Baume v Commonwealth
[1906] HCA 92
•27 August 1906
4 C.L.H.]
OF AUSTRALIA.
procedure to be adopted b y tlie plaintiff in order to maintain his U. C. of a .
claim, it is a matter in which we should give special leave to
appeal when the amount involved is le.ss than £30. On the whole,
B ag .vall
V.
having regard to the principle followed by this Court in Dalgarno
W h i t e .
v. Hannah (1) we have come to the conclusion that it would not be a proper thing for us to decide such a difficult matter in a case where so small an amount is involved as in this case. We think, therefore, that the proper order is to rescind the special leave.
Special leave rescinded. Appellant to pa.y
the costs of the appeal.
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[HIGH COURT OF AUSTRALIA.]
BAUME .
A p p e l l a n t ;
P l a in t if f ,
THE COMMONWEALTH
R espo n d en t .
D e fe n d a n t ,
ON APPEAL FROM THE SUPREME COURT OF
II. C. OF A.
NEW SOUTH WALES.
1906.
Ac(»oii aijainn Commoiuve.a!th—Liability for tortious acts of servants—Independent
S yd :n e t ,
officer—Collector of Customs—Ministerial duty—y^ominal and small damages—
Aug. 14, 15,
Customs Act (Mo. 6 oPlOOl), secs. .30, 214, 2\b—Judiciary Act (Mo. 6 o/1903),
It, 20,27
secs. 56, 64.
Griffith C.J.,
O’Connor JJ.Barton and
(1) 1 C.L.R., 1.
VOL. IV.
7
98 HIGH COURT
[1906.
H. C. OF A. Practice— Verdict oj jury in Court exercUiny federal jurisdiction —Next} trial motion
1906. —Jurisdiction of Hiijh Court—Poiuer of Court to reduce damages-Amendment at trial—Judiciary Act (No. 6 o/"1903), secs. 2, 39.
B adme
V.Sec.s. 56 and 64 of the Judiciary Act 1903 give a subject the same rights of action against the Commonwealth as he would have against a subject in matters of tort as well as contract. The Commonwealth is therefore respon sible in an action for the tortious acts of its servants in every case in which the gist of the cause of action is an infringement of a legal right, if the act complained of is not justified by law, and the person doing it is not exercising an independent discretion imposed upon him by Statute, but is performing a merely ministerial duty.
T h e Co m m on
w e a l t h .
The Collector of Customs, pending the passing of entries, took and detained certain imported goods liable to ad valorem duty for the purpo.se of ascertaining their true value for duty, and upon the passing of the entries delivered the goods to the importer.
Held, that, in refusing to pass entries until the ascertainment of the true value for duty, the Collector was performing a quasi-judicial duty prescribed by the Statute to be performed by him personally, in the performance of which he was required to exercise independent judgment on a preliminary question of fact, and that an action would not lie against the Commonwealth for a wrongful refusal to pass entries owing to a mistake of facts or even mala /ides on the part of the Collector.
Tobin v. The Queen, 16 C.B.N.S., 310, and Enever v. The Kiny, 3C.L.R., 969, followed. Barry v. Arnaud, 10 A. & E., 646, and Barrow v. Arnaud, 8 Q.B., 595, distinguished.
But, held, that the neglect or refusal by the Customs Department to furnish the importer with copies of bocks and documents impounded or retained under secs. 214 and 215 of the Customs Act 1901 was a breach of an absolute duty cast by the latter section on the department, for which an action would lie against the Commonwealth ; and
That, tliough the impounding and retaining of the books and documents in the first instance were justified by the Act, the unreasonable detention of them after the expiration of the period necessarily occupied in the ascertainment of the value of the goods was unlawful, and rendered the Commonwealth liable to an action for conversion ; but
That, in either case, the damages recoverable were limited to the pecuniary loss actually suffered by the plaintiff by reason of the wrongful acts.
Semhle, that on a motion for a new trial on the ground of misdirection the High Court will follow the practice of the Supreme Court and refuse to grant a new trial if the misdirection involves only a trifling amount.
If, on a motion for anew trial on the ground that the damages are excessive, it appears that the damages are excessive, but that the plaintiff is entitled to
4 C.L.R.]
OF AUSTRALIA.
.something more than nominal damages, the Court has no jurisdiction to reduce
H. C. oF A.
the damages and enter a verdict for tlie lesser amount except by consent of 1906.
the parties. ̂ '
_
B.4UME
Distinction between nominal and small damages considered.
r.
T i i e C ommon-
It is a matter for the discretion of the Judge at the trial to refuse or to allow an amendment of the plaintiff’s claim by the filing of fresh particulars, and, if the Judge refuses it, the Court of Appeal will not interfere with his discretion if the defendant might by any possibility have been prejudiced by the amendment.
" Et'-Tii.
The High Court has jurisdiction to entertain a motion for a new trial after the verdict of a jury in the .Supreme Court of a .State exercising federal jurisdiction under sec. .39 of the Judiciary Act 1903.
N ew T ria l Mo tio n .
_
The appellant brought an action against the Coinmonwealtli in the Supreme Court of New Soutli Wales in its federal juri.sdiction, for wrongful acts alleged by him to have been committed by the officers of the Customs Department in respect of certain ship ments of goods liable to ad valorem duty under the Customs Tariff, and certain books of account and documents, which had reference to the goods in question and to the plaintiff’s business generally.
The declaration contained seven counts which were in substance as follows:—fl) Trespass to certain parcels of merchandise of the plaintiff whereby the plaintiff suffered loss and damage and incurred expense in endeavouring to obtain delivery and pos.ses- sion thereof and was injured in his business and otherwise; (2) conversion of the said good.s whereby the plaintiff suffered the loss and damage stated in the first count; (3) wrongful refusal by the Customs to pass entries of the goods or to permit them to be removed from the control of the Customs by the plaintiff notwithstanding that the plaintiff made proper entries of the goods and paid the proper duties, whereby the plaintiff suffered loss and damage; (4) similar count to the third, except that tender of duties was alleged, instead of payment; (5) wrongful refusal by the Collector to furnish to the plaintiff certified copies of books and documents seized and impounded by the Customs under sec. 214 of tlje Customs Act 1901 whereby the plaintiff suffered loss and damage in his business; ((3) trespass to books and documents
100 HIGH COURT
[1906.
H. C. OF A. -whereby the plaintiff suffered the loss and damage stated in the fifth count; and (7) detention of books and documents of the B a c m e plaintiff. The plaintiff claimed under the seventh count a return
T h e C ommon-
books and documents witli £5,000 damages for their deten- The defendant pleaded, (1) as to the first, second, third, fourth, fifth and sixth counts, not guilty ; (2) as to the seventh count, the general issue; (3) as to the third count, traverse of the allegations of making entries and payment of duty ; (4) as to the fourth count, traverse of the allegations of making entries in compliance with the Act, of delivery of entries to the Collector, of tender of duties, of readiness and willingness to pay duties, and of notice thereof to the Collector; (5) traverse of allegations in the fifth count that entries had been duly made and delivered, and that duties had been paid ; (6) that the causes of action arose before the passing of the Judiciary Act 1903 ; (7) as to the first and second counts, justification under sec. 30 of the Customs Act 1901 ; (8) as to the sixth and seventh counts, justification under secs. 214 and 215 of the Customs Act 1901 ; and (9) that the alleged grievances were done under the authority of the Minister ad ministering the Customs under the Customs Act 1901, and in the exercise of his discretion and in pursuance of the powers vested in him by that Act and in the course of his administration of the Act and not otherwise.
vvEALTH. tion, and under the residue of the declaration £15,000.
Upon these pleas the plaintiff joined issue, and as to the seventh, eighth and ninth pleas new assigned for excess. There was also a demurrer to the sixth plea, and joinder in demurrer. Judgment on the demurrer was ordered to be entered for the plaintiff by the Supreme Court.
The action was tried before Barley C.J., and a jury. By direction of the learned Chief Justice the jury returned a verdict for the defendant on the first, second, third, and fourth counts, and on the other three counts they found a general verdict for the plaintiff for £750.
The plaintiff now moved for a new trial on the following grounds:—(1) That a verdict for the defendant was wrongly directed on the first three counts; (2) that His Honor was in error in holding that no action was maintainable under the first
4 C.L.R.] OF AUSTRALIA.
101
and .second counts except in respect of goods for which entries
had actually been made ; (8), (4), and (6) improper rejection of
evidence of statements made by the Collector that the goods
Ba cm e
would not be delivered up whatever the plaintiff might do ; t h f C ommon-
(6) improper rejection of evidence of refusal by the Customs to
w e a l t h .
deliver up goods mentioned in a certain letter from the plaintiff to the defendant; (7) improper refusal by His Honor to allow plaintiff to give evidence under the particulars in the letter ; (8) erroneous ruling by His Honor that particulars were neces sary under the third and fourth counts ; and (9) improper refusal by His Honor to allow amendment of the particulars furnished by the plaintiff; (10) and (11) improper refu.sal by His Honor to direct the jury to find a verdict for the plaintiff on the sixth and seventh counts and to direct them that there was no justification proved for the seizure of the books and documents; and (12) that the damages were insufficient.
The defendant filed notice of cross appeal, to have the verdict set aside and a new trial granted, and also of its intention to contend that the verdict returned for the plaintiff on the fifth, sixth and seventh counts should be set aside and a verdict entered for the defendant, or a new trial granted upon the grounds, (1) that the verdict was against evidence; (2) and (.3) that His Honor should have directed the jury that on the evi dence the defendant was not liable in the action, and that the defendant was not responsible even if the books and documents were unreasouabl}' detained ; (4) that a verdict should have been directed for the defendant on the fifth, sixth and seventh counts; (5) erroneous direction that the jury in assessing damages might consider any unreasonable delay in returning the books and documents of which copies had already been furnished to the plaintiff; (6) that the jury should have been directed that on the evidence the plaintiff was only entitled to nominal damages ; and (7) that the damages were excessive.
The facts sufficiently appear in the judgments.
Shand K.C. (with him Garland), for the respondent, sub mitted, by way of preliminary objection, that the High Court had no jurisidiction to entertain an application for a new trial
102 HIGH COURT
[1906.
H. C. Of A. after the verdict of a jury in a Court exercising federal jurisdic
tion, and referred to Musgrove v. McDonald (1). Sec. 20 of the Raume Judiciary Act 1903 does not confer such a power. It pre- T h e Common ŝ ^PPoses the power, but it cannot give wliat the Constitution has
WEALTH, not given : sec. 73 of the Constitution. The proper course was
to appeal to the Full Court and from that to the High Court.
[G r if f it h C.J. referred to Wilcox v. Donohoe (2).]
This is not a judgment of the Supreme Court within the
meaning of sec. 39 of the Judiciary Act 1903.
Knox K.C., for the appellants, referred to sec. 51, sub-sec.
xxxix., of the Constitution.
The judgment of the Court was delivered by
G r if f it h C.J.
We do not think that the decision in Miisgivve
V. McDonald (1) covers the present case. That turned entirely
on the Constitution. The Judiciary Act 1903 defines the word “ appeal,” as used in that Act, as including “ an application for a new trial and any proceeding to i-eview or call in question the proceedings decision or jurisdiction of any Court or Judge.” Section 39 is the section under which the Supreme Court in this case exercised jurisdiction. In passing that section Parliament assumed to act under sec. 77 of the Constitution, which authorized Parliament to make laws investing anj" Court of a State with federal jurisdiction, and defining the extent to which the jurisdic tion of any federal Court shall be exclusive of that which belongs to or is vested in an}' Courts of the States. By sec. 39 the legis lature conferred upon State Courts power to exercise this particular branch of federal juri.sdiction, subject to certain con ditions. One of those conditions is, for the purpose of the present case, (reading the word appeal in the sense of the definition), that the decision “ shall be final and conclusive except so far as an application for a new trial may be brought to the High Court:” Sec. 39 (2) {a). In the same Act we find careful provisions for the making of such appeals and for the Constitution of the High Court before which they come. By the High Court Procedure Act 1903, which was passed at the same time, careful provision
( I ) 3C.L.R., 132.
(-2) 3 C.L.R., 83.
4 C.L.K.] OF AUSTF.ALIA.
103
is made for regulating the procedure in such applications.
Under H- C. of a ,
these circumstances we are of opinion that the High Court has ^ 0^
power to make an order directing a new trial, after a verdict of
B aume
a jury in the Supreme Court exercising this delegated federal xheCommon-
jurisdiction under sec. 39 of the Judiciary Act 1903.
w e a l t h .
Knox K.C. and J. L. Campbell (with them E. M. Mitchell), for the appellant. The Commonwealth is liable for the wrongful acts of its servants in administering the Customs Act. The maxim respondeat superior applies in the same degree as between subject and subject. The principle that the King can do no wrong no longer applies to State or Commonwealth govern ments. Secs. 56 and 64 of the Judiciary Act 1903, which replace the temporary provisions of the Claims against thx Common wealth Act 1902, are similar in effect to the words of the New South Wales Statute which, in Farnell v. Boivman (1), wei’e held to take away the prerogative immunity from the Crown. That having gone, the Commonwealth is in the same position as any other public body as regards liability for the wrongful acts of its servants. [They referred to Tobin v. The Queen (2); Delacauw V. Fosbery (3); Whitfield v. Lord Le I)e Spencer (4); River
Wear Commissioners v. Adamson (5); Ruling Cases, vol. i., p. 30cS ; Quick and Groom, Judicud Rower of the Commonivealfh,
distinction between the liability of bodies whose objects are public and that of bodies which carry on business for profit : 2[ersey Docks and Harbour Board v. Gibbs (8). The possibilitj’ of such a tort is clearly contemplated by the Judiciary Act 1903. The liability of the Customs for the acts of its officers is recog nized by sec. 34 of the Customs Act 1901. The wrongs com plained of in this case were committed by the officers of the Commonwealth in performing a duty cast upon the Customs Department: See see. 4 of the Customs Act. They are not acts of a specific officer designated by Statute to perform a specific duty,
p.
119; Gibson V. Young (d)-, Davidson v. Walker (7).]
(1) \-2 App. Cas., 64:4(6) 21 N.S.W.L.R., 7 ; 9 App. Cas.,
(2) IG C.B.N.S., ;110, at p. 324.
418, at p. 433.
(3) 13 N.S.W. W.N., 49.(7) (1901) 1 S.R. (N.S.W.), 196.
(4) Cowp., 754, at p. 765.(8) L.R. 1 H.L., 93.
(5) 2 App. Cas., 743.
104 HIGH COURT
[1906.
H. C. OF A. as in Enever v. The K ing (1). The Commonwealth is bound to
detain goods so far as is necessary for the purposes of revenue, B a um e but is not entitled to exceed those limits. The plaintiff was T h e C ommon- ^̂ t̂itled to get his goods on tendering the proper dut3̂ And the
WEALTH. Customs officers were bound to demand a particular amount of duty in order to give the plaintiff an opportunity of tendering it. Having offered to do all that was necessary under the Act, he was entitled to the goods, and the Commonwealth is liable for damage caused by their detention after that time. The Commonwealth may not be liable for an honest mistake on the part of its officers, but it must be liable for excess on their part if damage is caused : Tracy v. Sivartwout (2). If there is a bond fide dispute as to the amount of duty there is a provision in sec. 167 by which the importer may get his goods, but the plaintiff was denied all information as to what was complained of. The passing of an entry is not a condition precedent to the right to get possession of the goods. Barley C.J. ruled that it was, and rejected evidence of conversations with the Collector which would have proved that the detention was oppressive and wrongful, and that the plaintiff was ready to do all that was necessary. The onus was on the defendant to justify the detention under the circumstances, yet no evidence of justification was given. There is clear authority for the liability of the officers in Barry v. Arnaud (3) and Barrow v. Arnaud (4). The officer is bound to do everything necessary to enable persons affected by the Act to exercise their rights: Pickering v. Janien (5).
[B arton J. referred to In re Thorn bury Division of Gloucester
Election Petition] Ackers v. Hoivard (6), as approving that case.]
The officer here is merely the instrument of the Commonwealth, performing a ministerial duty. At any stage the Minister could intervene. There is not a mere nonfeasance. The neglect to carry out the duties imposed by the Act is a wrongful act: Queen v. Williams (7).
(1) 3 C.L.R., 669.(5) L.R. 8 C.P., 489.
(2) 10 Peters, 80 (12 Curtis, 26).(6) 16 Q.B.D., 739.
(3) 10 A. & E., 616.(7) 9 App. Cas., 418.
(4) 8 Q.B., 595.
4 C.L.U.] OF AUSTRALIA.
105
[Griffith C.J. referred to Brennan v. Guardians of Limerick
H. C. of A.
Union {\).]
Tlie principal is liable even if the servant acts capriciously:
Ha cm e
Bayley v. Manchester Sheffield and Lincolnshire Railivay Co. (2); x h e C ommo.s -
Jjyer v. Mtinda.y (8). The goods having been wrongfully with-
w e a l t h .
held from tlie plaintiff, the subsequent delivery of them will not exonerate the defendant from an action for trespass; Hiort v. London and North- Western RoAhoay Co. (4). If the form of the action is incorrect an amendment should be allowed. Assuming that there is a cause of action under the third and fourth counts, an amendment of the particulars should have been allowed, and evidence admitted in support of the claim as amended : I^ysaght Bros, tfc Co. Ltd. V. F(dk (5); the defendant was not prejudiced by the new particulans, as it had sufficient notice of them before the action ; and evidence of conversations with the Col lector should have been admitted. The plaintiff is therefore entitled to a new trial.
Shand K.C. and Garland, for the respondent. Evidence of the refu.sal by the Collector to deliver up the goods, was inad missible without an amendment of the particulars filed. The amendment was rightly refused, as the defendant was prejiuliced by the delay, and the amended particulars tendered were incorrect. The Judge’s di.scretion will not be interfered with : Chitty’s Archhold's Practice, 12th ed., pp. 1,452, 1,460, 1,455.
[G riffith C.J.—The form of the action should be conversion:
Keywortli y. H ill (6); Foiddes v. Willoughby (7).]
If there was any wrongful act the officer is liable, not the Commonwealth. Secs. 56 and 64 of the Judiciary Act 1903 being in derogation of the prerogative, should not be extended to include all classes of torts unless it is absolutel} ̂ clear that they were intended to do so. But there was no evidence of a conver sion. The plaintiff was not entitled to immediate possession of the goods. They were subject to the control of the Customs until entries were passed : secs. 30, 33, 37, 39, 154 and 167 of the
(1) 2 L.R., Ii-., 42.(5) 2 C.L.R., 421.
(2) L.R. 7 C.P., 41.5.(6) 3 B. & AW., 685.
(3) (1895) 1 Q.B., 712.(7) 8 M. & W., 540.
(4) 4 Ex. U., 188.
106 HIGH COURT
[1906.
H. C. OF A. Ciisfoms Act 1901. Tendering tlie entiy conferred no right to
possession. The goods were delivered up as soon as duty wa.s
B aume paid, and until then the Collector was bound to detain them. T h e C ommon- Unreasonableness in the performance of the duty does not give
WEALTH, fj, right of action against the defendant. Even if it did, there was no evidence of unreasonable detention. Evidence of conver sations with the Collector was properly rejected. It was tendered to show a waiver of the passing of entries. But that is a condition precedent imposed by the Statute; it could not be within tlie scope of the Collector’s authority to waive it. This is not a ca,se of apparent authority like Gitizean’ Life As^ îcrance Co. v. Brown (1). Eveiy person must be presumed to know the statutory authority of Customs officers, and the Commonwealth cannot be bound by any acts which are not authorized by the Statute. Even if there were a cause of action in respect of the detention of goods the damages would be trilling, and a new trial would not be granted under the practice of the Supreme Court.
As to the claims for seizing and detaining the books, there was evidence that goods of the plaintiff had been detained within the meaning of sec. 214, and the Court could not direct a verdict for the plaintiff. If the books were improperly seized or detained the Collector was acting beyond the scope of his authority, and, though he might be liable himself, the defendants was not liable. Sec. :14 does not carry the liabilitj^ of the Commonwealth beyond that limit. Secs. 221-225 refer only to proceedings against officers.
[G r if f it h C.J. referred to Evans v. Liverpool Corporation (2).] Even if the evidence of conversations had been admitted, it would not have made any case against the Commonwealth. The Collector must hav'e a discretion, by neces.sary implication from the words of the Act, to detain the goods until he has satisfied himself as to the proper value for duty. In Barry v. Arnaud (3) and Barrow v. Ariuuid (4), the officers had no discretion, as the question involved was a question of law. The Act would be unworkable if the reasonablene.ss of the detention were always a matter for a jury : See secs. 160, 229. Even it it was the duty of
(1) (1904) A.C., 42.3.(-3) 10 A. & E., 646.
(2) 74 L .J.K.B., 742.
(4) 8 Q.B., 59,5.
4 C.Lli.J OF AUSTRALIA.
107
the Collector to hand over the goods, his failure to do so was a
“
1906
wrong on his part, but the Commonwealth is not responsible for
, ̂ ,
it. The duty is imposed upon the Collector himself. He is not
B aume
.subject to any person’s control, but is invested with absolute dis- t h e Co m m o s -
cretion. [They referred to
Tobin v. The Queen (1).] Moreover
w e a l t h .
he was right in detaining the goods. The proper value for dut}' had not been stated, as required by sec. 154, and the genuine invoice was not produced. The invoice stated the value for duty
as the price paid by the plaintiff for the goods in London.
That
was not the fair market value in London.
[They referred to
(joldviwj V. Lockyer (2); Orchard v. Sinvpson (3).] The goods
were therefore liable to forfeiture under sec. 229.
Even if the detention of the books was wrongful, the Collector is the officer designated by the Statute to seize and detain them, and the Commonwealth is not liable if he performs the duty in an improper manner; Enever v. The King (4). So also it is his personal duty to supply copies of books and documents, and he alone can be sued for a failure to carry it out. [They referred to Pmilfon V. London and South, Western R ailtm y Co. {b)Bol ing- broke {Lord) V. Swindon New Town Load Board ( 6 ) . ]
[G riffith C.J.—I am disposed to think that the duty to supply
copies is imposed on the Customs Department, not on the
Collector.]
In any case the damages were excessive.
There was no evidence
of actual loss, and the damages should have been nominal. The verdict for the plaintiff on the sixth and seventh counts should be set aside and a verdict entered for the defendant, and on the fifth count the damages should be reduced to a nominal amount. The defendant does not ask for a new trial.
Kiio.r K.C. in reply. Ei'ans v. Liverpool Corporatioyi (7) is distinguishable. In that case it was clear that the authorities could not interfere with the individual officer in the performance of his duty. They appointed a competent officer and there their responsibilitj’ ended.
(1) 16 C.B.N.S., 310.
(5) L.R. 2 Q.B., 534.
(2) (1904) 4 S.B. (N.S.W.), 276.
(6) L.R. 9 C.P., 575.
(3) 2C.B.N.S., 299.(7) 74 L.J.K.B., 742.
(4) 3 C.L.R., 969.
108 HIGH COURT
[1906.
H. C. OF A.
As to the 1st and 2nd counts, a mere denial of right to the pos
1906. session of goods amounts to conversion; Baldwin v. Cofc(l).
Bao.mk
This Court has no power to reduce damages except by consent,
V.
T h e Common
if the plaintiff'is entitled to more than nominal damages : Watt v.
w e a l t h .Watt (2). Here they were not nominal. The amount was purely
a question for the jury, and there M'as evidence from which they might have inferred a serious damage to the plaintiff’s business. It was impossible to prove the actual loss in money, from the nature of the case, but that does not make the case one for nominal damages; “The Mediana" w “The Comet"\ “I'he Mediana" {Z). As the defendant does not press for a new trial the verdict for £750 cannot be disturbed, if the defendant is liable for any thing more than nominal damages.
Cur. adv. vult.
G r if f it h C.J. This was a motion by the plaintiff to set aside
a v'erdict after trial before the Chief Justice for New South Wales and a jury, in an action brought in the Supreme Court in its federal jurisdiction, in which the plaintiff obtained a verdict on part of his claim for £750, and on another part of his claim there was a verdict for the defendant. The defendant also gave notice that it desired to have the verdict set aside, so far as it was for the plaintiff, on different grounds.
The plaintiff's action was in respect of alleged wrongs com mitted in respect of certain goods, and in respect of certain books of account and documents. The declaration contains .seven counts, the first four of which were in respect of the goods, and the other three in re.spect of the books and document.s. The goods in question were imported into the Commonwealth by the plaintiff and were liable to ad valorem duty on importation. [His Honor then .stated the effect of the several counts of the declaration, and continued :] The defendant, besides traversing all the material allegations in the declaration, pleaded that the documents and books had been taken and impounded by the officers of the Customs after goods of the plaintiff had been
(1) 6 Mod. Rep., Case 303.
(2) (1905) A.C., 115.
(3) (1900) A.C., 113.
4 C.L.R.] OF AUSTRALIA.
109
seized by the Cu.stoms in the exercise o£ the power.s conferred H- F. of a.
by the Customs Act 1901.
Tlie plaintiff to this plea new a.ssigned.
At the trial judgment was given for the defendant on the first
Bacmk
four counts, apparently by direction of the learned Judge.
On
the other three counts the plaintiff had a general verdict for £750.
w e .altu .
The facts of the case may be briefly stated. The plaintiff
Griffith C.J.
is a dealer in watches and jewellery, and an importer of these goods from England, through an agent who carries on busine.ss in Sydney and elsewhei’e in the Commonwealth. The goods, it is said, came originally from Switzerland through England. They were imported sometimes by parcels post, sometimes in the ordinary way as cargo. About November 1902 the Customs authorities in Melbourne detained some of the plaintiff’s goods, and shortly afterwards the Customs officers went to the plain tiff's agent in Sydney, and, assuming to act under the authority of the Customs Act 1901, sec. 214, demanded to see the plaintiff’s books and documents. That section, so far as it is necessary to quote it, is as follows:—“ Whenever any goods have been seized or detained, the owner shall immediately upon being required so to do by the Collector produce and hand over to him all books and docu ments relating to the goods so . . . seized or detained . . . and of all other goods imported by him at any time within the period of five years immediately preceding such recpiest seizure or detention.” The books were handed over to the Customs authorities, and kept in their possession for a considerable time. A good deal of correspondence vseems to have passed between the Customs Department and the plaintiff, with the result that entries were not passed for the goods the subject of the action until the following July; and in .substance the action is for damages for depriving the plaintiff of the goods for that period, that is, so far as the goods are concerned. With respect to the books the action is for keeping them longer than was necessaiy, and for not supplying the plaintiff with copies of them as was the duty of the Cu.stoms under sec. 215 of the Customs Act 1901. That section provides:—“ The collector may impound or retain any document presented in connexion with any entry or required to be produced under this Act, but the per.son otherwise entitled to such document shall in lieu thereof be entitled to a copy certified
n o HIGH COURT
[1906.
H. c . OF A. a s correct by the collector and .such certified copy sliall be received
in all Courts as evidence and of equal validity with the original.”
B a um e 'J'lie defendant contends that the Commonwealth is not T h e Common- I’e s p o n s i b l e for any of the acts complained of, that is, the delay
HEALTH, ill passing entrie.s and the consequent delay to the plaintiff in Grifflch C.J. getting possession of the goods, or for the failure to furnish the copies of the books, or for retaining the books. Tlie plaintiff contends that the defendant is responsible for all of them.
Now, as to the general contention of the defendant that the Commonwealth is not re.sponsible for the tortious acts of its servants, in my opinion, secs. 56 and 64 of the Judiciary Act 1903 cannot be distinguished from the section of the New South Wales Statute that was under consideration by the Judicial Committee of the Privy Council in Farnell v. Bowman (1).
[His Honor read secs. 56 and 64 of the Judiciary Act 1903 and continued]: I cannot distinguish between the section of the New South Wales Statute and the provisions of these two sections, so far as regards a case in which the relations between the Common wealth and its officers is such that according to the ordinary principles of law the maxim respondeat superior would apply. But it does not follow that the Commonwealth would be respon sible in an action for every wrongful act done by its servants. That this is so is sufficiently shown by the case of Tobin v. The Queen (2), and by the case of Enever v. The K ing (3), in this Court decided in February last. But I think that these sections of the Judiciary Act 1903 apply to every case in which the gist of the cause of action is an infringement of the right of property, if the act complained of is not justified by law, and the person doing it is exercising a merely ministerial duty and is not charged by the Statute with an independent discretion. But, in my opinion, when the duty prescribed by the Statute is to be performed by a designated person, and in the performance of that duty he is required to exercise independent judgment on a pre liminary question of fact, the maxim resjiondeat superior does not apply so as to make the superior liable if the officer comes to a mistaken conclusion. Whether the officer himself would be
(1) 12 App. Cas., 643.
(2) 16C.B. R .S ., 310.
(3) 3 C.L.R., 969.
4 C.L.R.]
OF AUSTRALIA.
liable if he acted maid fide is quite immaterial.
In that case it H. 0. of A.
is clear that the employers would not be liable, even in the
ordinary case of master and servant, as was pointed out by
Ba c m e
Willes J. in Bayley v. Manchester, Sheffield and Lincolnshire in dealing with another case. Lord Esher M.R. made some observations which, if not precisely in point, serve as an illustration of the point to which I am referring. He .said (;l):— “ When an inferior Court or tribunal or body, which has to exercise the power of deciding facts, is first established by Act of Parliament, the legislature has to consider what powers it will give that tribunal or body. It may in effect say that, if a certain state of facts exists and is shewn to such tribunal or body before it proceeds to do certain things, it shall have juri.sdiction to do such things, but not otherwise. There it is not for them conclusively to decide whether that state of facts exists, and, if they exercise the jurisdiction without its existence, what they do may be (juestioned, and it will be held that they have acted with out juri.sdiction. But there is another state of things which may exist. The legislature may intrust the tribunal or body with a jurisdiction, which includes the jurisdiction to determine whether the preliminary state of facts exists as well as the jurisdiction, on finding that it does exist, to proceed further or do something more. When the legislatxire ai'e establishing such a tribunal or body with limited jurisdiction, they also have to consider, what ever juri.sdiction they give them, whether there shall be any appeal from their decision, for otherwise there will be none.’' In the same way if an officer of the Government is retjuired to inve.stigate facts and arrive at a conclusion and act according to
Railivay Co. (1). In such a case, where the servant is charged w e a l t h .
with the duty of exercising his independent di.scretion, the Griffith c.j.
wrongfulness or unlawfulness of the act depends upon the con
clusions of fact actually drawn. The duty is not merely minis
terial, it is (|uasi-judicial. If it were inerely mini.sterial other
considerations would apply, as will be sliown when I come to
deal with that part of the case. In The Queen v. Commissioners of
(1) L.R. 7 C.P., 415 ; L.R. 8 C.P.,
(2) -21 Q.R.D., 313.
148.(3) 21 Q.B.U., 313, at p. 319.
HIGH COURT
[1906.
H. C. OF A. that conclusion on tlie facts, then the lawfulness or unlawfulness
of the act depends upon the conclusion he arrives at. If he
Bau.mk
honestly though mistakenly arrives at a certain conclusion, the
T h e C ommok . unlawful. There is no authority for saying that the WEALTH, maxim res2)cmde(d superior applies in such a case. There are Griffith C.J.numerous analogous cases, of which .£’ne?;er v. The K iw ] (1) is
one, and the latest illustration is Evans v. Liverpool Corporation (2). These being the principles applicable to the determination of this case, I proceed to appl}" them to the facts.
I will refer now to the sections of the Customs Act 1901 under which it is alleged on the one hand that the detention was unlaw ful, and on the other that it was not unlawful, or that, even if it was unlawful, the defendant is not responsible for it. [His- Honor then read secs. 30, 32, 33, 35, 36, 37, 38, 39, and continued:] There is, therefore, no authority for the taking of the goods out of the control of the Customs except by passing an entry. It i.s said that a Minister of the Government might have allowed the goods to go. It is possible that he might. If he had, he would not have been acting in accordance with the law, although it may be that no consequences would have followed from the want of legal warrant for Ids act. In the case of ad 'C(dore?7i, duty special
provisions are made.
[His Honor then read sections 154,158, and
167, and continued :] I refer to these sections to show the nature of the duty imposed on the collector, in order to ascertain the true value of goods liable to od valorem dutjL It is a personal duty cast upon him, and, if he in the exercise of the discretion ca.st upon him decides that the sum tendered as duty is in.sufficient, or that the value of the goods as stated in the invoice is not the correct value, he is not only autliorized, but is bound to detain the gcjods until the true value is ascertained in the manner pre scribed by law. Detention of the goods for that purpose is not wrongful, but rightful, and cannot give rise to any cause of action. In the present case there was, we are told, a bond fide dispute as to the proper value that ought to be put on the goods in question. It seems to have been a bond jide di.spute, and I am dispo.sed to think that, so far from the Collector being wrong, he was probabl}' right. That, however, is quite immaterial for the purpose of the present decision.
(1) 3 C.L.B., 969.
(2) (1906) 1 K.B., 160.
4 C.L.R.]
OF AUSTRALIA.
I will proceed now to deal with the several counts.
The first H- C-
count has gone, because the taking and keeping of the goods was
lawful; it was required Vjy the Act, not forbidden. The second
B aume
count was for conversion.
That is the proper form of action for x h e Co m m o s -
the wrongful temporary detention of goods, as was pointed out
w e a l t h .
in the case of Key worth v. H ill (1). But, for the reasons I have
Griffith C.J,
shown, there was no improper detention of these goods until the entry was pas.sed, and the goods were delivered as .soon as it was passed. There was, therefore, no evidence of conversion, and that count fails, and judgment upon it was rightly entered for the defendant.
In connection with the contention that evidence was wrongly rejected of conversations between the officers of the Cu.stoms and the plaintiff’s agent, it was said that the evidence was intended to prove that these officers intimated that they would not pass entries whatever the plaintiff might do. If any officers of the Customs declared their intention not to do their duty I cannot see how that can make their employers responsible for such a failure. It may be evidence of mala jides on the part of the
officers. If .so it would be irrelevant.
That evidence was
therefore, in my opinion, rightly rejected.
The third and fourth counts were based upon the doctrine laid down in Barry v. Arnaud (2), and Barrow v. Arnaud (3). Those were actions against a Cu.stoms officer for wrongfully refusing to pa.ss entries of goods which the defendant claimed to be liaVffe to a duty at a specific rate, and it was held that the actions lay. The question was not as to the value of the goods, but whether they were liable to one .specific rate or another. That was a pure question of law. No question of fact was involved. Moreover the actions were brought against the officer. W'hether an action would lie against an officer under the circum stances of the present case it is not necessary to consider. For the rea.sons I have stated it would not lie against the einplo3’er, if the officer had an independent duty to a.scertain the value of the good.s. These counts were framed on the assumption that the defendant was re.sponsible for a mistake on the part of the
(1) .3 B. & A., CS.i.
(2) 10 A. & E., 640.
(3) 8 Q.B , 595.
VOL. IV.
lU HfOH COURT
[1906.
H.C. OF A. officer. These two cases, therefore, liave no application to the
| 1906. | present case, and, if they had, they do not sliow tliat an action |
| Ba u m e | would lie against the defendant here. If the action lay at all it |
V.
T h e C ommon-
would be for conversion, and the .special counts might be treated
\VEALTI£.
in that case as informal counts for conversion.
Griffith C.J.'Jdiere were some other points made with respect to these counts.
The goods in question in these counts comprised four small lots of goods wdiich arrived by parcels post in March and May 1903,
of the total value of about £70.
They were not delivered till Gth
July when the entries were passed.
The plaintiffi by agreement
with the defendant gave particulars of his claim. He might have been ordered to do so, but he did so without an order and the matter should be treated as if the particulars had been given under order of the Court. They were given under the first five counts of the declaration. Subsequently the plaintiff delivered another document which may be considered as an amendment of these particulars. In that the day of the wrong ful acts complained of in the 1st, 2nd, 3rd and 4th counts was alleged to be Gth July. Evidence was tendered that the passing of the entries in respect of these goods which had been detained was not on Gth July but in March and May 1903. Objection was taken by the defendant that this was not a fair intimation of tlie dates of the wrongful acts complained of, and the learned Chief Ju.stice thought the argument a sound one, and declined to allow an amendment. It was objected that he was bound to allow an amendment, but it appears to me to have been a matter entirely in his discretion. Bearing in mind that the evidence sought to be given related to transactions in March and May, the defendant may very well have been prejudiced by having been previously told that evidence would be required of matters that took place in July, and having prepared its evidence accordingly. The matter was entirely in the discretion of the learned Judge, and I see no reason for di.ssenting from the conclusion at which he arrived. But even if the evidence had been admitted with respect to these four lots of goods, the only damages the plaintiff could have recovered for their temporary detention would have been the actual pecuniary loss he had sustained by reason of the delay. Considering that the goods
4 C.I,.K.]
OF AUSTRALIA.
were only wortli £70, and were detained for a very few week.s, o*'
the maxinmni damage would have heen less than £20, and it is
not the practice of the Supreme Court to grant a new trial for a
Hacme
mistake relating to a trifling sum of that kind.
Damages could i-heOojuio.v.
not have been recovered exceeding the actual pecuniary lo.ss, and WKALTH.
it is very doubtful whether they could have been more than the
Griffith C.J.
amount specified in sec. 107, which lays down a rule as to damages in cases of this kind. Whether that is an exclusive rule or not may l)e a matter for consideration at some future time.
It aj)pears, therefore, that as regards the first four counts of the declaration the plaintiff has no cause of action. His motion for a new trial was on the same grounds as the other points with respect to the rejection of evidence, that is, that he would have been able, if allowed, to show something in aggravation of damages. Tlie result is tliat the plaintiff’s motion fails on all ])()ints, and the defendant is entitled if it pleases to ask simply that the motion be dismissed. It has, however, asked for certain relief on its side, the most important being that the damages on the other counts should be reduced to nominal damages.
Now, the fifth count, for not giving copies of documents to the plaintiff, di.sclosos a breach of an absolute duty cast by the Statute upon the Customs Department. That appears to me to be a purely ministerial duty. When books are taken in this way the owner is entitled to have copies given to him, and if the Customs authorities do not furnish copies, there is a breach of the law I'esulting in a man being deprived of his property, and for such a breach an action will lie, and I think the Commonwealth is liable for it in an action of tort. I’he (juestion what damages are to be recovered is a different matter.
The sixth count, for seizure of books, fails because there is ample evidence that, before the books were demanded by the Customs officers in Sydney, goods of the plaintiff" had been <letained in Melbourne. It is not necessary to refer to the evi
dence on that point in detail.
The learned Judge very properly
declined to direct the juiy otherwise. That count therefore fails; but the new assignment was treated at the trial as meaning that the defendant not only seized the books but detained them for
116 HIGH COURT
[1906.
H. C. OF A.
unreasonable time.
The seventh count will not lie for return
of the goods, all the goods having been returned.
The complaint
B a um e
would more properly form the subject of a count for trover, but
T h e C ommon
form to which this Court is not in the habit
\TEALTH. of giving serious attention. As to the detention of the goods, if
Griffith C.J.they were lawfully taken, the detention does not become imlawful
until the time during which they might lawfullj' ̂ be detained lias expired, and the person entitled to possession of them has demanded them. There was a demand for the books in Marcli, but there was no further application to return them until July, when the matter was settled. It maj", however, be taken tliat the demand in March was continuous, and that damages may be given for unreasonable detention of them after the time when the plaintiff became entitled to them. But no point was made as to that. Assuming, however, that the plaintiff is entitled to damages for detention of the books after the time when the Customs had done with them, for which I think an action would lie against the Commonwealth, it was contended for the Commonwealth that these damages would be nominal only. I think not. The distinction between nominal and real damages was pointed out very clearly by Lord Halshury L.C. in the “ The Mediana ” v. “ The Comet “ The Mediana ” (4j cited by Mr. Knox. He said:—“ I wish, with reference to what has been suggested at the bar, to remark upon the difference between damages and nominal damages. ‘ Nominal damages ’ is a technical phrase which means tliat you have negatived anything like real damages, but that you are affirming by your nominal damages that there is an infraction of a legal right which, though it gives you no right to any real damages at all, yet gives you a right to the verdict or judgment because your legal right has been infringed. But the term ‘ nominal damages ’ does not mean .small damages. The extent to which a person has a right to recover what is called by the compendious phrase damages, but may be also represented as compensation for the use of something that belongs to him, depends upon a variety of circumstances, and it certainly does not in the smallest degree suggest that
(4) (1900) A.(J., 11.3, at p. 116.
4 C.L.H.] OF AUSTRALIA.
117
because they are .small they are necessarily nominal damages.” t'.
of A.
Then he referred to various cases one of which was the taking
*906.
away of a chair for which the damages would he small. So here
B au .me
I think the plaintiff is entitled to damages, not nominal. I think
̂
that there can be no doubt that if the maximum amount of damages
w e a l t h .
recoverable were one shilling,that is, nominal,then this Court would
Gritnth c.j.
have juri.sdiction under its practice to reduce the verdict to that amount. But unless the amount is limited to what is called nomirial damages, the Court has no jurisdiction to reduce them except by the consent of the parties. That was pointed out in Watt V. Watt (5). But the action being for a mere interference with a proprietary right there can be no vindictive damages. d’'here is no element of wounded feelings or annoyance or any thing of that kind. The only damages recoverable therefore are the pecuniary loss actually sustained by the plaintiff by reason of the wrongful acts of the defendant. They are tw o: first, the detention of the books for some period, not very long, after htli July; and, second, the delay in giving the plaintiff copies of the documents. There is no evidence whatever that he sustained any pecuniary lo.ss in respect of either matter. The case seems to have gone to the jury as a case of genei-al oppressive action on the part of the Customs for which the jury should give what damages they thought the defendant ought to pay. There was no evidence of
any specific loss.
It does not appear that the plaintiff sustained
damages to the extent of one farthing. It is obvious, therefore, that the amount of damages awarded is excessive. The plaintiff was only entitled to be compensated for the actual pecuniary loss that he could prove that he sustained. I do not mean that that must be assessed in porinds shillings and pence, but there must be some proportion between the damages awarded and the possible injury sustained by the loss of these documents, most of which related to old transactions very likely long since closed and done with.
It follows, in my opinion, that the defendant is entitled, if it desires it, to a re-asse.ssment of damages on the fifth and sixth counts. Otherwise the motion will be dismissed, and in either case the plaintifl'should pay the costs.
(5) (1905) A.C., 115.
118 HIGH COURT
[190G,
| H. | C. OF A. Bartox j. As I agree witJi His Honor the Cliief Justice in | |
|
B aumklie has stated in his judo'uient, I content myself with concurring.
V.
T h e C ommon-
WEALTH.
O ’CuXXOR J. The plaintiffs claim in this case naturally’ divides
O’Oonnor Jitself into two parts, first, that the Commonwealth by its officers
has wrongfully interfered with his right to the possession of his goods, namely, his merchandise, books, invoices and other papers ’ secondly, that the Commonwealth by its officers has wrongfully" failed to carry out the obligations to the plaintiff as an importer of goods which the Customs Act has imposed upon it. In regard to the plaintiff’s claim as to his merchandise, the learned Chief Ju.stice at the trial ruled that he could not recover, and on those counts a verdict was returned by His Honor’s direction for the defendant. In that ruling I entirely concur. With regard to the claims relating to the books and invoices the plaintiff 1‘ecovered a verdict. The reasons which lead me to the conclusion at wJiicli I have arrived on that point I shall state later on. In the first place I will state why in my opinion the plaintiff’s claim in regard to his merchandise cannot be sustained.
In the consideration of this (piestion the Customs Act 1901 is really the ba.sis of the claim and of the defence. The whole case, therefore, depends upon wliat are the rights of the Common wealth and what are the rights of the plaintiff under that Act. But before dealing with the Act it is necessary to consider the contention of the defendant that it is not liable in respect of any of these claims because the Commonwealth is entitled to av'ail itself of the old rule that an action of tort cannot be
brought against the Crown.
In face of the provi.sions of secs. 56
and 64 of the Judiciary Act 1903 it is impossible to support that contention. Long before the passing of the ConstitiUion Act the several States of Australia had brought the law with regard to claims against the Government more into conformity with modern notions of fairness and common sense than those which prevailed in the days when the maxim was strictly uplield; and in all the States, in some form or other, it was possible to bring an action of tort against the Crown. Before the passing of the Constitution Act there had been an authoritative decision of the
4 C.L.U.] OF AUSTRALIA.
119
Privy Council in Farnell v. Bowman (1), as to the meaning of the Act in New South Wales which had brought about this
change in the law. It was held in that case
that the Act gave a Bacmk
subject the same rights against the Crown as he would have x h e C o m .mo.v- against a subject, with regai-d to all matters of tort and contract. w e a l t h . That Act was in much the same language as sec. 54 of the o ’Connorj. Judiciary Act 1903, and it was held that a right of action for
tort against the Crown was there given. The Constitution of the Commonwealth, sec. 48, gave power to Parliament to make laws regulating proceedings by subjects against the Common wealth and against the State, and that power was at first exercised by the Commonwealth in pa.ssing a temporary Act in 1902, called the Claims against the CommonweaWt, Act 1902. In that Act, sec. 2 sub-sec. 3, the rights of the public in such an action were de.scribed by the same phrase as that used in sec. 64 of the Judiciary Act 1903. It was enacted that the rights of parties in actions against the Commonwealth should be as nearly as possible the same as in actions between individuals, following the words used in the New South Wales Act, which had been
under consideration in Farnell v. Bowman (1).
The Act of 1902
was a temporary Act, and was repealed by the Judiciary Act 1903, which now contains the law on the subject. The temporary Act of 1902 gave a right merely to petition the Crown in the form of a petition of right and it uais in the power of the Government to appoint a nominal defendant, but if the Govern ment refused to do so the subject had no remedy. But the Judiciary Act 1903, as if to emphasize the equality of subject and Crown in litigation, gave the right directly to the subject to sue the Commonwealth or the State, and declared that when the action was brought, the rights of the person suing were to be the same as in an action against an individual. The law with regard to claims against the Commonwealth now stands in that position. The Coinmonwealtli acts, as all Governments must act, by its servants, and whenever the relation of the Commonwealth to its servants is such that in a similar case an individual would be liable for the acts of his servant, the Commonu'ealth is liable for the acts of its servants. This applies to cases of
(1) 12 App. ( 'as., 643.
120 HIGH COURT
[1906.
| H. | C. OF A. contract, cases of wrongful interference with property, and cases | |
|
B̂ ume plaintiff must show, against the Commonwealth just as against an individual, that some wrong has been committed by the
1 h e C o m m o s -
’ ”
.
WEALTH. Commonwealth through its servants, for which the Common-
o ’Connor J. Wealth is responsible, or that some duty has been imposed upon
the Commonwealth, either directly or through its servants, for
a breach of which the Commonwealth is liable.
Before dealing with the application of this principle to the several claims under consideration I shall refer to the sections of the Customs Act 1901 from which the defence on the part of the Commonwealth is to be gathered, and upon which also rest the causes of action for breach of duty upon wdiicli the plaintiff' relies. There is a group of sections in the Customs Act 1901, extending from sec. 30 to sec. 48, under the general heading of “ Customs
Control Examination Entries and Securities generally.”
Sec. 30
declares that “ Goods shall be subject to the control of the Customs as follows ;—{a) As to all goods imported—from the time of importation until delivery for home consumption.” I need not quote the rest of the section. There can be no delivery for home consumption until the entry is passed, and passing the entry can be effected only by the signing of the entry by the collector. The goods are therefore under Customs control from the time of importation until the collector signs the entry; and not only is there a right in the Customs officers or the collector to keep possession of the goods, if they think fit, during that period, but there is a statutory prohibition against anyone interfering with the goods unless by the authority and in accord
ance with the Act.
That is expressly provided by sec. 33.
Therefore until the entry has been signed by the collector it is clear that the importer has no right to the possession of the goods. In this case as soon as the entry was signed by the collector the goods were delivered up, and therefore it seems to me that the answer of the Commonwealth that it is protected in respect of claims as to interference with the merchandise is completely justified by those provisions of the Customs Act 1901. But the plaintiff put his claim on another ground. Assuming that he could not get po.ssession of the goods until the entry was
4 C.L.li.] OF AUSTRALIA.
121
fiigned, he contends that tlie collector was guilty of a breach of R- O. of a.
duty in not si^nin^ the entry.
An examination of the sections
relating to the duties of the collector will demonstrate that no such
b.acme
cause of action can be maintained.
The principle underlying the x h e C ommon-
whole of these sections relating to dealing with goods under
w e a l t h .
Customs control is that the Cu.stoms shall keep control of the
o ’Connor j .
goods until duty is paid. In regard to duties which are specific in amount, and as to which the only questions of fact that are likely to arise are as to weight, (luantity, or number, there is generally very little difficulty. But where duty is chargeable according to value altogether different considerations arise. The duty cannot be determined without the determination of the value, and the fir.st question that must arise, in comsidaring the rights of the importer and the rights of the collector is who is to determine for the time being, for the purpose of freeing the goods from Customs control, what the duty is. That responsibility is imposed upon the collector, and necessarily so. The collector, for the purpose of carrying out that duty, has a number of powers under difierent sections of the Act, to wdiich I need not now refer in detail, for the purpose of ascertaining value in order that the proper amount may be demanded and paid before the goods are released from Customs control. In a case like the present the (piestion of value is to be determined on the principle embodied in sec. L5I. The value shall be taken to be the fair market value of the goods in the principal markets of the country whence they were exported, and in order to ascertain what is the fair market value of the goods in the principal markets of the country whence they were exported, it may be necessary, as it may have been necessary in this case, for the collector to make inquiries. He is not bound to take the statement of the importer as to the value of the goods. He is entitled to make inquiry for himself. In this case it would be necessary to make inquiries in London as to the market value of goods of this kind, and to in()uire into all the circumstances under which the goods were imported from Switzerland to London and sold there, and the value which under the circumstances they would have in the London market. While that inquiry was going on, the collector was ju,stifled in delaying delivery of the goods until he had
122 HIGH COURT
[1906.
| H. | C. OK .A. satisfied himself as to their value. One of the complaints of the | |
|
B aumkduty was, and he says that, if he had been informed, he would
V.
have paid it.
He contends that the collector was bound to
T hisC ommon
WEALTH.
inform him of the amount of duty claimed. I can see no such
duty imposed by the Act upon the collector. He is not called
O’Connor J.
upon to make a guess as to value, but to ascertain the value. If it is impossible to ascertain that without m a k i n g - inquiries which involve dela}', it is unfortunate for the importer, but if it is the collector’s duty to make those inquiries, there is no remedy. Looking, therefore, at the whole of these sections regulating the duty of the collector in dealing with imported goods, it is plain that the collector is appointed by the Act to adjudicate for the time being on the question of value. It is left to his judgment and discretion to decide, and so long as he uses his position in the inquiry honestly there can be no claim even against him for detaining the goods pending incjuiry, nor is he under any obliga tion to come to anj' ĵ ^̂ Hicular conclusion as to value, or to pass the entry on presentation or tender of any particular duty by the importer. That being so, if this action had been against the collector, it seems to me impossible that the plaintiff could succeed in his allegation of a breach of duty. I may say, in regard to that part of the case, I agree with my learned brother the Cliief Justice, that the cases that have been referred to— Barry v. ArnaiuL (1), and Barrow v. A rnaad (2)—do not apply. Both those were cases in which the liability of the goods to duty was a pure question of law. Even if the question to be deter mined b}' the collector here were a pure (juestion of law, I very much doubt whether those decisions would apply to a case under the Customs Act 1901, but it is not necessary to decide that ques tion. Certainly where the duty of determining the value is ca.st upon the collector as in the pre.sent case, they can have no application. But assuming that the collector would personally be liable, there still remains the question whether the Common wealth is liable for the acts of the collector. As I .stated in the earlier part of my judgment, with regard to the liability of the Commonwealth in a suitor action by a subject, the liability of
(1) 10 A. & E., 646.
(2) 8 Q.B., r>9o.
4 C.L.ll.l OF AUSTUALiA.
123
tlie Commonwealtli for tlic acts of its servants depends altog-etlier o*'"
upon tlie relation of the Coininonwealth to its servants in
regard to tlie particular matter in question. Xo doubt there are
B acmk
and special duties upon its officers, quite ditierent considerations arise. If the Statute imposes a duty upon the Commonwealth, the Commonwealth is liable for the breach of that duty by its servants. But it does not follow that because the Statute imposes a duty upon the servants of the Commonwealth the Common wealth is liable for the breach of the servant’s duty. The obligation may be placed upon the servant in such a way that a duty on the Commonwealth may be necessarily implied. But the form of the Statute and the words of the legislature must be considered in every case. In this case the duty of ])a.ssing of the entry, and the control of the goods while the amount of duty is being considered, are placed upon a desig nated officer, the collector, who is invested not onlj’ with the carrying out of certain administrative duties in regard to the goods, but also with the responsibility of deciding according to his own discretion as to the amount of duty chargeable, and as to how they are to be disposed of in the meantime. As that duty is imposed upon the collector and not upon the Commonwealth, it appears to me that the collector is the officer designated to dis charge tliat duty, and, his duties being .so particularly specified, the case comes within the principle of Tobin v. The Queen (1) and Enemv v. The Kinxj (2), which were referred to by my learned brother the Chief Justice. Where the officer of the Government has imposed upon him a particular duty, the respon sibility to discharge which, according to his discretion, rests upon him, the Coinmonn^ealth is not liable for his failure to discharge it, or for his failure to come to a correct conclusion where a matter of judgment is involved. That being so, it appears to me that there can be no claim in this case against the Commonwealth for the breach of duty alleged in regard to the passing of entries
many cases in which the Commonwealth is liable for all the acts x h e C ommon-
of its servants when acting within the scope of their authority, "ealth.
But where Parliament has regulated the administration of a o Connor j .
(1) IGC.B.N.S., .SIO.
(-2) ;{U.L.R., 969.
HIGH COURT
[1906.
H . C. OF A. by the collector, and, therefore, that the plaintiff’s claim in regard
to his merchandise is altogether without any foundation.
B a um e As to the claims with regard to the books, both parties at the
T h e C ommon apparently agreed to treat the claim as one for the detention
WEALTH, of the books and invoices for an unreasonable time, although the
claim in the declaration was not in that form. It must now be taken that that was substantially the claim. The rights of the importer and the rights of the Commonw'ealth witli respect to these particular invoices depend entirely upon the construction of secs. 214 and 215. It is undoubted that, when the demand was made for these books, goods had been detained, and tlierefore the position had arisen in which sec. 214 justifies the collector in retaining possession of the books and invoices dealing with the same class of goods for a period of five years before. Therefore, in the original taking and dealing with these books, the Common wealth were justified under sec 214. But it is said that the Commonwealth became liable for detaining the books unreason ably beyond the period allowed by secs. 214 and 215. Sec. 215 gives power to the collector to impound or retain documents presented in connection with any entry and required to be pro duced under the Act. It was contended by counsel for the Commonwealth that that section entitled the collector to keep possession of the documents as long as he liked without any question. I do not think that is the proper construction of the section. The words are “ impound or retain.” I think the collector is only entitled to retain the documents as long as is necessary for the purpose of dealing with the goods in relation to which the documents were originally impounded, and if he retains them for an unreasonable time beyond that period the Commonwealth is liable. There are various purposes for which the books and invoices might be detained. In some ca.ses it may be reasonable, where there are other questions arising with regard to the books and invoices, to detain them after the goods have been dealt with. But in other cases it might be quite unreason able to detain them. There must be this implied limitation on the power of the collector to detain documents that he has only a right to do so for as long a time as is reasonable under the circumstances.
O’Connor J.
4 C.L.R.l
OF AUSTRALIA.
Having regard to the rights given to the importer to have his H- C. of A.
goods freed from Customs control under the Act, it appears to me
that there is in this case evidence of detention for an unreason-
B a c .mk
able time.
That cause of action, like any other where the claim x iik Common-
is for a breach of a statutory obligation, can only be maintained " k alth . where actual damage has occurred by reason of the breach of o'ConnorJ duty. There is evidence from which it may be inferred that some
actual damage has occurred in this case; the action, therefore, is maintainable. The amount of damage is another matter. In the same way I think the plaintiff was entitled under sec. 215 to have certified copies of the documents which the defendant retained. It appears that he was not able to get certified copies of some of them. There also the question of damages must be considered. I entirely agree with the rule as to the damages which has been laid down by my learned bi’other the Chief Justice. The damages to be recovered are the damages incurred, which follow directly and naturally from the wrong complained of. There can be nothing in the nature of vindictive damages or punishment for the breach of duty.
Looking through the evidence in this case I find it almost impossible to discover any evidence of material damage arising from these causes of action, either for the detention of books and documents or for the failure to give certified copies. The verdict, therefore, of £750 for these causes of action, which were the only causes of action before the jury, is one which cannot be supported if the respondent wishes to have it .set aside on the ground that the damages are excessive. I therefore concur in the judgment of my learned brother the Chief Justice, that, with regal'd to the first four counts of the declaration the ruling of the learned Chief Justice of the Court below was right, and the verdict ought to be entered for the defendant; and with regard to the causes of action for which the plaintiff has recovered damages, that if the Com monwealth pre.sses its claim for a new trial, a new trial must be had for the re-as.sessment of those damages. The new trial, of course, must be limited to the question of damages.
Bavin, for the Commonwealth, informed the Court that the respondent did not desire a new trial for assessment of damages.
126 HIGH COURT
11906.
H. C. OF A. G r if f it h
C.J.
In tliat case the appellant’s motion will be
1906. dismissed with costs.
H a u m k
i \
T h e C'o m m o n -
Motion dismissed unth costs.
W E.AETH.
Solicitor, for the plaintiff, Mark Mitchell.
Solicitors, for the Commonwealth, Macnamara d Sm^th for
Not Foil
tlie Crown Solicitor for the Commonwealth.
Wanz
Dist
Bromberg v
O ’Brien
| (19901 101 | C. A. W. |
Cons FLR 270
R \ ’ Davis
1̂ 1989] 1 QdRCons
IS&'v
Lawson 33 Di>t
Schiffmann v
ACrimR 69
C L R 2 «
Discd
McCarthy V R
n9S5J WAR
| Foil ... | R V MuUirtS |
W m
^
Foil
SASR23
MalihrtyR
[HIGH COURT OF AUSTRALIA.]
Dist
Brombertv
O'Brien
%
NTR27
A p p e l l a n t ;
PRISCILLA I'RAINER
Indorsed/Cons
R V Cortic,
U . (1990) 50
ACnmR 391
Dist
R V
R espo n d en t .
THE KING
McKicnuni
^2M3] 2 QdR
ON APPEAL FROM THE SUPREME COURT OF
NEW SOU'J'H WALES.
H. C. OF A.
Griminnl Laiv--I!cceiviiirj stolen property—Goods the proyierty of pier son unknoim—
1900. Ihrideuce—Jlecent ])OSse,ssioH— Fal.se statement by person in piosseasion.
.Syn.NEy, The prisoner ivas found by the police in possession of certain sheep, anil, on
beinn questioned, gave an untrue account of tlie way in which they came into lier possession. Slie was cliarged witli stealing and witli receiving sheep tlie
Any. 20, 21.
Orirtith C..J., liartOM and property of some person or persons unknown. Except lier own statement
O’Connor J J .lliere was no evidence as to the ownership of tlie slieep, or as to their iiaving
| been stolen. .She was convicted of receiving. |
Hehl, tliat there was not sufficient evidence to support tlie conviction.
On an indictment for larceny or receiving no presumption adverse to tlie accused may be drawn from the fact that the goods alleged to liave been stolen or feloniously received were found in liis possession unless t'lere is evidence of
98
0
0