Opinion Number. 75

Subject

CUSTOMS AGENT
WHETHER WRITTEN AUTHORITY SIGNED BY PRINCIPAL REQUIRED : MANNER OF SIGNING BY FIRMS AND COMPANIES

Author
Key Legislation

CUSTOMS ACT 1901, ss. 180, 181

Date
Client
The Minister for Trade and Customs

The Minister for Trade and Customs desires to be advised in relation to the questions raised in the following extract from a letter dated 20 May 1902 of the Collector of Customs at Port Adelaide:
In connection with instructions received from you providing that authorities must be obtained from the owners of goods by licensed agents to authorise them to appoint a sub-agent under sections 180/1, Part XI of the Customs Act 1901, a question has arisen as to how such authorities should be signed. First, should the authority be signed by the principal or will it be sufficient if signed by an employee for the principal; second, must a limited liability company sign as provided by their deed of association, and affix seal, etc. as required; third, can a firm sign, say, 'Crooks and Brooker, per J. McDonald a member of the firm', or should they simply sign' Crooks and Brooker'?
The Assistant Crown Solicitor (Mr Sinclair) advises me that as section 181 provides for the principal only it is necessary in all cases that these documents should be signed by the principal and that the signature of the firm must be on the document. If this is correct it will give great trouble as in many cases firms doing business in this State have only a representative here, and in some instances could not obtain the authorities required under three months, consequently they would be unable to procure the services of a Customs Agent.

I am of opinion as follows:

  1. The authority should be signed by the principal. It is not sufficient if signed by an employee.
  2. A limited liability company should sign as required by their memorandum or deed of association if that document contains any particular provision in that behalf. In the case of ordinary trading companies an appointment signed by the directors may safely be accepted.
  3. A firm can sign in either of the ways specified. It is not necessary in the case of a mercantile firm that each member should sign.

In the case of mercantile firms doing business in a State through a representative, it appears to me that it would be clearly within the scope of the representative's authority to employ a Customs Agent to conduct the firm's business with the Customs authorities. In case of doubt the Collector should require the representative to produce his power of attorney or other authority.

[Vol. 2, p. 55]