Labrador Liquor Wholesale Pty Ltd & Ors v CEO Customs
[2007] HCATrans 3
•25 January 2007
[2007] HCATrans 003
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Brisbane Nos B4 and B5 of 2007
B e t w e e n -
LABRADOR LIQUOR WHOLESALE PTY LTD
First Applicant
LAWRENCE ERIC WRIGHT
Second Applicant
JEFFREY ANDREW JOHN BRYCE
Third Applicant
and
CHIEF EXECUTIVE OFFICER OF CUSTOMS
Respondent
Application for a stay
HAYNE J
TRANSCRIPT OF PROCEEDINGS
FROM BRISBANE BY VIDEO LINK TO MELBOURNE
ON THURSDAY, 25 JANUARY 2007, AT 9.31 AM
Copyright in the High Court of Australia
__________________
MR R.J. BURBIDGE, QC: May it please the Court, I appear with my learned friend, MR P.J. WOODS, for the applicants. (instructed by O’Keefe & Mahoney Bennett)
MR F.W. REDMOND: May it please the Court, I appear for the respondent. (instructed by Australian Government Solicitor)
HIS HONOUR: A message has been given to me that at 8.45, if we are particularly lucky, we may have the joys of a fire alarm test coming down the line from Brisbane. Is that right, Mr Redmond?
MR REDMOND: With all the bells and whistles, your Honour.
HIS HONOUR: Yes, Mr Burbidge.
MR BURBIDGE: Thank you, your Honour. Your Honour, may I commence by handing to your Honour an applicants’ outline of argument which is marginally different from that which was sent in advance. I apologise to my learned friend, whom I must say I had understood would be here, but I can indicate that the first is incomplete in that there are two corrections I need to make, but in essence all it has done – and I mention this for Mr Redmond’s benefit – is that a rogue paragraph, appearing on page 3 under B, “Use of Averments”, (e) has been taken from the position in which it found itself in the draft and relocated appropriately.
Beyond that there are two matters I should correct, your Honour, if I may. The first is that there is reference on page 3, in the fourth line, to the Western Australian matter of Aruli v Mitchell. That is the wrong reference. It should indeed be Arifin v Ostle and I have in fact printed it out. It is a similarly unreported decision of the Full Court of the Supreme Court of Western Australia. It is dated 1991. The precise date is 18 June.
HIS HONOUR: 18 June is the amendment on my copy.
MR BURBIDGE: Thank you, your Honour.
HIS HONOUR: Yes, thank you, Mr Burbidge.
MR BURBIDGE: There is a further error, your Honour, on the following page, even of the new one, which is, in the circumstances, particularly unfortunate.
HIS HONOUR: I think I will survive, Mr Burbidge. You have misspelt my name. I think I will survive.
MR BURBIDGE: Someone has, your Honour, and I found it, but only this morning, with some horror, as you would imagine. Your Honour, I need not of course take your Honour through the various formal aspects of the application itself. Your Honour is familiar with that and it is adequately set out, we would think, in our outline.
HIS HONOUR: I take it you read the affidavit of Mr Kerrigan?
MR BURBIDGE: Scott Kerrigan.
HIS HONOUR: Yes. Is there any objection to the affidavit of Mr Kerrigan, Mr Redmond?
MR REDMOND: No objection.
HIS HONOUR: Yes, thank you. I have looked at that, Mr Burbidge.
MR BURBIDGE: Thank you, your Honour. On the evidentiary front there is, however, one matter on which I seek an indulgence and it is this. Your Honour would know that the circumstances which bring the matter before your Honour have been one of urgency following vacation and all the usual problems. In those circumstances, we do not have on an affidavit relating to the consequences of imprisonment of the second and third applicants on (a) themselves and (b) on the first applicant.
Could I indicate, your Honour, that what I am seeking to do is this: first, to indicate, very shortly of course, the nature of the matter of concern. It is one which we believe is known to Customs and, accordingly, we would think that there would be no difficulty with it, but I am in the position to call my instructing solicitor who will depose that those are his instructions. The matters in question simply are these, your Honour, that the business of the first applicant, which of course is effectively that of the second and third applicants, is being continued in an attenuated form.
In these circumstances, they have by negotiation with Customs removed their operations to those of another operator in Beenleigh and they continue to lease their own premises with the vats and all the plant and equipment and the like against the outcome of the special leave application and, if granted, the appeal. Accordingly, the business is still in operation, albeit not without difficulty. The liquor and various other aspects of the matter which had to be transferred to the Beenleigh premises were transferred under the supervision of Customs and, as one would expect, the operation itself is under the supervision of Customs, at least in a broad sense.
Now, your Honour, the effect of the second and third applicants going to prison would be that all hope of salvaging the business would be gone, even were it for ever so short a time, and secondly, that would certainly affect the capacity of the applicants to generate the funds associated with this continuing legal argument. I am in a position, as I say, to call the solicitor, if that is required, but I do seek to have those matters taken into account upon what might be in shorthand terms referred to as the balance of convenience aspects of the matter.
HIS HONOUR: Mr Redmond, what do you say about my acting on the assertion from the Bar table that the business of the first named applicant would at least be adversely affected, if not destroyed, were the second and third named applicants to be imprisoned in accordance with the terms of the orders as they presently stand?
MR REDMOND: Your Honour should proceed to act on that assertion.
HIS HONOUR: Yes, thank you. Yes, Mr Burbidge.
MR BURBIDGE: I am grateful to my learned friend. Your Honour, I need not, as I say, take you through the first page of the outline of argument. It sets out the bases upon which we seek the stay. We do, however, point out the time involved, that is, the time since the offences occurred, 1995‑1996. The trial took place in 2005, judgment delivered in 2006. I add only, your Honour, again from the Bar table, that I do not understand it to be suggested that that delay was in any way consequent upon any action or inaction on the part of the applicants.
Now, the balance of the chronological matters is set out. If your Honour would look at page 2, the second bullet point, the appeal was successful in part. In addition – and I would seek to hand up to your Honour a copy of the orders as extracted. I am not sure whether ‑ ‑ ‑
HIS HONOUR: They are on the file, are they not, the orders of 22 December?
MR BURBIDGE: They are, your Honour, yes. If your Honour would look at the second bullet point on our page 2, that records the matter being partially successful. The reason I mention it is that the order which I have just handed to your Honour does not in fact reflect the totality of the success which the applicants had. There were three by eight further convictions, those being convictions for false statement under section 120(1)(vi) of the Excise Act. So much is to be seen, in particular in the judgment of his Honour Mr Justice Williams, at paragraph [43], with which his Honour the Chief Justice agreed.
The only reason that we mention it, your Honour, is this. We did seek to remedy the matter when the matter was before the Court of Appeal recently. Her Honour who heard the application was not familiar with it and decided that it was more appropriate that it should be – unfortunately none of the three justices is currently available and so on.
HIS HONOUR: But there will be an application under the slip rule to vary the order and the parties can take whatever attitudes they take about whether there is a slip or not when that comes around. Do you say there has been?
MR BURBIDGE: Yes, quite.
HIS HONOUR: Yes.
MR BURBIDGE: We say, your Honour, for that reason that matter takes its place in our present application, but it will no doubt be abandoned in due course. Now, your Honour, as to the special leave applications ‑ ‑ ‑
HIS HONOUR: Now, just before you come to that. On the question of chronology, there is a leave day on 2 March which it may – I do not say it will – be possible to bring on these applications and, at least for present purposes, I think argument may usefully proceed on the assumption that any question of stay or like order would be on an assumption of expedition of the applications to come on for 2 March and, if necessary, abbreviate the times for filing of necessary papers in order to enable that to be done.
MR BURBIDGE: I take that on board. Thank you, your Honour. Perhaps whilst on that topic I should indicate that, as your Honour would expect, the special leave applications were drafted in all the haste that the circumstances demanded and it certainly is our current contemplation that they would (a) be tightened up considerably and (b) we may seek to add matters additional to those currently taking there place therein.
HIS HONOUR: Does that not present at least one area for focus in this present application? Do we not have to look at what is the point that you say will attract, or may attract, or has a reasonable prospect of attracting, a grant of leave?
MR BURBIDGE: We do, your Honour.
HIS HONOUR: What do you say that point is on the question of conviction? Let us segment conviction and penalty for the moment. What do you say the conviction point would be?
MR BURBIDGE: Those appearing, your Honour, on page 2 are the points which we have identified, that the lack of constitutionality of sections 255 of the Customs Act and 144 of the Excise Act, they of course being the averment provisions ‑ ‑ ‑
HIS HONOUR: As to that, if I go to SAK3, which are the reasons of the Court of Appeal, first, am I right in understanding the principal reasons of the court to be those of Justice Williams, with whom Chief Justice de Jersey agreed, Justice Jerrard dissenting in part as to some aspects of the matter, but the principal reasons of the court are those of Justice Williams, are they?
MR BURBIDGE: On conviction, yes.
HIS HONOUR: Yes. As to that, what I am to make of what appears in paragraphs [18], [22] and [34] to [35] in considering this proposed ground of application for leave about the validity of the averment provisions? Let me make the point as precisely as I may. I read paragraph [18] of the reasons as saying the trial judge did not rely on the averments and I read the other paragraphs, particularly [22] and [34] to [35], as, in effect, saying the judge simply drew inferences from the evidence that was led at trial, including his assessment of the evidence led by the individual defendants. Now, if that is so, how do we ever get to the validity of the averments?
MR BURBIDGE: We, your Honour, have to start with confrontation with that proposition, namely that the trial judge did not rely on the averments. We would draw attention, I suppose, your Honour, to paragraph [2], which is that of his Honour the Chief Justice. What his Honour said, relevantly, is this:
I am also indebted to Jerrard JA for his reasons. My only points of difference in relation to those reasons concern the primary Judge’s reliance on averments in relation to the third appellant –
we would say in passing there is no special need to focus on the third appellant, the pleadings were pretty well identical against both –
(which was I considered “in passing” to the point of being insignificant) –
We would start with the proposition, your Honour, that there is an apparent concession, we would submit, that there was reliance by his Honour the trial judge on averments, nonetheless though, his Honour Chief Justice regarded them as insignificant.
HIS HONOUR: I will confess I had read that rather differently, Mr Burbidge. I had read his Honour’s first paragraph as a wholesale agreement with Justice Williams and paragraph [2] as pointing to the difference that he felt with Justice Jerrard’s reasoning, in particular, Justice Jerrard’s view of the reliance on averments and the Chief Justice saying, “Well, look, there might have been some aversion to averments but in passing to the point of being insignificant”.
MR BURBIDGE: One can look at it from one’s own perspective, your Honour. That is all I can say on that matter. We would, I suppose, seek to make a similar point in relation to paragraph [35], which is contained within the judgment of Justice Williams, in which he said:
My interpretation of the trial judge’s reasons is that, though he referred generally to the averments, he did not specifically rely on them –
Now, that ambiguous phraseology, as we would submit it is, rather reflects one of our complaints, which was that his Honour, we would say, did rely – and I believe we can demonstrate that – on averments but did not identify those averments to which he had had regard. So it is true in a sense that he certainly did not specifically rely on them in the sense that he did not identify those upon which he had relied, but he did in fact nonetheless rely on them.
HIS HONOUR: In what sense did he rely? He was confronted with a whole raft of evidence, including the defendants’ sworn denial that they had dealt with the goods in the manner that Customs asserted. He disbelieved the defendants and inferred from all of the evidence the goods had gone into home consumption and not to export.
MR BURBIDGE: Well, yes. He disbelieved Mr Wright, certainly, there is no question of that. He branded him clearly enough. With respect, he did not reach the same views about the third applicant and there are some ‑ ‑ ‑
HIS HONOUR: One of them had packed the containers ‑ ‑ ‑
MR BURBIDGE: Yes, the packing man.
HIS HONOUR: Yes, and he was disbelieved? Am I right?
MR BURBIDGE: I am sorry, your Honour.
HIS HONOUR: Was the man who had packed the containers the one who was disbelieved or have I got it the wrong way around?
MR BURBIDGE: No. Yes, the wrong way around, your Honour. Mr Wright, the second applicant, is the man who was the principal player in the event, if I may so term it, and he was thoroughly disbelieved. I cannot argue with that.
HIS HONOUR: Yes.
MR BURBIDGE: As to Mr Bryce, he was the packer, and ultimately the trial judge said, “Well, he was there. He was the man who packed them and so on”. Our complaint in that regard was, yes, but the packer does not necessarily know what is going on in the office and so on, and there is no evidence to suggest he did, and, furthermore, insofar as he made error here and there, why the events were 10 years ago anyway and so on. So we would not accept that the third applicant has been so branded.
I think our real point ultimately, to answer your Honour’s question directly, is dealt with in page 3. The use of averments, that the trial judge did in truth rely upon the averments, we would submit, is clear from reference to those paragraphs. If I might just take your Honour to them briefly, they are, of course, SAK1. Paragraph [5] of his Honour the trial judge’s reasons – the essence of the matter, of course, if I may break off, is found in paragraphs [3], [4] and [5]. If it is convenient, I might just quickly take your Honour through those because they relate, in particular, to the reasonable hypothesis consistent with innocence point as well. His Honour approached the matter in this way:
The case has been conducted by all parties on the basis that goods dealt with domestically (“delivered into home consumption” in the jargon of the legislation) attracted duty . . . while goods exported attracted no duty . . . In relation to the charge of evasion –
which is the key, of course, to the whole matter –
the plaintiff submitted that the following were the essential steps . . .
a. entering the goods for export from Australia –
a matter which was not in issue –
b. acquitting the goods from bond –
and in the sense of making the necessary entries, yes, that was correct, not in issue –
c.not exporting the goods from Australia in accordance with the entry –
that was the issue to which evidence was directed and on which we were disbelieved –
d.delivering the goods into home consumption without entering them for home consumption –
that was specifically denied in the pleading and, of course, is the matter on which we focus because it is the key to the whole matter for the obvious reason that unless the goods have entered home consumption then obligation for duty has not arisen. It is still covered, of course – if it is still sitting in the tank, then of course it is – and if I may short circuit our own, at the end of the day our proposition was, “Look, his Honour on day one of this trial raised with you during the course of your opening the proposition that all you have proved is that it was not exported. That does not get it out of the tank into somewhere else.” And that proposition was canvassed – T49 of the transcript onwards – for some little time. His Honour did not advert to it again, but at no stage was the matter addressed.
It is, of course, clear that the Customs did not utilise the extensive powers they have to go in and actually determine what was left and what should be there and so on. The consequence of that was that there was no evidence led on this point whatsoever. At the end of the day, so we would submit, one was left with the proposition that you had actions which were as consistent with preparation to conduct a deceitful exercise on the Customs as with the execution of such a scheme. His Honour found that scheme to exist, but without, we would submit, basis was prepared to make the final step and say, “Well, I infer they were entered for home consumption”. Could I go to paragraph [4]:
The plaintiff led no direct evidence in relation to step d. Its averments . . . were denied. The defendants did not challenge the averment –
and so on. Nothing need be read of that. Paragraph [5]:
The onus is on the plaintiff to prove beyond reasonable doubt that the goods were not exported as the defendants allege –
we say, with respect, rather more than that –
In theory the plaintiff could have relied upon the averments alone to satisfy that onus, but he did not do so. He mounted a substantial circumstantial case to demonstrate that the goods were not exported. The evidence of the defence witnesses, Mr Wright in particular, was directed toward showing that they were exported. If the plaintiff demonstrates that the goods were not exported, the only alternative conclusion open on the evidence and the averments will be that the goods were delivered into home consumption.
Now, that was averred specifically that the goods were delivered into home consumption from – could I hand up to your Honour a copy of ‑ ‑ ‑
HIS HONOUR: Can I just understand this. The defendants did not run an alternative case at trial, did they? Their case was these goods were exported?
MR BURBIDGE: Correct.
HIS HONOUR: To put it into the familiar terms of the criminal law, in a sexual offence context, it was not a case of there was no intercourse but if there was, there was consent?
MR BURBIDGE: No, they did not seek to run a secondary case of any kind.
HIS HONOUR: You now want to say ‑ ‑ ‑
MR BURBIDGE: The obligation rested at all times on the prosecution and if they rely upon a circumstantial evidence case, then, as your Honour observed in this very matter when last before the Court, the requirements are unchanged and the rules apply, including, as your Honours cited, of course, R v Shepherd. That is our argument, your Honour, in short. If I may return briefly, your Honour – I have handed to your Honour a copy of the further, further, further amended statement of claim. If your Honour would look at page 3, paragraph 16, this deals with the first of the shipments, as page 2 demonstrates, the Honiara shipment, and it is a formula repeated throughout the document. The reference, of course, is at the foot of the page, 16(d): those additional products were delivered for home consumption.
Now, that same allegation was made appropriately to the circumstances consistently in every single case. I do not need to remind your Honour that this is one of those documents. I think there were 62 or 64 paragraphs in Hush and Devanny. I do not need to elaborate upon the problems that we submit require – the type of argument is, of course, immediately apparently.
Now, could I just, your Honour, before leaving that reference at B3 take your Honour briefly to the other paragraphs upon which we rely. Paragraph [58] is a further indication, we would submit, of indicating the use of the trial judge of the averments. In the last six or seven lines his Honour records – perhaps I read a little more than that because it does tell us those factors present to his Honour’s mind from which he, so far as is disclosed, drew the inference. First, of course, is the material about it was not exported at all. Then follows, 10 lines from the bottom:
the goods listed in the new‑style invoice for the shipment were not exported and the export clearance . . . was false and misleading. As Labrador’s stock book shows, they ceased to be part of the stock held under bond.
The respondent does not claim that that is any evidence that they were in fact. The respondent specifically accepted that was part of the scheme to falsify the books. His Honour then says from that:
I infer they were delivered for home consumption.
We say from that that, with respect, does not meet our complaint.
HIS HONOUR: What do you make of paragraph [55]?
MR BURBIDGE: Could I just finish ‑ ‑ ‑
HIS HONOUR: Yes, you finish.
MR BURBIDGE: I am so sorry, your Honour. It is only the next sentence:
The plaintiff’s averment to that effect is correct.
HIS HONOUR: Here you have a circumstantial case. One of the circumstances is you have a deposit with a lot of a cash. You want to say not proved beyond reasonable doubt that goods said to have been exported, found not to have been exported, were not delivered into home consumption and yet some money has been deposited in cash at about that time in respect of that – yes.
MR BURBIDGE: Your Honour should know that – well, of course it sounds suspicious – of course it does – but not only is the available hypothesis, the one I am about to mention, that this was the case of the respondent itself. Those payments in cash, it was said, were not payments for the goods. They were payments made to look as though the transaction was a regular export. That was their case.
HIS HONOUR: Yes.
MR BURBIDGE: Your Honour, the formula varies slightly in his Honour’s judgment. The next reference, I think, is at [109], but it is consistent throughout. His Honour says at page 37 of the judgment, the next page – I am sorry, perhaps the last page, he repeats those matters.
HIS HONOUR: Well, let it be assumed for the purpose of present argument that you would wish to dispute the Court of Appeal’s conclusion that the trial judge did not depend upon the averments in reaching the conclusion he did. Were leave to be granted to challenge the validity of the averment provisions of the Act, a necessary first step in the argument would be demonstration that the averment provisions were relevantly engaged in the litigation. That would require this Court to trawl through the whole of the facts, would it not?
MR BURBIDGE: No, with respect, your Honour.
HIS HONOUR: Why not? Would not the conclusion that the averment provisions were engaged in this case depend upon the Court first concluding that the factual evidence led at trial did not support the inference ultimately drawn by the trial judge?
MR BURBIDGE: Well, we would imagine, your Honour, that it would be necessary or may be necessary for the respondent to indicate if there is some alternative to that which the trial judge identified. We do not, with respect, think that there was anything. The totality of the evidence really was raged around this question of was it exported, was it not exported. There were some pluses and some minuses in the whole matter and the question of overseas participation floated around the edge and so on, as one would expect. But to answer your Honour directly, no, we would not anticipate. Could I say, your Honour, our strongest card, if I may so put it, is that which fell from the judge in the minority in the Court of Appeal. That is at [251], [252] through to [254].
HIS HONOUR: Of the trial judge’s ‑ ‑ ‑
MR BURBIDGE: No, of the Court of Appeal judgment. Though not entirely complete, it does, with respect, we would say, capture the essence of the matter. His Honour Mr Justice Jerrard said this ‑ ‑ ‑
HIS HONOUR: Sorry, I am lost. Where should I be looking? It is my fault, not yours. Where should I be looking?
MR BURBIDGE: No, it is not your fault. It is my fault again, your Honour. It is, in fact, in SAK1 at [251].
HIS HONOUR: Yes, I have it now.
MR BURBIDGE: Yes, and of course it is the trial judge, your Honour:
[251] On the other hand, accepting that the charges against Labrador are proved, there is no evidence tending to exclude Mr Bryce’s involvement.
We made a complaint about reversal of onus, but that does not trouble us at the moment.
Although it was pleaded on his behalf that, if each container held the goods set out in the old-style commercial invoice, that occurred without his knowledge or consent, Mr Bryce did not suggest any hypothesis upon which he might not have been knowingly concerned in Labrador’s conduct. That poses a difficulty for his case. The plaintiff pleaded in relation to each shipment that Mr Bryce knew at all material times that the container in question held only the goods listed in the relevant old-style commercial invoice. He also pleaded in relation to each shipment that Mr Bryce aided and abetted, counselled or procured or by way of act or omission was directly or indirectly concerned in moving . . . and the making of the relevant false statements to Customs. The plaintiff submitted these allegations constituted averments for the purpose of s 255 . . . If that is correct they provide prima facie evidence of the matters averred.
[252] I see no difficulty in characterising the plaintiff’s allegations in the statement of claim as averments. Indeed, the opening words were –
et cetera.
HIS HONOUR: And you then come ultimately to paragraph [254]:
That must be decided on the basis of all of the evidence, taking the averment provisions into account. On that basis I am satisfied –
et cetera.
MR BURBIDGE: Yes. His Honour the trial judge in dealing with the matter of averments directed his attention to the question of whether these were in truth averments rather than of course saying, “I have no need to rely on”, et cetera. So that that, we would say, is strong evidence and the judgment of his Honour Mr Justice Jerrard in that regard, we would say with respect, is to be preferred to that of the majority. So that, your Honour, I think is where we go in relation to the question of averments in the first place.
HIS HONOUR: Yes. Now, is the averment point the point upon which you would place chief reliance in the conviction application?
MR BURBIDGE: We would believe that the alternative hypothesis consistent with innocence ought enjoy similar status, your Honour, but certainly the averment point and the reasonable hypothesis arguments are, I believe, the two principal arguments. We have a third argument, your Honour. It is not an inconsiderable argument. That is that the manner in which the pleading proceeded itself created that injustice identified in Hush and similar cases.
We would say that we can point to a series of problems which we believe procedurally followed the utilisation of this methodology which was – well, it was a long time ago, of course, but at least it was persisted in right through to two days after the trial started when the last of the amended versions was placed before the court. Your Honour would know that in the week or so or perhaps – certainly in the same month or within a month before the trial started, there were significant amendments made which raised new matters and they, in turn, were the statute barred matters dealt with by the Court of Appeal. The short answer to your Honour is, yes, the averments matter is plainly at the forefront of our thinking.
HIS HONOUR: Now, on the penalty side of events, can I just understand something that presently puzzles me. If you go to your outline of argument at the foot of page 4, you refer to section 15A of the Crimes Act applying to fines, not penalties. At point 3 on page 5, that is, the point numbered 3 on page 5, you mention the definition or advert to the definition in the Crimes Act.
MR BURBIDGE: Yes.
HIS HONOUR: You then say it, that is, the definition, has no application unless the penalties imposed under the Customs Act are pecuniary penalties.
MR BURBIDGE: Which they are not. Quite. Yes.
HIS HONOUR: I just do not follow. What are they if they are not pecuniary penalties?
MR BURBIDGE: In the language, there are three possibilities: penalties, pecuniary penalties and fines. Three relevant results. Now, if your Honour has the Customs Act ‑ ‑ ‑
HIS HONOUR: Before we come to that, I just want to understand the Crimes Act side of it. Section 3(2) of the Crimes Act at the relevant time provided that:
In this Act –
including therefore 15A –
a reference to a fine includes a reference:
(a) to a pecuniary penalty other than –
certain specified pecuniary penalties. Am I right in understanding that this is not an accepted pecuniary penalty specifically mentioned in 3(2)?
MR BURBIDGE: I think that argument would rage on that, your Honour, but our position is this, that the reference in the Crimes Act definition to which your Honour goes certainly expands the definition to include pecuniary penalties.
HIS HONOUR: But it also includes subparagraph(b):
costs or other amounts ordered to be paid by offenders.
MR BURBIDGE: Yes, it does.
HIS HONOUR: What is this?
MR BURBIDGE: What is?
HIS HONOUR: The sums we are dealing with.
MR BURBIDGE: I do not know.
HIS HONOUR: Why are they outside 3(2) is the point that presently puzzles me, Mr Burbidge. You may be right, but I just do not follow the point.
MR BURBIDGE: Well, the point simply is this, your Honour, that the reference in the definition of the Crimes Act would be apposite to pick up references in other Acts to pecuniary penalties such as Trade Practices Act, Sales Tax Act, I think, various other Acts. What is excluded are those to which the section refers, which are in Division 3 of Part XIII of the Customs Act and the position simply is they are the ‑ ‑ ‑
HIS HONOUR: This is not a Division 3, Part XIII penalty, is it?
MR BURBIDGE: No, it is not.
HIS HONOUR: That is the narcotics territory, is it not?
MR BURBIDGE: Correct. Our point simply is this. If you go through the Customs Act there is a division which deals with offences which result in pecuniary penalties. Pecuniary penalties is defined in the Customs Act. These are not they.
HIS HONOUR: Why not?
MR BURBIDGE: Because they are not ‑ ‑ ‑
HIS HONOUR: I am sorry to be obtuse but I just do not understand how you make the slide or the connection at the moment.
MR BURBIDGE: I suppose the answer is, your Honour, that they are not pecuniary penalties because they do not answer the definitional section in the Customs Act of what is a pecuniary penalty for the purposes of that Act, which I think is 243. Pecuniary penalty is defined as penalties for offences in Division 3.
HIS HONOUR: Yes. I understand the Customs Act uses the expression in a particular way.
MR BURBIDGE: Well, we say this, that the Crimes Act, the definitional section, specifically excludes those pecuniary penalties which are to be found in the Customs Act, and they are the only ones to be found in the Customs Act. Accordingly, section 15A has – that aspect of the Crimes Act has no relevance because it does not pick up anything out of the Customs Act, there being only Division 3 references to pecuniary penalties. That is the basis of the submission that is contained in that paragraph there, your Honour.
HIS HONOUR: What would be the chief point you would advance on the penalty side as the ground for special leave?
MR BURBIDGE: The importance of the matter plainly lies in the proposition that so far as we are aware – and I do not know whether my learned friend can assist on the matter – no citizen has been deprived of his liberty in consequence of a civil customs offence previously; thus it is plainly an important matter. The question of whether or not it is open to do so we say is one that ought be resolved in the negative. That is the important point.
The reason that we say that it is an arguable proposition is because the whole of the Penalties and Sentences Act (Qld) is plainly intended to deal with the criminal law. As reference to the second reading speeches makes plain, it was intended ‑ ‑ ‑
HIS HONOUR: That may be a State intention, but why is that of the slightest relevance to the present debate, which is federal law and, in particular, the application of 15A of the Crimes Act? I mean, it is the federal law that is the starting point, is it not?
MR BURBIDGE: Of course it is, and that is one of our complaints about something that has happened in the Court of Appeal, that the definition in the State Act has been used, in effect, to bootstrap the whole matter. But the answer to your Honour’s question is because there is an exception contained in 15A which was there when it was the old section 18 and so on, which – the exception is so far as applicable and not inconsistent with federal law and so on, so the question of applicability is one that is raised.
The anomaly that is involved is this, that if one did indeed fall within the Penalties and Sentences Act then there are significant provisions available which would deal only with people convicted of criminal offences and the benefits of the Act would be denied to persons who were, as it were, inadvertently swept up through this civil mechanism. Further, the interaction of this with such sections as 19B of the Crimes Act which contains a whole – well, I do not have to remind your Honour that it has its own provisions in there, to one of which their Honours made reference, but a number of others would immediately seem to have some application.
So we would say that there is a very real public interest question there based on this proposition that if it is to be so interpreted then the ramifications of it are such that we would say, even if were in fact picked up prima facie, then one would see that it would be let back out again, as it
were, by the applicability exception contained in 15A. Such is the argument. It is not at a highly‑developed stage, as I am sure your Honour has recognised, but certainly that is the line of country that we asserted in the Court of Appeal and which we would seek to agitate before this Court.
HIS HONOUR: Yes. Mr Burbidge, unless there is something in particular that you wish to urge ‑ ‑ ‑
MR BURBIDGE: No, your Honour.
HIS HONOUR: ‑ ‑ ‑ it may be of advantage if I hear from Mr Redmond.
MR BURBIDGE: I believe that captures our position, thank you, your Honour.
HIS HONOUR: Yes, thank you, Mr Burbidge. Yes, Mr Redmond. Mr Redmond, I would be most assisted if you would first direct argument to the question of the application for leave in respect of conviction. Let us leave aside the application for leave in respect of penalty for the moment. Let us focus upon conviction and let us do so on these hypotheses, being hypotheses that if they are to be challenged you should challenge. One, we can bring the leave on, we hope, on 2 March. We are therefore talking of a little over a month.
Hypothesis 2 is that the interception that the applicants want to make of the operation of the orders is directed primarily – and I rather suspect exclusively – to the arrest and commencement of imprisonment. Hypothesis 3 is imprisonment is ordered in default of payment of money, payment of money which, at least as I understand it, at some points of this litigation it has been common ground that neither the company nor the individuals can pay.
In those circumstances, if the conviction is challenged on a ground which includes a challenge to the validity of the averment provisions, why should I not intervene to prevent execution of what is a default aspect of the original orders made? Now, that is cards on the table time, Mr Redmond. Now is the time to play the hand you have been dealt, I am afraid.
MR REDMOND: Your Honour, the uniform history of the administration of the customs and excise for more than 100 years has led to a barren, dry…..for litigants in the position of my learned friends. They have never been successful in a constitutional challenge to the averments and I have set out ‑ ‑ ‑
HIS HONOUR: What are the decisions of the Court on the validity of the averment to which you would refer and upon which you would rely?
MR REDMOND: Nicholas v The Queen is the case – and I have set it out in paragraph 11 of my outline – in which all of the cases are…..and I have deliberately taken the passage in my outline from the judgment of his Honour Justice…..in the Supreme Court of Queensland Court of Appeal who cites this passage or these passages from Nicholas v The Queen in rejecting a constitutional challenge to section 144 of the Excise Act.
HIS HONOUR: Yes.
MR REDMOND: His Honour uses the language:
It is thus securely established that legislative provisions, such as those in s 255 of the Customs Act and s 144 of the Excise Act, may regulate modes of proof, and may affect the burden of proof, even in the case of a prosecution for an offence, without being held to usurp, or impede the exercise of the judicial power of the Commonwealth.
That is the proposition.
HIS HONOUR: Yes.
MR REDMOND: Your Honour has already adverted to the difficulty that will be faced by the High Court in dealing with a challenge to what my learned friends have describes as unspecified averments to which the trial judge is said to have relied. Your Honour, three judges of the Supreme Court have held that there was a case, based on the evidence alone, capable of convicting the applicants. The application for special leave has already been rejected in the Court of Appeal on this basis. There is no ground for a grant of special leave.
To deal with your Honour’s principal point, we concede that the balance of convenience, if the Court were to proceed that way, does lie against my client but, your Honour, this is a case which his Honour Justice Fryberg described as…..and used the strongest possible terms. In the course of argument he asked counsel for the applicants whether in fact they could imagine a worse case. This is a very case in which your Honours should refuse a stay.
HIS HONOUR: Yes.
MR REDMOND: That is all I have.
HIS HONOUR: Yes, thank you, Mr Redmond. I do not think I need your assistance, Mr Redmond, on the questions concerning penalty. The point of major concern to me at the moment is the application so far as it concerns
conviction. Is there anything further you want to add about that subject matter?
MR REDMOND: Nothing that I have not addressed in the outline, your Honour.
HIS HONOUR: Yes, thank you very much, Mr Redmond. Yes, Mr Burbidge.
MR BURBIDGE: I am sure your Honour has noted the exception contained in Mr Justice Brennan’s judgment in the centre of page 5 which we say is here the position. Mr Justice Isaacs, he said in Williamson v Ah On, pointed out a difference between the rule of evidence and a provision which though in the form of a rule of evidence is in truth an impairment of the curial function, et cetera, and we would submit that that plainly is not authority which would stand in the road or require reconsideration were this matter to be granted special leave. That is the only matter I wish to indicate to your Honour, thank you.
Perhaps before I sit down, your Honour, I should hand to your Honour a copy of the index of the relevant part of the Customs Act only, your Honour, to indicate that whilst – it contains Part XIII, Divisions 2 and 3. Our point simply is that whilst their Honours in the Court of Appeal did, in fact, say that I was inaccurate in, as they said I did, claiming that there was no other reference to it, I think what I really said was that there was no other relevant reference to it. There is a definition somewhere in which the words “pecuniary penalty” does appear but I do not, I think, need to answer that beyond that which is contained in our document.
The only other thing I should have done for completeness, your Honour, is hand up an extract of the opening containing the exchange to which I made reference earlier. May I ask, does your Honour have a copy of the Arifin Western Australian judgment?
HIS HONOUR: Yes, I think I have.
MR BURBIDGE: It is that of Mr Justice Pidgeon, with whom two other judges of the court agreed.
HIS HONOUR: Yes, I think I have that somewhere.
MR BURBIDGE: It raises the Marlborough Mines type situation, your Honour, nothing more. Those are our submissions in response, may it please the Court.
HIS HONOUR: As its name suggests, the first named applicant, Labrador Liquor Wholesale Pty Ltd (“Labrador”) carried on business as a liquor wholesaler. The second and third named applicants, Laurence Eric Wright and Jeffrey Andrew John Bryce, were directors and employees of Labrador. The respondent, the Chief Executive Officer of Customs (“Customs”), brought proceedings in the Supreme Court of Queensland alleging that Labrador had evaded customs or excise duty on certain goods delivered into home consumption by falsely pretending that the goods were being exported. Eight shipments of goods were identified. Seven were said to have been exported to Fiji, one to Honiara in the Solomon Islands.
Customs alleged that in respect of each of the eight shipments Labrador knowingly or recklessly made a statement to an officer that was false or misleading in a material particular and that it had moved, altered or interfered with goods which were subject to the control of Customs. To evade payment of any duty which is payable and to knowingly or recklessly make a statement to an officer that is false or misleading in a material particular were offences under section 234 of the Customs Act 1901 (Cth) (“the Customs Act”). To move, alter or interfere with goods that were subject to the control of the Customs was an offence under section 33 of the Customs Act. Section 120 of the Excise Act 1901 (Cth) (“the Excise Act”) was in terms materially identical to section 234 of the Customs Act. Section 61 of the Excise Act made substantially similar provisions to those found in section 33 of the Customs Act.
Customs further alleged that Messrs Wright and Bryce were guilty of the same offences as Labrador as accessories to their commission. Section 236 of the Customs Act provided that whoever aided abetted counselled or procured or by act or omission was in any way directly or indirectly concerned in the commission of any offence against the Customs Act was deemed to have committed the offence and was to be punishable accordingly. Section 5 of the Crimes Act 1914 (Cth) (“the Crimes Act”) which applied to prosecutions under the Excise Act was in generally similar terms.
On 6 February 2006, after a lengthy trial, Justice Fryberg ordered (see Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd & Ors [2006] QSC 004) that each of the defendants be convicted on each of the charges laid against that defendant. Justice Fryberg adjourned the questions of penalty, and what other consequential orders should be made, for further hearing.
On 15 March 2006 Justice Fryberg ordered (see Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd & Ors (No 2) [2006] QSC 040) that each of Labrador, Mr Wright and Mr Bryce pay specified monetary penalties in respect of offences under section 234 of the Customs Act and further specified monetary penalties in respect of offences under section 120 of the Excise Act. Justice Fryberg further ordered that if Mr Wright or Mr Bryce failed to pay any such penalty immediately he was to be imprisoned for a term specified in the order. Justice Fryberg also ordered that the defendants make reparation to the Commonwealth of Australia of certain amounts which in each case were the amount of customs duty or excise duty evaded. He ordered the defendants to pay Customs the costs of the proceedings.
Labrador, Mr Wright and Mr Bryce appealed to the Court of Appeal of Queensland against conviction and against the penalties which had been imposed. On 22 December 2006 the Court of Appeal ordered (see Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd & Ors [2006] QCA 558) that Labrador’s appeal against conviction be dismissed and that the appeal of Messrs Wright and Bryce against conviction be allowed only to the extent of setting aside the conviction for an offence against section 120 of the Excise Act with respect to one of the eight shipments that is said to have been made to Honiara and the penalty imposed with respect to that offence but dismissed the appeal of all appellants against sentence.
The present applicants would contend that the order as pronounced and taken out does not accurately give effect to the reasons of the Court of Appeal and have indicated an intention to apply to that court to have that order varied under the relevant slip rule. The respects in which the order is said not to give effect to the reasoning of the Court of Appeal are not immediately relevant to these applications and need not be noticed further.
On 19 January 2007 Labrador, Mr Wright and Mr Bryce filed two applications for special leave to appeal to this Court, one in respect of the orders made by the Court of Appeal disposing of their appeals against conviction and the other in respect of the orders made by the Court of Appeal disposing of their appeals against sentence. On the same day an application made by Labrador and by Messrs Wright and Bryce for a stay of the primary judge’s orders was refused by the Court of Appeal.
They now apply by application in each of the special leave applications for orders staying the execution of the orders made by Justice Fryberg on 15 March 2006, other than his Honour’s reservation of liberty to apply, until determination of the applications that have been made for special leave and further apply for an order that warrants said to have been issued by the Criminal Registry of the Supreme Court of Queensland on 22 January 2007 for the arrest of Messrs Wright and Bryce be held at that Registry and not executed until determination of the applications for grant of special leave to appeal to this Court.
There is no doubt, and it is undisputed, that this Court has inherent jurisdiction to grant a stay of proceedings to preserve the subject matter of litigation. It is no less clear, however, that a stay to preserve the subject matter of litigation pending an application for special leave to appeal to this Court “is an extraordinary jurisdiction and exceptional circumstances must be shown before its exercise is warranted”: Jennings Construction Limited v Burgundy Royale Investments Pty Limited (1986) 161 CLR 681 at 684 per Justice Brennan.
Several features of the present matter are notable. They are matters which in some respects set the matter apart from other kinds of case in which questions of stay pending the hearing and determination of an application for special leave to appeal to the Court have been considered. First, there is the unusual nature of the proceedings which give rise to the application for special leave. Those are questions which were considered by the Court at an earlier stage of the proceedings giving rise to the present applications in the Court’s decision in Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd (2004) 216 CLR 161.
Second, there is the nature of the orders whose operation it is now sought to intercept. In effect, Justice Fryberg ordered each of the applicants to pay various sums by way of penalty which taken together totalled more than $5 million. His Honour further ordered the applicants to pay other sums as reparation in amounts totalling about $1 million and to pay all such sums immediately. The order further provided that if either Mr Wright or Mr Bryce defaulted in payment of the penalties which he was ordered to pay he was to be imprisoned for periods which in aggregate amount to about five years.
One consequence of granting orders of the kind now sought would be that the consequence attached to non‑payment of the penalties would be deferred despite Messrs Wright and Bryce seeking to have Justice Fryberg make an order for deferment of payment and failing in that application. But little weight can, in my opinion, be given to that aspect of the consequences of granting orders in the terms sought by the applicants. The essence of the relief which the applicants seek is the interception of the warrant for their arrest and the commencement of their service of terms of imprisonment rather than any interception of the obligation to pay the moneys which were ordered to be paid by the orders of Justice Fryberg. Indeed, the proceedings, at least at earlier stages, have been conducted on an assumption that neither Labrador nor Mr Wright nor Mr Bryce is in a position to pay the sums which have been ordered to be paid by them.
The third feature of the present matter to which attention should be drawn is that, as I have earlier indicated, an immediate purpose of the application is to intercept the imprisonment of Messrs Wright and Bryce. At first sight that may be thought to raise questions of the kind examined by Justice Brennan in Chamberlain v The Queen (No 1) (1983) 153 CLR 514 but it is important to notice that the present proceedings differ from what, at the risk of no little inaccuracy, might be called “ordinary” criminal proceedings in a number of ways and that the order for imprisonment which it is now sought to intercept is a conditional order conditioned on default in payment of monetary penalties.
The applicants seek to contend on appeal to this Court that their convictions should be set aside. Several propositions are advanced in support of that contention but some emphasis is given to an argument that, in reaching his conclusion that the applicants should be convicted of the various offences in question, the primary judge relied on certain averments made by Customs pursuant to the relevant averment provisions of the Customs Act and the Excise Act.
The applicants would seek to contend that the provisions of the Customs Act and the Excise Act permitting the making of those averments are unconstitutional. In that regard the applicants refer to the questions touched upon by Justice Kirby in Chief Executive Officer of Customs v El Hajje (2005) 224 CLR 159.
It is important to notice that a majority of the Court of Appeal may be understood as having formed the view that the primary judge, Justice Fryberg, did not rely on the averments made by Customs in order to arrive at the conclusions which he did: see in that regard Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd & Ors [2006] QCA 558 at [18], [22] and [34]‑[35].
It may therefore be that if special leave were to be granted to consider the questions of constitutional validity which the applicants would seek to agitate in this Court that the applicants would have first to demonstrate that the Court of Appeal erred in concluding that the trial judge did not rely upon the averments made by Customs. Be this as it may, the applicants seek to agitate in this Court a question concerning the validity of provisions which they say were engaged and relied upon by the primary judge in reaching the conclusion that the applicants should be convicted of the offences that were alleged against them.
Self‑evidently, the balance of convenience runs wholly in favour of the applicants and against Customs in deciding whether to grant orders of the general kind sought by the applicants. So far as is revealed in the material before me, Customs would suffer no detriment were execution of the conditional order for imprisonment stayed pending the hearing and determination of the application for special leave. By contrast, the applicants would suffer the consequences of imprisonment in respect of convictions which they would wish to contend depended upon the application of provisions of federal law that are unconstitutional.
In considering whether or not to intercept the operation of the orders made by Justice Fryberg it is important to notice also that there is at least a prospect, perhaps a reasonable prospect, that the present application for special leave could be brought on for hearing and determination by the Court in little over a month’s time.
In all these circumstances, I am of the opinion that the better course is to intercept the operation of the order resulting in the imprisonment of Messrs Wright and Bryce pending the hearing and determination of the application for special leave against conviction or further order, while at the same time making orders and giving directions for the expedition of the application for special leave and the taking of the necessary steps sufficient to put the matter in a position to be included in a list of cases to be heard and determined on Friday, 2 March 2007.
It is, in my view, not necessary to express any view upon the questions that are presented by the application for special leave to appeal in respect of the penalties imposed upon the applicants. It suffices for present purposes to notice only the application concerning the convictions of the applicants.
Subject to anything that counsel may say as to the form of orders, I would propose to order that:
(1)until the hearing and determination of the applicants’ application for special leave to appeal to this Court in the matter concerning conviction, namely, matter in application B4 of 2007, or further order, the warrants issued by the Criminal Registry of the Supreme Court of Queensland on 22 January 2007 for the arrest of the second applicant, Lawrence Eric Wright, and the third applicant, Jeffrey Andrew John Bryce, be held at that Registry and not executed; and
(2)expedite the application for special leave.
It would then be necessary to give directions concerning the preparation of the papers necessary to support and oppose the application for special leave, and I will hear counsel on the form of those orders and the dates that should be fixed for the taking of those necessary steps. There would then be the question of whether any order should be made for the costs of this application and, if it should, what form that order should take.
My present intention is that the order for stay should be made only in the application concerning the application for special leave concerning conviction, which I understand to be matter B4. I would propose to make no order other than an order dismissing the application made in the other application for special leave and my present inclination, subject to what counsel may wish to say, is that if any question of orders for costs arises there should be no order for costs made in respect of that second summons. That is to be treated as wholly ancillary to this present principal application.
I suspect that the most efficient method of proceeding further would be if I indicate to counsel my intention to make orders of that general kind and in that way to say to counsel that they will need to set a timetable that will see the last step, which is the filing of books, occurring no later than Wednesday, 21 February and that I should leave counsel a chance to discuss between themselves how that timetable might best be adjusted. As I say, the last date I would presently have in mind is books filed by Wednesday, 21 February 2007.
If I were to leave the Bench for perhaps 10 or 15 minutes to allow counsel an opportunity to discuss those matters between themselves, we may perhaps best arrive at a way forward and counsel may have an opportunity then to speak to the particular form of orders which I have indicated I propose to make.
MR BURBIDGE: Thank you, your Honour.
MR REDMOND: Your Honour, may I raise three maters?
HIS HONOUR: Yes.
MR REDMOND: They are matters which I raised before, your Honour, and I would seek some guidance as to whether I should take those up with my learned friends. My client is asking for an order that Messrs Wright and Bryce surrender their passports, that they not approach within 100 metres of the departure terminal, and that they give or become subject to undertakings of the type that were given to his Honour Justice Jerrard in granting the stay prior to the hearing of the appeal in the Court of Appeal – that is to do with the business. My friends would be familiar with the form of that order.
HIS HONOUR: Yes. Those are matters which, at least in the first instance, I suggest you take up with counsel for the other side and if counsel would be good enough, between you or at least you, Mr Redmond, if there be no agreement about these matters, if you would be good enough to formulate a precise form of the undertakings which you seek to exact as a condition of the stay. I had not understood there to be any question of conditions on the stay. I understand why you raise them. I am not to be taken as suggesting that you are precluded from asking for them. Those are matters which, if needs be, I would hear argument about.
MR BURBIDGE: We will try and resolve them, your Honour.
HIS HONOUR: But if counsel can get to a precise form of order. Can I say this to both counsel. The precision in the form of these orders is critical. Ordinarily speaking, the last thing I want to see happen is this Court get embroiled in some argument about whether conditions have been met or not met. I would quite enjoy a trial of an action concerning issues of that kind. I might actually get to see some real live human witnesses, which I would quite enjoy, but I think there are better things for us to be engaged in than engaging in debates about whether there has been a contempt of this Court constituted by some failure to abide by conditions, so I hope that counsel understand the reluctance with which I say to them, let us get the conditions precise so that there can be no doubt about what people have to do or what people cannot do.
MR BURBIDGE: If the Court pleases.
HIS HONOUR: How long are you going to need? I would rather give you more time than less time.
MR BURBIDGE: If I may start, your Honour. I would have thought that – I will take instructions on the condition matters which have just arisen. I, for my part, cannot immediately see that we should not be able to resolve those. As far as the other matters are concerned, they are mechanical, and I am sure that my learned friend and I could come to some view about them.
HIS HONOUR: Am I better to simply say to you go away, come back at, say, 12 noon with a written piece of paper on which you are all agreed, or come back at 2.15? Is that going to be a more efficient way to go? I am in your hands about what the most efficient way to go is. What I do not want to have happen is that you are both left trying to draft on the run thinking, “Oh, the judge is coming back. We’ve got to get this done.” I would rather you took the time and got it right, were content with it and then presented me with, “Here is what we both agree on. Does that give effect to what you want to do?”
MR BURBIDGE: I wonder would your Honour in the first instance give us 15 minutes to see whether we believe that we can write down something to which we are both committed and if we need a little further time to actually do it, then perhaps we could ‑ ‑ ‑
HIS HONOUR: Well, if I come back at 11.20 Melbourne time, 10.20 Brisbane time and we will see where we have got to. As I want to make quite plain to counsel, I would rather at the end of the day you took time to get it right than do it on the tear and get it wrong.
MR BURBIDGE: We will do our best, your Honour.
HIS HONOUR: Yes. I will adjourn until 11.20.
AT 11.01 AM SHORT ADJOURNMENT
UPON RESUMING AT 11.29 AM:
HIS HONOUR: Yes, Mr Burbidge.
MR BURBIDGE: I am happy to indicate, your Honour, I think that we are in a position to outline the orders that we seek by consent. They are these, that conditionally upon the following three conditions, and then follow the three conditions, (1) if not already surrendered, applicants to surrender any passport to the Registry in the Supreme Court of Queensland (Criminal Registry) by 30 January 2007; (2) applicants not to approach any overseas terminal, noted that notwithstanding this condition applicants may approach Coolangatta Airport for purpose of domestic travel – it is the same airport, your Honour – (3) the conditions imposed by Mr Justice Jerrard on 19 May 2006 are continued.
By way of explanation I can indicate, your Honour, they relate to disposal of assets and the like. They are quite specific and have been settled by the parties in the past. Order that until – and I am only really repeating your Honour at this stage – until the hearing and determination of the applicants’ special leave application to this Court concerning conviction (B4 of 2007) or further order, any warrants – and I have changed this a little, your Honour, to – we understand that the warrants which we were told had been issued have not in fact been issued and are still there – I have just changed it to read, “or further order, any warrants for arrest issued by the Criminal Registrar of the Supreme Court of Queensland in respect of non‑compliance with orders of Mr Justice Fryberg of 15 March 2006 be held in the Registry and not executed” and (2) we would see to be that the hearing of the applicants’ special leave application be expedited; (3) we would see as directions by your Honour, direct the applicants to file and serve summary of argument and draft notice of appeal on or before 4.00 pm on 5 February 2007, respondent to file and serve its summary of argument on or before 4.00 pm, 12 February 2007, applicants to file and serve any reply on or before 4.00 pm, 16 February 2007, applicants to prepare and file the application book on or before 21 February 2007.
Then I indicate to your Honour that the parties would seek that your Honour make an order for the costs of this application, other of course than B5, if that it is what it is, that the costs be costs in the special leave application itself. Your Honour, so we may be clear on the question of the second special leave application, might we ask, does that in any way preclude us from seeking to have our second special leave application determined with the first?
HIS HONOUR: No, on the contrary. The intention is that both should proceed together.
MR BURBIDGE: I wanted that clear. Thank you, your Honour.
HIS HONOUR: Both should go on. There should be a single application book. The same timetable should apply in each and let us get the whole show on and dealt with as a single application.
MR BURBIDGE: Thank you, your Honour. I am most grateful to your Honour.
HIS HONOUR: It is by no means clear to me that we really needed to have two applications but that is an area into which I do not wish to trespass for the moment.
MR BURBIDGE: No.
HIS HONOUR: May I say two things about the forms of order and conditions. First, I would be assisted if counsel could, during the course of today, record in writing the text of the orders as ultimately settled and if they could be exchanged between counsel and initialled and filed, whether in the Brisbane Registry or the Melbourne Registry I leave to the convenience of the parties, but can we have filed an initialled version of the orders prepared by counsel. It will just avoid problems. That is comment one.
Comment two. The conditions and the expression of the conditions is always difficult. I am not absolutely and definitely wedded to this but I would prefer it to read, “Upon condition that, (1) if not already surrendered, each of the second and third applicants surrender any passport held by him to” – who is it? The Criminal Registrar, is it, in the Supreme Court of Queensland?
MR BURBIDGE: I believe so.
HIS HONOUR: Anyway, identify the officeholder as Criminal Registrar, if that is the appropriate identification, “at the Criminal Registry of the Supreme Court of Queensland by 30 January 2007”. Can we put in a time? I would want it by 4.00 pm on 30 January 2007, so there is a degree of precision. Condition two, “Upon condition that neither the second nor the third applicant approach any overseas point of departure other than Coolangatta Airport for the purposes of” – and then only for the purposes of domestic travel.
MR BURBIDGE: If the Court pleases.
HIS HONOUR: That may need some further revision, I suspect, but I just do not want notes in the condition. I want you to specify the condition with an exception rather than a note. Everybody gets in a twist when we get to, yes, what is the effect of a note. But do you see what I have in mind?
MR BURBIDGE: Yes. I have recorded it this way, your Honour: “other than Coolangatta Airport solely for the purpose of domestic travel”.
HIS HONOUR: Yes. Then the conditions imposed by the order made by Justice Jerrard on 19 May 2006 are continued, and is there any doubt about what those conditions are or where they are to be found?
MR BURBIDGE: No doubt where they are to be found, your Honour. My learned friend was kind enough to, in effect, read the bulk of them but they have been, as I say ‑ ‑ ‑
HIS HONOUR: Can the order make quite plain to the reader where you go to find these conditions? The basic approach I have always maintained to the preparation of orders is that the order itself should be completely freestanding so that you do not have to incorporate. We might have to make an exception. I understand that, but therefore let there be no doubt about the cross‑reference. Do you follow?
MR BURBIDGE: Thank you, your Honour. Perhaps my learned friend might assist as to where those conditions are currently set out.
HIS HONOUR: In an order of Justice Jerrard made in matter number between party A and party B is the way in which I would ordinarily express it.
MR BURBIDGE: Thank you, your Honour. We can certainly tidy that up.
HIS HONOUR: Then order “that until hearing and determination of the applicants’ application for special leave to appeal to this Court in application B4 of 2007 or further order, any warrant for the arrest of the second or third applicant issued by the Criminal Registrar of the Supreme Court of Queensland with respect to non‑compliance with the order of Justice Fryberg made on 15 March 2006 be held in the Registry of the Supreme Court of Queensland and not executed”.
The next order would be that the hearing of this application for special leave to appeal and application No B5 of 2007 be expedited; (3) direct that in each of applications B4 and B5 of 2007 (a) the applicants file and serve their summary of argument and draft notice of appeal on or before 4.00 pm, 5 February 2007, (b) the respondents file and serve their summary of argument on or before 4.00 pm, 12 February 2007, (c) the applicants file and serve any reply on or before 4.00 pm, 16 February 2007, (d) the applicants prepare and file a single application book for use in applications B4 and B5 on or before 21 February 2007; (4) the costs of this application be costs in the special leave application; and then in matter B5, summons dismissed, no order as to costs.
MR BURBIDGE: If the Court pleases. We will reduce those to writing by the end of the day, your Honour. I anticipate that what we might do is return to our chambers and my learned friend and I can communicate and we can sort that out.
HIS HONOUR: Yes. I am just anxious to get a final bit of paper today which both counsel are happy about or believe reflect where we have got to.
MR BURBIDGE: I think mechanically we can get some email address or something and sort that out, your Honour.
HIS HONOUR: Yes. Now, Mr Redmond, is there anything you wish to say in response to where we have got to?
MR REDMOND: No, thank you, your Honour.
HIS HONOUR: Yes. There will be orders in those terms and, as I say, I am grateful to counsel for their assistance in reducing those orders into written form. Adjourn the Court.
AT 11.43 AM THE MATTERS WERE CONCLUDED
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