Open Bay Timber Pty Ltd v The State

• Jurisdiction: Papua New Guinea
• Judge: Brown J
• Judgment Date: 11 September 1991
• Citation: [1993] PNGLR 246
• Court: National Court
• Year: 1993
• Judgement Number: N1151

National Court: Brown J

Judgment Delivered: 11 September 1991

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OPEN BAY TIMBER PTY LTD

V

THE STATE

Waigani

Brown J

6 September 1991

11 September 1991

CUSTOMS — Statute — Higher duty paid under Customs Tariff Act — Act amended to reduce rate of tariff — Retrospective effect — Refund of customs duty overpaid — State not absolved from liability to repay customs duty — Customs Act Ch 101 — Customs Tariff Act Ch 101A — Customs Tariff (Amendment) Act 1990.

EQUITY — Unjust enrichment.

Facts

The plaintiff, pursuant to Sch 3 of Customs Tariff Act, paid duty to the Collector of Customs from December 1989 to September 1990 for exports of unprocessed logs after 18 December 1989. Subsequently, the Act was amended by Customs Tariff (Amendment) Act 1990, which revised the provisions of Sch 3, reducing the rates of tariff for export of the types of logs belonging to the plaintiff. The amendments were expressed by the Customs Tariff (Amendment) Act to be deemed to come into operation retrospectively on 18 December 1989. The plaintiff claims a refund of customs duty overpaid. The State denies liability and contends there is no power in the principal act, the Customs Act, to authorise a refund. It relies on ss 103 and 104 of the principal act, which it claims absolves it of liabiity to repay customs duty.

Held

1. The argument that ss 103 and 104 of the Customs Act absolve the State from any liability to repay customs duty cannot succeed. Section 103 does not apply. It deals with practice relating to classification whilst the claim relates to a change of law directly effecting variation to the dutiable rate. Section 104 does not apply. It relates to particular circumstances and does not impinge on the provisions of the amending act.

2. The predominant act argument cannot prevail.

3. The Customs Tariff (Amendment) Act 1990 is expressed to have retrospective effect. Section (a) provides for determination of duties at rates applicable on and from 18 December 1989. The State is legally entitled to duties to that extent and no more. It would be unjust enrichment for the State, at the expense of the company to retain moneys in these circumstances in the face of an express provision reducing the incidence of duty.

Cases Cited

Attorney-General v Great Eastern Railway (1872) 7 Ch 475.

F Hoffmann-La Roche & Co v Inter-Continental Pharmacenticals Ltd [1965] Ch 795.

Hughes & Vale Pty Ltd v New South Wales [1955] AC 241.

Mason v New South Wales (1959) 102 CLR 108.

Counsel

C Coady for the plaintiff.

B Ninai for the defendant.

11 September 1991

BROWN J: The plaintiff is aggrieved by the refusal of the Collector of Customs (hereafter, Collector) to authorise a refund of customs duty which the plaintiff says has been overpaid. By way of statement of claim, the plaintiff recites that from December 1989 to September 1990 various payments in respect of customs duty upon exports of unprocessed logs after 18 December 1989 were made by the plaintiff to the Collector. The payments were made pursuant to the provisions of Sch 3 of the Customs Tariff Act Ch 101A and the Customs Act Ch 101.

Subsequent to the payments, the Customs Tariff Act Ch 101A was amended by Customs Tariff (Amendment) Act 1990 (Act 15 of 1990, hereafter the amending act). This repealed the relevant provisions of Sch 3 items 21, 21A, 21B, and 21C of the Customs Tariff Act, substituting reduced rates of tariff in respect of exports of the types of logs belonging to the plaintiff.

As a consequence, the plaintiff alleges that there has been an overpayment of duty in the sum of K45,125.12. The plaintiff also claims interest under the Judicial Proceedings (Interest on Debts and Damages) Act Ch 52 and costs of its summons. The defendant denies liability and states that there is no power in the principal Customs Act to authorise a refund in the circumstances. The defendant relies on the provisions of the Customs Act,...