge or security for the payment of the duty. The constitutive facts being known and the law presumed to be known, what prevents contravention on the interpretation assumed ? But the actual arrangement makes the position more acute. It was the intention of the respondents that the duties arising in law at Port Kembla should never be paid ; and they never have been. The guarantee was "to furnish a list of all dutiable stores consumed on the voyage, and to pay duty thereon at the port of Melbourne." That is, if none of the goods were consumed on the voyage from Port Kembla to Melbourne, there was to be no duty paid at all, and any duty paid was to be in respect of future happenings, not of what had taken place at Port Kembla. If, therefore, "evasion" rests simply on knowledge actual or constructive of facts creating liability to pay and on the intention to avoid the payment legally required by reason of that liability, the respondents must be convicted. But in my view of the statute that is not the legislative intention, an intention that would operate frequently to the detriment of the revenue and frequently to the detriment of honest traders. The solution is this: - We begin with the intrinsic neutral meaning of evade as intentional avoidance. Then, by a process of elimination, we can see what the Legislature intended the word to connote. Being erected into an offence by sec. 234 with a maximum penalty of £100, it is manifest that the evasion contemplated is more than mere omission to pay instanter. And compare Ramsden v. Lupton (1). On the other hand, the evasion penalized by sec. 234 clearly does not connote intent to defraud the revenue. That is shown by sec. 241, which doubles the maximum penalty where that intent is charged

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Judgment (125 paragraphs)