Re Comptroller-General of Customs and Garrick William Hand v Kawasaki Motors Pty Limited [1991] FCA 519; 103 ALR 637;

Re Comptroller-General of Customs and Garrick William Hand v Kawasaki Motors Pty Limited [1991] FCA 519; 103 ALR 637; - FCA 1991 case summary — Zoe

[49]

"Hamel, in his work on the Laws of the Customs, 93, thus states

the origin of the enactment, from which the sections in question have

been taken: - 'These provisions were inserted to meet a great

difficulty that had occurred in dealing with disputes between importers

and the customs. The officers were formerly not only empowered, but

required, to detain the merchandise of any importer who, whether right

or wrong, had the misfortune to differ with the collector as to the

amount of duty imposed by the latter, and by which the merchant's goods

were unprofitably locked up pending the settlement of the dispute,

however advantageous it might be to bring them to market.' The Act, to

meet this difficulty, or, as it may be almost described, this injustice,

provides that, if any dispute arises as to the duty payable, a certain

course is to be pursued. The importer must deposit in the hands of the

collector the amount that the collector claims, whether that is the

right amount or not. After that sum is so deposited, the importer is

then to ascertain, by an action in the Supreme Court, whether any and

what amount of duty is payable, and he must bring his action within

three months. If not so brought, what becomes of the money? The amount

deposited is to be deemed and taken to be the proper duty. It is not

that it is the duty, but it is to be deemed and taken to be the duty,

and it is immaterial whether it is the duty imposed by the Act or not;

if the action is not brought within the time specified the money is paid

into the general revenue as Customs duty. If the importer succeeded, he

received either the whole amount deposited, or the difference between

what the jury found to be the proper duty, and the amount he had

deposited, with interest at the rate of 8 per cent. in lieu of damages.

It was obvious the Legislature intended that no action of trover could

wrought against the collector of customs.

In considering whether the remedy provided by the statute must be

pursued, the words used, it must be noticed, are throughout

mandatory - 'shall deposit,' 'such deposit shall be deemed,' 'upon

payment, such collector shall cause,' 'such payment shall be accepted,'

and."

[65]

Under clause 5, which repeals section 167 of the principal Act and

substitutes a new section, it is desired to bring about a change of

procedure in regard to payment of duty on articles as to which there

is a dispute as to the proper amount to be charged. Briefly, the

present procedure is this: In case of a dispute, first of all the

duty claimed by the Department has to be deposited. Then the

importer has to take action within six months. If his action be

unsuccessful, the amount is retained as the proper duty. If no

action be taken the amount is also retained. Under the existing

procedure, the amounts so deposited were required to be paid into a

trust fund; and it is alleged that if the importers had cared to do

so, and had come to a common understanding amongst themselves, they

could practically have held up the revenue of the Commonwealth by

simply claiming that the duties charged on their goods were not the

proper duties. At the end of six months they need not have taken

action, but in the meantime the Commonwealth could not have used the

amounts paid in as part of the revenue of the country.

Senator MILLEN. - There would have been no advantage to the importer

in doing that.

Senator PEARCE. - No; but it would have been an extremely awkward

thing for the Commonwealth if it had been done. What is proposed in

the amending clause is that the duty shall be paid under protest,

and the protest be marked on the entry. Then an action can be taken

within six months, and the result will determine what amount of duty

has to be paid.

Senator VARDON. - Unless the amount at stake is large, the costs of

an action are likely to be more than the sum in dispute.

Senator PEARCE. - Costs would go with the cause.

Senator VARDON. - But there are usually costs which a litigant

cannot recover.

Senator PEARCE. - The procedure here proposed is considered to be

more convenient for the Government. Another proposal made in this

amending clause will be welcomed generally by the trading public.

The jurisdiction which was previously confined to the High Court is

now to be extended to any Commonwealth or State Court of competent

jurisdiction; the jurisdiction, of course, being determined by the

amount of the claim. The only exception will be that the

Department, in its own interest, will, where any question of

principle is concerned, or any question involving a constitutional

issue, take the case to the High Court."

[106]

"21. If any dispute shall arise as to any duty payable in

respect of any goods imported into the said colony and

admissible for home consumption, the importer or

consignee or his agent shall deposit in the hands of the

collector at the port of importation the amount of duty

demanded by such collector; and such deposit shall be

deemed and taken to be the proper duty payable in

respect of such goods, unless an action or suit shall be

brought or commenced by the importer of such goods

within three months from the time of making such deposit

in the Supreme Court against such collector for the

purpose of ascertaining whether any and what amount of

duty is due and payable upon such goods; and upon

payment of such deposit and passing a proper entry of

such goods by the importer consignee or agent such

collector shall thereupon cause the said goods to be

delivered in virtue of such entry.

22. In case no such action shall be brought within the time

hereinbefore limited for that purpose, such deposit shall

be applied to the use of Her Majesty in the same manner

as if the same had been originally paid and received as the

duty due and payable on such goods: and in case such

action shall be so brought and it shall thereupon be

determined by due course of law that the duty so

demanded and deposited was not the proper duty due and

payable upon such goods but that a less duty was payable

thereon, then the difference between the sum so deposited

and the duty so found to be due or the whole sum so

deposited as the case may require shall forthwith be

turned to such importer with interest thereon after the

rate of eight pounds per centum per annum for the period

during which the sum so paid or returned shall have been

so deposited, and such payment shall be accepted by such

importer in satisfaction of all claims in respect of the

importation of such goods and the duty payable thereon

and of all or any damages and expenses incident thereto

except costs of suit as next hereinafter provided (that is

to say): Provided always that the party to such action or

suit in whose favor a verdict shall be given shall be

entitled to his costs of suit as between party and party

against the other party to such action or suit, such costs

to be taxed in the usual way; and if such verdict shall be

given against the plaintiff in such action or suit in such

court are recoverable by law; but if such verdict shall be

given gainst the collector as defendant in such suit, the

costs so taxed as aforesaid shall be paid out of the

consolidated revenue."

At a glance

Court

Decision date

Before

Source

Judgment (148 paragraphs)

Re Comptroller-General of Customs and Garrick William Hand v Kawasaki Motors Pty Limited [1991] FCA 519; 103 ALR 637; (1991) 32 FCR 219 (4 November 1991)

Parties

Legislation Cited (8)

Cases Cited (15)