Chief Executive Officer of Customs v John Martins Au [2004] NSWSC 854

New South Wales Supreme Court

CITATION : Chief Executive Officer of Customs v John Martins Au [2004] NSWSC 854 revised - 17/09/2004 HEARING DATE(S) : 22/07/04, 23/07/04 JUDGMENT DATE : 17 September 2004

JUDGMENT OF : Shaw J at 1 DECISION : JUDGMENT 16 SEPTEMBER 2004: I find that there is either a res judicata, an issue estoppel or an abuse of process or all of these which precludes the statement of claim going forward in this Court. It follows that I should dismiss the statement of claim and order that the plaintiff pay the defendant's costs of these proceedings. Accordingly I order: 1. The statement of claim be dismissed. 2. The plaintiff pay the defendant's costs of these proceedings; JUDGMENT 17 SEPTEMBER 2004: I am of the view that the defendant should have his costs of the substantive proceedings, save and except that any costs associated with the belated amendment to the proceedings should be the plaintiff's costs in the cause. I would confirm the orders made yesterday subject to the modifications that I have indicated. I dispose of the proceedings in accordance with those remarks. Substantively I think the costs should follow the event but I will leave it to the costs assessors. I am giving the plaintiff costs thrown away because of the belated nature of the point that is raised.

CATCHWORDS : Smuggled cigarettes - "chop chop" - Whether prior proceedings, namely an application before the Local Court of NSW, has resulted in res judicata, issue estoppel and/or abuse of process Customs Act 1901 (Cth) LEGISLATION CITED : Judiciary Act 1903 (Cth) Justices Act 1902 (NSW) Bradshaw v Vaughton (1860) 30 LJCP 93 Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd (2003) 201 ALR 1 Director of Public Prosecutions v Goben [1999] NSWSC 696 Hope v Threlfall (1854) 2 Eq R 307; 23 LJCh 631 CASES CITED : John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508 Lawson v Wallace [1968] 3 NSWR 82 Martin v Abbott Australasia Pty Ltd [1981] 2 NSWLR 430 R v Phipps, ex parte Alton [1964] 2 QB 420 R v Stamper (1841) 1 QB 119 Tunnicliffe v Tedd (1847) 17 LJCP 176 PARTIES : Chief Executive Officer of Customs John Martins Au FILE NUMBER(S) : SC 20175 of 2002 COUNSEL : Mr R Horsley (Plaintiff) Mr J Overall (Defendant) SOLICITORS : M Hawkins Australian Government Solicitor (Plaintiff) S Sadiq Lloyd Truman Sadiq (Defendant)