Labrador Liquor Wholesale P/L & Ors v Chief Executive Officer of Customs

COURT OF APPEAL

McMURDO P

Appeal No 2938 of 2006

CHIEF EXECUTIVE OFFICER OF CUSTOMS Respondent (Plaintiff)

and

LABRADOR LIQUOR WHOLESALE PTY LTD
ACN 050 406 221 First Appellant (Defendant)

and

LAWRENCE ERIC WRIGHT Second Appellant (Defendant)

and

JEFFREY ANDREW JOHN BRYCE Third Appellant (Defendant)

BRISBANE

..DATE 10/4/2006

JUDGMENT

MR P WOODS (instructed by O'Keefe Mahoney Bennett) for the first, second and third appellants and the applicant

MR N SIMMONS (of Australian Government Solicitor) for the respondent

THE PRESIDENT: The appellants were convicted on 6 February 2006 in the Supreme Court of offences against the Customs Act 1901 (Cth) and the Excise Act 1901 (Cth). On 15 March 2006 the primary judge gave his decision on penalty, fining the appellants an amount in excess of $5 million and ordering them to make reparation to the Commonwealth in the amount of $1 million. In addition, the primary judge ordered that in default of payment of penalty the second and third appellants be imprisoned for five years. His Honour ordered that the execution of paragraphs 1 to 4 of those orders be stayed for 28 days.

Notices of appeal were filed in respect of the first order in February 2006 and in respect of the second orders on 6 April 2006.

...

THE PRESIDENT: The appellants instructed new solicitors and counsel on 22 February 2006, between the times of the two orders made by the primary judge. There has been some difficulty in the new legal representatives obtaining all documents related to the relevant hearing, which has a complex history over many years and which took place over 16 days.

The appellants today seek an extension of an additional 35 days of the primary judge's order of 15 March 2006 staying the execution of his orders to enable all outstanding documents to be obtained and collated, so that they can bring a full application for a stay of the execution of those orders pending the hearing of the appeals.

The respondent very fairly does not oppose the application and does not contend it will suffer any detriment from the granting of the interim stay orders sought by the appellants.

In those circumstances I am satisfied I should grant the interim orders sought. I order that the execution of paragraphs 1 to 4 of those orders made by Justice Fryberg on
15 March 2006 be stayed for a further period of 35 days.

...

THE PRESIDENT: The second order is that the costs of this application are reserved.

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CaseChat Overview and Summary

The Court of Appeal heard an appeal against the penalty orders imposed by the primary judge in the Supreme Court on the appellants, who were found guilty of offences against the Customs Act 1901 (Cth) and the Excise Act 1901 (Cth). The appellants were fined over $5 million and ordered to pay $1 million in reparation to the Commonwealth. The primary judge also ordered imprisonment of the second and third appellants in the event of non-payment of the penalty. The appellants sought an extension of the stay on the execution of the penalty orders to obtain all relevant documents for their appeal. The respondent did not oppose the application.

The legal issue was whether the Court of Appeal should grant an extension of the stay on the execution of the penalty orders to allow the appellants to obtain all relevant documents for their appeal. The Court of Appeal held that the appellants had demonstrated a need for additional time to obtain all relevant documents for their appeal. The respondent did not oppose the application, and the Court of Appeal was satisfied that the appellants should be granted the additional time.

The Court of Appeal granted the appellants' application for an extension of the stay on the execution of the penalty orders for a further 35 days. The Court of Appeal also reserved the costs of the application. The Court of Appeal's decision was based on the appellants' demonstration of a need for additional time to obtain all relevant documents for their appeal and the respondent's lack of opposition to the application. The Court of Appeal's decision did not address the merits of the appeal but only the issue of the stay on the execution of the penalty orders.

The Court of Appeal made two orders. Firstly, it granted the appellants' application for an extension of the stay on the execution of the penalty orders for a further 35 days. Secondly, it reserved the costs of the application.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established