WONG AND ANOR v COMPTROLLER GENERAL OF CUSTOMS [1998] NSWCA 266

WONG v COMPTROLLER GENERAL OF CUSTOMS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

BEAZLEY JA 6 May 1998

[1998] NSWCA 266

Beazley JA There is before me a Notice of Motion seeking a stay of proceedings in the Common Law Division pending determination of an application for appeal from the interlocutory judgment of Carruthers AJ published on 29 April 1998. There are consequential orders sought in the Notice of Motion, firstly, that application for leave to appeal be expedited, and others relating to costs.

There has been filed in support of the Notice of Motion an affidavit of Gregory Carl Spain dated 6 May 1998, which annexes to it a summons for leave to appeal, in draft form, together with the statement under Pt51 r4(7). It is proposed that this would accompany the summons for leave to appeal, together with the judgment of Carruthers AJ which is sought to be stayed.

The interlocutory judgment deals with the admissibility of certain documents which are critical to the plaintiff/opponent's case. In saying that I understand that counsel for the opponent accepts the critical nature of those documents in the proceedings.

His Honour, in a lengthy judgment, determined that the documents were admissible. In doing so he directed his attention to twelve questions which the parties had submitted to him for determination. Those questions raised a number of issues which were relevant to the basis of admissibility of the documents.

Mr McGovern, counsel for the claimants, has submitted on this application that four broad matters of principle arise out of his Honour's judgment: (i) whether proceedings under Pt14 of the Customs Act 1901 (Cth), under which these proceedings have been brought, are civil or criminal in nature; (ii) the validity of the s214 notices under which the documents whose admissibility is in question were seized; (iii) the interrelationship of s69 with s166 to s168 of the Evidence Act 1995 (NSW); and (iv) the question of the extent and nature of the police powers of questioning and interrogation under the Customs Act.