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[1935] HCA 76
High Court of Australia
1935-12-12
Starke J, McTiernan JJ
Original judgment source is linked above.
The application of the principle to the present case is difficult because the one party, the plaintiff, has propounded a claim to money which, he says, he found before it came to the hands of the defendant, and the other party, the defendant as Collector, has propounded a claim to the same money on the ground that after the time when the plaintiff says he found it, it became forfeit to the Crown.
The solution of the difficulty, in my opinion, lies in a consideration of the effect produced by the provisions of the Customs Act. The right of forfeiture relied upon by the Crown is altogether independent of the validity of the plaintiff's claim. Even if he did find the silver, so as to obtain a right to its possession, the forfeiture over-reaches his claim. But to over-reach it steps must be taken on behalf of the Crown to secure a condemnation of the goods, or the statutory equivalent of a condemnation. It was open to the Customs to retain the money without seeking to forfeit it and, if the plaintiff carried out his threat to sue for it, to rely upon any weakness in the title he set up to the possession of the money. But, in that case, the Crown would be exposed to the risk of the plaintiff's recovering the money if he established a prior possessory title. The Customs did not take this risk but proceeded under sec. 207 to obtain the equivalent of a condemnation. This step involved the assumption that the plaintiff was "owner" of the coins. It may be granted that the assumption was made only for the purpose of obtaining a forfeiture and that, if the forfeiture proves not to have been effected, the Customs are not precluded from denying his ownership. Nevertheless for that purpose his prima facie title is assumed. The purpose of assuming it is to defeat it. But that purpose can only be accomplished by calling upon him to enter the present action. If he does not, the goods assumed to be his are condemned.
It appears to me that the Collector is the actor. The notice is a step taken by him directed at obtaining a condemnation. It is a statutory substitute for judicial proceedings by the Crown against the goods. Its effect is to cast the onus of taking proceedings upon the owner or supposed owner. In the absence of such a provision, it would be incumbent upon the Attorney-General, or upon the party making the seizure, to file in a Court of record an information in rem. When such informations were in use, the proceedings included two proclamations. Claims were entered after the second of these, which was preceded by a commission of appraisement. In default of a claim the goods were condemned (Manning, The Practice of the Court of Exchequer, 2nd ed. (1827), p. 143). "Before proceedings or seizures were placed under the control of the commissioners of the respective boards of customs and excise, the seizing officer was bound in the next term, or sooner, at the discretion of the Court, to return the cause of seizure, and take out a writ of appraisement, otherwise the proprietor was entitled to move for a writ of delivery, upon which a writ of appraisement and delivery went of course, and upon that writ the proprietor had the goods delivered to him, giving security in double the sum to answer the appraised value" (ibid., pp. 143, 144). (See Blackstone's Commeniaries, 21st ed. (1844), vol. iii., pp. 261, 262, and compare his judgment in Scott v. Shearman[12]; Attorney-General v. Lade[13]; Johnson v. Sowers[14].)
The provisions of the Customs Act, in effect, enable the officers of the Crown to take the preliminary steps by simple notices out of Court so that it is the claimant who must issue process. But when he does issue a writ he does so to protect his supposed ownership. In substance he is not the attacker, actor or person seeking redress.
For these reasons I think he is not liable to give security for the costs of the action. I do not think we should be influenced by the consideration that in all probability the plaintiff would have brought an action even if the Collector had not proceeded under sec. 207. In fact he did so proceed and thus made it necessary for the plaintiff to sue or allow the forfeiture to take place.
The action in which the appellant has been ordered to give security for costs was entered by him in response to a notice served on him by the defendant pursuant to sec. 207 of the Customs Act 1901-1930. The action therefore was truly instituted by way of defence to a claim by the Collector of Customs for the condemnation of the appellant's goods.
Certain silver coins claimed by the appellant to be his goods, which form the subject matter of the action, had been seized by the Collector of Customs, who initiated proceedings for their condemnation by giving the notice provided for by sec. 207.
The rule that a plaintiff who is out of the jurisdiction should give security for costs should not be applied to the plaintiff in this action for the reasons stated by Scrutton L.J. in Maatschappij voor Fondsenbezit v. Shell Transport and Trading Co.[15]. See, too, Vincent v. Hunter[16], where Sir James Wigram V.C. said: "It is perfectly just, when a plaintiff has brought a defendant into Court, by instituting proceedings against him, and a cross-suit is the necessary or proper form of defence, that the defendant should be treated as a defendant throughout, and not be required to give security for the costs of the cross-bill, which, in truth, is merely defensive"; and compare Belmonte v. Aynard[17], per Denman J.
Appeal allowed with costs. Order appealed from set aside.
Solicitor for the respondent, W. H. Sharwood, Crown Solicitor for the Commonwealth.
[5] [1912] VicLawRp 31; (1912) V.L.R. 150 33 A.L.T. 202.
[8] [1849] EngR 817; (1849) 3 De G. & Sm. 516; 64 E.R. 586.
[9] [1820] EngR 223; (1820) 1 Brod. & B. 505; 129 E.R. 817.
[12] (1775) 2 Wm. Bl. 977, at p. 980; [1746] EngR 271; 96 E.R. 575, at p. 577.
[13] (1745) Park. 57, at pp. 61, 62; 145 E.R. 712, at p. 714.
[14] [1718] EngR 108; (1718) Bunb. 30; 145 E.R. 584.
[15] (1923) 2 K.B., at pp. 176, 177.
[16] [1846] EngR 1232; (1846) 5 Hare 320, at p. 321; [1846] EngR 1232; 67 E.R. 935.
Willey
Synan [1935] HCA 76;
(1935) 54 CLR 175