HIGH COURT OF AUSTRALIA
GLEESON CJ,
McHUGH, GUMMOW, KIRBY AND CALLINAN JJMALIKA HOLDINGS PTY LTD APPELLANT
AND
VIRGINIA STRETTON RESPONDENT
Malika Holdings Pty Ltd v Stretton [2001] HCA 14
15 March 2001
M14/2000ORDER
1. Appeal allowed with costs.
2. Set aside the orders made by the Court of Appeal of the Supreme Court of Victoria on 4 December 1998 and in place thereof, order that the appeal to that Court be dismissed with costs.
On appeal from the Supreme Court of Victoria
Representation:
B J Shaw QC with M A Dreyfus QC for the appellant (instructed by Vann Fisher & Associates)
G T Pagone QC with M M Gordon for the respondent (instructed by Australian Government Solicitor)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
GLEESON CJ. I agree that the appeal should be allowed, and with the reasons given by Gummow and Callinan JJ.
To ask whether s 167 of the Customs Act 1901 (Cth) ("the Act") constitutes the only means by which a person may challenge the amount and rate of, and the liability of goods to, customs duty invites consideration of the circumstances in which a person might need or wish to make such a challenge.
The manner in which the system of imposition of duties of customs operates, and the requirements affecting an entry of goods for home consumption, may well mean that, in most circumstances, a challenge of the kind mentioned will be made by a person who is compelled, in order to have the goods released, either to pay duty under protest pursuant to s 167, or to enter into an agreement upon terms and conditions satisfactory to the Customs authorities. Such an agreement might have the same practical effect as s 167.
However, as the facts of the present case illustrate, circumstances could arise in which the authorities are not in such a position of advantage. Because of the chain of events leading up to the dispute, the Collector of Customs found it necessary to commence an action to recover a debt. In part, the action was based upon an agreement made by the appellant. There is a dispute as to the meaning and effect of that agreement. It does not arise in the present appeal. There was also a claim based upon a demand made under s 165 of the Act; but there is a dispute as to whether a valid demand was made. Again, that issue does not presently arise. The statement of claim alleges that the amount of duty payable in respect of the subject goods was $44,540.77 which constitutes a debt due and payable to the Crown. That allegation is to be read in the light of s 153 of the Act.
The general rule in adversarial litigation is that it is for the party alleging a material fact, when that fact is put in issue, to prove the fact. In the case…
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- Case
- [2001] HCA 14
- Decision Date
CaseChat Overview and Summary
The central legal issue before the High Court was whether section 167 of the *Customs Act 1901* (Cth) prevented the owner of goods from disputing the amount or liability to duty in proceedings initiated by the Collector for recovery, unless the duty had first been paid "under protest" and a separate action commenced for recovery. The Court of Appeal had held that the owner could not dispute the duty in the Collector's action unless this procedure was followed, requiring the owner to initiate a separate action if they wished to challenge the duty.
The High Court, by majority, allowed the appeal. The Court reasoned that section 167 of the *Customs Act* did not preclude an owner from disputing the rate or amount of duty, or the liability of goods to duty, in an action brought by the Collector to recover unpaid duty. The Court found that the owner could raise such disputes irrespective of whether the duty had been paid under protest. The Court's interpretation was that the owner was permitted to challenge the Collector's claim directly within the Collector's proceedings, rather than being forced to pay under protest and then initiate a separate action.
Consequently, the High Court allowed the appeal with costs, setting aside the orders of the Court of Appeal and dismissing the appeal to that Court with costs.
Orders
Orders of the court
1. Appeal allowed with costs.
2. Set aside the orders made by the Court of Appeal of the Supreme Court of Victoria on 4 December 1998 and in place thereof, order that the appeal to that Court be dismissed with costs.
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Established by: GLEESON CJ, HUGH J, GUMMOW AND CALLINAN JJ, KIRBY J
Full text does not contain this section.