Bainbridge-Hawker v Minister for Trade & Customs (Cth) [1958] HCA 60

High Court of Australia Williams J. Dixon C.J. McTiernan, Webb, Kitto and Taylor JJ. Bainbridge-Hawker v Minister for Trade & Customs (Cth)

ORDER Appeal dismissed. Cross-appeal dismissed. Defendant-appellant to pay costs.

Cur. adv. vult.

Nov. 1, 1956 Williams J . delivered the following written judgment:—

In this action which is intended to be a customs prosecution within the meaning of Pt. XIV of the Customs Act 1901-1954 two points of law have arisen which, at the request of the parties, I ordered should be set down for hearing and disposed of under O. 26, r. 16 of the rules of this Court. They raise the question whether the action has been properly instituted because it is instituted in the name of the Minister of State for Trade and Customs for the Commonwealth of Australia whereas it is contended for the defendant that it should have been instituted in the personal name of the Minister. If that contention is disposed of in favour of the defendant, the further question arises whether an order should be made allowing the personal name of the Minister to be added to the description of his office as the plaintiff. The offences under the Customs Acts described in the writ and the statement of claim are mostly offences which occurred more than five years ago, and it is contended that an amendment if allowed will have the effect of reviving offences most of which are now barred by s. 249 of the Customs Act which provides that customs prosecutions may be instituted at any time within five years after the cause thereof. The two points of law are: (1) Whether the action is brought "in the name of the Minister" within the meaning of s. 245 of the Customs Act 1901-1954 and (2) If it is not, whether the plaintiff should be allowed to amend the writ of summons and pleadings by adding the personal name of the Minister.