Burton v Honan [1952] HCA 30

High Court of Australia Dixon C.J. McTiernan, Webb and Kitto JJ. Burton v Honan [1952] HCA 30

ORDER Declaration that ss. 203, 229 (b), 229 (i) and 262 of the Customs Act 1901-1950 are valid. Declaration that the Customs Act operates so as to empower an officer of Customs to seize forfeited goods although they have passed into the hands of a bona-fide purchaser for value. Cause remitted to Supreme Court of Queensland for final judgment. Defendant to pay costs of all proceedings in this court, other than those of intervenor. Dixon C.J.

This matter is a reference from a judge sitting in the original jurisdiction dealing with a matter coming before him in consequence of ss. 38A and 40A of the Judiciary Act 1903-1950.

The matter came before his Honour, Mr. Justice McTiernan, who, having heard some argument, made an order that it be referred to the Full Court to consider all inter se questions arising upon the evidence adduced at the hearing of the case before the Supreme Court. The proceeding is an action instituted in the Supreme Court in the ordinary way by writ of summons. The action was by the purchaser of a motor car against the vendor and the cause of action was based on The Sale of Goods Act of 1896 Q.. The provision of The Sale of Goods Act upon which the cause of action arose was the familiar one which entitles the buyer of goods to an implied warranty that he shall have and enjoy quiet possession of the goods he takes under the sale. The motor car was seized in the hands of the purchaser by the Customs as goods forfeited to the Crown pursuant to s. 229 of the Customs Act 1901-1950. The car was an American automobile which was imported in 1950. It was actually landed on or about 24th April 1950, by one Doyle. It would appear that Doyle had not at that time a licence for the importation of the goods and under the Customs (Import Licensing) Regulations such a licence was necessary. He did, however, obtain one, and the goods after entry for home consumption, pursuant to the licence, were delivered out of the control of the Customs. It would seem that in obtaining the licence he made a representation which subsequently the Customs authorities came to regard as untrue. At all events, he was prosecuted under three informations upon which he was convicted.