Narish Holdings Pty Ltd v The Commonwealth of Australia

[1989] FCA 320

Re: NARISH HOLDINGS PTY LTD
And: THE COMMONWEALTH OF AUSTRALIA; BRIAN LEO CODY (Collector of
Customs for the State of Victoria) and THOMAS PLUNKETT HAYES
(Comptroller-General of Customs)
No. VG 147 of 1988
FED No. 320
Practice and Procedure - Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Davies J.(1)

CATCHWORDS

Practice and Procedure - application to amend after judgment delivered and order taken out - whether power to do so - construction of reservation of leave.

Administrative Law - damages.

Customs Act 1901 (Cth) - ss. 266, 267, 273

Customs Securities (Penalties) Act 1981 (Cth)

Customs Undertakings (Penalties) Act 1987 (Cth)

Customs Tariff Act 1982 (Cth) - Schedule 3

Judiciary Act 1903 (Cth) - s.39B

Park Oh Ho and Ors v. Minister for Immigration and Ethnic Affairs (Unreported, 29 March 1988, Federal Court of Australia, Davies J.)

Park Oh Ho and Ors v. Minister for Immigration and Ethnic Affairs (1988) 81 ALR 288.

HEARING

SYDNEY

#DATE 30:6:1989

Counsel for the applicant: Mr J. Slonim

Solicitors for the applicant: Madden Butler Elder & Graham

Counsel for the respondent: Mr J. Batt Q.C. with Mr R. Tracey

Solicitor for the respondent: Australian Government Solicitor

ORDER

The motion be dismissed.

The applicant pay three-quarters of the respondents' costs of the motion.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

The applicant, Narish Holdings Pty Ltd, seeks to raise an issue in these proceedings which was not dealt with in my judgment delivered on 7 December 1988. The order made on that date, which was subsequently taken out on 19 April 1989, declared that certain goods brought to Australia by the applicant fell within sub-item 64.02.99 of Schedule 3 to the Customs Tariff Act 1987 and ordered, inter alia, that "Liberty be reserved to the applicant to apply for any other declaration or order as shall be meet." The present motion seeks to open up the question of damages, alleged to have been suffered by the applicant, and seeks to do so pursuant to the leave reserved or pursuant to an alleged power in the Court to reopen its proceedings.

1. The principal proceedings were commenced by an application lodged in this Court on 29 April 1988 which sought the following relief:-
   

"A. A declaration that the Respondents or any of them were not entitled to demand payment to the Commonwealth of Australia of any amount pursuant to in respect of or in connection with the Securities referred to in paragraph 12 of the Statement of claim. B. Injunctions (interlocutory and permanent) restraining the Respondents and each of them by themselves their servants or agents or howsoever otherwise from enforcing and further demanding of the Applicant the payment to the Commonwealth of Australia of any amount pursuant to in respect of or in connection with the securities referred to in paragraph 12 of the Statement of Claim. C. Injunctions (both interlocutory and permanent) restraining the Respondents and each of them whether by themselves, their servants or agents or howsoever otherwise from demanding of the Commonwealth Bank payment to the Commonwealth of Australia of any amount pursuant to in respect of or in connection with the securities referred to in paragraph 12 of the Statement of Claim.

D. Such further and other relief as the Court sees fit.

E. Costs."

A statement of claim was lodged with the application. Subsequently, pursuant to leave, the application was amended to add, inter alia, the following claim:-

"A. A declaration that tariff sub-item 64.02.999 applied to the footwear constituting the first shipment and the footwear constituting the second shipment referred to in the further amended statement of claim and that tariff sub-item 64.02.930 did not so apply."

The statement of claim was amended on at least two occasions, the last occurring during the course of the hearing, the hearing being adjourned for 24 hours to enable the statement of claim to be amplified and an amended defence delivered.

1. When all amendments had been made, the nature of the proceedings remained virtually unchanged. The applicant sought the relief outlined in the application as originally filed and in addition a declaration as to the proper classification of the goods. The issue as to the classification was, in any event, inherent in the issues raised by the original application.

2. The dispute arose out of a concessional tariff quota scheme. The applicant had acquired a quota for the importation at concessional rates of goods falling inter alia within sub-item 64.02.99 of the tariff. The quota entitled the applicant to import such goods on or before 31 December 1987. The applicant both undertook that it would import the goods for which it had quota and provided securities against breach of its undertaking so to do. The relevant legislation was ss.266, 267 and 273 of the Customs Act 1901 (Cth), s.4 of the Customs Undertakings (Penalties) Act 1981 (Cth) and s.4 of the Customs Securities (Penalties) Act 1981 (Cth).

3. In December 1987, the applicant brought into Australia certain shipments of footwear, thongs, and sought to enter those goods under sub-item 64.02.99. Officers of the Collector of Customs refused to accept such an entry, alleging that the thongs were dutiable under tariff sub-item 64.02.93. Some of the goods were so entered and the others were placed in bond.

4. Subsequently, the Registrar of Tender Quotas sought to enforce the securities which had been furnished by the applicant and by its banker, the Commonwealth Bank of Australia. The Registrar acted on the footing that the applicant had failed to import the quantity of goods for which it held quota and had so breached its undertakings. The applicant then commenced proceedings in this Court seeking a finding that there was no relevant breach of the undertakings as the importation of the goods into Australia had been prevented by the refusal of officers of the Australian Customs Service to accept a correct entry for the goods. The application sought injunctions to prevent the enforcement of the securities and a declaration as to the classification of the goods.

5. The Court had jurisdiction to deal with the applicant's claim under s.39B(1) of the Judiciary Act 1903 (Cth) which provides:-
   

"The original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth."

1. In my judgment of 7 December 1988, I upheld the applicant's claims. I declared that certain thongs which had been tendered in evidence fell, for customs duty, under sub-item 64.02.99. I did not then make a declaration covering all of the goods which the applicant had brought to Australia for officers of the Collector of Customs had not then inspected the goods held in bond. I reserved leave to apply, primarily to give to the Collector an opportunity to carry out any necessary inspection of the goods so as to satisfy himself that all such goods were, as the applicant alleged, similar to the thongs tendered in evidence. An injunctive order was not made at that stage; but the reservation of leave was intended to authorise the applicant to seek such an order should the making of an order become appropriate and necessary. In brief, leave was reserved so as to permit the parties to attend to those final matters surrounding the subject matter of the proceedings as had still to be attended to.

2. The securities were not in fact cancelled and returned until 13 June 1989. One of the purposes of the present motion, which was lodged on 30 May 1989, was to seek an order for the cancellation and the return of the securities. Mr J. Batt Q.C., with whom Mr R. Tracey of counsel appeared for the respondents, submitted that the Court did not have power to make such an order. Mr Batt referred to Cristel v. Cristel (1951) 2 KB 725 where Somervell LJ. said at p 728:-
   

"Prima facie, 'Liberty to apply' is expressed, and if not expressed will be implied, where the order drawn up is one which requires working out, and the working out involves matters on which it may be necessary to obtain the decision of the court. Prima facie, certainly, it does not entitle people to come and ask that the order itself shall be varied."

Mr Batt also referred, inter alia, to Stephen v. Stephen (1931) P 197, Nicholson v. Nicholson (1974) 2 NSWLR 59, In re Porteus deceased (1949) VLR 383, Phair v. Powell (1880) 6 VLR (Eq) 177 and Dowdle v. Hillier (1949) 66 WN (NSW) 155.

1. However, a reservation of leave must be construed having regard to the context in which it is made and the purpose of the reservation. There is no rule of law as to what a particular reservation of leave means or encompasses. In these present days, factors relating to efficiency promote the reservation of leave so that the ruling of a judge can determine those matters which ought to be determined by a court leaving to the parties the settlement of questions which can best be resolved by the taking of practical steps and by agreement. Where there is a reservation of leave, the question is always what did the reservation mean having regard to the judgment and the reasons delivered therefor.

2. Had it been necessary to do so, I would have entertained an application for an order that the securities be cancelled and returned or that an order by way of injunction issue preventing the enforcement of the securities. Such an application would have been within the ambit of the principal application. The reservation of leave was made so as to permit the parties to come back if necessary for the Court's ruling on such a matter. However, as the facts have transpired, such an application is no longer necessary and has not been pursued.

3. The present motion now seeks to reopen the proceedings so as to permit the applicant to claim damages.

4. However, the claim for damages is not based upon the Registrar's action in enforcing the securities. The claim appears to be founded on the failure of the Collector of Customs to accept the entry of the subject goods under sub-item 64.02.99.

5. This is a novel claim which was not made in the principal proceedings. It involves a different cause of action, if I may use that term in a non-technical way. There are common points of fact and of law between that claim and the claim made in the principal proceedings. The classification of the goods is one such common issue. But the claims themselves are distinct and different. The claim made in the principal proceedings centred upon the securities and the claim to enforce them. The claim now sought to be made focuses upon the Collector's failure to accept the correct entry for duty.

6. Nothing in my judgment of 7 December 1988 looked to the question whether the applicant was entitled to damages for the Collector's failure to enter the goods as sought under sub-item 64.02.99. Indeed, earlier in Park Oh Ho and Ors v. Minister for Immigration and Ethnic Affairs (Unreported, delivered 29 March 1988), I had said:-
   

"However, damages are not a remedy of judicial review and s.16 of the ADJR Act, which specifies the orders which the Court may make in its discretion when making an order of review in respect of a decision, does not include an award of damages. Until the passing of legislation such as is contained in s.64 of the Judiciary Act 1903 (Cth), it was not possible to obtain any award of damages against the Crown, for neither an action nor a Petition of Right could be brought against the Crown for a wrong committed by its officers. See Dicey's Law of the Constitution 8th Ed. p 556. Even now, a claim for damages from the Commonwealth must be based upon a civil wrong or a breach of contract."

This view was upheld on appeal in Park Oh Ho and Ors v. Minister for Immigration and Ethnic Affairs (1988) 81 ALR 288. See particularly the remarks of Morling J. at pp 309-310 and Foster J. at pp 317-318.

1. Nor, in my judgment, did I hold that the Collector of Customs was contractually bound to enter the goods in classification 64.02.999. I merely ruled, at p 27 of my judgment, that:-
   

"I accept the submission put by Mr Cavanough that the calling up of the securities was dependent upon there being a failure on the part of the applicant to fulfil its undertakings and that there was no relevant failure on the applicant's part, in as much as the non-compliance with the undertaking was brought about by the refusal by the Australian Customs Service to accept and pass an entry for home consumption which classified the goods in sub-item 64.02.99."

1. Accordingly, the issue as to damages is a new issue of which the best that can be said is that it has some matters of fact and law in common with the issues which were dealt with in the principal proceedings. Such a claim was not made and was not considered in the principal proceedings. It was not within the leave reserved in those proceedings.

2. Mr J. Slonim, who appeared for the applicant on the motion, submitted that his client was entitled to reopen the proceedings, the judgment being an "interim judgment", to use his term. But not withstanding that leave was reserved because not all the facts relevant to the claim before the Court had been determined, the judgment was not interim. It dealt finally with the issues before the Court, subject to the reservation of leave.

3. A judgment or order, once taken out, as the order in the principal proceedings has been, may not thereafter be altered save on appeal or under the Rules. Order 35 r.7 of the Federal Court Rules provides:-
   

"(1) The Court may vary or set aside a judgment or order before it has been entered.

(2) The Court, where it is not exercising its appellate or related jurisdiction under Division 2 of Part III of the Act, may if it thinks fit vary or set aside a judgment or order after the order has been entered where -

(a) the order has been made in the absence of a party, whether or not the absent party is in default of appearance or otherwise in default and whether or not the absent party had notice of the motion for the order;

(b) the order was obtained by fraud;

(c) the order is interlocutory;

(d) the order is an injunction or for the appointment of a receiver;

(e) the order does not reflect the intention of the Court; or

(f) the party in whose favour the order was made consents.

(3) A clerical mistake in a judgment or order, or an error arising in a judgment or order from an accidental slip or omission, may at any time be corrected by the Court.

(4) Sub-Rule (2) shall not affect the power of the Court to vary or terminate the operation of an order by a supplementary order."

1. This Rule is based on well understood principles. See Preston Banking Company v. William Allsup & Sons (1895) 1 Ch 141, Daniell's Chancery Practice 8th Ed., p 709, The White Book 1985 20/11, Richie's Supreme Court Practice 20.10. The general principle was stated in Daniell's Chancery Practice as follows:-
   

"We have seen that, so long as a judgment or order remains in the shape of minutes, that is, until it has been passed by the Registrar and entered, it may be rectified upon application to the Court, or having it put in the cause paper to be spoken to (See ante, Sect. III., and Chap. XIV. 2; Re Lyric Syndicate, 17 TLR 162; The Turret Court, 84 LT 331). After the judgment has been entered the Court will not entertain any application to vary it, except in so far as may be necessary to make the entry correctly represent what the Court intended to decide (Re St. Nazaire, 12 CD 88; Re Manchester Economic Building Soc., 24 CD 488; Preston Banking Co. v. Allsup, (1895) 1 Ch 141; Re Swire, 30 CD 239; Lawrie v. Lees, 7 AC 19; Re Crown Bank, 44 CD 634, 648; Wilson v. Carter, (1893) AC 640; Re Leonard, 107 LTJ 408; Hatton v. Harris, (1892) AC 547; Stewart v. Rhodes, (1900) 1 Ch 398; Re Suffield and Watts, 20 QBD 693; Hipkiss v. Fellows, 101 LT 701; see post, p 710. Possibly the Ct. has jurisdiction to re-hear a case if the parties consent: Re Caithness, 36 Sol J 216.)"

1. It follows that the applicant may not reopen the proceedings simply to litigate a matter which was not raised therein. The motion must be dismissed.

2. On the question of costs, I take into account the fact that the motion was prompted in part by the lateness of the cancellation and return of the securities, the subject of the principal proceedings. I shall therefore order that the applicant pay three-quarters of the respondent's costs of this motion.