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Labrador Liquor Wholesale Pty Ltd v Chief Executive Officer of Customs

 

[2006] QCA 166

 

 

COURT OF APPEAL

JERRARD JA

 

Appeal No 2938 of 2006

SC No 904 of 1997

 

CHIEF EXECUTIVE OFFICER OF CUSTOMS(respondent/plaintiff)

v

LABRADOR LIQUOR WHOLESALE PTY LTD(first appellant/first defendant)

and

LAWRENCE ERIC WRIGHT(second applicant/second defendant)

and

JEFFREY ANDREW JOHN BRYCE(third appellant/third defendant)

 

BRISBANE 

 

DATE 19/05/2006

 

ORDER

 

JERRARD JA:  This is an application for a stay of execution of the orders numbers 1 to 4 made by Justice Fryberg on 15 March 2006.  His Honour stayed those orders, or execution of those orders for 28 days and on 10 April 2006, the President stayed execution of them for a further 35 days.

The object of the President's order was to allow the present applicants for a stay, sufficient time in which to prepare a application for a stay of execution of the orders pending the outcome of appeals the applicants either intended to lodge or had lodged against convictions imposed by orders made by Justice Fryberg on 6 February 2006.

The orders made by Justice Fryberg on 15 March 2006, following the earlier orders imposing convictions on the applicants, imposed significant financial penalties on each applicant.  They also imposed significant prospects of imprisonment on the human applicants in default of compliance by those human applicants with the orders requiring that they immediately pay various sums specified in Justice Fryberg's orders.

The overall effect of those orders is that if neither human applicant pays any of the ordered financial penalties, they will be imprisoned for lengthy terms.  It follows that they have an interest in challenging their convictions as of course does everybody who is convicted and ordered to be gaoled.

The applicants have filed their written outlines of argument in the appeal yesterday, and I have not had time to consider whether they have demonstrated arguable prospects of success on any of those grounds of appeal against either conviction or penalty.

Mr Gotterson QC who appears for the respondent, acknowledges that there is an arguable ground in respect of the orders for default imprisonment and for that reason would not oppose an order suspending the execution of order number 2 made by Justice Fryberg, the order imposing the default of imprisonment.

He also assisted the Court by providing conditions upon which the respondent would consent to an order or not oppose an order suspending execution of the orders imposing the penalties.  And Mr Woods, counsel for the applicants, concedes that he cannot identify any particular detriment to the applicant if the execution of the orders made by Fryberg J is stayed subject to those conditions.

Accordingly, although I have no opinion either way as to whether the applicants for the stay have arguable grounds of appeal against their convictions or more than one arguable ground of appeal against the penalties, I am prepared to make the stay order sought but subject to the conditions sought.

Those conditions appear on pages 10 and 11 of the written outline of the respondent's arguments on the application for the stay in paragraph 15 of those written arguments.  I have amended draft order 2.4 by inserting the word "nett" and I have initialled most of those pages simply to make it easier to take out the orders which I will make.

Those orders are that execution of each of the orders in paragraphs 1 to 4 inclusive of the orders made by Fryberg J on 15 March 2006, be stayed until the outcome of the appeal subject to, firstly, the conditions appearing in paragraph 15 of the respondents written outline of argument on this application and initialled by myself on pages 10 and 11 of that outline and secondly, that the applicants promptly prosecute the appeal.

...

JERRARD JA:  I order that the costs of this application be reserved.

 

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Editorial Notes

  • Published Case Name:

    Labrador Liquor Wholesale Pty Ltd & Ors v Chief Executive Officer of Customs

  • Shortened Case Name:

    Labrador Liquor Wholesale Pty Ltd v Chief Executive Officer of Customs

  • MNC:

    [2006] QCA 166

  • Court:

    QCA

  • Judge(s):

    Jerrard JA

  • Date:

    19 May 2006

Litigation History

Event Citation or File Date Notes
Primary Judgment [2006] QSC 4 (2006) 62 ATR 424 06 Feb 2005 Claim by Customs for convictions under Customs Act and Excise Act for evading customs or excise duty on goods delivered into home consumption by falsely pretending they were being exported; satisfied of guilt on all charges beyond reasonable doubt: Fryberg J.
Primary Judgment [2006] QSC 40 (2006) 62 ATR 494 15 Mar 2006 Penalties arising from convictions of charges against the Customs Act and Excise Act; penalties imposed and ordered that failure to pay results in imprisonment for specified term: Fryberg J.
QCA Interlocutory Judgment [2006] QCA 104 10 Apr 2006 Application to extend stay of execution of orders made on 15 March 2006; application not opposed; stay extended for 35 days: McMurdo P.
QCA Interlocutory Judgment [2006] QCA 166 19 May 2006 Application for stay of orders made on 15 March 2006; stay so ordered on certain conditions, which was not opposed: Jerrard JA.
Appeal Determined (QCA) [2006] QCA 558 (2006) 65 ATR 547 22 Dec 2006 Appeal against conviction and sentences arising from convictions under Customs Act and Excise Act regarding shipment of liquor and cigarettes to Fiji and Honiara; primary judge was clearly justified in drawing the inference that the goods had been delivered for home consumption; allow the appeal against conviction only to correct error; appeal against sentence dismissed: de Jersey CJ, Williams and Jerrard JJA (Jerrard JA dissenting in part).
Appeal Determined (QCA) [2007] QCA 1 19 Jan 2007 Application for a stay of primary judge orders following [2006] QCA 558 pending determination of special leave application; not satisfied that there is an arguable case such as to warrant a stay of any of the orders of primary judge: Holmes JA.
Appeal Determined (QCA) [2007] QCA 35 09 Feb 2007 Amendment to orders made on 22 December 2006 pursuant to slip rule: de Jersey CJ, Williams and Jerrard JJA.
Appeal Determined (QCA) [2007] QCA 79 16 Mar 2007 Application for costs following judgment given on 22 December 2006 as amended on 9 February 2007; costs under Cutoms Act and Excise Act follow same discretion under UCPR; appellant pay 75% of respondent's costs to be assessed: de Jersey CJ, Williams and Jerrard JJA.
Application for Special Leave (HCA) [2007] HCATrans 3 25 Jan 2007 Application for stay of execution of orders pending determination of special leave; balance of convenience favours applicants; stay on execution of warrants issued and special leave application expedited: Hayne J.
Special Leave Refused [2007] HCATrans 102 02 Mar 2007 Special leave refused; point concerning constitutional invalidity is one about whether the provisions of federal law for proof of issues by reliance on averments is valid or is inconsistent with the constitutional functions reserved to the judicature in the exercise of federal jurisdiction; based on unchallenged findings of fact, question may not arise for determination: Kirby, Hayne and Crennan JJ.

Appeal Status

{solid} Appeal Determined - {hollow-slash} Special Leave Refused (HCA)