Woodward (CEO, Customs) v PNI Pty Ltd
[2003] VSC 110
•27 March 2003
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
PRACTICE COURT
No. 6257 of 2002
| LIONEL BARNES WOODWARD (THE CHIEF EXECUTIVE OFFICER OF CUSTOMS) | Plaintiff |
| v | |
| PNI PTY LTD AND OTHERS | Defendants |
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JUDGE: | HARPER J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 - 27 March 2003 | |
DATE OF JUDGMENT: | 27 March 2003 | |
CASE MAY BE CITED AS: | Woodward v. PNI Pty Ltd & Ors | |
MEDIUM NEUTRAL CITATION: | [2003] VSC 110 | |
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Appeal – Appeal from order of a Master striking out claims against seventh and eighth named defendants – Distinction in statement of claims between claim against natural persons and corporate defendants – Customs Act, s 255
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N. Clelland | Australian Government Solicitor |
| For the Defendant | Mr J. Slonim | Carr & Associates |
HIS HONOUR:
In general, it seems to me the statement of claim is a well-pleaded document. I have a couple of difficulties with it and those difficulties have been explored during the course of argument. One of those difficulties centres upon paragraph 3(b) (with equivalent concerns relating to paragraph 4(b)), where it is asserted that the goods in question were imported by the fifth defendant, or alternatively, the seventh defendant. It is not the plaintiff's position, as I understand it, that there was here a joint importation. Rather, it is only alleged (although this is not clear in my opinion from the statement of claim) that the individual, the seventh defendant, was an importer insofar as that defendant, the seventh defendant, may have been acting beyond the scope of her authority. But it is nowhere pleaded that she did act beyond the scope of her authority.
If the plaintiff wishes to guard against the possibility that it will be met with an assertion at trial that the seventh defendant acted outside the scope of her authority and if the plaintiff wishes to proceed thereafter on the basis that by that assertion, the seventh defendant was a principal in the act of importation, then that I think, should be pleaded.
Otherwise it is not suggested that the seventh defendant was a principal in the act of importation. That is not to say that the seventh defendant was not so closely associated with the act of importation, as to properly be regarded at law as an offender in relation to the charges of smuggling and evading payment of duty and indeed, knowing or recklessly making a statement as alleged in paragraph 18.
The criminal law very frequently does, as the plaintiff alleges it does in this case, make into a co-offender, someone whose part in the commission of the offence is somewhat different to that of another co-offender, but who is nevertheless sufficiently involved in the offence as to make the one a co-offender to the same extent as the other.
In those circumstances, questions of principal and agency, if they arise at all, are very different from those questions as they arise in the civil law.
Mr Slonim made some well articulated criticisms of paragraph 18 on the basis that the law does not provide for the conviction of someone for the offence of smuggling or of evading payment of duty, or indeed, as he would have it, knowing or recklessly making a statement, where that accused is in the position occupied by the seventh defendant, as the statement of claim makes its allegations against the seventh defendant.
In answer to those submissions, Mr Clelland for the plaintiff has pointed to certain cases which, if they do not explicitly affirm the proposition that a person in the position of the seventh defendant can be guilty as a principal of the offences set out in paragraph 18, nevertheless proceed upon the implicit basis that that is so. It certainly appears from the case of Comptroller-General of Customs v Jayakody (unreported, 13 December 1993) that his Honour, Byrne J proceeded upon the implicit if not explicit assumption that a sole director, or at least someone who is in the position of being the alter-ego of a corporation, can be guilty with the corporation, both being principals in the commission of the same offence. Given that that is the state of the law, it seems to me that I am not in a position to rule that paragraph 18 in the statement of claim is open to a substantive objection.
Otherwise Mr Slonim, in his thorough and careful submissions, has made the assertion which, if I may summarise it, is to the effect that the statement of claim creates difficulties for his clients because it alleges that so many relevant acts have been either done by particular defendants acting themselves or alternatively together with other defendants.
It is difficult, Mr Slonim submits, to ascertain where the gun, if I may use that phrase, is pointed, when the statement of claim alleges first that a particular defendant did certain things and then alleges that further or in the alternative, other defendants did certain things.
It seems to me that in general, Mr Slonim's concerns about the statement of claim, at least to the extent that those concerns are directed to difficulties in the defendant's pleading to them, are not made out. It is true that the statement of claim is framed in the way that Mr Slonim has submitted it is. Nevertheless, it seems to me that it is open to a plaintiff, who is unsure, perhaps necessarily unsure, of precisely which defendant did what at what time and in conjunction with what others, to frame allegations in the way that this statement of claim frames them.
I see no real difficulty in pleading to the statement of claim as so framed.
There is one other point though, which has been properly raised by Mr Slonim and with which I must deal.
The Customs Act provides by s.255 that in any Customs prosecution, the averment of the prosecutor or plaintiff contained in the information or claim, shall be prima facie evidence of the matter or matters averred. Mr Slonim correctly submits that this is a provision of very real significance in this case. It places a burden upon defendants which they would not otherwise be required to bear. It also places upon a plaintiff, the requirement that in justice, the burden be minimised as much as may be.
It is, I think, in this regard, that a plaintiff should be urged and perhaps required to provide the defendants with such precise information as it can. Whether that should be done in a statement of claim or elsewhere is perhaps not a matter of great significance. Here, the plaintiff alleges that one of the groups of the defendants were primarily responsible for the relevant importations up to a certain time. Thereafter, as I understand the statement of claim, the allegation is that another group of defendants became primarily involved in the impugned conduct.
To the extent that the plaintiff is in a position to determine when one set of defendants took over from the other, then the plaintiff should do so. At the moment the statement of claim is vague in that regard. It alleges that in respect of some imports, the first group of defendants were involved until, I think, May 1997 and the second group of defendants became involved from 21 June 1996. A similar lack of precision accompanies the allegations about the other set of imports.
To the extent that the plaintiff is able to provide particulars of times and dates, then it seems to me the plaintiff should do so. To the extent also, that the plaintiff can avoid averring that one set of defendants were responsible for a particular set of circumstances, and in the alternative, another set of defendants were involved, then that should be done. I am not sure whether, in fact, it can in this case; but I have in mind the situation where a person in the position of this plaintiff, avers a certain set of facts against a number of defendants and in the alternative, against other defendants.
It seems to me quite unfair in those circumstances that a prima facie case could be said to be made against each set of defendants, simply by virtue of s.255 where clearly, on this hypothesis, either one set of defendants are responsible or the other, but not both.
I make this as a general statement. I am not sure that it is possible here, since the plaintiff commonly adds the word "further" in conjunction with the words "or in the alternative," for the plaintiff to make the distinction. But if it can, it should; and if it fails to do what it should do, and that failure is revealed at trial, then if I were the trial judge, I would deal with the matter as it arose, but it may well be that I would take an adverse position in relation to the pleading at that stage.
I should say that I will allow the appeal from the Master. It seems to me that this statement of claim is not one that should be struck out, although for the reasons I have articulated, it seems to me that the plaintiff should at least re-examine the pleading with the remarks I have made as the basis for that re-examination.
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