Citation: Chief Executive Officer of Customs v Evenfont [2007] NSWSC 431
Court: Supreme Court of New South Wales (Common Law Division)
Date: 2 May 2007
Judge(s): Bell J
Background
The plaintiff, the Chief Executive Officer of Customs, brought an excise prosecution against four defendants under the Excise Act 1901 (Cth). The first and second defendants were corporate entities: a petroleum products manufacturer (Evenfont Pty Ltd) and its ultimate holding company (Truegain Pty Ltd). The third and fourth defendants were the individual directors and former shareholders alleged to have personally managed and controlled both companies.
The charges included evasion of excise duty on petroleum products, knowingly making false statements to Customs officers, and moving excisable goods under Customs control without authority. The proceedings had been on foot since 1999 and were finally fixed for a six-week trial commencing 30 April 2007.
By notice of motion filed shortly before trial, the two personal defendants sought an order excluding them from any direction requiring them to file affidavits or witness statements before the close of the prosecution case. They relied on their privilege against self-exposure to a penalty and, separately, the right to silence.
Legal Issues
- Whether the personal defendants in an excise prosecution could resist a court direction requiring them to file affidavits or witness statements before trial, on the basis of the privilege against self-exposure to a penalty
- Whether section 136 of the Excise Act 1901 (Cth) or the Uniform Civil Procedure Rules (UCPR) necessarily displaced those common law rights and privileges
- Whether, as a matter of discretion, it remained appropriate to order pre-trial filing of evidence given the procedural history of the proceedings
Decision
Bell J found that neither section 136 of the Excise Act nor the UCPR operated to automatically deprive a defendant in an excise prosecution of the privilege against self-exposure to a penalty or the right to silence. Her Honour regarded it as simply wrong to contend otherwise. Although the judgment noted a conflict in intermediate appellate authority, Bell J indicated she would follow the Full Federal Court's decision in ACCC v FFE Building Services Ltd, which held that these common law protections were not displaced, because that reasoning had been adopted by judges of the Supreme Court, was consistent with Queensland Court of Appeal authority, and was compelling on its merits.
Critically, however, Bell J resolved the motion on discretionary grounds rather than by definitively resolving the conflict in authority. Directions for the defendants to file affidavits had been made at various stages but never complied with, and those failures had not been pursued by the plaintiff. Following Dunford J's decision in the related Camile proceedings (where similar orders excluding personal defendants from affidavit requirements were made), the plaintiff appeared to have accepted that the Court would not compel pre-trial filing of evidence by the personal defendants.
Any fresh order requiring the defendants to file evidence would have required further delay to an already long-running matter. The defendants had proceeded on the reasonable understanding that no such order would be made before the close of the prosecution case. Bell J concluded that the proper course, in light of the full procedural history, was to let the trial commence without further delay and to make orders in favour of the personal defendants' motion.
Orders Made
- Orders made in conformity with prayer one of the third and fourth defendants' notice of motion, excluding those defendants from any direction or order requiring them to file affidavits or witness statements before the close of the prosecution case.
Key Takeaways
- Neither section 136 of the Excise Act 1901 (Cth) nor the UCPR necessarily displaces a defendant's common law privilege against self-exposure to a penalty or right to silence in an excise prosecution.
- Directions for pre-trial filing of evidence in civil-procedure excise prosecutions involve the exercise of judicial discretion, and that discretion will be informed by the full history of the proceedings, including prior non-compliance and the stance previously taken by the parties.
- Where a plaintiff has implicitly accepted, following a related court decision, that personal defendants will not be compelled to file pre-trial evidence, a late application to impose such a requirement is unlikely to succeed, particularly once trial is imminent.
- The Supreme Court indicated it would follow ACCC v FFE Building Services Ltd on the question of whether procedural rules displace the privilege against penalty exposure, though the point was left open as it was unnecessary to the final determination.
- Procedural delay and the reasonable expectations of parties arising from the prior conduct of proceedings were significant factors in the court's exercise of discretion to refuse the late pre-trial evidence direction.
Legislation and Cases Referenced
Legislation:
- Excise Act 1901 (Cth), ss 134, 136, 144
- Uniform Civil Procedure Rules (NSW)
Cases:
- Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd [2003] HCA 49; 216 CLR 161
- Chief Executive Officer of Customs v Camile Trading Pty Ltd [2004] NSWSC 1256
- CEO of Customs v Camile Trading Pty Limited [2006] NSWSC 1401
- Chief Executive Officer of Customs v Afiouny [2004] NSWSC 79
- ACCC v FFE Building Services Ltd [2003] FCAFC 132; 130 FCR 37
- ACCC v Amcor Printing Papers Group Ltd (1999) 163 ALR 465
- ACCC v J McPhee & Sons (Australia) Pty Ltd (1997) 77 FCR 217
- Rich v Australian Securities and Investments Commission [2004] HCA 42; 220 CLR 129
- Rich v Australian Securities and Investments Commission [2003] NSWCA 342; 183 FLR 361
- Sidebottom v The Federal Commissioner of Taxation [2003] VSCA 2; 6 VR 302
- Commissioner of Taxation v Price [2006] QCA 108; [2006] 2 Qd R 316
- Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485
- Bridal Fashions Pty Ltd v Comptroller-General of Customs (1996) 140 ALR 681