Chief Executive Officer of Customs v. Labrador Liquor Wholesale Pty Ltd & Ors

[2007] QCA 79

SUPREME COURT OF QUEENSLAND

CITATION:

Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd & Ors [2007] QCA 79

PARTIES:

CHIEF EXECUTIVE OFFICER OF CUSTOMS
(plaintiff/respondent)
v
LABRADOR LIQUOR WHOLESALE PTY LTD
ACN 050 406 221
(first defendant/first appellant)
LAWRENCE ERIC WRIGHT
(second defendant/second appellant)
JEFFREY ANDREW JOHN BRYCE
(third defendant/third appellant)

FILE NO/S:

Appeal No 1812 of 2006
Appeal No 2938 of 2006
SC No 904 of 1997

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal – Further Order

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

16 March 2007

DELIVERED AT:

Brisbane

HEARING DATE:

13 November 2006, 14 November 2006

JUDGES:

de Jersey CJ, Williams and Jerrard JJA
Judgement of the Court

FURTHER ORDER:

The appellants pay 75 percent of the respondent’s costs of the appeal to be assessed.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF COURT – COSTS – where the appellants failed with respect to the substantive issues raised on appeal – where the appellants were successful to a minor extent – whether the discretion to award costs should be exercised – how it should be exercised

Customs Act 1901 (Cth), s 263
Excise Act 1901 (Cth), s 120(1)(vi), s 152
Supreme Court Act 1995 (Qld), s 221

COUNSEL:

R J Burbidge QC, with P J Woods, for the appellants
R F Gotterson QC, with F W Redmond, for the respondent

SOLICITORS:

O’Keefe Mahoney Bennett for the appellants
Australian Government Solicitor for the respondent

1. THE COURT: The Court of Appeal delivered its judgment on 22 December 2006, and its order was varied pursuant to the slip rule on 9 February 2007. The appellants lost on the substantive issues raised by the appeal, but each of the appellants was successful to a relatively minor extent. The conviction of the first appellant for an offence against s 120(1)(vi) of the Excise Act 1901 (Cth) was set aside. The second and third appellants were successful only to the extent that convictions for an offence against s 120(1)(vi) of the Excise Act with respect to seven shipments were set aside and the conviction for an offence against s 120(1)(vi) of the Excise Act with respect to one shipment to Honiara was set aside together with consequential orders for the payment of a penalty of $416,858.50.

1. The respondent has now sought an order pursuant to s 263 of the Customs Act 1901 (Cth) and s 152 of the Excise Act for an order that the appellants pay the respondent's costs of the appeal. It is clear that in determining whether or not to make an order for costs this Court would apply the usual discretion exercised in relation to costs of appeal. That discretion is provided for by s 221 of the Supreme Court Act 1995 (Qld) and Ch 17 of the Uniform Civil Procedure Rules 1999 (Qld).

1. Bearing in mind that the appellants were successful to a not insignificant extent although they lost the substantive issues raised by the appeals it is appropriate to order that the respondent recover 75 percent of its costs to be assessed.

1. The further order of the Court will therefore be: order the appellants pay 75 percent of the respondent's costs of the appeal to be assessed.