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

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

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.

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).

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.

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.

CaseChat Overview and Summary

The appeal before the court involved the Chief Executive Officer of Customs against Labrador Liquor Wholesale Pty Ltd and others. The nature of the dispute pertained to the assessment and collection of customs duties and goods and services tax (GST) by the CEO of Customs. The case was heard in the Federal Circuit Court of Australia. The respondents, Labrador Liquor Wholesale and its associated parties, challenged the assessment and sought a review of the decision.

The primary legal issues before the court were whether the respondents were entitled to a refund of the assessed customs duties and GST and, if so, to what extent. Additionally, the court had to determine whether the discretion to award costs should be exercised in light of the appellants' failure on the substantive issues but partial success on procedural matters. The court was required to balance the principles of costs following the usual course, the outcome of the appeal, and the conduct of the parties during the proceedings.

In its decision, the court first examined the substantive issues of the appeal and found that the respondents were not entitled to the relief they sought regarding the customs duties and GST. However, the court acknowledged that the respondents had succeeded to a minor extent on procedural grounds, which influenced the exercise of discretion in awarding costs. The court concluded that, while the appellants were unsuccessful on the primary issues, the respondents' conduct during the proceedings did not warrant a full costs order against them. Instead, the court decided to exercise its discretion to award costs in a manner that reflected the partial success of the respondents, ordering them to pay a proportionate share of the costs.

The final orders of the court were that the respondents were to pay a specified portion of the appellants' costs, reflecting the partial success on procedural matters. The respondents were not entitled to the refund they sought regarding the customs duties and GST. This outcome balanced the principles of costs following the usual course with the specific circumstances of the appeal and the conduct of the parties.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

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