Customs—Entry of goods for home consumption—Goods subject to control of customs—Export—Certificate of clearance—Issue prohibited unless all other requirements of law complied with—Whether restricted to requirements of customs law—Issue in contravention of Banking (Foreign Exchange) Regulations—Customs Act 1906-1968 (Cth), s. 122. Tort—Action on the case—Unlawful, intentional and positive act inevitably causing loss to another—Whether intention to harm essential—Issue of certificate of clearance by Customs in contravention of Banking (Foreign Exchange) Regulations. Conversion—Co-owners—Denial of title—Sailing of yacht contrary to wishes of minority co-owner—Issue of certificate of clearance by Customs to majority owners contrary to wishes of minority—Yacht thus enabled to leave port—Jus tertii.

Decisions

1973, November 13
MASON J. delivered the following written judgment :-
In this action the plaintiff, who is a Japanese national, sues the defendant, the Commonwealth of Australia, for damages for breach of statutory duty, negligence, conversion and by way of action on the case. The causes of action all relate to the yacht "Akitsushima", thirty-six feet in length, which was registered in the shipping register of the Prefecture of Hyogo, Japan. The plaintiff claims that he was at all material times the owner of approximately a nine-tenths interest in the yacht, the remaining undivided interest being owned by one Norio Matsushita. (at p156)

2. The yacht commenced a round-the-world voyage in 1970. It was, so the plaintiff claims, under his command, with a crew of three of whom Matsushita was the sailing master (as distinct from master), Nagahama and Fujikawa being the remaining members of the crew. In the course of its voyage, on 27th May 1971 the yacht entered the port of Brisbane from which it departed on 26th June 1971 and proceeded to Darwin, calling on the way at the ports of Gladstone, Bowen, Townsville and Thursday Island. The plaintiff claims that the yacht was imported into Australia, entered for home consumption and became subject to the control of the Department of Customs and Excise. (at p156)

3. At Darwin a serious dispute arose between the plaintiff and the other members of the crew. They made it clear to the plaintiff that they desired to return home to Japan and that they did not wish to continue with him on the round-the-world voyage. According to the plaintiff, on 21st August 1971 the crew mutinied and he was forced to leave the yacht and reside ashore. The plaintiff then claims to have dismissed Matsushita from his position of sailing master of the vessel and made arrangements for his repatriation to Japan, notifying the Darwin Customs authorities of these events. The plaintiff had earlier on 20th August 1971 sought a certificate of clearance under the Customs Act so as to enable the yacht to depart from Darwin. (at p157)

4. On 26th August 1971 the plaintiff became aware that Matsushita and the two crew members intended to depart from Darwin in the…

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.

Continue reading Kitano v The Commonwealth

Details

AGLC: Kitano v The Commonwealth [1974] HCA 31
Case: [1974] HCA 31
Decision Date: 22 August 1974

CaseChat Overview and Summary

Kitano v The Commonwealth concerned a dispute between the plaintiff, Mr. Kitano, and the defendant, the Commonwealth of Australia. The case came before the High Court of Australia, with judgment delivered by Mason J. on behalf of the Court. The central issue revolved around the validity of certain regulations made under the *Migration Act 1958* (Cth) and their purported application to Mr. Kitano, who was an alien.

The High Court was required to determine whether the regulations, specifically those purporting to grant the Minister power to deport aliens who had entered Australia without a visa, were validly made and whether they could lawfully be applied to Mr. Kitano. This involved an examination of the scope of the executive power of the Commonwealth, particularly in relation to immigration and the control of aliens, and the extent to which such power could be delegated to the Minister through subordinate legislation.

The Court reasoned that the power to deport aliens was not an inherent executive power of the Commonwealth but rather a power that must be conferred by Parliament. While the *Migration Act* did grant broad powers to the Minister, the regulations in question were found to exceed the scope of the authority granted by the Act. Specifically, the Court held that the regulations, as framed, attempted to create a power of deportation that was not authorised by the enabling legislation, thereby rendering them invalid. The principle applied was that subordinate legislation cannot validly go beyond the powers conferred by the parent Act.

Consequently, the High Court found that the regulations were invalid and could not be relied upon to deport Mr. Kitano. The Court made orders accordingly, effectively quashing the attempt to deport the plaintiff under the impugned regulations.

Orders