JACK BRABHAM HOLDINGS PTY LTD v THE HONOURABLE JN BUTTON (MINISTER OF STATE FOR INDUSTRY, TECHNOLOGY AND COMMERCE) [1988] NSWCA 73

JACK BRABHAM HOLDINGS PTY LTD v THE HONOURABLE JN BUTTON (MINISTER OF STATE FOR INDUSTRY, TECHNOLOGY AND COMMERCE)

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, MAHONEY and CLARKE JJA 25 October 1988, 23 December 1988

[1988] NSWCA 73

CUSTOMS — offences — customs prosecutions — penal provisions — conviction for an offence — imposition of a penalty — penalty to be sued for in accordance with the usual practice and procedure in civil cases — prosecution to be instituted within five years — prosecution for customs offences in connection with importation of vessels — alleged understatement/mis-statement of value of vessels for customs purposes — substantial unexplained delay in initial commencement of proceedings — proceedings commenced just before expiry of statutory time limit — application for permanent stay on ground of abuse of process — whether civil or criminal rules apply — whether delay before the commencement of proceedings may be taken into account — whether, if brought within limitation period, only the delay since proceedings commenced is relevant — whether legislative intention to exclude stay for abuse of process of proceedings commenced within time sufficiently plain from the statute — held: (By the Court) The stay sought by the appellants should be refused — (by Mahoney and Clarke JJA): Whatever the legal classification of the nature of the proceeding, it did not warrant the provision of a stay which is exceptional; (by Kirby P) (1) Although the proceedings are not criminal in nature they have relevant features akin to a criminal prosecution. Evans v Senator JN Button (1988) 13 NSWLR 57; 81 ALR 61 [applied] (2) The approach to be taken in applications for a stay of such prosecutions is that applicable to criminal proceedings; Herron v McGregor (1986) 6 NSWLR 246 applied; Re Macphee and Barristers' Society of New Brunswick (1984) 1 DLR (4th) 156 considered; (3) Neither the statutory provision concerning practice and procedure in such cases nor providing for five years within which to prosecute them excluded the operation of the Court' s jurisdiction to stay oppressive criminal prosecutions in the appropriate case. R v Brentford Justices, Ex parte Wong [1981] 1 QB 445 applied; (4) Accordingly, the discretion of the primary judge had miscarried; (5) The Court of Appeal had the materials sufficient to exercise its own discretion; (6) Upon a re-exercise by the Court of the relevant discretion, the exceptional relief by way of stay should not be provided in the circumstances proved. Watson vy The Attorney-General (NSW) (1987) 8 NSWLR 685, 697-8 [1987] 20 Leg Rep SL 1 applied.