Collector of Customs (Vic) v Wilh Wilhelmsen Agency Pty Ltd [1956] HCA 74

High Court of Australia Kitto J. Collector of Customs (Vic) v Wilh Wilhelmsen Agency Pty Ltd [1956] HCA 74

ORDER Judgment for the plaintiffs for £23 8s. 11d. with costs.

Cur. adv. vult.

The following written judgment was delivered by Kitto J.:—

Nov. 29 Kitto J.

This is an action brought in the original jurisdiction of the Court by the Commonwealth and its Collector of Customs for the State of Victoria as plaintiffs, for the recovery of customs duties in respect of a case of still wine and a case of glass buttons. The defendant is a company carrying on business as a shipping agent. It is not and never was the owner of the goods. The claim against it is put in three ways, the plaintiffs relying, as to each case of goods, first, upon the provisions of s. 149 of the Customs Act 1901-1950 Cth, secondly upon an express promise alleged to have been made by the defendant in consideration of the grant to it of a permit to discharge a ship before the passing of customs entries, and thirdly upon an express promise alleged to have been made by the defendant in consideration of the grant to it of a clearance for a ship.

In respect of the case of wine the ship concerned was the M.S. Thermopylae, and in respect of the case of glass buttons it was the M.S. Kvernaas. At all material times the defendant was acting as the agent in the port of Melbourne for the owners of the Thermopylae, and as the agent in that port for the charterers of the Kvernaas to receive freight or other charges payable in respect of that ship. The provisions of the Customs Act therefore applied to the defendant as being the "owner" of each ship by virtue of the definition of that word in s. 4.

The facts concerning the case of wine were as follows. The Thermopylae arrived in the port of Melbourne at the end of September 1951 from parts beyond the seas. Under s. 64 of the Customs Act it was the duty of the master or "owner", within one day after the arrival, to make report of the ship and her cargo by delivering to the Collector an inward manifest in duplicate of goods for the port. In performance of this duty the defendant delivered to the Collector on 1st October 1951 a report inwards in accordance with form 1 in the schedule to the Customs Regulations. It showed, as included in the cargo, 100 cases of still wine marked "T.F. & Co. Melb. 200/99". This was under the heading "Rotterdam", indicating that that was the port of shipment. It concluded, as the prescribed form required, with a declaration, signed on behalf of the defendant, that it was a just report of the ship and of her lading, and that the particulars therein were true, and that bulk had not been broken nor goods delivered out of the ship since her departure from Europe the last place of lading.