Collector of Customs & Anor v Gaylor- v Dahlia Mining Co

[1995] HCATrans 296

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   Nos S21 and S28 of 1995

B e t w e e n -

COLLECTOR OF CUSTOMS and COMMONWEALTH OF AUSTRALIA

Applicants

and

GAYLOR PTY LIMITED

Respondent

Office of the Registry
  Sydney  No S22 of 1995

B e t w e e n -

COLLECTOR OF CUSTOMS and
  COMMONWEALTH OF AUSTRALIA

Applicants

and

DAHLIA MINING COMPANY LIMITED and NORTHWEST IRON COMPANY LIMITED t/a SAVAGE RIVER MINES

Respondent

Applications for special leave to appeal

BRENNAN CJ
GAUDRON J
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 OCTOBER 1995, AT 10.30 AM

Copyright in the High Court of Australia

_________________

MR A.J. SULLIVAN, QC:   May it please the Court, in each of these two matters I appear for the applicants with my learned friend, MR S.J. GAGELER.  (instructed by the Australian Government Solicitor)

MR D.F. JACKSON, QC:   If the Court pleases, I appear with my learned friend, MR A.ROBERTSON, for the respondents in each matter.  (instructed by Blake Dawson Waldron and Phillips Fox)

BRENNAN CJ:   Mr Sullivan.

MR SULLIVAN:   Your Honours, the central issue in each of these applications is whether the legislative scheme comprised by sections 167 and 273GA of the Customs Act provide for two separate and truly alternative and discrete remedies, one of which is purely a general law remedy as modified by the statute and the other which is a purely public or administrative law remedy or whether, on the other hand, rather than a purely administrative law remedy the scheme provides for a type of hybrid remedy, namely a hearing pursuant to administrative law concepts in respect of liability and a right to recovery based on the private law.

BRENNAN CJ:   What is the administrative law remedy?

MR SULLIVAN:   The administrative law remedy, your Honour, is a review of the decision through the Administrative Appeals Tribunal.

BRENNAN CJ:   That leads to a decision as to what the amount of the duty should be.

MR SULLIVAN:   Yes, your Honour.

BRENNAN CJ:   What is after that?

MR SULLIVAN:   After that, according to the decisions below, then there is a choice provided, in effect, for the person who has been the beneficiary of the tribunal’s decision as to whether to pursue recovery by way of common law for money had and received or the like or, alternatively, by some public law route.

BRENNAN CJ:   What is the public law route?

MR SULLIVAN:   The public law route, we would submit, is by way of mandatory order or mandamus pursuant to the provisions either of the Administrative Decisions (Judicial Review) Act in respect of a mandatory order or, alternatively, mandamus by reason of the implied duty of the Collector to repay amounts which have been levied and which are incorrectly levied, if one uses that expression loosely, in the light of the preferred decision of the tribunal.

BRENNAN CJ:   What happens to money that is paid to the Collector to start with?

MR SULLIVAN:   The money which is paid to the Collector to start with, your Honour, is paid into consolidated revenue in due course.

BRENNAN CJ:   What authority has the Collector to take the money out of consolidated revenue?

MR SULLIVAN:   The Collector has no authority to take it out of consolidated revenue once paid and prior to a decision of the Administrative Appeals Tribunal. Subsequent to the decision in the Administrative Appeals Tribunal the power, in our respectful submission, is one to take the moneys out because he is under an obligation, and indeed Justice Davies in the Federal Court has held this, to give effect to the Administrative Appeals Tribunal’s decision by repayment of the moneys. His Honour Mr Justice Davies says that arises by necessary implication of section 273GA and/or alternatively by reference to provisions of the Administrative Appeals Tribunal Act.

BRENNAN CJ:   Without Treasury warrant?

MR SULLIVAN:   Yes, your Honour.

BRENNAN CJ:   What is the statutory provision which so allows that remarkable course to take place?

MR SULLIVAN:   Justice Davies’ reasoning - the decision of Justice Davies is Collector of Customs v LNC (Wholesale) (No 2) 11 AAR 76. In a factual situation not dissimilar to the present case, where there was a valuation of particular imported items, that valuation was overturned by the Administrative Appeals Tribunal or a new decision was substituted and the Collector was reluctant to make repayment. His Honour held that the Collector was indeed obliged by necessary implication of section 273GA and the Administrative Appeals Tribunal Act.  His Honour’s reasoning commences at page 80 and his Honour says at the foot of page 80:

The AAT Act and s 273GA of the Customs Act, by necessary implication, confer power upon the Collector to give effect to any decision of the Administrative Appeals Tribunal made within its jurisdiction:

He cites some cases for that proposition.

Such a power is one which the Collector has a duty to exercise:.....Thus, if the Tribunal sets aside a decision of the Collector and remits the matter for action by the Collector with a certain direction, it is the duty of the Collector promptly and impartially to give effect to the decision of the Tribunal.  Performance of that duty will be enforced if necessary by this Court by a mandatory order.

Then his Honour confirms that approach or states a similar statement further down the page on page 81 at about point 6 in the passage starting:

However, no application for a refund had been made under s 163 -

and at the end of that paragraph his Honour says this:

The Collector has both the power and the duty to give effect to a decision of the Administrative Appeals Tribunal made within its jurisdiction.

And for final emphasis his Honour says the same thing at the top of page 82, the first full sentence:

As the direction was inappropriate it should be omitted -

that is the direction of the tribunal where the tribunal actually directed the Collector to do something, but his Honour said although that was an inappropriate direction, even without it, he says:

I make it clear again that the Collector has both a power to give effect to the decision of the Tribunal and a duty to do so promptly and in good faith.

So far as the power is concerned, your Honours, just as prior to the enactment of section 273GA the courts have recognised that implicit in section 167(2), the old general law route to recover moneys, the fact that the Parliament has invoked that provision - put that provision in and given a power to recover the moneys would be the warrant for the Collector, if you like, to pay the moneys.

In our respectful submission the fact that the Parliament has invoked a procedure or permitted a procedure to be invoked by the administrative law route under section 273GA, the correlative duty arises, according to the legislature’s intention, that in the event that the tribunal substitutes its decision for that of the Collector, then as Justice Davies says, there is then a duty on the Collector to repay in accordance with the revised decision.

GAUDRON J:   Which you say is enforceable only by mandamus.

MR SULLIVAN:   We say that under the scheme of this provision, yes, that the intention of the Parliament quite plainly was to give two truly discrete and alternative courses of action.

GAUDRON J:   Obviously it was not.  If you have to go by way of mandamus, obviously it was not; it was recognised that the administrative law route was incomplete.  It was not realised; it follows from everything you have said that the administrative law route is incomplete.

MR SULLIVAN:   Your Honour, we respectfully submit to the contrary, that something ‑ ‑ ‑

GAUDRON J:   If you must get mandamus by way of remedy, if you must go that other step in a case where the Collector does not pay, it is incomplete, is it not?

MR SULLIVAN:   We, with respect, say not, your Honour.  We say that something is not incomplete because the remedy is not expressly stated in the legislation.  Indeed, that was, in our respectful submission, the effect of the approach adopted by this Court in the Royal Insurance Case which we will take your Honour to, and also in several other cases, one called Peverill.  There is a short discussion by your Honour the Chief Justice and also in a decision of the Full Federal Court called Walker, which we will take your Honours to.  But what we say is that if by necessary implication under section 273 there is an administrative law remedy available, and indeed where there are statements of this Court and other courts which say the appropriate way to enforce an administrative law decision is an administrative remedy, then it is not incomplete because one does not simply spell out the right to go by way of mandamus, in the unlikely event, we should hasten to add, your Honours, that the Collector would not honour and obey, in any event, without the need to go to a court proceeding, the dictates imposed indirectly by reason of that administrative decision.

GAUDRON J:   But do you not then come back, assuming mandamus, to the point that the Chief Justice gave to you.  If you go by way of mandamus, the Collector can say you cannot compel me to do it because I have got no authority to withdraw the money from consolidated revenue.

MR SULLIVAN:   We would respectfully submit that the reasoning of his Honour Justice Davies deals with that point, that by reason of the legislature giving the citizen the right to seek to query the decision, the correlative obligation, which must be upon the Collector, is to repay moneys in the circumstance where the tribunal’s decision is different to the original one and hence there is a legislative mandate or fiat for him to make those payment.  We respectfully submit that although in the Royal Insurance Case which we will take your Honours to briefly in a moment, it is true that your Honours there had a particular provision of the Stamps Act in Victoria, namely section 111, which was expressed in facultative terms, a discretionary right to refund, but your Honours in that case held that in the particular circumstances that facultative right may become a mandatory obligation.  That was on a matter of construction of the section and on the circumstances.

But we respectfully submit as a matter of principle there is no difference here where you have a section like 273GA which clearly provides for a mechanism for review of the decision and which, according to the explanatory material, was intended as a true alternative. The opposite conclusion, the conclusion opposite to what we put, involves this proposition, that in enacting section 273GA of the Customs Act the legislature intended, at least in part, to repeal section 167(4) of the Customs Act.  Your Honours will be familiar with what this Court said in Tanner’s Case about the circumstances in which an implied repeal of legislation will be held to have occurred.  To put it shortly, your Honours in a joint judgment of which your Honour Justice Gaudron was a member, said that what you look for is some repugnancy or manifest inconsistency between the earlier provision and the later provision and said that it was a comparatively rare phenomenon where the Court would find an implied repeal.

McHUGH J:   Does that necessarily arise?  Looking at it, is not the most likely inference to be drawn that the Parliament just never addressed itself to the consequences of going the administrative law route and therefore one is thrown back on the common law action?

MR SULLIVAN:   With great respect, we say that that is not so for two reasons:  first, you would not impute to Parliament an ignorance of an administrative law or public law remedy.

McHUGH J:   But why would they not have said so expressly, particularly having regard to the terms of 167(4)?

MR SULLIVAN:   Because, with great respect, there is no need to say so expressly. There is expressed in the Constitution in section 75(v) a right to mandamus against a public officer. It is the natural corollary, and a well-known corollary, of a public officer under a duty to act failing to act, that a mandatory order is available against them. And indeed, a mandatory order is specifically provided for ‑ ‑ ‑

McHUGH J:   Which implies that he has got an obligation, a legal obligation, enforceable in the courts, to repay it, without any adjudication by the ordinary courts of justice.

MR SULLIVAN:   Yes. Your Honour, in our respectful submission, given that, the section 273GA provides for a hearing by the, if I can use that expression loosely, the Administrative Appeals Tribunal, the effect of which is to substitute the tribunal’s decision for that of the original decision maker. The consequence of that, of course, is that once that decision of the AAT is handed down, the basis upon which the Collector has originally taken the money has disappeared, he has no right, in other words, to keep that money, in our respectful submission the reasoning of Justice ‑ ‑ ‑

McHUGH J:   He does not.  The money has gone into consolidated revenue.  One would have thought you would need something to get it out.

MR SULLIVAN:   Your Honour he has, just as he has under section 167, in our respectful submission, if there is a judgment made against him ‑ ‑ ‑

McHUGH J:   Then you can call on the Judiciary Act.

MR SULLIVAN:   And, your Honour, there is express power to refund, in any event, duties under section 163 of the Customs Act and under regulation 126. It says refunds may be made in respect of goods generally. That provides the legislative warrant, in our respectful submission, to enable him to make a refund of duty in circumstances where he has been told that a decision other than the decision he originally made is the preferred one by the Administrative Appeals Tribunal. So if there need to be a legislative warrant other than by necessary implication of section 273GA, we respectfully submit that that is afforded by the Customs Act already.

BRENNAN CJ:   That being so, assuming that that power is there, the next problem is why does the existence of that power exclude the common law cause of action?

MR SULLIVAN:   Your Honour, the question really, in our submission, is slightly different to that posed by your Honour, and it is why would the common law cause of action be revived, having already been excluded except in limited circumstances, by reason of the enactment of section 273GA if there is already a remedy available for a person who is the beneficiary of a decision in the Administrative Appeals Tribunal.

BRENNAN CJ:   It is not a question of reviving a cause of action.  The situation is that a demand is made for duty in the sum of X dollars.  The decision that the duty payable is X dollars is subject to review by the AAT.  The AAT decides that the amount is not X dollars but X minus Y dollars.  So that the amount that has been paid pursuant to the demand has been paid in an excessive amount to the extent of Y dollars.  The Collector has Y dollars in his possession and the taxpayer or the person entering the goods is entitled to that Y dollars.  Now, why does that not give rise to a cause of action?

MR SULLIVAN:   In our submission the reason why it does not is section 167(4) of the Act.  That is set out in the appeal book, your Honours, at page 53 in the judgment of Justice Cole in the Court of Appeal below.  That provides that:

No action shall lie for the recovery of any sum.....unless -

relevantly the claim is made within six months of the date of payment. That has been held, indeed the Court of Appeal below, for instance, acknowledged that in the absence of a claim under section 273GA that

would preclude an action for the recovery of money outside that six month period. Here, of course, the action for the recovery of money is well outside that period, years outside that period. So what section 167(4) did was to restrict very much what would otherwise be a common law right of recovery and to so read section 273GA as to say, well, despite that provision, you have a right to recover moneys now at general law must, in our respectful submission, amount to a finding that pro tanto section 167(4) is repealed by the subsequent enactment of section 273GA and, as we say, one would only do that if there was some repugnancy between the two provisions, then in our respectful submission because of the availability of the administrative law remedy, there is no such repugnancy.

Indeed, we would also respectfully submit that it makes wholly common sense that the Parliament has intended to have a general law remedy on the one hand, a pure one, and on the other hand a pure administrative law remedy because the election is given not to the Collector but to the person aggrieved by the original decision.  That person can choose which of the two routes it wishes to pursue.  There are corresponding advantages and disadvantages.  One is familiar with the fact that many people choose to go the route of the Administrative Appeals Tribunal because of its informality, the relaxation of the rules of evidence, there is no worry about having a costs order against you, matters of that sort.  A limited right of appeal may be of appeal.  So that there are corresponding advantages and disadvantages one may see, but the legislative says you the aggrieved party choose.

We respectfully submit, for the reasons we have put in answer to the arguments and, more importantly, for the reasons we have put in our outline of submissions which we have not had time to delve into, that this is a proper vehicle for special leave.

BRENNAN CJ:   We need not trouble you, Mr Jackson.

The Court is of the opinion that the decisions of the Court of Appeal are not attended with sufficient doubt to warrant a grant of special leave to appeal.  Accordingly special leave is refused.

MR JACKSON:   We ask for costs, your Honours.

MR SULLIVAN:   Nothing to say, your Honour.

BRENNAN CJ:   Refused with costs.

AT 10.51 AM THE MATTER WAS CONCLUDED