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[1959] HCA 52
High Court of Australia
1959-07-01
Kitto J
Original judgment source is linked above.
High Court of Australia Kitto J. Powers v Maher [1959] HCA 52
ORDER Judgment to be entered for the defendant with costs.
Kitto J delivered the following written judgment: -
On 4th April 1957 the defendant, the Collector of Customs of the Commonwealth for the State of New South Wales, seized, as forfeited under the provisions of the Customs Act 1901-1954 Cth, a 1956 model Buick sedan motor car, which had been landed at Sydney from the s.s. "Vingaren" on its arrival from the United States of America on 24th November 1956. Ever since being landed the car had been in bond in Sydney. The plaintiff, whose property it was, gave the defendant notice on 10th April 1957 that he claimed it; and on 26th April 1957 the defendant served him with a notice pursuant to s. 207 of the Act requiring him to enter an action for the recovery of the car. Within the four months allowed by the section for that purpose, namely on 22nd August 1957, the plaintiff commenced this action, seeking the return of the car or payment of its value, and damages for its detention.
On the day of the seizure the defendant gave the plaintiff a notice purporting to be under s. 205 and stating that the car had that day been seized as forfeited to Her Majesty "on account of a contravention of the Customs Act, 1901-1954, namely that in respect of the said car a statement was made which was false in a particular". Nothing was added by way of identifying either the statement or the particular in which it was alleged to be false. The notice made it clear that the seizure had been made by reference to s. 229 (i) which provides that "The following goods shall be forfeited to His Majesty: (i) All goods in respect of which any entry invoice declaration answer statement or representation which is false or wilfully misleading in any particular has been delivered made or produced". I doubt very much whether the notice was effectual as a notice under s. 205. What that section requires is a notice of the cause of the seizure. Regulation 116 of the Customs Regulations provides that the notice shall be in accordance with Form 60, and that form requires particulars of the "offence" to be inserted. The purpose obviously is to enable the owner of seized goods to know what is the alleged justification for the seizure. To tell him only that in respect of his goods some unidentified statement was made and that it was false in some unidentified particular is to inform him of the general category into which the cause of seizure falls, but it leaves him uninformed as to what that cause is. It does not give him the opportunity to consider his position which the section intends him to have.
There is no need, however, to express a concluded opinion as to the efficacy of the notice, for the plaintiff notified the defendant of his claim to the goods six days after the date of seizure. In the course of the action the defendant, after filing a defence which was no more informative as to the cause of the seizure than the notice of seizure had been, answered a request for particulars by specifying three statements as having been falsely made and as being the only statements on which he relied. They were: (1) an oral statement that on or about 24th September 1956 the plaintiff was permanently resident in Australia; (2) an oral statement that on or about the same date the plaintiff was on an indefinite assignment to the position of managing director of a company named Titan Pty. Ltd; and (3) a written statement in answer to a question "For what purpose are the goods to be used?", the statement being contained in the words "Business and pleasure". I am not prepared to uphold a submission that was made on behalf of the plaintiff, that as the notice of seizure under s. 205 had referred to "a statement" the defendant could not in the action rely upon three statements. There is nothing in s. 205 to produce this result.
As to the first two of the statements relied upon, the plaintiff has admitted by his counsel that he made them to an officer of the Customs on 24th September 1956, but he has not admitted that he made them in respect of the car. The third statement was made on a printed form of application for a licence to import goods. The form was addressed to the Collector of Customs at Sydney, and by it the plaintiff applied for a licence to import from the United States of America, at the port of Sydney, goods of the United States described as "1 - Used 1956 Buick Sedan". It stated the unit price in currency of origin at $1550.00 and the f.o.b. value in Australian currency at £700. Freight and insurance were stated at £220 and £15 respectively, and the total was given as "Total C.I.F. & E. £935". The document contained seven questions to be answered by the applicant for the licence. The last question was "For what purpose are the goods to be used?". Opposite this there was typed: "Business and pleasure". Then followed the printed words: "I declare that the above particulars are true and correct"; and this declaration the plaintiff signed over the date 13th September 1956. Below there was a printed provision for a licence for the importation of "the goods specified above"; and over the date 12th October 1956 the licence was signed Mr. W. G. Brown, a clerk in the import licensing section of the Customs Department, who held a written authority from the Minister for Customs to act as licensing officer for the purpose of the Customs (Import Licensing) Regulations.
I think it is a proper inference to draw that the first two statements were made in connexion with the application for the import licence. There is nothing to suggest that in September 1956 the plaintiff had any other matter on foot with the Customs Department, or had any reason for dealing with a Customs officer except to advance the licence application. It is to be noticed that after the defendant had given particulars which showed that the two statements were among those which par. 4 of the defence alleged had been made in respect of the car, the plaintiff answered that paragraph by saying, in par. 5 of his reply, he had given certain information to the Collector of Customs "for the purpose of obtaining an import licence to import a motor car". He went on to deny that the information was in respect of the car seized; but I think it is clear enough from the paragraph, considered with the whole course of the case, that the information referred to includes the two oral statements, and that the only point which the plaintiff makes about them is, not that the statements did not relate to the import licence application, but that they did not relate to any car which, at the time they were made, was identifiable, and that therefore they were not made "in respect of" the car seized.
This places the oral statements on the same footing as the written statement so far as concerns any relation to the car which is in question in this case. As to falsity, the position is that the plaintiff by his counsel has admitted that the oral statements were false. He has made a similar admission as to the written statement if it is to be read as meaning that the car was to be used by the plaintiff himself for business and pleasure, but he has not made any admission on the point if it is to be read as meaning that the car was to be used generally for business and pleasure. I do not think that "by him" should be read into the question so as to give the answer the former rather than the latter meaning. The form is not specially adapted for use in connexion with motor cars, and question 7 seems to me to ask only into what kind of use it is intended that the goods, whatever they may be, will go if their importation is allowed. I would not understand the question to be inquiring whether the applicant for the licence intends to be the person who uses them in the manner which he describes by his answer. Whether the identity of the person to use the goods is a matter of concern to the licensing officers I do not know; but if it is, and precise information on the point is desired, a precise question could easily be framed. Question 7, as it stands in the form which the plaintiff signed, appears to me to make no inquiry on the point. I must take it, then, that the plaintiff makes no admission as to the alleged falsity of his answer, and as there is no evidence to show that he intended, on 13th September 1956, that the car to be imported should be used for any purpose other than business and pleasure, I must deal with the case on the footing that the answer to question 7 is not shown to have been false.
As regards the oral statements made on 24th September 1956, admittedly false as they were, three submissions are made on behalf of the plaintiff. One is that in par. (i) of s. 229 the words entry, invoice, declaration, answer, statement and representation must be interpreted as referring to things ejusdem generis, and that, as an entry or an invoice is first delivered or made or produced for the purposes of the Act not earlier than the moment of importation of the goods, no delivery, making or production of a declaration, answer, statement or representation which was made before the goods were imported can be relied upon under the paragraph. I agree that the paragraph cannot be read literally. It must be subject to unexpressed limitations as to the class of declarations, answers, statements and representations referred to, and I should think that the class does not extend beyond such as have some relation to the administration of the Customs law of the Commonwealth and have been delivered, made or produced to an "officer" as defined in s. 4. But I see no reason for further restricting the class because of any inference suggested by the ejusdem generis principle, so as to exclude from it a declaration etc., simply on the ground that it was delivered, made or produced before the importation of the goods.
The second submission is that the operation of s. 229 (i) in a case to which it applies is to divest the property in the goods from the owner, and to vest it on the Crown, immediately upon the delivery, making or production of the statement etc.; and that therefore the provision must be construed as intended to apply only to goods within the legislative power of the Commonwealth at the time of the delivery, making or production. For the proposition as to the operation of the provision to change the ownership of goods, reliance was placed upon the judgments of Sir Robert Phillimore and the Court of Appeal in The Annandale [1] , and upon other authorities referred to in the judgment of Barry J. in Little's Victory Cab Co. Pty. Ltd. v. Carroll [2] . As to this, it may be observed that "forfeited" is an ambiguous word: it may mean either taken from a man or liable to be taken from him: In re Levy's Trusts [3] ; Attorney-General v. Parsons [4] . In order to decide which meaning it has in s. 229, that is to say whether it is on the occurrence of the stated facts or on seizure that the change of ownership occurs, one would need to consider carefully the judgments of the present Chief Justice in Willey v. Synan [5] ; Willey v. Synan [6] and Burton v. Honan [7] and the dicta of O'Connor J. and Isaacs J. in their respective judgments in Lyons v. Smart [8] . In addition, it would be necessary to consider whether the case of Wilkins v. Despard [9] went as far as was suggested in The Annandale [1] ; whether cases such as Robert v. Witherhead [10] and United States v. 1960 Bags of Coffee [11] depended on the terms of statutes distinguishable from the Customs Act; and whether the position under that Act is not that which was stated by Willes J., speaking for the King's Bench in Lockyer v. Offley [12] : see Manning The Practice of the Court of Exchequer 2nd ed. (1827) p. 181. But whatever be the true view as to this, clear it is that whenever a state of affairs arises in which any one of the descriptions of goods contained in the eighteen paragraphs of s. 229 is satisfied, that section intends to effect at once some change in the legal situation with respect to those goods, be it a transfer of ownership to the Crown or only the creation of a right in the Crown to bring about such a transfer by immediate seizure. And that involves that at that time the goods must be in Australia. It is necessary to read this restriction into the section because of the general sense which the context implies, because of the principle of construction which confines general words so that territorial limits upon legislative power are observed (Macleod v. Attorney-General for New South Wales [13] ), and because of the provision made in s. 21 (b) of the Acts Interpretation Act 1901 Cth. But the restriction to be implied is upon the word "goods"; the word must be read as meaning goods in Australia. The result is that the description contained in par. (i) cannot be satisfied except by goods in Australia in respect of which a false or wilfully misleading statement etc., has been delivered, made or produced. This means, however, not that the goods must be in Australia when the statement etc., is made, but that the divesting, or the arising of the right in the Crown to divest by seizure, occurs either at the time of importation or at the time of the delivery, making or production of the statement etc., whichever of those times is the later. Accordingly I must reject the second submission.
The third submission is that the oral statements were not made "in respect of" the car in question in the action. So far as appears from the evidence, the car was not acquired by the plaintiff until 15th October 1956, three weeks after the statements were made. If that is the position, the plaintiff, in making his application for an import licence and supporting it by his oral statements, cannot have been referring to that particular car. The application itself, when it is looked at, tends to bear this out: the goods are described simply as a used 1956 Buick sedan, and question 1, which asks whether the goods have been ordered, is answered "No". For the defendant it was submitted that the figures given as to price suggest that a specific car was being referred to, but I do not think that they do. In my opinion, so far as appears the application which the plaintiff was making was for a general licence to import a 1956 used Buick sedan, and the statements made in connexion with the application had no relation, at the time they were made, to any particular car. On the other hand, there can be no doubt that in causing the car which was later seized to be brought to Australia the plaintiff was exercising the right to import which the licence of 12th October 1956 gave him.
Were the statements, then, made "in respect of" that car? They contained in their terms no reference to the car, but under s. 229 (i) what has to be considered is, not whether the words used in a statement referred to the goods, but whether the making of the statement was in respect of the goods. The plaintiff's statements now in question were made, I find, in the course and as part of his efforts to obtain from the Customs Department the licence applied for by the document of 13th September 1956. They might, no doubt, be accurately described as statements made in respect of the application; but it is no less accurate to say that they were made in respect of the licence to be issued on the application; and equally, I think, they were made in respect of whatever car should in the event be imported under that licence. "In respect of" is an expression of wide application. Mann C.J. described it in Trustees Executors and Agency Company Limited v. Reilly [1] as having "the widest possible meaning of any expression intended to convey some connexion or relation between two subject-matters" [2] . When a person contemplating a future importation of goods makes a statement to the Customs in the course of and as relevant to their dealing with one another on the subject of the importation, I see no difficulty in describing the statement as made in respect of the goods to be imported, notwithstanding that as yet those goods are unascertained and may not even be in existence. Once goods come into existence and are identifiable as the subject of the very importation that was under consideration, it seems to me quite accurate to say that they are the goods in respect of which the statement was made. It was made in respect of whatever goods the person concerned might import as being the subject of what has passed between himself and the Customs. In the present case the importation of the car which the Customs have seized was, beyond question, the importation for which the plaintiff was seeking a licence when he made his oral statements on 24th September 1956, and in my opinion the car is correctly described as the goods in respect of which the statements were made.
For these reasons I am of opinion that the defendant's seizure and detention of the car was justified under s. 229 (i), and there must be judgment for the defendant.
Powers
Maher