Alexander Cowan and Sons Ltd v Lockyer - [1904] HCA 19

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ALEXANDER COWAN &SONS LTD.

NICHOLAS LOCKYER Customs Act 1901 (No. 6 of 1901), sees. 130, 167 - Customs Tarif 1902 (No. 14 of

1902), secs, 3, 4, 5, 6-Dispute as to Customs duties claimed before Customs Tariff in force-Retrospective effect of Customs Tariff-Duties af Customs MELBOURNE,

'collected - Money deposited. August 17, 18.

The words "duties of Customs collected pursuant to any tariff" in sec. 6 of the Customs Tariff 1902 do not include money deposited with the collector of customs under an agreement in the terms of sec. 167 of the Customs Act 1901.

Prior to the passing of the Customs Tariff1902, Customs duties, in accordance with the draft tariff then before Parliament, were demanded on the importation of certain goods, such goods not then being subject to Customs duty under the tariff of the State into which they were imported. The importer refused to pay the duty, but deposited with the collector the amount claimed. The Customs Act 1901 had then been passed, and the deposit was made in supposed compliance with sec. 167 of that Act, which, however, had, in point of law, no application to the case of goods imported at that date. The goods in question were not included as dutiable goods in the schedule to the Customs Tariff 1902. In an action brought after the passing of the Customs Tarif 1902 by the importer to recover from the collector the amount so deposited

Held, that the money must be taken to have been deposited under an agree- ment in the terms of sec. 167, and which could be varied by the parties as to the limit of six months specified in that section.

Held, also, that the duty demanded was not legally payable, and that the plaintiff was entitled to recover the money deposited, notwithstanding sec. 6 of the Customs Tariff 1902.

MOTION for judgment on admissions of fact, referred by consent to the Full Court.

Alex. Cowan &Sons Ltd., the plaintiff, brought an action against Nicholas Lockyer, Collector of Customs, seeking to recover £132 7s. 7d. and interest thereon at the rate of 5% per

1 CLR 461

annum from the 23rd December, 1901, alleged to have been deposited by the plaintiff with the defendant as such collector pursuant to the provisions of the Customs Act 1901.

The following facts were for the purpose of the case admitted by the parties :-

1. That the plaintiff is a company carrying on business as manufacturing stationers at Sydney and elsewhere in the Com- monwealth.

2. That in the month of December, 1901, the plaintiff imported into the Commonwealth at the port of Sydney, in the State of New South Wales, two envelope folding machines, Cin " Varzin," for use in its factory at Sydney.

3. That at all times material to this action such goods were not dutiable by the Customs Tariff of the State of New South Wales.

4. That by the Federal Tariff introduced on 8th October,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1904] HCA 19
Decision Date: 18 August 1904

CaseChat Overview and Summary

This matter concerned a dispute between Alexander Cowan and Sons Ltd and Lockyer, the Collector of Customs, regarding customs duties claimed on goods imported before the *Customs Tariff 1902* came into operation. The core of the disagreement lay in whether the *Customs Tariff 1902* had retrospective effect and could be applied to duties that had already been collected or deposited under previous legislation. The case was heard by Griffith, C.J., and O'Connor, J.

The central legal issues before the court were whether the *Customs Tariff 1902*, particularly sections 3, 4, 5, and 6, operated retrospectively to impose duties on goods imported prior to its commencement. Furthermore, the court had to determine the meaning of "duties of customs collected" in the context of money deposited by the importer with the customs authorities before the new tariff was enacted.

The court reasoned that the *Customs Tariff 1902* was not retrospective in its operation. Griffith, C.J., and O'Connor, J., held that the duties were fixed at the time of importation, and any subsequent legislation could not alter the liability for those duties unless expressly stated to have retrospective effect. The money deposited by the importer was considered a provisional payment, and the liability for duty was determined by the law in force at the time the goods were entered for home consumption. The court applied the principle that statutes are generally presumed to operate prospectively unless a clear intention to the contrary is demonstrated.

The court found in favour of Alexander Cowan and Sons Ltd, determining that the duties claimed under the *Customs Tariff 1902* were not legally exigible. The Collector of Customs was ordered to refund the money deposited by the company.

Orders