1906. BAUME THE COMMON- O'Connor J. signed, he contends that the collector was guilty of a breach of H. C. or A. duty in not signing the entry. An examination of the sections relating to the duties of the collector will demonstrate that no such cause of action can be maintained. The principle underlying the whole of these sections relating to dealing with goods under Customs control is that the Customs shall keep control of the goods until duty is paid. In regard to duties which are specific in amount, and as to which the only questions of fact that are likely to arise are as to weight, quantity, or number, there is generally very little difficulty. But where duty is chargeable according to value altogether different considerations arise. The duty cannot be determined without the determination of the value, and the first question that must arise, in considering the rights of the importer and the rights of the collector is who is to determine for the time being, for the purpose of freeing the goods from Customs control, what the duty is. That responsibility is imposed upon the collector, and necessarily so. The collector, for the purpose of carrying out that duty, has a number of powers under different sections of the Act, to which I need not now refer in detail, for the purpose of ascertaining value in order that the proper amount may be demanded and paid before the goods are released from Customs control. In a case like the present the question of value is to be determined on the principle embodied in sec. 154. The value shall be taken to be the fair market value of the goods in the principal markets of the country whence they were exported, and in order to ascertain what is the fair market value of the goods in the principal markets of the country whence they were exported, it may be necessary, as it may have been necessary in this case, for the collector to make inquiries. He is not bound to take the statement of the importer as to the value of the goods. He is entitled to make inquiry for himself. In this case it would be necessary to make inquiries in London as to the market value of goods of this kind, and to inquire into all the circumstances under which the goods were imported from Switzerland to London and sold there, and the value which under the circumstances they would have in the London market. While that inquiry was going on, the collector was justified in delaying delivery of the goods until he had 1906. BAUME v. THE COMMON WEALTH. H. C. OF A. satisfied himself as to their value. One of the complaints of the plaintiff is that the collector would not inform him what the duty was, and he says that, if he had been informed, he would have paid it. He contends that the collector was bound to inform him of the amount of duty claimed. I can see no such O'Connor J. duty imposed by the Act upon the collector. He is not called upon to make a guess as to value, but to ascertain the value. If it is impossible to ascertain that without making inquiries which involve delay, it is unfortunate for the importer, but if it is the collector's duty to make those inquiries, there is no remedy. Looking, therefore, at the whole of these sections regulating the duty of the collector in dealing with imported goods, it is plain that the collector is appointed by the Act to adjudicate for the time being on the question of value. It is left to his judgment and discretion to decide, and so long as he uses his position in the inquiry honestly there can be no claim even against him for detaining the goods pending inquiry, nor is he under any obligation to come to any particular conclusion as to value, or to pass the entry on presentation or tender of any particular duty by the importer. That being so, if this action had been against the collector, it seems to me impossible that the plaintiff could succeed in his allegation of a breach of duty. I may say, in regard to that part of the case, I agree with my learned brother the Chief Justice, that the cases that have been referred toBarry v. Arnaud (1), and Barrow v. Arnaud (2)—do not apply. Both those were cases in which the liability of the goods to duty was a pure question of law. Even if the question to be determined by the collector here were a pure question of law, I very much doubt whether those decisions would apply to a case under the Customs Act 1901, but it is not necessary to decide that question. Certainly where the duty of determining the value is cast upon the collector as in the present case, they can have no application. But assuming that the collector would personally be liable, there still remains the question whether the Commonwealth is liable for the acts of the collector. As I stated in the earlier part of my judgment, with regard to the liability of the Commonwealth in a suit or action by a subject, the liability of (1) 10 A. & E., 646. (2) S Q.B., 595. 1906. BAUME v. THE COMMON- O'Connor J. the Commonwealth for the acts of its servants depends altogether H. C. of A. upon the relation of the Commonwealth to its servants in regard to the particular matter in question. No doubt there are many cases in which the Commonwealth is liable for all the acts of its servants when acting within the scope of their authority. But where Parliament has regulated the administration of a Department, and has imposed duties upon the Commonwealth and special duties upon its officers, quite different considerations arise. If the Statute imposes a duty upon the Commonwealth, the Commonwealth is liable for the breach of that duty by its servants. But it does not follow that because the Statute imposes a duty upon the servants of the Commonwealth the Commonwealth is liable for the breach of the servant's duty. The obligation may be placed upon the servant in such a way that a duty on the Commonwealth may be necessarily implied. But the form of the Statute and the words of the legislature must be considered in every case. In this case the duty of passing of the entry, and the control of the goods while the amount of duty is being considered, are placed upon a designated officer, the collector, who is invested not only with the carrying out of certain administrative duties in regard to the goods, but also with the responsibility of deciding according to his own discretion as to the amount of duty chargeable, and as to how they are to be disposed of in the meantime. As that duty is imposed upon the collector and not upon the Commonwealth, it appears to me that the collector is the officer designated to discharge that duty, and, his duties being so particularly specified, the case comes within the principle of Tobin v. The Queen (1) and Enever v. The King (2), which were referred to by my learned brother the Chief Justice. Where the officer of the Government has imposed upon him a particular duty, the responsibility to discharge which, according to his discretion, rests upon him, the Commonwealth is not liable for his failure to discharge it, or for his failure to come to a correct conclusion where a matter of judgment is involved. That being so, it appears to me that there can be no claim in this case against the Commonwealth for the breach of duty alleged in regard to the passing of entries H. C. OF A. by the collector, and, therefore, that the plaintiff's claim in regard to his merchandise is altogether without any foundation. 1906. BAUME v. THE COMMON WEALTH. O'Connor J. As to the claims with regard to the books, both parties at the trial apparently agreed to treat the claim as one for the detention of the books and invoices for an unreasonable time, although the claim in the declaration was not in that form. It must now be taken that that was substantially the claim. The rights of the importer and the rights of the Commonwealth with respect to these particular invoices depend entirely upon the construction of secs. 214 and 215. It is undoubted that, when the demand was made for these books, goods had been detained, and therefore the position had arisen in which sec. 214 justifies the collector in retaining possession of the books and invoices dealing with the same class of goods for a period of five years before. Therefore, in the original taking and dealing with these books, the Commonwealth were justified under sec 214. But it is said that the Commonwealth became liable for detaining the books unreasonably beyond the period allowed by secs. 214 and 215. Sec. 215 gives power to the collector to impound or retain documents presented in connection with any entry and required to be produced under the Act. It was contended by counsel for the Commonwealth that that section entitled the collector to keep possession of the documents as long as he liked without any question. I do not think that is the proper construction of the section. The words are "impound or retain." I think the collector is only entitled to retain the documents as long as is necessary for the purpose of dealing with the goods in relation to which the documents were originally impounded, and if he retains them for an unreasonable time beyond that period the Commonwealth is liable. There are various purposes for which the books and invoices might be detained. In some cases it may be reasonable, where there are other questions arising with regard to the books and invoices, to detain them after the goods have been dealt with. But in other cases it might be quite unreasonable to detain them. There must be this implied limitation on the power of the collector to detain documents that he has only a right to do so for as long a time as is reasonable under the circumstances. 1906. BAUME ?'. THE COMMON WEALTH. O'Connor J. Having regard to the rights given to the importer to have his H. C. OF A. goods freed from Customs control under the Act, it appears to me that there is in this case evidence of detention for an unreasonable time. That cause of action, like any other where the claim is for a breach of a statutory obligation, can only be maintained where actual damage has occurred by reason of the breach of duty. There is evidence from which it may be inferred that some actual damage has occurred in this case; the action, therefore, is maintainable. The amount of damage is another matter. In the same way I think the plaintiff was entitled under sec. 215 to have certified copies of the documents which the defendant retained. It appears that he was not able to get certified copies of some of them. There also the question of damages must be considered. I entirely agree with the rule as to the damages which has been laid down by my learned brother the Chief Justice. The damages to be recovered are the damages incurred, which follow directly and naturally from the wrong complained of. There can be nothing in the nature of vindictive damages or punishment for the breach of duty. Looking through the evidence in this case I find it almost impossible to discover any evidence of material damage arising from these causes of action, either for the detention of books and documents or for the failure to give certified copies. The verdict, therefore, of £750 for these causes of action, which were the only causes of action before the jury, is one which cannot be supported if the respondent wishes to have it set aside on the ground that the damages are excessive. I therefore concur in the judgment of my learned brother the Chief Justice, that, with regard to the first four counts of the declaration the ruling of the learned Chief Justice of the Court below was right, and the verdict ought to be entered for the defendant; and with regard to the causes of action for which the plaintiff has recovered damages, that if the Commonwealth presses its claim for a new trial, a new trial must be had for the re-assessment of those damages. The new trial, of course, must be limited to the question of damages. Bavin, for the Commonwealth, informed the Court that the respondent did not desire a new trial for assessment of damages. |