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Labrador Liquor Wholesale Pty Ltd v Chief Executive Officer of Customs


[2007] QCA 1



Appeal No. 2938 of 2006













DATE 19/01/2007


MR P J WOODS (instructed by O'Keefe Mahoney Bennett) for the applicants/defendants

MR F W REDMOND (instructed by The Australian Government Solicitor) for the respondent/plaintiff

HOLMES JA:  This is an application for a stay pending the making of an application for special leave to appeal to the High Court.  The application itself was expressed as one for a stay of orders 1 to 4 made by the Justice Fryberg in the trial division of this Court in March 2006.  On further discussion with Mr Woods for the applicant, it emerged that it was really order number 2, which requires that if the second defendant or the third defendant failed to pay the penalties ordered he be imprisoned for specified terms, which was at issue.

The special leave application contains a number of grounds; this is the special leave application which has been drawn, and is expected to be filed in more or less that form, I assume.  In the course of submissions it transpired that there were two essential arguments:  one, that the averment provisions of the Customs Act 1901 (Cth) and the Excise Act 1901 (Cth), sections 255 and 144 respectively, were unconstitutional; the other, that the trial Judge had relied on averment of intent with respect to the third defendant to find him an aider and abetter, and that the Court of Appeal had erred in not, on that basis, overturning the conviction against him.  It was further argued that if the case against the third defendant were to fail on that basis, the conviction against the second defendant should similarly be set aside.

As to the first of the arguments, that is the unconstitutionality of the provisions, it is not one which was raised below.  That of itself would not, of course, preclude the High Court dealing with it.  It is reliant on statements of Justice Kirby in Chief Executive Officer of Customs v El Hajje (2005) 79 ALJR 1289, where his Honour expressed concern about the compatibility of averment provisions with the exercise of judicial power.  He said this at paragraph 79:

"There are therefore limits to the extent to which an averment provision in Federal Legislation such as section 144 of the Act"

(there he was considering the Excise Act)

"can diminish the function of federal courts in resolving controversies and deciding matters presented by law."

He goes on to say that he is not finally convinced that the section is constitutionally invalid, but it is necessary to keep its provisions in mind in interpreting the Act in a way that conforms to a constitutional premise.  That seems to me a very slender basis on which to mount the constitutionality argument; which to put it at its kindest, is in an embryonic phase.  The other point about the constitutionality argument is that it will not get the applicants very far if indeed the averments did not play any real part in their conviction.

That leads on to the second point as to whether the trial Judge relied on averments as to intent in convicting the third defendant.  The basis for that submission lies in something the trial Judge said in his judgment to the effect that the third defendant's guilt or innocence must be, "...decided on the basis of the evidence, taking the averment provisions into account".

One of the judges in the Court of Appeal who decided this appeal, Jerrard JA, considered that the learned Judge had taken the averment provisions into account, having reference to that statement.  The two remaining judges, the Chief Justice and Williams JA regarded the reference as a passing one, and not as indicating that the trial Judge had relied on the averment as to intent.  (It should be said that an averment as to intent is not permissible under the provisions of the Excise Act and the Customs Act.)  Justice Williams went on to say that even if he were wrong about that, he would apply the proviso.  In rather a similar vein, Jerrard JA said that the conclusion that the third defendant was a party to the offences charged was unavoidable, independent of the averments. 

Again, it seems to me, that it is probably now an unedifying exercise to try and interpret precisely what the trial Judge meant; but in any event, in a case where all judges of the Court of Appeal seems to have regarded the evidence as establishing that the third defendant was knowingly involved in the offences in such a way as to make him a party, there is no very compelling argument open to the third defendant, and consequently the second defendant on this ground. 

Essentially, on the submissions that have been put to me at this date, and recognising that they have been made with a very short time available for their preparation, I am not satisfied that there is an arguable case such as to warrant a stay of any of the orders of the learned trial Judge in this matter.  I dismiss the application.


HOLMES JA:  I order that the applicants pay the respondent's costs of the application.


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:

    [2007] QCA 1

  • Court:


  • Judge(s):

    Holmes JA

  • Date:

    19 Jan 2007

Litigation History

No Litigation History

Appeal Status

No Status