Wilson v Chambers & Co Pty Ltd

38 CLR 131
1926 - 0608A - HCA

---

(Decision by: Starke J)

Between: Wilson
And: Chambers & Co Pty Ltd

Court:

Judges: Knox CJ
Isaacs J
Higgins J
Rich 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

Hearing date: 17-18 November 1925 (Sydney)
Judgment date: 8 June 1926

Melbourne

---

Decision by:
Starke J

The defendant Chambers & Co Pty Ltd was charged on information with three offences against the Customs Act 1901-1923. One charged that the defendant did not, contrary to the provisions of ss. 68 and 241 of the Act, enter goods imported by it into the Commonwealth, with intent to defraud the revenue. The defendant purchased the goods in England and shipped them on board the ship Nauru Chief, consigned to the defendant or its assigns at the Port of Sydney. The ship did not put into the Port of Sydney but into Port Kembla, a port some distance south of Sydney. It did so for the purpose of coaling; but it is clear on the evidence that the ship would not proceed to the port of Sydney, that it intended to land the goods at Port Kembla, and that the consignees were prepared to take delivery there. But before the goods were discharged an arrangement was made between the consignees and the representatives of the ship, whereby the goods were taken over for the use of the ship, and they were never landed.  

Duties of Customs are imposed upon goods imported into Australia, but there is no definition in the Act of the word "imported." They may be imported by means of a ship or aircraft or through the post (cf. ss. 49 and 35). They may be brought within the territorial limits of Australia, and may indeed be subject to Customs control, and yet not be "imported" in the fiscal sense of the term. Thus goods shipped from England to New Zealand via Australia are not imported into Australia because in the course of her voyage the ship with the goods on board comes within the territorial limits of Australia for commercial purposes. Yet such goods would be subject to the control of the Customs (Customs Act, s. 31). Again, goods coming ashore from wrecks could hardly be classed as imported goods, and the Customs Act has made special provisions to meet the case (vide ss. 65, 66, 67 and 148).  

It cannot, in my opinion, be maintained that the mere act of bringing goods into port constitutes an importation; though unexplained it may be evidence of the fact. If goods, however, are brought into their port of destination for the purpose of being there discharged, the act of importation is complete. On the other hand, the act of importation is not complete if a ship enter some port of call with goods on board which is not the destined port of discharge for those goods. Actual landing is not necessary, as was argued, to constitute an importation for fiscal purposes.  

Now, in the present case the goods were not brought to their port of destination but to Port Kembla, where the goods were to be landed with the assent of the consignees. That, in my opinion, was an importation of the goods within the meaning of the Customs Act. It is clearly the duty of an "owner" who imports goods into Australia to enter them at the Customs, and that term "owner" includes the consignee of the goods (vide ss. 37 and 4, "Owner"). Consequently, in my opinion, the defendant should have been convicted of the offence that it did not enter the goods, but there was no evidence of any intent to defraud the revenue.  

Another information charged that the defendant did, contrary to ss. 234 and 241 of the Customs Act, evade payment of duty which was payable in respect of the goods with intent to defraud the revenue. A duty was imposed on the goods mentioned in the information under the Customs Tariff upon importation into Australia and that duty was payable, in this case, upon the arrival of the ship in Port Kembla (Attorney-General v Ansted). ^[F13] But did the defendant evade payment of that duty? Clearly, in my opinion, the word "evade" in the Act does not necessarily involve any device or underhand dealing for the purpose of escaping duty; but on the other hand it involves something more than a mere omission or neglect to pay the duty. It involves, in my opinion, the intentional avoidance of payment in circumstances indicating to the party that he is or may be under some obligation to pay duty. The circumstances may consist of knowledge, or neglect of available means of knowledge, that the omission to pay is or may be in contravention of the Customs law. This, in my opinion, was not proved. The defendant and its representative acted on an honest but mistaken view that the arrangement with the ship and a guarantee to the Customs by the master thereof to furnish a list of all dutiable stores consumed on the voyage to Melbourne, the next port of call, and to pay duty thereon at that port fulfilled the obligations of the Customs law. Consequently this information was rightly dismissed.  

A third information charged that the defendant at Port Kembla, contrary to the provisions of the Customs Act, s. 33, interfered with certain goods subject to the control of the Customs, namely, the goods already mentioned, with intent to defraud the revenue. The proof led was that the defendant made the arrangement with the ship already mentioned. The section, however, points to some physical interference with the goods, and not to some disposition of the goods leaving them still subject to the control of the Customs; and the facts show that the goods were taken from Port Kembla in the ship with the sanction of the Customs and under the guarantee aforesaid. Consequently this information was rightly dismissed.  

Three informations were also laid against Lawrence Chambers, based upon ss. 236 and 241 of the Customs Act, charging that he was directly concerned in the offences charged against the Company. Lawrence Chambers acted on behalf of the Company at Port Kembla, and the same results follow in his case as in the case of the Company. The information that he was directly concerned in the offence of the Company in failing to enter the goods must be supported, and the other informations dismissed.  

William Chambers was also charged on three informations in the same terms as in those laid against Lawrence Chambers. William Chambers was not a member or officer of the Company, and took no part in the acts proved against it. It was admitted, on the argument, that the informations laid against him could not be supported on the evidence adduced, and they were therefore all rightly dismissed.

E. M. Mitchell K.C. (with him Bathgate), for the appellant.

Flannery K.C. (with him H. E. Manning), for the respondents the Company and Lawrence Chambers.

Brissenden K.C. and Treatt, for the respondent William Chambers.

Solicitor for the appellant, Gordon H. Castle, Crown Solicitor for the Commonwealth.

Solicitors for the respondents, Norton, Smith & Co