Court of Appeal (Qld)|2006-05-19|Before: Fryberg J, Jerrard JA

Chief Executive Officer of Customs v. Labrador Liquor Wholesale Pty Ltd & Ors [2006] QCA 166 (19 May 2006)

CHIEF EXECUTIVE OFFICER OF CUSTOMS (respondent/plaintiff)

LAWRENCE ERIC WRIGHT (second applicant/second defendant)

JEFFREY ANDREW JOHN BRYCE (third appellant/third defendant)

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.

Chief Executive Officer of Customs v. Labrador Liquor Wholesale Pty Ltd & Ors [2006] QCA 166 (19 May 2006)

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Judgment (17 paragraphs)

Chief Executive Officer of Customs v. Labrador Liquor Wholesale Pty Ltd & Ors [2006] QCA 166 (19 May 2006)