HIGH COURT OF AUSTRALIA
FRENCH CJ,
GUMMOW, HAYNE, HEYDON AND KIEFEL JJSTEPHEN EDWARD PARKER APPELLANT
AND
COMPTROLLER-GENERAL OF CUSTOMS RESPONDENT
Parker v Comptroller-General of Customs [2009] HCA 7
12 February 2009
S317/2008ORDER
Appeal dismissed with costs.
On appeal from the Supreme Court of New South Wales
Representation
J T Gleeson SC with M J Darke and D A Lloyd for the appellant (instructed by Yeldham Price O'Brien Lusk)
D J Fagan SC with G M Elliott for the respondent (instructed by Australian Government Solicitor)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
On 30 July 1992 the Comptroller-General of Customs commenced proceedings in the Supreme Court of New South Wales against the appellant, Stephen Edward Parker, two companies, Lawpark Pty Ltd ("Lawpark") and Breven Pty Ltd ("Breven") and another individual, Gary Thomas Lawler. The proceedings arose, inter alia, out of alleged offences against the Customs Act 1901 (Cth) ("the Customs Act") involving unauthorised movement of goods from a bond warehouse and the evasion of duty payable under the Customs Act. The offences were said to have been committed between 1 August 1987 and 31 May 1990.
The background to the charges against Mr Parker was an inquiry undertaken between 1987 and 1989 by officers of the Australian Customs Service ("Customs") into suspected contraventions of the Spirits Act 1906 (Cth) ("the Spirits Act") and the Customs Act. The investigators formed the opinion that some importers of brandy had, before bottling and selling the imported product, been mixing it with a grain-based alcohol, produced in Australia, on which duty had not been paid. The primary targets of the inquiry were Lawpark, which imported and distributed spirits, Kingswood Distillery Pty Ltd ("Kingswood Distillery"), which manufactured and processed spirits in Australia, and Breven, which owned a bond store where imported spirits were warehoused without incurring any liability to pay duty. Mr Parker was a director and shareholder of Lawpark and Breven.
On 6 March 1990, Customs officers went to a number of premises and, relying upon notices to produce issued under s 214 of the Customs Act and reg 171 of the Customs Regulations, required the production of books and documents. They took the view that the requirements were not met. They then undertook compulsory searches and seizures relying upon warrants issued under s 214. Following examination of the documents obtained from their searches a number of charges were laid under the Customs Act including those against Mr Parker. Those against Mr Parker related to the unauthorised removal of imported Scotch whisky from the Breven warehouse and the evasion of duty payable in relation to the whisky.
The proceedings against Mr Parker came on for hearing in the Supreme Court of New South Wales in April 2005. By then he was the only remaining defendant. The extraordinary delay was in part the result of a stay of proceedings ordered on 10 June 1994. By…
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- Case
- [2009] HCA 7
- Decision Date
CaseChat Overview and Summary
The central legal issues before the High Court were whether the appellant had been denied procedural fairness by the Court of Appeal, and whether the seizure of the five-year documents was relevant to the exercise of discretion under section 138 of the *Evidence Act 1995* (NSW). Specifically, the Court considered whether the Court of Appeal erred by adopting the reasoning of a previous District Court decision, *O'Neill*, without affording the appellant an opportunity to make submissions on that point, and whether this omission prejudiced the appellant's case. The Court also examined the scope of principles respecting procedural fairness in curial proceedings and whether an appellate court is required to provide such an opportunity when considering a non-binding prior decision.
The majority of the High Court reasoned that while the Court of Appeal's approach to the *O'Neill* decision was not ideal, it did not occasion a denial of procedural fairness or prejudice to the appellant. The Court noted that the *O'Neill* decision had been considered and departed from by other courts, and that the appellant had ample opportunity to argue the substantive issues regarding the scope of the warrant and the application of section 138 of the *Evidence Act*. The majority found that the seizure of the five-year documents was not a wilful disregard of the Act, and that the discretion under section 138 was correctly exercised by the lower courts.
The appeal was dismissed with costs.
Orders
Orders of the court
Appeal dismissed with costs. (By the majority, Heydon J dissenting)
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Established by: FRENCH CJ, GUMMOW, HAYNE AND KIEFEL JJ
Full text does not contain this section.