Bainbridge-Hawker v Minister of State for Trade & Customs [1958] HCA 60

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vJack Moore v Jack We vi roan Chee Spee h Bra Brcbrenleck Recah Bay Ege? wack Pty Hold He Holdi y mts Brown Brabham eae a OPALR Lae ae es HERES % Reiger 13 BER! Eeeate 99 CL.R.J Eases OF AUSTRALIA. 521 Fir ING s on[HIGH COURT OF AUSTRALIA.} BAINBRIDGE-HAWKER : Pi - 5 APPELLANT 3 DEFENDANT, AND THE MINISTER OF STATE FOR TRADE AND CUSTOMS FOR THE COMMON- RESPONDENT. WEALTH OF AUSTRALIA . 'PLAINTIFF,

Customs—Prosecutions—Institution—" In the name of the Minister" —Name— H, ©. or A. Personal or official—Period within which to institute—Expiration of period— 957-1958.

Amendments—Customs Act 1901-1954, ss. 4, 245, 249. = Sypry,

An action which purported to be a customs prosecution within the meaning of Pt. XIV of the Customs Act 1901-1954 (Cth.) was brought against the defendant. On the writ of summons the plaintiff appeared in terms as " The Minister of State for Trade and Customs for the Commonwealth of Australia ". 'The writ was endorsed with a statement which claimed declarations that the defendant had been guilty of a number of offences under the Act, the earliest yiergourne, of which, it charged, occurred on 8th December 1950 and the latest on 16th gg October 1951. 'The writ was issued and served on Ist December 1955 and the statement was delivered on the same day. Section 245 of the Act provides that customs prosecutions " may be instituted in the name of the Minister by

action or other appropriate proceeding" in the High Court or a Supreme jt PP.4 Court. Section 249 of the Act provides that customs prosecutions may be Taylor JJ. instituted at any time within five years after the cause thereof. The matter came on before Williams J. sitting in the original jurisdiction of the High Court on 24th September 1956 and, pursuant to r. 16 of O. 26 of the Rules of the High Court, his Honour ordered that two points of law raised by the defence be set down for hearing: (1) whether the action is brought " in the name of the Minister " within the meaning of s. 245 of the Act ; 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. Upon hearing the case Williams J. held that s. 245 meant that the action must be brought in the personal name of the Minister so that the first question should be answered in favour of the defendant ; and that the second question should be answered in favour of the plaintiff on the ground that as the plaintiff appearing on the writ was the right person even though insufficiently described the