Morton v Union SS Co of New Zealand Ltd [1951] HCA 42

High Court of Australia Dixon, McTiernan, Williams, Webb, Fullagar and Kitto JJ. Morton v Union SS Co of New Zealand Ltd [1951] HCA 42

ORDER Demurrer allowed with costs.

Cur. adv. vult.

The Court delivered the following written judgment:—

July 26 Dixon, McTiernan, Williams, Webb, Fullagar and Kitto JJ.

This is a demurrer which, taking advantage of Order XXIV., r. 1, demurs to part of a statement of claim setting up a distinct cause of action. The action is brought by the Collector of Customs for New South Wales and the cause of action in question depends upon reg. 188 of the Excise Regulations 1925 as amended. Regulation 188 is headed "Excisable Goods in Course of Removal. Responsibility for Safe Keeping ". The relevant part of the statement of claim alleges that the defendant had the control and custody of certain excisable goods, namely, certain tobacco, cigarettes and cigarette papers, pending exportation of the goods to parts beyond the seas, and was responsible for the safe keeping of the goods while the same were in its custody and control. The pleading proceeds to allege that the defendant failed to keep safely the goods referred to, whereupon by reason of reg. 188 the defendant became liable to pay to the plaintiff an amount equal to the excise duty thereon. The amount of the excise duty payable on the goods is alleged to be £1,324 2s. 5d. In respect of the cause of action in question the plaintiff sought to recover this sum.

The ground of the demurrer is that reg. 188 is invalid. The regulation is in the following terms:—"(1) Every person who has the control or custody of excisable goods, while such goods are in course of removal, or are in transit coastwise, or are in or at an approved place, or until delivery for home consumption or exportation to parts beyond the seas, shall be responsible for the safe keeping of such goods while they are in his control or custody, and shall account for such goods to the satisfaction of the Collector. (2) If any person fails to comply with his obligations under this regulation, he shall be liable to pay to the Collector an amount equal to the duty on the excisable goods not safely kept or not accounted for to the satisfaction of the Collector. (3) This regulation shall not affect the liability of any person arising under the Excise Act 1901-1923, or any security purporting to have been given in pursuance thereof, or of the Excise Act 1901. (4) Any sum payable to the Collector under this regulation may be sued for by action in any civil court having jurisdiction to entertain suits for debts to the amount claimed, as if it were a debt due by the defendant to the Collector. (5) In any action under this regulation, the statements or averments of the Collector in his claim or declaration shall be prima facie evidence of the matter or matters stated or averred."