JCT WONG & Anor v KELLY

Court of Appeal (NSW)|1999-10-12|Before: Mason P, Meagher JA, Stein JA, Carruthers AJ, Mr J

New South Wales Court of Appeal CITATION : JCT WONG & Anor v KELLY [1999] NSWCA 439 FILE NUMBER(S) : CA 40595/98 HEARING DATE(S) : 12 October 1999 JUDGMENT DATE : 6 December 1999

John Chu Ting Wong (1st Appellant) PARTIES : Rizoli Pty Limited (Second Appellant) Francis Ivor Kelly Comptroller General of Customs (Respondent) JUDGMENT OF : Mason P at 1; Meagher JA at 2; Stein JA at 3

LOWER COURT JURISDICTION : Supreme Court - Common Law Division LOWER COURT FILE NUMBER(S) : CL 12178/89 LOWER COURT JUDICIAL OFFICER : Carruthers AJ

COUNSEL : P R Graham QC/D B McGovern (Appellants) L P Robberds QC (Respondent) SOLICITORS : Bradfield & Scott (Appellants) Australian Government Solicitor (Respondent) CATCHWORDS : CUSTOMS AND EXCISE - Customs offences - importation of goods - evasion of duty - nature of proceedings - whether criminal or civil - nature of retainer of solicitor - authority to prosecute - whether owner of goods - whether documents producible only to the Collector - amended Statement of Claim - failure to strike out averments - Customs Act 1901 (Cth), ss 4, s 36(1), 153, 214 Customs Act 1901 (Cth) s 4 s 8(1)(a)(ii) s 36(1) s 153 s 233(1)(a) s 234(1)(a)(d) s 236 s 214(1) ACTS CITED : s 255(4) s 247 Evidence Act 1995 (NSW) s 86 s 138 ss 125(1)(a) 130(4)(d) and 131(2)(j) The Judiciary Act 1903 (Cth) s 79 Danish Mercantile Co Ltd v Beaumont (1951) 1 Ch 680 Briginshaw v Briginshaw (1938) 60 CLR 336 Comptroller-General of Customs v Kingswood Distillery Pty Ltd (unreported, NSW Supreme Court, 11 February 1997) Comprtoller-General of Customs v Jayakody (unreported, Supreme Court of Victoria, 9 November 1993) CASES CITED: Evans v Button (1988) 13 NSWLR 57 Forestreet Warehouse Co v Van de Linder (1919) 3 Western Weekly Reports 1056 Jack Brabham Holdings v Minister (1998) 85 ALR 640 Kelly v JRA Ltd (1990) 92 ALR 651 Pearce v Button (1985) 8 FCR 388 DECISION : Appeals dismissed with costs

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40595/98 CL 12178/89 MASON P MEAGHER JA STEIN JA Monday, 6 December 1999 J C T WONG and Anor v Francis Ivor KELLY

The appellants, Mr J Wong and Rizoli Pty Ltd, were declared guilty by Carruthers AJ of a number of offences under the Customs Act 1901 (Cth) (the Act) regarding, among other things, importation and smuggling of goods and evading payment of duty. The offences related to three container shipments of furniture from Hong Kong, which arrived by sea at Port Botany between January and March 1987 where each container were said to contain furniture but in fact each contained a considerable quantity of clothing secreted in the containers for the purpose of evading payment of duty. The appellants, after abandoning various grounds of appeal, limited their appeal to the following issues:

(a) in the context of an examination of all the documents advanced by the Australian Government Solicitor (AGS) as justifying the institution of proceedings, especially the retainer, no authority was ever given to the AGS by the respondent, Mr F Kelly, being the Comptroller-General of Customs, to bring the current proceedings against Mr J Wong. Alternatively, there was either no or ineffective ratification by the respondent;

(b) the trial judge erred in finding Rizoli Pty Ltd held itself out to be the owner of the goods;

(c) documents produced by Mr J Wong to Officer Davies on 27 April 1987 were illegally obtained as the Notice given under s 214 of the Act only permitted production to the Collector;

(d) trial judge erred in failing to strike out certain averments contained in the Further Amended Statement of Claim as they were evidence and impermissible; and

(e) proceedings were criminal proceedings for the purposes of the Evidence Act , 1995 and the trial judge was in error in not so concluding.

(1) 'Retainer' is a word used to describe a contract between solicitor and client for the provision of legal services for a fee. It is not required to be in writing and may be implied from conduct. Here the course of dealings over nine years makes it plain beyond argument that the AGS was retained by the Comptroller-General of Customs to institute and conduct the proceedings against the appellants in the Supreme Court. No question of ratification arises. No question of authority to institute proceedings arises, given the finding on retainer, since the Comptroller-General needed no authority under the Act to institute the proceedings in his own name;

(2) On the facts disclosed, along with a definition of 'owner' in s 4, read together with ss 36(1) and 153 of the Act, it was open to the trial judge to make the finding that the documents effectively asserted that Rizoli Pty Ltd was the owner of all the contents of the container knowing it included the secreted goods;

(3) As the Collector signed the s 214 Notice and officer Davies was doing his duty in the matter, Mr Davies was deemed to be the Collector for the purposes of s 214(1). This construction would promote the object and purposes underlying the legislation and is to be preferred to the appellant's submissions, which does not.

(4) The submission that the trial judge erred in failing to strike out the averments cannot succeed on the facts; (5) The trial judge was correct to treat the proceedings as civil and not criminal and apply the standard of proof in Briginshaw : Evans v Button (1988) 13 NSWLR 57 applied. ORDERS Appeals dismissed with costs

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40595/98 CL 12178/89 MASON P MEAGHER JA STEIN JA Monday, 6 December 1999 J C T WONG and Anor v Francis Ivor KELLY JUDGMENT

2 MEAGHER JA: I agree with Stein JA. 3 STEIN JA: Introduction 4 This is an appeal against a judgment by Carruthers AJ declaring the appellants, John Chu Ting Wong and Rizoli Pty Ltd, guilty of a number of offences under the Customs Act 1901 (Cth) (the Act). On 10 July 1998 his Honour declared that the appellants were guilty of a total of 18 offences under the Act. 5 The first appellant, John Wong was convicted on nine charges relating to the smuggling of goods in contravention of s 233(1)(a); evading payment of duty in breach of s 234(1)(a) and making a false entry in a material particular in breach of s 234(1)(d) of the Act, the offences being committed on or about 8 January, 4 February and 23 March 1987 respectively.

6 On the three smuggling offences, Mr Wong was adjudged to pay a penalty of $353,632. A similar penalty was adjudged to be paid by him in respect of the three offences of evading payment of duty. A penalty of $1,000 was imposed with respect to the offences of making a false entry. Mr Wong was also ordered to make reparations to the Commonwealth in the sum of $594,507, in respect of the evaded duty. 7 The second appellant, Rizoli Pty Ltd, was convicted of nine offences relating to being concerned with the smuggling of goods by Mr Wong; being concerned with the evasion of payment of duty by Mr Wong and being concerned with the making of a false entry in a particular by Mr Wong, on the dates mentioned above, pursuant to s 236 of the Act. The same penalties were adjudged to be paid by Rizoli Pty Ltd as in the case of Mr Wong. The appellants were each ordered to pay 50% of the costs of the respondent, the Comptroller-General of Customs (the C-G). 8 The offences relate to three container shipments of furniture from Hong Kong, which arrived by sea at Port Botany between January and March 1987. While each container was said to contain furniture, in fact each contained a considerable quantity of clothing secreted in the containers. The clothing was not disclosed to Customs officers at the time of submission of customs entry documentation, thus evading customs duty. The clothing, largely T-shirts and like garments, was imported as part of a scheme by the appellants whereby the clothing was secreted in shipments of furniture for the purpose of evading the payment of duty. The aggregate duty evaded with respect of the three shipments was $594,507, hence the order for reparation made against Mr Wong.

Notice of Grounds of Appeal 9 The Notice of Appeal contains 29 grounds. However, sensibly in my view, counsel for the appellants, Mr Graham QC, has limited the dispute by abandoning grounds 6, 7, 10, 11 and 25 to 28. In addition, he did not press ground 5. Mr Graham has also confined his oral submissions to the ground in para 29 wherein Mr Wong challenges the retainer of the respondent's solicitor and the grounds concerning the finding of his Honour that Rizoli Pty Ltd held itself out as owner of the goods in question (grounds 14 - 23). Thus the challenge to the retainer went only to the orders made by Carruthers AJ against Mr Wong, whereas the second argument went to the orders made concerning Rizoli Pty Ltd.

10 As to the remaining grounds of appeal, Mr Graham relied on his written submissions. Grounds 1 and 2 concern the failure of his Honour to strike out certain averments contained in the respondent's Further Amended Statement of Claim. Grounds 3 and 4 concern the admission into evidence of documents claimed to have been unlawfully obtained. Grounds 8 and 9 claim that his Honour should have held that the proceedings were criminal proceedings for the purposes of the Evidence Act 1995 (NSW) and accordingly rejected evidence of verbal admissions in the record of interview with Mr Wong. Grounds 12 and 13 also depend upon the proceedings being considered criminal proceedings.

The retainer issue (ground 29) 11 It is convenient to first consider the challenge by Mr Wong to the retainer of the respondent's solicitor, the Australian Government Solicitor (the AGS). The challenge to the retainer by the appellant followed his Honour's reserving judgment on 8 May 1998. It arose in the following circumstances. By letter dated 4 June 1998 the AGS wrote to the solicitor for the appellants enclosing a copy of a document entitled 'Authority to Prosecute' signed by T.P. Hayes, Comptroller-General and dated 25 September 1987. The letter stated that the records of the AGS indicated that the solicitors may not have been provided with a copy and that it may be of relevance to the defendants. The document is in the following form: Australian Customs Service Authority to Prosecute

I, THOMAS PLUNKETT HAYES, Comptroller-General of Customs, pursuant to Section 245(1), do hereby authorise and instruct the Australian Government Solicitor to institute Customs Prosecutions in my name, in the Supreme Court of New South Wales against: Rizoli Pty Ltd for alleged offences against the Customs Act 1901, and for the condemnation of the goods seized as forfeited. I further authorise the Australian Government Solicitor to act on my behalf, and to do all things he considers necessary to safeguard my interests, and the interests of the Commonwealth of Australia in these proceedings and in any other proceedings whatsoever arising therefrom. (T.P. Hayes) Comptroller-General of Customs 25 September 1987

12 Just why the AGS provided this document is not clear, but the motives of the writer may have been laudable. By further letter dated 23 June 1998 the AGS argued that the document was sufficient to authorise the prosecution of both defendants (the Authority document referred only to the company as defendant). Further documents were enclosed which were said to be relevant to the institution of the proceedings against the defendants. 13 By Notice of Motion dated 26 June 1998 Mr Wong sought an order that the proceedings be struck out as against him or permanently stayed. The motion also sought an order that the AGS pay his costs on an indemnity basis. At the hearing of the motion, which was between Mr Wong and Francis Ivor Kelly, Comptroller-General of Customs, Mr Paul Roberts of Counsel appeared for the respondent to the motion, instructed by the AGS. The AGS was not a party nor was it represented, notwithstanding that an indemnity costs order was sought against it. 14 Carruthers AJ recorded that counsel for Mr Wong submitted that the motion represented a challenge to the retainer of the AGS in the proceedings. As his Honour observed, it was more complicated than that because two things were involved which may have become confused. One was the authority to commence the proceedings and the other was the retainer of the AGS. Mr Wong's counsel relied on the admission of the AGS that it was unable to locate any authority to prosecute Mr Wong in relation to the proceedings analogous to the one dated 25 September 1987 to prosecute the company. 15 His Honour noted that the original Statement of Claim filed in June 1989 identified Mr Wong as the sole defendant. It was endorsed by the AGS and nominated the C-G's address for service as the AGS. It was also verified by a Mr Sams, a customs officer, who deposed that he had knowledge of the facts and believed them to be true. An amended Statement of Claim was filed in March 1990 which joined Rizoli Pty Ltd as a defendant. This and all subsequent pleadings of the C-G were verified by Mr Sams. The defendants admitted that the plaintiff was the C-G at all relevant points of time. His Honour accepted the submission that the earlier authority of 25 September 1987 was not relevant to the proceedings. 16 Carruthers AJ said that the structure of the legislation at the time the proceedings were commenced in 1989, and the repeated admissions by the defendants, meant that no question arose of any lack of authority in the C-G to commence the proceedings. He added that neither was there any question as to the retainer of AGS to act in the proceedings. Because of the admissions on the pleadings, the question of power to initiate the proceedings was never an issue. Through the lengthy course of the proceedings, described by his Honour as a 'tortuous history', the AGS had acted for the C-G and the same firm of solicitors acted for the defendants. Throughout this period no issue had ever been raised as to retainer. It seems that his Honour may have been saying that there had been a ratification or acquiescence by the defendants. 17 His Honour mentioned the factor of delay in the application citing Danish Mercantile Co Ltd v Beaumont (1951) 1 Ch 680 at 687. Carruthers AJ also raised the need to give notice to the plaintiff personally, Forestreet Warehouse Co v Van de Linder (1919) 3 Western Weekly Reports 1056. No notice had been given to the plaintiff. Giving notice to the AGS was not to be treated as notice to the plaintiff. The Notice of Motion was dismissed by his Honour. 18 Counsel for the appellants submitted that in the context of an examination of all the documents advanced by the AGS as justifying the institution of proceedings, no authority was ever given to the AGS to bring the current proceedings against Mr Wong. The admission by the defendants conceded nothing regarding the authority to prosecute or the retainer of the AGS. Without an appropriate authority, the AGS was without power to initiate the proceedings against Mr Wong. Nor was there any evidence of ratification by the respondent. In any event, any purported ratification would have been ineffective because the time limit for the prosecutions against Mr Wong expired in 1992. If his Honour was correct in holding that notice had to be given to the respondent personally (and this was disputed) the respondent had notice by reason of counsel's appearance on his behalf and no more was required. 19 On behalf of the respondent, Mr Robberds QC submitted that when the documents tendered on the hearing of the Notice of Motion by the first appellant are examined, it is clear that the proceedings were authorised and the AGS properly retained. The C-G relies on these documents, on the history of the proceedings and the preparation for hearing and hearing. 20 All of this, it is contended, demonstrates that the proceedings were authorised and the AGS retained by the respondent. Moreover, the C-G maintains (and the appellants dispute) that the onus of proving the absence of authorisation and retainer is on the appellants and has not been discharged. Alternatively, Mr Robberds submits that the retainer was ratified on 1 July 1998 when counsel appeared for the respondent (instructed by the AGS) and opposed the relief sought. 21 Of course, a solicitor's retainer need not be in writing. It may be implied by conduct. This is one of the questions which arises given the lengthy history of the litigation and the additional documents provided by the AGS and tendered to Carruthers AJ on the motion. 22 His Honour said: There has been a constant exchange of correspondence; there has been discovery of documents; there have been interlocutory applications; there has been an application to the Court of Appeal, amendments to the pleadings, innumerable submissions on questions of law, and no issue has been raised as to retainer.

and It seems to me inconceivable, in view of the history of this matter, that any real question of the Australian Government Solicitor's retainer can arise.

23 His Honour did not find it necessary to refer to the detail on the additional documents but since they may bear on the retainer, it is useful to examine them. 24 The first observation to be made is that the documents give context to the document entitled 'Authority to Prosecute' dated 25 September 1987. The documents commence with a minute dated 23 June 1987 attaching a submission for the signature of the Collector of Customs addressed to the C-G for approval to commence proceedings in the Supreme Court against 'the above parties', who are described as 'Rizoli Pty Ltd' and 'J and D Wong'. It appears that this document was signed by the Collector on 24 June 1987. It purports to seek the C-G's general authority to proceed against Rizoli Pty Ltd, John Wong and possibly Diana Wong. 25 On 21 July 1987 the Assistant C-G wrote to the Collector about the minute and asked about proceeding against Mrs. Wong. The document noted advice from the AGS referring to evidence of a breach of the Crimes Act. 26 In August 1987 officers took this advice on board and on 21 August the Collector wrote to the AGS 'Re: Prosecution of Rizoli Pty Ltd and J and D Wong'. The letter noted the advice received from AGS of 21 May 1987 and that an authority to proceed in the Supreme Court against the company was being sought from the C-G. The letter also referred to the prosecution brief and indicated that it proposed to proceed against the Wongs under the Crimes Act. 27 As a result the C-G signed the 'Authority to Prosecute' dated 25 September 1987. This instructed the AGS to initiate proceedings against Rizoli Pty Ltd in the Supreme Court for offences against the Customs Act. This document was forwarded to the AGS on 22 October 1987. 28 The evidence does not disclose what happened between then and 1 September 1988. However, on that date the Chief Inspector wrote to the Director Investigation. He referred to the proposed criminal proceedings handled by the DPP. The minute noted that customs prosecutions could be run concurrently with the criminal matters and that the AGS should advise on this. The writer recorded that he had discussed the matter with a Mr Peter Swinton of the AGS, who advised that they would have no objection to reconsidering the evidence and, if sufficient, initiate proceedings. The writer proposed to resubmit the brief to the AGS. The Director Investigation agreed and on 2 September 1988 the Customs Service advised the DPP of its instructions regarding the criminal proceedings, indicating that it proposed to submit the brief to the AGS to consider 'pecuniary penalty proceedings' under the Customs Act. The brief was forwarded by the Collector to the AGS on 21 October 1988. The brief included the Record of Interview with Mr Wong of 27 April 1987. 29 Criminal proceedings were instituted against Mr Wong and Rizoli Pty Ltd in November 1988. These were dealt with by the District Court in June 1989 and Mr Wong and Rizoli Pty Ltd was each fined $60,000. 30 On 19 June 1989 the subject originating process was lodged in the Supreme Court. It was a verified Statement of Claim against one defendant, Mr Wong. The plaintiff was described as Francis Ivor Kelly, the Comptroller-General of Customs. The pleading was under the endorsement of the AGS, which described itself as the 'Solicitor for the Plaintiff' and gave its address as the address for service. 31 On 2 February 1990 the plaintiff, again per the AGS, sought to join Diane Wong and Rizoli Pty Ltd as additional defendants. The Prothonotary granted leave to amend on 9 March 1990. On 21 May 1990 an Amended Statement of Claim was filed by consent. On 29 August 1990 a Further Amended Statement of Claim was filed with the consent of the defendants. By this time the plaintiff had discontinued against Mrs Wong. The date of this pleading is unclear since one document refers to it as 4 September 1990 and this may be the more correct date. 32 It seems that the remaining defendants (the present appellants) pleaded to the Statement of Claim in May 1991. Thereafter it is unclear what happened to the litigation until early 1997. Apparently, it had been fixed for hearing to commence on 1 September 1997 but counsel for the defendants was unavailable and a new date was allocated for hearing commencing on 9 March 1998. 33 However, a few days beforehand the defendants sought an order that the plaintiff's pleading be struck out. This lead to the first judgment of Carruthers AJ on 10 March 1998 wherein his Honour noted that further and better particulars had been sought and supplied in 1990. His Honour's judgment also noted that all relevant documents had been served by the plaintiff on the defendants. His Honour took the view that the proceedings should not be struck out and the trial proceeded. 34 On 29 April 1998 his Honour gave an interlocutory judgment on admissibility of evidence. I need make no further reference to this on the issue of retainer except to observe that it is apparent that the AGS was purporting to act for the C-G in the proceedings and had frequent contact with the defendants' solicitors, especially in the period leading to the hearing. 35 It seems that his Honour continued to hear the trial until 8 May 1998, when he reserved judgment. The next matter which occurred was the AGS letter to the defendants' solicitors of 4 June 1998, referred to earlier, which enclosed the 'Authority to Prosecute'. This in turn lead to the Notice of Motion by Mr Wong which sought that the proceedings against him be struck out or stayed on the basis that the AGS was not retained by the plaintiff in the proceedings. As I have recorded, costs were sought against the AGS. His Honour's decision on the Notice of Motion was given on 1 July 1998. The final judgment was delivered on 10 July 1998. 36 'Retainer' is a word used to describe a contract between a solicitor and client for the provision of legal services for a fee. As mentioned, it is not required to be in writing, and may be implied from conduct. Here the course of dealings over nine years makes it plain beyond argument that the AGS was retained by the C-G to institute and conduct the proceedings against the appellants in the Supreme Court. No question of ratification arises. 37 Nor is the 'Authority to Prosecute' of 25 September 1987 of any real relevance. It probably became stale when the proceedings were originally instituted against Mr Wong rather than Rizoli Pty Ltd, the entity named in the document. However, in my view it matters not. I do not see it as necessary to discuss the cases raised in argument on the question of who carries the onus of proving retainer. The course of dealings relied on by Carruthers AJ and the documents discussed above, make it more than abundantly clear that the AGS was retained by the respondent in the proceedings from their institution, indeed prior thereto. No question of authority to institute the proceedings arises, given the finding on retainer, since the C-G needed no authority under the Act to institute the proceedings in his own name.

Ownership of the secreted goods (grounds 14 to 23) 38 Grounds of appeal 14 to 23 cover the issue of who was the legal owner of the secreted goods. It is contended that the trial judge erred in finding that Rizoli Pty Ltd held itself out to be the owner of the goods. It is submitted that his Honour should have found that the respondent had failed to prove that Rizoli Pty Ltd had authorised a customs agent, Renown Customs, to enter imported goods on its behalf or appointed Renown as its agent. It is argued that the House of Teak Furniture Pty Ltd should have been found to be the owner of the goods. His Honour should have had regard only to the consignment note and bill of lading as determinative of ownership of the goods. Put simply, Mr Graham submits that the respondent prosecuted the wrong defendant. Alternatively, Rizoli Pty Ltd had only held itself out as owner of the furniture and not the secreted goods. 39 In my opinion, none of the above contentions of the appellant Rizoli Pty Ltd should be accepted. Evidence was given by Patrick Louie, the managing director of Renown Customs Pty Ltd, a licenced customs broker under the Act. Mr Louie said that in 1982 Mr Wong told him that he had established a new company, Rizoli Pty Ltd. He told Mr Louie that he had started importing goods, mostly furniture, and would like him to act as customs broker to clear his imports. 40 According to the evidence of Mr Louie, the first appellant asked him to enter the name of the second appellant, Rizoli Pty Ltd, in the customs documents as owner of the goods. 41 Mr Louie said that after the initial conversation with Mr Wong, he personally received shipping documents from Mr Wong on a number of occasions - invoices, bills of lading etc. and was asked by him to clear the shipments. In accordance with his instructions, the customs entry document for each of the shipments in question nominated the owner as Rizoli Pty Ltd. 42 Mr Wong never asked Mr Louie to change the name shown as owner on the entry documents and Rizoli Pty Ltd was the only company ever mentioned to him by Mr Wong. After each shipment had been cleared, Mr Louie said that he issued an invoice to the first or second appellant for Renown's fees and was paid by cheque.

43 It was suggested that Mr Louie's evidence was equivocal. I do not think so. Reading it as a whole and fairly, it clearly established that Mr Wong asked Mr Louie to enter the name of Rizoli Pty Ltd as owner of the goods in the customs entry documents. 44 The first appellant, and his wife, were the directors of Rizoli Pty Ltd. There was ample evidence that Mr Wong was the directing mind and will of Rizoli Pty Ltd. Mr Wong made the arrangements from Australia for the clothes to be secreted in the containers shipped from Hong Kong to Port Botany. As I have said, it was Mr Wong's instruction to Mr Louie to enter Rizoli Pty Ltd as the owner in the customs documents. In my view, that constitutes some evidence that the second appellant was the owner of the secreted goods within the meaning in the Act. 45 The smuggling of the secreted goods under s 233(1)(a) of the Act was effected by the delivery to customs of the entry document which showed Rizoli Pty Ltd as owner and which falsely described the contents of the container. The same may be said in relation to the charge under s 234(1)(a) of evasion of duty and in relation to the making of a statement false in a material particular under s 234(1)(d) of the Act. 46 When the evidence of Mr Louie is read in the context of the very wide definition of 'owner' in s 4 of the Act - which includes any person holding himself out to be the owner or importer or person having any control or power over the goods - it is clear that the evidence of 'ownership' of the secreted goods was sufficient for his Honour to make the finding that he did. The finding was well open to his Honour. It matters not that the invoice and bill of lading were in favour of the House of Teak Furniture Pty Ltd. On one basis it may be said that this only dealt with the furniture and not the secreted goods. But the facts disclose, along with the definition of 'owner' in the Act, that the second appellant was the importer or held itself out to be the owner. It matters not that it may not have been the 'true' owner and the bill of lading etc. may be seen to be irrelevant. The combination of the definition of 'owner' in s 4 read together with ss 36(1) and 153 of the Act lead to the conclusion that the submission of the second appellant should be rejected. 47 There is a further argument made that the customs entry document to the effect that the company was the owner of the furniture declared to be in the container could not extend to the secreted clothing. However, Carruthers AJ was right to conclude that the documents effectively asserted that Rizoli Pty Ltd was the owner of all of the contents of the container knowing that it included the secreted goods.

Production of documents under s 214 (grounds 3 and 4) 48 On behalf of the appellants it is contended that the documents produced by Mr Wong to officer Davies on 27 April 1987 were illegally obtained. It is submitted that the Notice given under s 214(1) of the Act, upon which the documents were produced, was defective because it required production to Mr Davies whereas the section only permitted production to the Collector. 49 The ruling in relation to the admission of the documents into evidence was made by Carruthers AJ on 29 April 1998. 50 Given that s 8(1)(a)(ii) of the Act provides that a reference to the Collector should be construed as a reference to 'any officer doing duty in the matter to which the expression is used', the submission is a bold one. 51 The Collector signed the s 214 Notice and officer Davies was doing his duty in the matter. Accordingly, he was deemed to be the Collector for the purposes of s 214(1). Such a construction would promote the object or purpose underlying the legislation and is to be preferred to the appellant's submission, which does not. 52 Accordingly, it is unnecessary to address the argument based on s 138 of the Evidence Act.

Failure to strike out averments (grounds 1 and 2) 53 The appellants submit that his Honour erred in failing to strike out certain averments contained in the Further Amended Statement of Claim. It is contended that the averments, specified in the written submissions of Mr Graham, were not averments of fact but evidence and were impermissible. His Honour dismissed a motion to strike out the averments on 29 April 1998. His Honour was not persuaded that the averments were pure law, as opposed to mixed questions of fact and law, nor were they averments of evidence or intent contrary to s 255(4) of the Act. In any event, when he came to make the ruling, his Honour indicated that the respondent had established a prima facie case without reliance upon the averments. 54 His Honour deliberately deferred ruling on the application until he was satisfied that there was no prejudice to the appellants and the respondent indicated that it would establish his case from direct evidence. In these events, it is difficult to see how the submission can succeed. Assuming that some of the averments were impermissible, and I do not so find, there was no harm done in not striking them out. 55 Since his Honour found a prima facie case without reliance on any of the averments, there was no prejudice apparent to the appellants. 56 I would dismiss this portion of the appellants' appeal.

Are Customs' prosecutions criminal proceedings? (grounds 8 and 9) 57 The appellants contend that the proceedings were criminal proceedings for the purposes of the Evidence Act and his Honour was in error in not so concluding. The effect of this submission, if upheld, is that the records of interview with Mr Wong made on 27 April 1987 ought not to have been admitted because of the operation of s 86 of the Evidence Act. 58 The Dictionary to the Evidence Act defines 'criminal proceeding' to mean 'a prosecution for an offence'. The respondent argues that the proceedings are not a prosecution for an offence but proceedings for the recovery of a civil penalty. This latter type of proceeding is expressly recognised in a number of provisions in the Evidence Act in contradistinction to the commission of an offence, see eg. ss 125(1)(a), 130(4)(d) and 131(2)(j). 59 Whether customs prosecutions are criminal or civil has been a vexed question for the courts. The preponderance of authority is that they are proceedings of a civil nature. Carruthers AJ so found in his ruling on 29 April 1998. 60 In Evans v Button (1988) 13 NSWLR 57 the court held that the purpose of s 247 of the Customs Act was to assimilate customs prosecutions to proceedings of a civil nature. The section provides: Every Customs prosecution in a court referred to in sub-section 245(1) may be commenced prosecuted and proceeded with in accordance with any rules of practice (if any) established by the Court or Crown suits in venue matters or in accordance with the usual practice and procedure of the Court in civil cases … 61 Mahoney JA, with whom Priestley and McHugh JJA agreed said: It was, in my opinion, the purpose of that provision relevantly to assimilate customs prosecutions to proceedings of a civil nature: cf State v Judge Fawsitt [1945] IR 183 at 193 and R v Justices of the Appeals Committee of the Country of London Quarter Sessions (at 184). It was, in my opinion, the legislative purpose that Customs prosecutions, when brought in the Supreme Court, should be subject, inter alia, to the powers of amendment appropriate to such proceedings. [at 74] 62 I agree with Carruthers AJ that Jack Brabham Holdings v Minister (1998) 85 ALR 640 did not disturb the authority of Evans v Button, which has been applied on a number of occasions. See Kelly v JRA Ltd (1990) 92 ALR 651 and Comptroller-General of Customs v Kingswood Distillery Pty Ltd (Sully J, unreported, NSW Supreme Court, 11 February 1997). In addition, the judgment of Byrne J in Comptroller-General of Customs v Jayakody (unreported, Supreme Court of Victoria, 9 November 1993) and Pearce v Button (1985) 8 FCR 388 (Pincus J) are also very helpful. 63 Notwithstanding the passage of the Evidence Act 1995 (NSW) Evans v Button is still good law. If there be any inconsistency, and I am unpersuaded that there is, the Federal statute prevails and the Evidence Act needs to be read so as to accommodate any inconsistency. This follows from the provision in s 79 of the Judiciary Act 1903 (Cth). 64 In my opinion, Carruthers AJ was right to treat the proceedings before him as civil and not criminal proceedings and apply the standard of proof in Briginshaw (1938) 60 CLR 336. 65 It follows, and I understand Mr Graham to so concede, that grounds 12 and 13 also fail. 66 The appeals should be dismissed with costs.

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