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 1999PARTIES :
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 79CASES 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 388DECISION: Appeals dismissed with costs
IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEALCA 40595/98
CL 12178/89Monday, 6 December 1999
MASON P
MEAGHER JA
STEIN JA
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…
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- AGLC
- JCT Wong v Kelly [1999] NSWCA 439
- Case
- [1999] NSWCA 439
- Decision Date
CaseChat Overview and Summary
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
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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