Pham & Anor v CEO Customs

[2003] HCATrans 620

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S383 of 2002

B e t w e e n -

VINH PHAT PHAM (ALSO KNOWN AS PETER PHAM)

First Applicant

SUNG CHAU PHAM (ALSO KNOWN AS LINDA PHAM)

Second Applicant

and

CHIEF EXECUTIVE OFFICER OF CUSTOMS

Respondent

Application for removal

GLEESON CJ
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 14 MARCH 2003, AT 11.50 AM

Copyright in the High Court of Australia

MR M.A. ROBINSON:   If the Court pleases, I appear with my learned friend, MR R. NAIR, for the applicants.  (instructed by Burn & Swift)

MR R.J. BROMWICH:   May it please the Court, I appear for the respondent.  (instructed by Australian Government Solicitor)

GLEESON CJ:   Yes, Mr Robinson.

MR ROBINSON:   Your Honours, a preliminary point has arisen in a Customs prosecution in the Supreme Court of New South Wales which is presently being heard before his Honour Justice Greg James.  In this point the applicants seek removal of the point and a number of others that in a sense flow from that point.

GLEESON CJ:   I understand the points that you want to raise, but they can all be raised in due course if your client is convicted and they will not arise at all if your client is acquitted.

MR ROBINSON:   That is so, your Honour.  Having said that, his Honour below was of the view that these matters need to be determined prior to the trial because they determine the very manner in which he conducts the trial and he expressed the view that he did not wish to go forward without some determination by him or by this Court.  Secondly, the parties in essence are agreed that these matters are convenient to be determined prior to the trial and that is partly why we are here.

The primary point that we are seeking to remove to this Court is the question of whether the statement of claim that appears in the proceedings below and that is in the application book is in fact and in law an indictment for constitutional purposes.  The other points that we have argued in the motion for removal of part of the cause of action into this Court in essence flow from that primary point.

GLEESON CJ:   We are not here to give advisory opinions and if your client wins on the merits at trial none of these points will go any further.

MR ROBINSON:   Your Honour, in the particular way this mater has come up below before his Honour Justice Greg James he has said he will hear it.  The parties have said we will seek to have these issues determined before trial because ‑ ‑ ‑

GLEESON CJ:   There is nothing unusual, if I may say so, about issues like this being dealt with in pre‑trial procedures by the trial judge.  What is unusual is an attempt to fragment the trial proceedings by having them run then before an appellate court.

MR ROBINSON:   Two things, your Honour, to that.  One is his Honour thought it would be a sensible and an efficient way to deal with the matter and secondly ‑ ‑ ‑

CALLINAN J:   By his Honour – his Honour himself will deal with the matter before the trial.

MR ROBINSON:   Indeed, your Honour.

CALLINAN J:   And, in effect, as part of the trial process.  It may not be technically – well, it probably is because at the moment they are civil proceedings.  So that in a sense his Honour will be conducting part of the trial in determining this matter.

MR ROBINSON:   Yes, your Honour, and those aspects may well be sought to be agitated by the parties ultimately to this Court in any event before the trial is held and his Honour recognised that in the proceedings below.

CALLINAN J:   Only if we entertain it.  Your rights are protected, are they not?  If his Honour makes a determination of that and then the parties go into evidence, your right of appeal is protected, is it not?  You do not have to come here or to the Court of Appeal immediately, do you?

MR ROBINSON:   No, your Honour.  The main reason that we want to be here is that primarily it follows neatly from the Court’s hearing in the Labrador Case where at least five of your Honours have heard the Labrador Case on 11 December last year, raising issues that are not completely unrelated, but this would follow, in my submission, neatly.

GLEESON CJ:   That is a case about standard of proof.

MR ROBINSON:   Yes, your Honour.

GLEESON CJ:   Are you aware that for most of the 20^th century, Customs prosecutions of the kind with which we are now concerned were in fact conducted in this Court and were in fact conducted in this Court without a jury?

MR ROBINSON:   Yes, your Honour, until the words were removed from the legislation, yes, your Honour.  Your Honour, in this case the penalty that is sought is in the order of $7 million from a Sydney mother and father and we say it is an appropriate case where this issue can be determined in advance of the trial.  The trial judge certainly thinks so, and it would follow

neatly from the Court’s recent reconsideration of these issues that have not yet been resolved in 100 years, your Honours. 

The alternative might be that the parties might be seeking to agitate the issue at some later date, and that was certainly the trial judge’s impression, and that is why he sanctioned, as it were, the removal.  He said it would be a sensible and uncomplicated way to deal with the issue of the point that we seek to agitate. 

The authorities that are relevant to this area all come from the High Court – they are not from other courts – and it would be convenient, in our contention, for the point to be determined by the High Court.  Having said that, I do not have much more to add than what was in the written submissions.  If the Court pleases. 

GLEESON CJ:   Thank you.  We do not need to hear you, Mr Bromwich.

It appears to the Court that it would be inappropriate to fragment the proceedings in the Supreme Court by making an order for removal at this stage.  The application for removal is dismissed.

Does any question of costs arise?

MR BROMWICH:   The respondent seeks costs.

GLEESON CJ:   Do you resist that, Mr Robinson?

MR ROBINSON:   Only for the reasons that appear in the application that is set out in the application book.

GLEESON CJ:   What page is that?

MR ROBINSON:   Page 25, paragraph 20.

GLEESON CJ:   Thank you.

MR ROBINSON:   We have nothing to add to that, your Honours.

GLEESON CJ:   Just give us a moment.

CALLINAN J:   Mr Bromwich or Mr Robinson, the nature of this application, is it an application that must be made to a Full Court?  It is not, is it?

MR BROMWICH:   If it were removed, it would go to ‑ ‑ ‑

CALLINAN J:   No.  I mean the application that you have made which is on motion, is it not?

MR BROMWICH:   Yes, your Honour.

CALLINAN J:   I only ask that because I question whether you need a certification for counsel.  That is all.

MR ROBINSON:   It is a matter for your Honours discretion, but we make those three points in paragraph 20.

GLEESON CJ:   The application is refused with costs.

We are going to reconstitute, so we will adjourn for a short time to enable that to happen.

AT 11.58 AM THE MATTER WAS CONCLUDED