Saab Scania Imports Pty ltd v Bates, Harvey E

809 \qs7

I N THE

FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISIaN

BETWEEN: SAAB SCANIA IMFORTS PTY.

LTD.

Applicant

AND:

HARVEY E. BATES

iIn his capacity as the

Collector of Customs for

the State

of Victoria)

Respondent

CORAM

Jenkinson J.

DATE

4 June, 1987

REASONS FOR JUDGMENT

Application f o r interim relief.

The applicant

SAAB Scania Imports Fty. Limited on

about 5 May 1987 entered for home

consumption,

pursuant

Division 4 of Fart I11 of the Customs Act

1901, goods to be

imported by it at Melbourne. The respondent, who is the Collector

of Customs for the State of Victoria, made in respect

of he goods

requirements, by a notice in writing dated

May 1987, of

the

kind which are authorised	by sub-section 38B(2) of that Act. That
section provides:

“38B(1) Gdithout

limiting the generality

section 39, where

goods

have

been

entered, a Collector

may refuse to

give authority under that section for

2 .

the

goods

dealt

with

accordance with the entry if he has not verified, and he is not satisfied that another Collector has verified,

particulars of the goods shown in the

entry

reference

information

contained

commercial

documents

relating to the goods that have been

furnished to a Collector by the owner

of the goods

upon, or at any time

after, the giving of the entry to

Collector or by

reference

information, in writing, in respect of

the goods that has been	so	furnished
to a Collector.

( 2 )

A Collector may, by notice in writing,

require the owner of goods in respect of which an entry has been given and

which

have

been

imported,

are

proposed to be exported, to deliver to

him

the

commercial

documents

respect of the goods that

are in his

possession or under

his

control

(including any such documents that had

previously

been

delivered

Collector and had been returned to the

owner), or to deliver to the Collector

such information, in writing, relating

to the goods, being information of a

kind specified in the notice, as is

within the knowledge of the owner

as the owner is reasonably able to

obtain.

( 3 )

A Collector may

ask the owner of,

any person giving an entry in respect

of, goods referred

to in sub-section

( 2 )

any

questions

relating

the

goods.

( 4 )

A Collector may require from the owner

of any

goods

referred

sub-section ( 2 ) proof, by declaration

or	the production of documents, that

the goods are owned

as claimed and are

properly described, valued,

or rated,

for duty.

the owner of goods in respect of

which an entry has been given documents or information under sub-section ( 2 ) in relation to

has been

required

deliver

the goods

;

ibj

the owner of, or person giving

an entry in respect of, goods in

respect of which an entry has

been

given

has

been

asked

question under sub-section

( 3 )

in respect of the gcjods; or

( c

the owner of goods referred to

sub-section

( 2 )

has

been

required under sub-section ( 4 ) to produce proof of a matter in respect of the goods,

a Collector shall not give authority

under

section 39 for

the

relevant

goods to be dealt with in accordance

with the entry unless the requirement

has been complied with

or revoked, the

question has been answered or withdrawn or the requirement has been complied with or withdrawn, as the case may be.

( 6 )

Subject to section 215, where a person

delivers a commercial document to

Collector

under

this

ection,

the

Collector shall deal with the document in accordance with the regulations and

then

return

the

document o

that

person.

( 7 )

sect o ,

this

'commercial

document', in relation to

goods, means

a document prepared in the ordinary

course of business

for the purposes of

a commercial transaction involving the

goods or the carriage of goods."

Sub-section 39(1) provides:

"Subject to this Act, where an entry in

respect of goods has been made, the Customs

may	give authority in accordance with the

regulations for those goods to be dealt with

in accordance with that entry."

The applicant claims to have complied with the requirements

of the

Collector.

The

Collector has refused and still refuses to give

authority under s.39 for the goods to be dealt with in accordance

with the entry, with the result that the goods cannot be taken out

of the control

of the Customs into the applicant's possession.

The applicant has filed in this Court

an application for a writ of

mandamus directed to the Collector requiring him to give that

authority, and another application

for an order of review in

respect of

the Collector's decision not to give the authority.

The applications have not been issued, pending determination

the ex parte application made to me on

28 May 1387 for an interim

order that the goods be released from the control

of the Customs

the

applicant.

The applicant

offers

give

security

sufficient to protect the revenue against any

loss

which the

making of such an order might cause, or such undertakings as the Court might require. Notice of the application having been given

to the Collector,

Mr.

Nettle of counsel has been heard on his

behalf in opposition to the application.

The goods

are

component parts of trucks and buses

purchased by the applicant from a Swedish company called

SAAB

Scania AB.

The applicant is a wholly owned subsidiary of SAAB

Scania Australia Pty. Limited. Both the applicant and

SAAB Scania

Australia Pty. Limited were incorporated in this country.

SAAB

Scania Australia Pty. Limited, which

is a wholly owned subsidiary

of the Swedish company, assembles trucks and buses of which the

component parts

are imported by its subsidiary and sells those

vehicles by retail in this country. Some

of the components are

subject to customs duty at a rate of

20 per centum, others at

rate of

10 per centum. There are other components which, if

imported

f o r

assembly

this

country

into

complex

component of a vehicle, are not subject to customs duty.

The ascertainment of

the customs value

of a component

may require a good deal of information -

see Division 2 of

Part

VI11 of the Customs Act 1901. Mr. Fajgenbaum

Q.C.,

who appeared

with Mr. Middleton for the applicant, submitted that the evidence

establishes, or at least raises

a serious case, that

all the

information sought by the Collector's written requirements

which

is presently available to the applicant has been furnished to the

Collector.

His submissions concerning the proper construction of

s.38B were that the provision, by the owner

goods to whom a

requirement under s.38Bi2) has been given, of an answer responsive

the

requirement

satisfies

the

clause

s.38B(5),

I' the

requirement has been complied with", even if the answer

does not

provide the information required to be delivered. Alternatively,

that

clause

satisfied

the

provision

such

of the

information required as the owner has been able to obtain, it	was
submitted.

The evidence does establish a serious case for findings

that what has been provided by the applicant to the Collector in

response to the requirements

the notice is all that the

applicant has been able to obtain, and all that the applicant

has

been

"reasonably

able

to obtain".

Most

of the

information

required and not provided is held by the Swedish parent company

which has so far failed to provide it to the applicant. It

seriously arguable, in my opinion, that upon those findings

s.38B

does not forbid the giving

of authority for the goods to be dealt

with in accordance with

the entry. It

is however in my opinion

another question whether the Collector has come under a duty to

give that authority.

Division 2 of

Part VI11 of the Customs Act 1'301

makes

provision for the valuation of imported goods the customs duty of

which is imposed by reference to value.

These goods are subject

to duty to be calculated by reference to value. Section

157

directs valuation on a specified basis, then provides that

Collector considers that the value cannot be determined

that

basis, another specified basis

of valuation shall be adopted, then

proceeds to specify successively further bases

of valuation, the

adoption of each being predicated on

a Collector's opinion that

the value of the

goods cannot be determined by reference to the

immediately preceding basis of valuation. Succeeding sections

give directions with respect to the criteria of value on each of

the several bases of valuation. It was Mr. Fajgenbaum's

submission that the Collector lies under

an obligation to consider

each basis of valuation in turn, passing from one to the next

he forms an opinion that on the information available to him the

value of the goods cannot be determined. He submitted that it is

incompatible with the proper performance

of that duty that the

Collector should delay the assessment of the duty to be demanded

of the importer by persisting in

an inquiry of the owner by

exercise of the powers conferred by sub-sections	( 2 1 ,	(3) and	( 4 )
of s.38B.

Mr. Fajgenbaum

contended

that

the

latter

submission

finds support in the reasoning of the members of the High Court who decided The Kins v. The Comptroller-General of Customs; Ex parte Woolworths Limited (1935) 53 C.L.R. 308 and The Kins v. The

Collector of Customs for Victoria; Ex parte Berlina (1935) 53

C.L.R.

3 2 2 .

In particular,

Mr. Fajgenbaum relied on a passage, in

the reasons f o r judgment

of Rich, Dixon, Evatt and McTiernan JJ.

the

latter

case, which

dealt

with

submission

for

the

Collector that a

section similar to

s.38B justified his refusal

either to state what duty was payable on certain goods

r to pass

the entry relating to those goods. That passage reads (53

C.L.R.

3 3 4 ) :

"The answer is that he is not doing what that

section intends. It does not mean anything so

absurd as to enable him, because he remains

unconvinced of the facts stated by an

importer, to withhold for ever the importer's

goods, and never to determine what duty is

payable upon them. It enables the Collector

to ask for evidence that the goods are

owned

as claimed and are properly described, valued,

or rated for duty.

authorizes

him

retain the goods and refuse to pass the entry

during the time occupied in furnishing what

evidence the importer adduces. But when,

in this case,

all the evidence the importer

says he can produce has been supplied and is

in the

Collector's possession, the importer

says he can do no more and neither side

contemplates the furnishing of any further

evidence, the section has

no application. The

process of proof is over, and

the Collector is

called upon to give

his determination thereon.

Because he remains dissatisfied of the truth

or correctness of the importers' valuation and

proof, the Collector cannot deny him his goods

and defer indefinitely the levying of the

duty.

Although similar, the section under consideration in

those cases is by

no means identical either

in substance or

verbiage with s.38B.

It is unnecessary to consider precisely what

application the passage has to s.38B. Let it be assumed that the passage may be applied without qualification to that section and

to the rest of the

relevant legislation presently in force.

The

evidence

before ms does

not

justify

any

finding

that

the

circumstances call for determination by the Collector now of

the

duty payable. The quite different circumstances which obtained in

the two High Court cases did plainly call for such a determination

at the

time

the

proceedings

were

instituted

and

thereafter.

Putting aside, as

I do, the statements by Mr. Nettle of

counsel

for the Collector concerning the Collector's suspicions that what

has been communicated to him by the applicant about the goods may

false

several

particulars,

the

evidence

justifies

the

inferred finding that the Collector has not yet completed the

inquiries and examinations and consideration which

he desires to

undertake for the purpose

of determining the duty payable. It

one thing to

say, as I will assume that

it can at present be said,

that

s.38B

does not presently operate to forbid the giving of

authority for the goods to be dealt with in accordance

with the

entry. It is quite another thing, and in my opinion something

for

which the

vidence

provides

support,

to say

that

the

circumstances are such as to require a statement now by the

Collector of the duty he considers to be payable. In

judgment

to which Rich,

Dixon, Evatt and McTiernan

JJ.

referred, in the

first of the two cases on

which Mr. Fajgenbaum relied, O'Connor

made it plain that the &s.&.oms

.&CL 1902 requires a ColLector tu

make all reasonable inquiries to enable him

to assess correctly

the duty payable and authorises him to delay delivery

of the goods

to the importer until he has been able to make that assessment : Baume v. The Commonwealth (1966) 4 C.L.R. 97 at 120-123. It is sufficient for the determination of this application to say that at the time when the evidence concluded, as well as at the time

when the application was commenced, nothing in my opinion appeared

suggest

that

the

Collector

this

case

had

failed

performance of that duty by delaying unreasonably the completion

of the steps leading to assessment

of the duty.

The proper construction

of a number of the provisions of

the Customs Act and of the Customs Tariff Act and of the Customs

Tariff has been the subject

of a carefully reasoned submission by

Mr. Fajgenbaum.

The

submissions were designed to show both that

some of the requirements of the notice in writing were not requirements that served any legitimate or lawful purpose of the Collector in the circumstances of this case, and also to show that

the Collector has

embarked, and is presently so far as appears

still engaged, on inquiries irrelevant to the proper assessment of

duty in the circumstances of this case.

opinion, this

application may be decided, and must be decided in the way

I have

indicated,

without

forming

any

conclusion

concerning

the

correctness of those submissions.

Be-it

assumed that the notice

in writing asks questions unjustified by the provisions

the

legislation and be it assumed that it may be inferred that the

Collector is presently, if

I may use a vernacular expression, on

the wrong track, that

is to say that

he is presently addres.sing

his mind to questions relating to the assessment

of duty which he

would not be concerning himself with if he had made a proper appreciation of the legislative provisions which govern him. On

those

assumptions

there is, in

my opinion,

nevertheless, no

justification for an order at present,

that

say

interlocutory order at this time, to achieve the release of the

goods. In the performance of the duty imposed on the Collector,

it must be contemplated

as possible that in some circumstances and

on some occasions he

will fall into error.

The fact that he

appears, if

did appear, to be proceeding in error to the

assessment of duty does

not, in my

opinion, in itself provide a

ground for interference by the Court to direct release

the

goods. Obviously, there may come a time when the circumstance

that the Court sees the Collector to be proceeding on some legally

erroneous basis will, in combination with other circumstances,

provide justification for the making of

an interlocutory order,

but at present that situation does

not, in my opinion, exist.

The evidence adduced before me strongly suggests that

the Swedish parent

of the applicant has information, derived

the time of the last annual determination by the Swedish company

of the prices of

goods of the kind in question in this case,

which

might be of use to the Collector in the proper performance

of his

duty to assess the customs duty. On the

vi w that I have taken of

this application it is unnecessary, and therefore undesirable,

that I express an opinion

whether

the

Collector's

written

requirement

comprehended,

its

proper

construction,

that

information.

It is also unnecessary, and therefore undesirable,

that I express an opinion as

to whether the Collector may lawfully

exercise again now

the power conferred by

s.38B(2) by requiring

the applicant by notice in writing to deliver that information to

him.

I merely say, to avoid the possibility of

misunderstanding,

that I have not intended to suggest by anything in these reasons

that the Collector

has, or that the Collector lacks, that power.

11.

The application must be refused.

I certify

that

his

and

the

preceding pages are a true copy

the Reasons for

Judgment herein

Honourable	the	Mr.	Justice
Jenkinson.
Dated: 4 June, 1987

[1987] FCA 804

4 Jun 1987