New South Wales Supreme Court CITATION : CEO Customs v Afiouny & Anor [2004] NSWSC 162 HEARING DATE(S) : 4 March 2004 JUDGMENT DATE : 4 March 2004 JUDGMENT OF : McDougall J at 1 DECISION : See paragraph [14] of judgment CATCHWORDS : COSTS - prosecution under Customs Act - notice of motion for summary judgment not pressed - whether appropriate to decide costs on the basis that notice of motion for summary judgment likely to have succeeded if pressed - whether summary judgment an appropriate remedy - whether costs should be dealt with by trial judge LEGISLATION CITED : Customs Act 1901 (Cth) CASES CITED : Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd (2003) 78 ALJR 1629 Chief Executive Officer of Customs PARTIES : v Abdul Warid Afiouny and Bilal Afiouny FILE NUMBER(S) : SC 20077/02 COUNSEL : S Vorreiter (Solicitor) (for the plaintiff) K Manion (for the defendants) SOLICITORS : Australian Government Solicitor (for the plaintiff) Perla & Jordan Lawyers, Beverly Hills (for the defendants) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION McDOUGALL J 4 March 2004 (Revised 5 March 2004) 20077/02 CHIEF EXECUTIVE OFFICER OF CUSTOMS v ABDUL WAHID AFIOUNY & ANOR JUDGMENT 1 HIS HONOUR: In my reasons for judgment dated 25 February 2004 ([2004] NSWSC 79), I dealt with the defendants' Notice of Motion filed on 3 December 2002. At paragraph [36] I mentioned the plaintiff's Notice of Motion filed on 26 November 2002 for summary judgment. That Notice of Motion was not pressed and the plaintiff consented to an order for its dismissal. The orders that I made included an order dismissing the plaintiff's Notice of Motion, but I reserved the question of costs. 2 The parties appeared before me today to argue the costs. The plaintiff seeks its costs. The defendants do not seek their costs, but say either that there should be no order as to costs, or that costs should be reserved, or that costs should be the plaintiff's costs in the proceedings. 3 As I have said, the Notice of Motion in question was a Notice of Motion for summary judgment. It is clear that it was filed in response to the defences originally filed by the defendants (on 5 June 2002), which were lamentably defective in form having regard to the application of the rules of civil procedure. As I have recorded in my earlier reasons, the defences merely put matters in issue by not admitting or denying the allegations in the Statement of Claim. Mr Manion of Counsel, who appeared for the defendants today, properly conceded that if one were to apply the rules of civil procedure, the defences were inadequate. As I have indicated, I think that concession was properly made. 4 In moving for summary judgment it was the plaintiff's obligation to demonstrate to the requisite standard that every ingredient necessary for it to succeed had been made good. The plaintiff relied not only on the averments in the Statement of Claim (see s 255 of the Customs Act 1901 (Cth)) but on an affidavit by a Customs Officer, Mr Joseph Gjedsted, sworn 26 November 2002 and filed in support of the Notice of Motion. That affidavit effectively verified the broad outline of the plaintiff's claim. However, in addition, Mr Gjedsted exhibited what he called "the brief of evidence in this matter". That brief of evidence was not tendered and I have, therefore, been spared the burden of considering it in detail. I have been spared that burden because Mr Manion very properly conceded that, untested, the brief of evidence was capable of making good, on the criminal standard of proof, the material allegations in the Statement of Claim that were necessary to prove the various offences charged. I should make plain that the concession was made only for the purpose of enabling the question of costs to be decided expeditiously; it should not be taken as binding upon the defendants for all purposes hereafter. 5 The plaintiff says that the Notice of Motion for summary judgment was not pressed because after it had been filed, and after (I think) some interlocutory hearings, the defendants either filed or indicated they would file defences in a form that the plaintiff accepts as satisfactory. Mr Manion pointed to the circumstance that the Notice of Motion was withdrawn after the High Court handed down its decision in Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd (2003) 78 ALJR 1629, but I do not think that this is relevant, particularly given the concession that, as I have said, was very properly made. 6 I, therefore, proceed upon the basis that had the Notice of Motion been heard, and had the plaintiff's evidence been unopposed and untested, the Notice of Motion is likely to have succeeded (subject to any relevant discretionary issues). The issue that Mr Manion raises is whether it is appropriate for me to decide the question of costs on that basis. He says that the question of costs, depending as it does to some extent on the view that is taken of the plaintiff's evidence, should be dealt with by the trial judge when the brief of evidence (and any other matter on which the plaintiff relies) has been thoroughly tested and when the defendants have had an opportunity of putting forward such evidence as they wish in answer to the claim. 7 Because the Notice of Motion for summary judgment did not proceed, the defendants did not need to put on evidence and did not need to test the material on which the plaintiff relied. I, therefore, cannot say whether, had the Notice of Motion proceeded, it would have succeeded. As I have indicated, the most that can be said is that it may have succeeded given that the evidence that was adduced in support of it was sufficient to make out the relevant accusations to the requisite standard. 8 In passing, I should note that, contrary to the point that initially troubled me and was raised in argument, no question now arises as to the role of the averments in the Statement of Claim or as to the application of s 255 of the Customs Act. Specifically, the difficulties that were discussed by Hayne J in Labrador at 1654 [140] to 1655 [144] await consideration by another judge on another day. 9 The question of costs is one that is in the discretion of the Court. Had the plaintiff sought, instead of summary judgment, an order striking out the defendants' defence, then the entitlement to costs would have been clear. Precisely what would have happened if an order striking out the defences had been made is a matter for speculation; but it is at least arguable that that was one appropriate response to the defective nature of the defendants' defences. 10 Another point of difficulty is that, given that the rules of civil procedure apply (conformably with my judgment of 25 February 2004 and conformably, as I said in that judgment, with the decision of the High Court in Labrador), it is a question to be determined on a case by case basis how those rules should be applied in the management and trial of Customs prosecutions. I do not wish, in deciding the question of costs, to express any concluded view as to whether or not it is appropriate for procedures such as summary judgment to be applied in prosecutions of this nature. It seems to me that to decide this on a costs issue would be to burden the already difficult jurisprudence on this topic with a decision, in circumstances where the point had not been fully argued, that might be capable of creating an unfortunate precedent. All I will say is that, therefore, it seems to me to be at least arguable that if what is required is case by case management (see [para 34] of my earlier judgment) then it might have been thought that summary judgment was an inappropriate process, particularly given that the intention was to force the defendants to plead their claim appropriately. However, that is not a concluded view. It is an inclination that might or not have become a concluded view if the questions were fully argued. I mention it because, as is clear on the authorities, summary judgment is a discretionary remedy. 11 In the context of a Customs prosecution it seems to me that one of the factors to be considered is whether the Court should grant relief by way of summary judgment or whether it should give directions or otherwise mould its procedures in a way that enables the issues in the prosecution to be articulated and enables the matter to proceed in an effective way that, in so far as the legislative scheme permits, will be capable of producing a fair trial for the defendants. In referring in particular to the defendants, I do not wish to be taken as saying the plaintiff is not equally entitled to a fair trial; but the point is the combination of the averment procedure and the application of civil procedures for criminal trials creates a situation which might be thought to be more than usually burdensome for defendants. That, however, being the necessary result of the application of the legislative intention as I understand it, and as the High Court explained it in Labrador, it is the Court's duty to work with the legislative intention and, once the boundaries are so defined, to seek to manage cases in an appropriate fashion. 12 In all the circumstances, it seems to me that the appropriate costs order in relation to the plaintiff's Notice of Motion filed on 26 November 2002 is that the costs of that Notice of Motion should be the plaintiff's costs in the proceedings. That will have the following consequences. If the plaintiff succeeds then it will have its costs of the Notice of Motion. If the plaintiff fails then it will not have to pay the defendants' costs of the Notice of Motion. Further, it will mean the trial judge is not burdened by the need to go back and consider the position in relation to the Notice of Motion; the costs will, to the limited extent that I have indicated, follow the event. 13 I think that is the appropriate outcome because, as I have said, I remain troubled by the indiscriminate application of the totality of the rules of civil procedure, including specifically the summary judgment procedure, to what is in substance and fact a criminal prosecution. I further remain concerned at the proposition that a defendant, put in the position of the present defendants, might be required, should it wish to avoid a costs order, to test, and perhaps adduce evidence in response to, the evidence relied upon by the plaintiff in support of an interlocutory application. It may well be that in particular cases the application of the rules of civil procedure do require a defendant to take some affirmative step, or in some way to state a position that, in an ordinary criminal trial, it could not be required to state. However, if that is to happen, I think it should be as a result of a deliberate and considered direction given by the Court aimed at the particular problem which is seen to confront the parties and not as a by-product of an application for summary judgment. 14 I, therefore, order that the costs of the plaintiff's Notice of Motion filed on 26 November 2002 be the plaintiff's costs in the proceedings. 15 At the plaintiff's request, I note that, in relation to paragraph 39(4) of my reasons of 25 February 2004, the defendants have made no application as contemplated therein. ****** Last Modified: 03/15/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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