Scott v James Patrick & Co Pty Ltd [1968] HCA 28

High Court of Australia Windeyer J. Scott v James Patrick & Co Pty Ltd [1968] HCA 28

ORDER Action dismissed with costs. Usual order as to exhibits.

Cur. adv. vult.

May 20 Windeyer J. delivered the following written judgment:—

This is a Customs prosecution, the name which the Customs Act 1901-1965 Cth, s. 244, gives to proceedings for the recovery of penalties under that Act. The proceedings were instituted in the name of the Minister for Customs as the Act, s. 245, requires. At the time when the proceedings were commenced Mr. Kenneth McColl Anderson was the Minister and the proceedings were commenced in his name. He has since relinquished that office. Senator Malcolm Fox Scott is now the Minister. Assuming that when the Act speaks of proceedings being instituted "in the name of the Minister" this means in the personal name of the Minister for the time being (as to which see Bainbridge-Hawker v. Minister of State for Trade and Customs [1] ), and that upon a change of Ministers pending prosecutions are thereafter to be carried on in the name of the Minister who comes into office—I, at counsel's request, ordered that Senator Scott become the plaintiff in place of Mr. Anderson and that the proceedings be thereafter conducted in his name.

1. (1958) 99 C.L.R. 521.

On the evidence given before me the relevant facts are as follows. In September 1966 the M. V. Golden Spring arrived in Port Jackson and was berthed at a wharf in Walsh Bay. The owner of the vessel was, and is, Guan Guan Shipping Limited, a company incorporated in Singapore. It owns two vessels which trade between Malaysian ports and Australia. But this was the first time the Golden Spring had come to Australia. Her home port and port of registration is Singapore. In 1964 the Guan Guan company engaged the Charterwell Trading Company, a Singapore corporation, to look after its affairs in various ports to which its ships traded. In Australia these duties are actually performed by a company incorporated in the Australian Capital Territory called Charterwell Trading Company Limited. The shares in it are all owned by the parent company in Singapore. This Australian subsidiary appointed the defendant, James Patrick & Co. Pty. Limited, a company incorporated in New South Wales, to act as agents for the Guan Guan Shipping company's ships in Sydney in relation to Customs requirements and various port matters of entry and clearance, including the payment of pilotage dues. This arrangement was still in existence when the Golden Spring arrived in September 1966. The Australian Charterwell Company considered the defendant in the nature of a sub-agent. It itself made all arrangements for the stevedoring of the Guan Guan vessels. At some time after September 1966 it also took over the tasks which till then the defendant had been doing for those ships. However, in September 1966 the defendant looked after Customs matters for the Golden Spring. Whether there was any direct relationship between the owner and the defendant otherwise than through the Charterwell Company was not precisely proved; but the owner apparently always knew that the defendant would be attending to Customs requirements and the master of the vessel, it seems, expected to have the services of the defendant when the ship arrived.