On 11 March last a muster was held on the American ship Henry Failing, at Newcastle, New South Wales, under section 3 (k) of the Immigration Restriction Act 1901 when it was found that the Japanese cook who had been on board when the ship arrived at Newcastle was missing. The cook was not on the ship's articles, having been paid off a few days before at Sydney, where he had been tested under section 3 (a) and failed to pass.

It appears that the Customs authorities refused to grant a clearance because the master declined to give security for the payment of any penalty that might be imposed.

On 12 March the Sub-Collector took out a summons against the master under section 9 of the Immigration Restriction Act. On 13 March the case was heard before a Stipendiary Magistrate at Newcastle and dismissed. Clearance was granted the same day.

The master of the ship (for captain and owners) has sent in a claim against the Customs Department for £88.16.0 for refusing to grant clearance, and for £8.8.0 costs of defending the prosecution. Messrs A. and J. Brown as agents for the ship have written that unless immediate attention is given to this demand they will be compelled to resort to other measures for its recovery.

Section 118 of the Customs Act provides that the master of any ship shall not depart with his ship from any port without receiving from the Collector a Certificate of Clearance. Section 122 provides that no Certificate of Clearance shall be granted for any ship unless all her inward cargo and stores shall have been duly accounted for to the satisfaction of the Collector, nor unless all the other requirements of the law in regard to such ship and her inward and outward cargo have been duly complied with. There is no provision expressly requiring the Collector to grant a Certificate of Clearance.

In my opinion the Department is not liable, for the following reasons:

1. The claim is apparently for tort, in respect of which no proceedings can be had against the Commonwealth Government.
2. The clearance appears to have been refused by the Collector in the bona fide exercise of a discretion given him by the Customs Act.
3. No absolute legal duty was imposed on the Collector to grant a clearance on demand, and no legal right of the claimants was infringed by the delay in granting the clearance.
4. As regards the defendant's claim for the costs of defending the prosecution, they could of course only be recovered in an action for malicious prosecution against the Collector or officer responsible and there is nothing whatever in the papers to show that such an action could be sustained.

[Vol. 1, p. 483]