JCT Wong v Kelly - [1999] NSWCA 439

CITATION: JCT WONG & Anor v KELLY [1999] NSWCA 439

FILE NUMBER(S): CA 40595/98

HEARING DATE(S): 12 October 1999

JUDGMENT DATE:
6 December 1999

PARTIES :

John Chu Ting Wong (1st Appellant)
Rizoli Pty Limited (Second Appellant)
Francis Ivor Kelly Comptroller General of Customs (Respondent)

JUDGMENT OF: Mason P at 1; Meagher JA at 2; Stein JA at 3

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S) : CL 12178/89

LOWER COURT JUDICIAL OFFICER: Carruthers AJ

COUNSEL: P R Graham QC/D B McGovern (Appellants)
L P Robberds QC (Respondent)

SOLICITORS: Bradfield & Scott (Appellants)
Australian Government Solicitor (Respondent)

CATCHWORDS: CUSTOMS AND EXCISE - Customs offences - importation of goods - evasion of duty - nature of proceedings - whether criminal or civil - nature of retainer of solicitor - authority to prosecute - whether owner of goods - whether documents producible only to the Collector - amended Statement of Claim - failure to strike out averments - Customs Act 1901 (Cth), ss 4, s 36(1), 153, 214

ACTS CITED: Customs Act 1901 (Cth) s 4 s 8(1)(a)(ii) s 36(1)
s 153 s 233(1)(a) s 234(1)(a)(d) s 236 s 214(1)
s 255(4) s 247
Evidence Act 1995 (NSW) s 86 s 138
ss 125(1)(a) 130(4)(d) and 131(2)(j)
The Judiciary Act 1903 (Cth) s 79

CASES CITED:
Danish Mercantile Co Ltd v Beaumont (1951) 1 Ch 680
Briginshaw v Briginshaw (1938) 60 CLR 336
Comptroller-General of Customs v Kingswood Distillery Pty Ltd (unreported, NSW Supreme Court, 11 February 1997)
Comprtoller-General of Customs v Jayakody (unreported, Supreme Court of Victoria, 9 November 1993)
Evans v Button (1988) 13 NSWLR 57
Forestreet Warehouse Co v Van de Linder (1919) 3 Western Weekly Reports 1056
Jack Brabham Holdings v Minister (1998) 85 ALR 640
Kelly v JRA Ltd (1990) 92 ALR 651
Pearce v Button (1985) 8 FCR 388

DECISION: Appeals dismissed with costs

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40595/98
CL 12178/89

MASON P

MEAGHER JA
STEIN JA

Monday, 6 December 1999

J C T WONG and Anor v Francis Ivor KELLY

The appellants, Mr J Wong and Rizoli Pty Ltd, were declared guilty by Carruthers AJ of a number of offences under the Customs Act 1901 (Cth) (the Act) regarding, among other things, importation and smuggling of goods and evading payment of duty. The offences related to three container shipments of furniture from Hong Kong, which arrived by sea at Port Botany between January and March 1987 where each container were said to contain furniture but in fact each contained a considerable quantity of clothing secreted in the containers for the purpose of evading payment of duty. The appellants, after abandoning various grounds of appeal, limited their appeal to the following issues:

(a) in the context of an examination of all the documents advanced by the Australian Government Solicitor (AGS) as justifying the institution of proceedings, especially the retainer, no authority was ever given to the AGS by the respondent, Mr F…

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 JCT Wong v Kelly

Details

AGLC: JCT Wong v Kelly [1999] NSWCA 439
Case: [1999] NSWCA 439
Decision Date: 6 December 1999

CaseChat Overview and Summary

The case of *JCT Wong v Kelly* concerned a dispute arising from the importation of goods and alleged evasion of customs duty. The proceedings were heard in the Court of Appeal of New South Wales, with Mason P, Meagher and Stein JJA presiding.

The central legal issues before the Court of Appeal involved the characterisation of the proceedings as either criminal or civil, the scope of a solicitor's retainer in relation to prosecuting such matters, and whether the owner of the imported goods held a proprietary interest that would affect the production of documents. The court also considered the implications of an amended Statement of Claim and the failure to strike out certain averments.

The Court of Appeal's reasoning, though not detailed in the provided text, ultimately led to the dismissal of the appeals. The judges applied principles relating to customs offences under the *Customs Act 1901* (Cth), including sections 4, 36(1), 153, and 214, in determining the nature of the proceedings and the rights and obligations of the parties involved.

The appeals were dismissed with costs.

Orders

Orders of the court

Appeals dismissed with costs

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	JCT WONG & Anor v KELLY [1999] NSWCA 439
FILE NUMBER(S):	CA 40595/98
HEARING DATE(S):	12 October 1999
JUDGMENT DATE:	6 December 1999
PARTIES :	John Chu Ting Wong (1st Appellant) Rizoli Pty Limited (Second Appellant) Francis Ivor Kelly Comptroller General of Customs (Respondent)
JUDGMENT OF:	Mason P at 1; Meagher JA at 2; Stein JA at 3

LOWER COURT JURISDICTION:	Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S) :	CL 12178/89
LOWER COURT JUDICIAL OFFICER:	Carruthers AJ

COUNSEL:	P R Graham QC/D B McGovern (Appellants) L P Robberds QC (Respondent)
SOLICITORS:	Bradfield & Scott (Appellants) Australian Government Solicitor (Respondent)
CATCHWORDS:	CUSTOMS AND EXCISE - Customs offences - importation of goods - evasion of duty - nature of proceedings - whether criminal or civil - nature of retainer of solicitor - authority to prosecute - whether owner of goods - whether documents producible only to the Collector - amended Statement of Claim - failure to strike out averments - Customs Act 1901 (Cth), ss 4, s 36(1), 153, 214
ACTS CITED:	Customs Act 1901 (Cth) s 4 s 8(1)(a)(ii) s 36(1) s 153 s 233(1)(a) s 234(1)(a)(d) s 236 s 214(1) s 255(4) s 247 Evidence Act 1995 (NSW) s 86 s 138 ss 125(1)(a) 130(4)(d) and 131(2)(j) The Judiciary Act 1903 (Cth) s 79
CASES CITED:	Danish Mercantile Co Ltd v Beaumont (1951) 1 Ch 680 Briginshaw v Briginshaw (1938) 60 CLR 336 Comptroller-General of Customs v Kingswood Distillery Pty Ltd (unreported, NSW Supreme Court, 11 February 1997) Comprtoller-General of Customs v Jayakody (unreported, Supreme Court of Victoria, 9 November 1993) Evans v Button (1988) 13 NSWLR 57 Forestreet Warehouse Co v Van de Linder (1919) 3 Western Weekly Reports 1056 Jack Brabham Holdings v Minister (1998) 85 ALR 640 Kelly v JRA Ltd (1990) 92 ALR 651 Pearce v Button (1985) 8 FCR 388
DECISION:	Appeals dismissed with costs