CEO of Customs v Au [2005] NSWCA 119

Reported Decision : 153 A Crim R 21

New South Wales Court of Appeal

CITATION: CEO of Customs v Au [2005] NSWCA 119

HEARING DATE(S): 7 April 2005

JUDGMENT DATE: 21 April 2005

JUDGMENT OF: Sheller JA at 1; Tobias JA at 2; Brownie AJA at 45

DECISION: (1) Grant leave to appeal; (2) Appeal allowed; (3) Set aside the orders made by Shaw J on 16 and 17 September 2004; (4) There be judgment for the claimant on the separate issue the subject of paragraph 2 of the claimant's Reply dated 3 October 2003; (5) The claimant's Notice of Motion filed on 9 October 2003 for leave to amend its Statement of Claim be dismissed; (6) The opponent to pay the claimant's costs of the Notice of Motion filed on 9 October 2003, the proceedings before Shaw J, summons for leave to appeal and the appeal but to have with respect to the latter a certificate under the Suitor's Fund Act 1951, if otherwise qualified

CATCHWORDS: PROCEDURE - Double jeopardy - Autrefois acquit - Res judicata - Opponent charged with offences under Customs Act 1901 - Charges withdrawn before opponent called upon to plead - Charges recorded by Magistrate as "Withdrawn, dismissed" - No judicial determination of charges on merits - Proceedings subsequently instituted by way of statement of claim alleging same offences subject of original charges - Whether doctrine of autrefois acquit precluded subsequent proceedings - Justices Act 1902 s 80

Customs Act 1901 (Cth) LEGISLATION CITED: Justices Act 1902 Family Law Act 1975

Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Limited (2003) 216 CLR 161 R v Phipps; Ex parte Alton [1964] 2 QB 420 Lawson v Wallace [1968] 3 NSWR 82 R v Galvin (No 2) [1961] VR 740 CASES CITED: Broome v Chenoweth (1946) 73 CLR 583 The Queen v Reynhoudt (1962) 107 CLR 381 Barnes v Gougousis [1969] VR 1019 Callahan v Broomham (1996) 68 IR 66 Zaravinos v Houvardas [2004] NSWCA 421