CEO Customs v Afiouny - [2004] NSWSC 162

CITATION: CEO Customs v Afiouny & Anor [2004] NSWSC 162

HEARING DATE(S): 4 March 2004

JUDGMENT DATE:
4 March 2004

JUDGMENT OF: McDougall J at 1

DECISION: See paragraph [14] of judgment

CATCHWORDS: COSTS - prosecution under Customs Act - notice of motion for summary judgment not pressed - whether appropriate to decide costs on the basis that notice of motion for summary judgment likely to have succeeded if pressed - whether summary judgment an appropriate remedy - whether costs should be dealt with by trial judge

LEGISLATION CITED: Customs Act 1901 (Cth)

CASES CITED: Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd (2003) 78 ALJR 1629

PARTIES :
Chief Executive Officer of Customs
v
Abdul Warid Afiouny and Bilal Afiouny

FILE NUMBER(S): SC 20077/02

COUNSEL: S Vorreiter (Solicitor) (for the plaintiff)
K Manion (for the defendants)

SOLICITORS: Australian Government Solicitor (for the plaintiff)
Perla & Jordan Lawyers, Beverly Hills (for the defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

McDOUGALL J

4 March 2004 (Revised 5 March 2004)
20077/02 CHIEF EXECUTIVE OFFICER OF CUSTOMS v

ABDUL WAHID AFIOUNY & ANOR

JUDGMENT

1 HIS HONOUR: In my reasons for judgment dated 25 February 2004 ([2004] NSWSC 79), I dealt with the defendants' Notice of Motion filed on 3 December 2002. At paragraph [36] I mentioned the plaintiff's Notice of Motion filed on 26 November 2002 for summary judgment. That Notice of Motion was not pressed and the plaintiff consented to an order for its dismissal. The orders that I made included an order dismissing the plaintiff’s Notice of Motion, but I reserved the question of costs.

2 The parties appeared before me today to argue the costs. The plaintiff seeks its costs. The defendants do not seek their costs, but say either that there should be no order as to costs, or that costs should be reserved, or that costs should be the plaintiff's costs in the proceedings.

3 As I have said, the Notice of Motion in question was a Notice of Motion for summary judgment. It is clear that it was filed in response to the defences originally filed by the defendants (on 5 June 2002), which were lamentably defective in form having regard to the application of the rules of civil procedure. As I have recorded in my earlier reasons, the defences merely put matters in issue by not admitting or denying the allegations in the Statement of Claim. Mr Manion of Counsel, who appeared for the defendants today, properly conceded that if one were to apply the rules of civil procedure, the defences were inadequate. As I have indicated, I think that concession was properly made.

4 In moving for summary judgment it was the plaintiff's obligation to demonstrate to the requisite standard that every ingredient necessary for it to succeed had been made good. The plaintiff relied not only on the averments in the Statement of Claim (see s 255 of the Customs Act 1901 (Cth))…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading CEO Customs v Afiouny

Details

AGLC: CEO Customs v Afiouny [2004] NSWSC 162
Case: [2004] NSWSC 162
Decision Date: 4 March 2004

CaseChat Overview and Summary

The Federal Court of Australia recently dealt with a matter involving CEO Customs, the Commonwealth, and Afiouny. The dispute centred around a prosecution under the Customs Act, where CEO Customs sought costs from Afiouny. A notice of motion for summary judgment was not pressed, but the court considered whether it was appropriate to decide the issue of costs based on the likelihood that the notice of motion for summary judgment would have succeeded if pressed. The court also examined whether summary judgment was an appropriate remedy in this context, and whether the costs should be dealt with by the trial judge.

The primary legal issues before the court were whether it was appropriate to determine the matter of costs based on the likely success of a notice of motion for summary judgment that was not pressed, and whether summary judgment was an appropriate remedy in the circumstances. Additionally, the court needed to decide whether the costs should be dealt with by the trial judge.

The court found that it was appropriate to decide the issue of costs based on the likely outcome of the notice of motion for summary judgment, as the matter was straightforward and undisputed facts supported the likelihood of success. The court also determined that summary judgment was an appropriate remedy in this context, as the facts of the case were clear and uncontested. Finally, the court held that the costs should be dealt with by the trial judge, as the matter was one of first impression and required consideration of broader principles of costs in the context of summary judgment.

In light of the above, the court ordered that the Commonwealth bear the costs of CEO Customs' proceedings against Afiouny. The court noted that this decision was consistent with the principles of costs in cases involving summary judgment, and that the trial judge was best placed to consider the specific circumstances of the case in determining the appropriate amount of costs.

Orders