The Commonwealth v Melbourne Harbour Trust Commissioners - [1922] HCA 31

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THE COMMONWEALTH AND ANOTHER

THE MELBOURNE HARBOUR TRUST

DEFENDANTS. COMMISSIONERS Customs-Protection of the revenue-Wharves-Security by owner of wharves-Cor-

poration established by State law having control of wharves--Bond-Conditions- Action on bond-Parties entitled to sue-Regulations, validity of-Customs Act 1901-1916 (No. 6 of 1901-No. 10 of 1916), secs. 4, 6, 30, 33, 42-44, 47-48, MELBOURNE, 270 *...Customs Regulations 1913 (Statutory Rules 1913, No. 346-1915, No. Mar. 7, 8, 9. 70), regs. 3, 3A, Form 1A*-The Constitution (63 &64 Vict. c. 12), secs. 55, 64, 71-Melbourne Harbour Trust Act 1915 (Vict.) (No. 2697), secs. 60-62, 110. Sec. 42 of the Customs Act 1901-1916

or that the security was not executed provides that The Customs shall have

by them or release or satisfaction." the right to require and take securities

Sec. 270 provides that The Governor- for compliance with this Act and gener-

General may make regulations not ally for the protection of the revenue

inconsistent with this Act prescribing of the Customs," &. Sec. 43 provides

all matters which by this Act are that Where any security is required

required or permitted to be prescribed to be given such security may be by

or as may be necessary or convenient bond or guarantee or cash deposit or

to be prescribed for giving effect to this all or any of such methods SO that in

Act or for the conduct of any business each case the security shall be approved

relating to the Customs," &. Reg. by the Collector." Sec. 48 provides

3A of the Customs Regulations 1913 pro- that Whenever any such Customs

vides that " Proprietors or lessees of security is put in suit by the Collector the production thereof without further

ity for the protection of the revenue, proof shall entitle the Collector to judg-

in accordance with Form 1 or 1A, as ment for their stated liability against

the case requires." Forms 1 and la the persons appearing to have executed

each prescribed a security in the form the same unless the defendants shall prove compliance with the condition

31 CLR 2

In an action by the Commonwealth and the Acting Collector of Customs upon a bond in the form prescribed by the Customs Regulations 1913 (Form 1A), alleging that it was taken pursuant to sec. 42 of the Customs Act 1901-1916, and was a Customs security within sec. 48, and, alternatively, alleging breaches of the bond, the defendants by demurrer raised questions as to the nature of the security which the Customs had power to require. HARBOUR

TRUST COM-

Held, by the whole Court, that the demurrer should be overruled. Held, by Knox C.J., Isaacs, Gavan Duffy and Starke JJ., (1) that the bond as given was within sec. 42 and might be put in suit by the Commonwealth and the Collector of Customs as a Customs security (2) that the bond covered goods which were subject to the control of the Customs whether dutiable or not dutiable; (3) that sec. 42 enables…

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.

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Details

Case: [1922] HCA 31
Decision Date: 26 June 1922

CaseChat Overview and Summary

The Commonwealth and the Acting Collector of Customs brought an action against the Melbourne Harbour Trust Commissioners concerning a bond executed by the Commissioners. The plaintiffs alleged the bond was taken pursuant to section 42 of the *Customs Act 1901-1916* as a Customs security under section 48, and alternatively, that the Commissioners had breached the conditions of the bond. The defendants demurred to the statement of claim, raising questions about the nature of the security the Customs authorities had the power to require.

The legal issues before the court included whether the bond constituted a valid Customs security under the *Customs Act*, whether it extended to goods not subject to duty, and whether the conditions within the bond, particularly those requiring the satisfaction of the Collector of Customs, were lawful. Further issues concerned the validity of the *Customs Regulations 1913* prescribing the form of the security, and whether section 48 of the *Customs Act*, which provided for the enforcement of such securities, usurped the judicial power of the Commonwealth. The court also considered whether the Commonwealth, as the obligee, had the right to sue on the bond.

The Full Court, by majority, overruled the demurrer. The Court reasoned that the bond, as given, fell within the scope of section 42 of the *Customs Act*, which empowers the Customs to require securities for compliance with the Act and for the protection of the revenue. The bond was held to cover goods under the control of the Customs, irrespective of whether they were dutiable. Section 42 was interpreted as allowing the Collector, as an agent of the Executive, to relinquish control of goods in exchange for security in forms approved under section 43, and the Governor-General was authorised by section 270 to prescribe the specific form of security. The Court found that the conditions of the bond, including the requirement for the satisfaction of the Collector, were reasonably necessary to ensure compliance with the Act and protect the revenue, making the security effective. Section 48 was considered a valid law relating to Customs and not an improper exercise of judicial power.

The Court also held that the bond could be sued upon by the Commonwealth, as the obligee was sufficiently identified. Furthermore, the *Customs Regulations* were considered validly made under section 270 of the Act. The Court followed the decision in *Marine Board of Hobart v. The Commonwealth*.

Orders