Comptroller-General of Customs v Colquhoun [1999] NSWSC 30

New South Wales Supreme Court CITATION : Comptroller-General of Customs v Colquhoun [1999] NSWSC 30 CURRENT JURISDICTION : Common Law Division FILE NUMBER(S) : 14812/92 HEARING DATE(S) : 5 February 1999 JUDGMENT DATE : 11 February 1999

(Plaintiff) Comptroller-General of Customs PARTIES : v (Defendant) Alexander Gillespie Colquhoun JUDGMENT OF : Sperling J

COUNSEL : Plaintiff: L P Robberds QC/G M Elliott SOLICITORS : Plaintiff: S Coppock (Australian Government Solicitor) Defendant: In Person CATCHWORDS : Customs & excise - agreed penalty for breach of Excise Act; 1901 (Cth), s 61; Civil penalties - agreed penalty for breach of Excise Act 1901 (Cth), s 61 ACTS CITED : Excise Act 1901 (Cth) s 61 DECISION : Civil penalty approved

1 On 5 February 1999 I determined that a proposed penalty was appropriate in the circumstances of this case. I said I would give my reasons at a later time. 2 This matter is associated with the matter of Comptroller-General of Customs v Kingswood Distillery Pty Limited. I refer to my judgment in that matter of 5 December 1997. Matters of principle, policy and practice referred to in that judgment should be taken as incorporated in this judgment by reference. 3 The present matter is part-heard before Sully J. Pursuant to a mediated settlement reached between the parties a deed of settlement has been executed. In the proceedings as constituted before Sully J the Controller-General sought a civil penalty for breaches of s 61 of the Excise Act 1901 in relation to a substantial number of batches of spirit.

4 Section 61 of the act provides as follows: "All excisable goods are, until delivered for home consumption or for exportation to a place outside Australia, whichever first occurs, subject to the control of Customs and must not be moved, altered or interfered with except as authorised by this Act." 5 The subject goods were allegedly delivered to certain premises where the defendant was employed as a foreman and where the defendant allegedly committed breaches of s 61 while the goods were stored there. The deed of settlement provides for the filing of an amended statement of claim limiting the breaches relied upon to a breach in relation to one only of the batches to which I have referred. The civil penalty for that breach, agreed subject to approval by the Court, was $5,000. 6 The maximum penalty for breach of s 61 is $20,000. It is a material consideration that the defendant was not a director of the company on whose premises the goods came to be stored and was not involved in the management of that company. It is also a material consideration that the defendant, by the deed, has provided an undertaking not to be involved, directly or indirectly, with the importation of liquor for a period of five years. 7 Having regard to the matters of principle, policy and practice referred to in my judgment in Kingswood and to the facts and circumstances of the present case, it appeared to me that the proposed penalty was appropriate. -oOo-