Wilson v Chambers & Co Pty Ltd
38 CLR 1311926 - 0608A - HCA
(Decision by: Higgins J)
Between: Wilson
And: Chambers & Co Pty Ltd
Judges:
Knox CJ
Isaacs J
Higgins JRich J
Starke J
Subject References:
TAXATION AND REVENUE
Customs duties
Failure to pay duty
Intention to defraud revenue
Legislative References:
Customs Act 1901 (Cth) No 6 - The Act
Judgment date: 8 June 1926
Melbourne
Decision by:
Higgins J
Nine informations under the Customs Act 1901-1923
The Company is charged with three offences; and Lawrence Chambers (one of the principal shareholders) and William Chambers are each charged under s. 236 with being directly concerned in these offences. By consent, all the nine informations were heard together. The Stipendiary Magistrate found that the Company was not guilty of any of the offences charged against it, and that Lawrence and William Chambers were therefore innocent. The informant has appealed to this High Court. During the argument before us, however, it was conceded by counsel for the informant that the appeals as to William Chambers are not pressed.
The case involves many details; but I do not think it necessary to linger over them. I propose to deal at once with the three charges against the Company.
There is one charge that the Company did, in New South Wales on or about 7th September 1922, fail to enter either for home consumption or for warehousing or for transhipment six cases of enamel and varnish and 366 drums of lead and paint alleged to have been imported into the Commonwealth at Port Kembla on the Nauru Chief. Under s. 68 of the Act, "all imported goods shall be entered either (a) for home consumption; or (b) for warehousing; or (c) for transhipment."
The facts are that the vessel Nauru Chief, containing the goods, entered the harbour of Port Kembla about 6 a.m.; that these goods were consigned to the Chambers Company; that Lawrence Chambers met the vessel at Port Kembla by the instructions of Mr. Vogil, Sydney manager for the owners of the vessel, the British Phosphate Commission; that Lawrence Chambers on behalf of the Chambers Company arranged with the captain and the chief officer of the vessel to keep the paint on board and use it as required, and to supply a list of the paint used so as to enable the Chambers Company to charge up the paint to the British Phosphate Commission; that the vessel left for Melbourne about 5.30 p.m. on the same day without entering the goods at all.
Now, the Chambers Company is not guilty of this offence charged under s. 68 unless the goods were "imported" goods. There is no definition of the words "import" or "importation" in the Act. Several cases have been cited from the Courts of the United States as to the meaning in United States Acts; but it is for us to find the meaning from the language of our own Act. The appropriate definition found in the Oxford Dictionary for "import" is "to bring in or cause to be brought in (goods or merchandise) from a foreign country, in international commerce"; but is it an essential condition under our Act that the goods be landed before entry? Or that they be, at least, unshipped? Section 49 with s. 75 makes it clear that the due order of events contemplated is
- (1)
- entry,
- (2)
- unshipping,
- (3)
- landing or transhipping;
and therefore entry is obligatory before unshipping or landing.
Under s. 31 all goods on any ship from parts beyond the seas are subject to the control of the Customs whilst the ship is within the limits of any port in Australia; and under s. 64 the master, owner or pilot is under a duty, within one day after arrival at any port, to report the ship and her cargo by delivering an inward manifest of goods for that port. Under s. 74, (except as prescribed) goods may be unshipped only pursuant to
- (1)
- a collector's permit or
- (2)
- an entry passed.
In the case of Algoma Central Railway Co v The King [F10] Lord Macnaghten said that if the ship be brought within the country (in that case Canada), no more is required for the meaning of imported. The port is in the country. His Lordship was not referring, of course, to such exceptional cases as that of wrecked ships, or even that of ships destined for other countries, but calling at an Australian port en route. In my opinion, the position is the same under our Act; and these goods were "imported" within the meaning of s. 68. The view taken by the Magistrate was that the (alleged) sale to the master of the ship relieved the Chambers Company of liability to enter the goods. I cannot take that view; I think that the Chambers Company-the consignee-failed to enter these goods, contrary to law, and that the dismissal of the charge was wrong. But there is no evidence whatever that the failure was "with an intent to defraud the revenue" as alleged in the information; this averment in the information is not even prima facie evidence of the intent (s. 255 (4)). If the Company be convicted, Lawrence Chambers must also be convicted as being directly concerned in the offence (s. 236).
Another charge against the Chambers Company is that it evaded at Port Kembla payment of duty which was payable in respect of these goods. There is no doubt that the duty payable was not paid at Port Kembla (though it was paid afterwards); but does the word "evade" connote no more than failure to pay, in the words of s. 234: "No person shall (a) evade payment of any duty which is payable"? Where mere failure to perform an obligation is meant, the word "fail" is used (as in s. 268); but the word "evade" seems to mean something more than "fail." According to the dictionary, it means "to escape by contrivance or artifice from (attack, etc); to avoid, save oneself from (a threatened evil or inconvenience); to elude (a blow), avoid encountering (an obstacle)." According to Simms v Registrar of Probates, [F11] a case as to succession duty, the words used were "has incurred or shall incur any debt with intent to evade the payment of duty hereunder"; and, as the Judicial Committee said, [F12]
"Everybody agrees that the word is capable of being used in two senses: one which suggests underhand dealing, and another which means nothing more than the intentional avoidance of something disagreeable."
Both of these senses involve will, intention.
To say the least, "evade" would seem to connote the exercise of will in avoiding; whereas a mere failure to pay may be by accident or mistake. Under s. 241 a person may at the same time be charged with an offence against this Act, and with an intent to defraud the revenue; and, if in addition to such offence he is convicted of such intent, the maximum penalty shall be double that otherwise provided. But this section does not show that the word "evade" must mean merely "fail"; for a person may "evade" the payment of duty by seizing from a vessel goods urgently wanted, although he may show, by paying the duty, that he has no "intent to defraud the revenue." The evidence rather points to an innocent mistake of the Chambers Company and of Lawrence Chambers; and, in my opinion, the information in each case was rightly dismissed.
I cannot, however, accept the gloss on the section proposed by my brother Isaacs-that the words "without reasonable excuse" are implied. Indeed, for my part, I think it dangerous to attempt to frame a definition, or to interpose a formula between the section and the facts of each situation: facts vary so infinitely.
Another charge is under s. 33 - that the Chambers Company did, without the authority of an officer of Customs at Port Kembla, interfere with these goods which were subject to the control of the Customs. All that the Chambers Company or Lawrence Chambers did was to make the arrangement which I have stated with the master of the vessel-to keep the paint on board and to use it as required, and to supply a list of the paint used. My opinion is that this does not constitute an "interference" with the goods under s. 33. The associated words are "moved altered or interfered with"-"No goods subject to the control of the Customs shall be moved altered or interfered with except by authority and in accordance with this Act." In my opinion, all the three words refer to physical acts - physical moving, physical altering, physical interference. When Lawrence Chambers made the arrangement, he did not even stipulate that the goods should be taken out of Port Kembla; so far as the Chambers Company was concerned, it was immaterial whether the master should take the vessel (with the goods) out of Port Kembla at any time or at all. This charge was also, in my opinion, rightly dismissed-both as to the Chambers Company and Lawrence Chambers.