ON APPEAL FROM STARKE J. Practice-Costs-Security-Plaintiff ordinarily resident out of the jurisdiction-
Plaintiff substantially in position of defendant-Action commenced in response to statutory notice to avoid forfeiture-Security not ordered-High Court Rules, Order XXVIII., r. 9-Customs Act 1901-1934 (No. 6 of 1901-No. 7 of 1934), secs. 207, 229 (e).
The plaintiff, who was a member of the crew of a ship travelling from New Zealand to Australia, alleged that he found on board the ship English silver coins totalling in value £351. On arrival of the vessel officials of the Customs Department took possession of the coins. The plaintiff made a claim for the and McTiernan coins under sec. 207 of the Customs Act 1901-1934. The Collector of Customs thereupon gave notice to the plaintiff requiring him to commence an action for the recovery of the coins, and stating that in default of bringing such action the coins would be condemned without further proceedings. The plaintiff, who was not ordinarily resident within the Commonwealth, there- upon commenced an action against the Collector of Customs for the recovery of the coins. The Collector of Customs applied for security for costs pur- suant to Order XXVIII., rule 9, of the High Court Rules.
Held that, by reason of the defendant's notice requiring him to commence proceedings and the statutory forfeiture which would have resulted from his failure to do so, the plaintiff was, in substance, in the position of a defendant, and security for costs should not be ordered.
The plaintiff, Samuel Charles Willey, was a member of the crew of the S.S. Piako, which on 21st August 1933 was travelling from New Zealand to Melbourne. The plaintiff alleged that on that day he found on board English silver coins totalling in value £351 5s. On the arrival of the vessel at Melbourne officials of the Customs Depart- ment took possession of the coins. The plaintiff made a claim for the coins and the Collector of Customs of the State of Victoria, exercising the right conferred by sec. 207 of the Customs Act 1901- 1934, sent to the plaintiff a notice in the following terms: Whereas by notice in writing dated the 20th September, 1933, you have by your agent, Abram Landa, solicitor of 148 Phillip Street, Sydney, New South Wales claimed the sum of three hundred and fifty-one pounds five shillings seized as goods forfeited to His Majesty pursuant to sec. 229 (e) of the Customs Act 1901-1930 Take notice that pursuant to sec. 207 of the said Act I hereby require you to enter an action against me for the recovery of the said goods and further take notice that if you shall not within four months after the date hereof enter such action the said goods shall be deemed to be condemned without any further proceedings. Dated this ninth day of November, 1933." On 16th November 1933 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.
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AGLC
Willey v Synan [1935] HCA 76
Case
[1935] HCA 76
Decision Date
CaseChat Overview and Summary
The appeal concerned Samuel Charles Willey, who alleged he found English silver coins totalling £351 5s on board a ship travelling from New Zealand to Australia. Upon arrival in Melbourne, Customs officials seized the coins. The Collector of Customs subsequently issued a notice to Mr. Willey under section 207 of the *Customs Act 1901-1934*, requiring him to commence an action for the recovery of the coins within four months, failing which they would be condemned. Mr. Willey, who was not ordinarily resident in the Commonwealth, commenced an action against Maurice Bernard Synan, the Collector of Customs, for the return of the coins. The Collector applied for security for costs, arguing Mr. Willey's non-residence. Starke J. ordered that Mr. Willey provide security for costs unless he returned to Australia and brought the action to trial within four months. Mr. Willey appealed this decision to the Full Court of the High Court.
The central legal issue before the Full Court was whether Mr. Willey, as the nominal plaintiff, should be required to provide security for the defendant's costs, given his ordinary residence outside the Commonwealth. The court had to determine if, despite being the nominal plaintiff, Mr. Willey was in substance in the position of a defendant, thereby exempting him from the usual requirement of providing security for costs. This involved considering the nature of the proceedings initiated by the Collector of Customs and the plaintiff's response thereto, and whether the substance of the litigation placed Mr. Willey in a defensive posture.
The Full Court allowed the appeal, reversing the decision of Starke J. The court reasoned that the Collector of Customs, by issuing the notice under section 207 of the *Customs Act*, had effectively compelled Mr. Willey to commence legal proceedings to avoid the forfeiture of his property. This action by the Collector placed Mr. Willey in the position of a party being attacked, rather than a party initiating an attack. Applying the principle that security for costs should not be ordered against a party who is essentially defending themselves, even if nominally a plaintiff, the court found that Mr. Willey was substantially in the position of a defendant. Therefore, the usual rule requiring security for costs from a non-resident plaintiff did not apply in these circumstances.