CEO Customs v El Hajje [2004] HCATrans 349 (10 September 2004)

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CEO Customs v El Hajje [2004] HCATrans 349 (10 September 2004)

Last Updated: 14 September 2004

[2004] HCATrans 349

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M8 of 2004

B e t w e e n -

CHIEF EXECUTIVE OFFICER OF CUSTOMS

Applicant

and

NAZIH EL HAJJE

Respondent

Application for special leave to appeal

GUMMOW J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 10 SEPTEMBER 2004, AT 11.49 AM

Copyright in the High Court of Australia

MR C.M. MAXWELL, QC: May it please the Court, I appear with my learned friend, MR G.H. LIVERMORE, for the applicant. (instructed by Australian Government Solicitor)

MR M.L. SIFRIS, QC: May it please the Court, I appear with my learned friend, MR D.B. BAKER, for the respondent. (instructed by Michael J. Gleeson and Associates)

GUMMOW J: We would be assisted to hear from you first, Mr Sifris.

MR SIFRIS: If the Court pleases. The provision that is being dealt with is section 117(1) of the Excise Act. Relevantly, that is set out at page 36 of the book, and the relevant part of the section, namely:

No person other than a manufacturer shall, except by authority, have in his possession custody or control any manufactured or partly manufactured excisable goods –

the relevant words being “manufactured excisable goods”.

The applicant in the case made certain averments in the statement of claim. The relevant averments are set out on the next page of the book at 37. The averments are, taking them from the applicant’s summary of argument, No 4, that the respondent:

“had in his possession, custody or control manufactured or partly manufactured excisable goods –

using that very phrase set out in the legislation, that was the subject of the averment. Then it was also averred – this is again in paragraph 4:

“The cut tobacco is and was at all material times goods manufactured or partly manufactured . . . ”

So the averments set out in the statement of claim adopted the very language of the statute in the section, namely, “manufactured excisable goods”. As pointed out by his Honour Justice Buchanan when the appeal was heard, there was no averment as to why cut tobacco constituted manufactured goods and there was no averment that the tobacco was cut in a manner that converted it into manufactured goods.

Now, the applicants in this case and in this application for special leave contend that what Justice Buchanan regarded as the insufficiency of an evidential foundation for establishing that the goods were manufactured excisable goods were cured by the averment, namely that the averment, as it is contained in paragraph 4 of the book and as it appeared in the statement of claim, was sufficient to form the evidentiary basis for the conclusion that there was a contravention of the statute.

The process of reasoning followed by his Honour – and that is set out at page 26 of the book – and his Honour, looking at the phrase “manufactured excisable goods”, considered that that was the issue in the case, the facta probandum, and where that was the issue in the case that was a matter of law; being a matter of law, that could not be covered by an averment which can only cover a matter of fact. His Honour proceeded by referring to the case of Collector of Customs v Pozzolanic - - -

GUMMOW J: What do you say about paragraph 8 on page 46? Is that critical to your position?

MR SIFRIS: Yes, we say that is part of our submission, that whatever the case, and even if the applicants are correct, namely that you can use an averment in this case, nonetheless, as his Honour pointed out, proof beyond reasonable doubt was still required. His Honour set that out referring to Chief Executive Officer of Customs v Labrador Liquor Wholesale where in that case the High Court held that in an application of that sort, in that case proof beyond reasonable doubt was required.

So the remaining issue will be, even if the applicants are successful and do establish the things that they seek to establish, namely, (1) that you can use an averment even directed to the ultimate issue in the case and (2) that in this case the averment relating to the ultimate issue was a factual matter, even if they establish all of those things, they have only ever established a prima facie case. We would submit on the authorities of May v O’Sullivan and Labrador that more is required and it was missing in this case, as set out by his Honour. His Honour Justice Buchanan went through the evidence and was not satisfied that the applicants had met the required standard of proof.

CALLINAN J: Is that dealt with at page 25? Where do I find that?

MR SIFRIS: Yes, that is correct, your Honour.

CALLINAN J: That is the first paragraph that begins on the previous page, is that right?

MR SIFRIS: Yes.

CALLINAN J: Well, I know that your client was unrepresented, but the evidence was not objected to. His Honour seems to me simply to be rejecting that evidence. In order to hold that the evidence was insufficient anyway, his Honour really had to reject that evidence. It was received. It was not objected to at the trial.

MR SIFRIS: That is correct, your Honour.

CALLINAN J: I do not know whether it required expertise of the evidence to be given. In any event, it was not objected to.

MR SIFRIS: Well, it was not, but his Honour did find that there was no evidence that cut tobacco, and in particular cut in the manner referred to in this case, was sufficient evidence to warrant a conclusion that that cutting of the tobacco converted it into manufactured goods.

CALLINAN J: Was there actual evidence from your client that the tobacco leaf was cut in order to enable it to fit into bags for easy transportation?

MR SIFRIS: No, I do not believe there was.

CALLINAN J: So that his Honour’s example there is not one that necessarily applied to this case. His Honour said:

I do not think the tobacco leaf cut to enable it to fit into bags –

In any event, it would depend on the size of the bags.

MR SIFRIS: Yes, it might.

CALLINAN J: What dictates the size of the bags, the bags available or the size in which the leaves were cut?

MR SIFRIS: There were some photographs of the bags, I understand, in the original court book.

CALLINAN J: It just seems to me to be an inapt example when there is no evidence about it.

MR SIFRIS: Yes. Well, there was evidence - - -

CALLINAN J: And is it not inevitable that – people do not smoke tobacco leaves, do they? I do not know how big a tobacco leaf is myself, but it is quite big, is it not?

MR SIFRIS: I think it is, yes.

CALLINAN J: So inevitably a stage in its manufacture would be its reduction into different sizes, in other words it being cut. That would have to happen, would it not? Is that not right?

MR SIFRIS: Well, that may well be right, your Honour, but what his Honour said was that you can cut tobacco for different purposes.

CALLINAN J: Exactly. You might be cutting it for three purposes.

MR SIFRIS: To fit them into bags, for example.

CALLINAN J: To fit it into a bag, but also conveniently as the first stage in its reduction in size in the process of manufacturing.

MR SIFRIS: Yes. Perhaps I could backtrack a little and make this submission. The special leave ground set out in our learned friend’s summary of argument, namely, paragraph 6 on page 37, we submit, with respect, that, firstly, looking at the special leave question, that, we say with respect, is not a question which this Court should regard as appropriate for special leave for the following reason. We say it is clear that an averment can be directed to a fact, even if the fact is the issue in the case. That is not in dispute. The leave question sought is, can you rely on an averment if it is directed to the ultimate fact? That is what the Act says.

Section 144 of the Excise Act, in fact, says that you can rely on an averment to establish a fact, even if it is the ultimate fact, and that has been done in many cases. But, of course, the question is, when is it a matter of fact and when is it a matter of law? That is the real question. That is a difficult question in itself and no leave is sought in relation to that question, namely, when and what criteria does one use for establishing when it is a question of fact and when it is a question of law? Even that question would probably be inappropriate for the Court because it would depend on the circumstances of a particular case, the legislation and the like.

Certainly from the special leave question, what is sought to be argued, we anticipate, is this. If we make an averment and the averment relates to the issue in the case, can we use it? That is not - - -

CALLINAN J: I do not know whether that is the way in which the notice of appeal at 33 is drawn though. It seems to be wide enough to cover the sort of question that you say might be an appropriate question, or would accept would be an appropriate question.

GUMMOW J: And having regard also to the applicant’s argument at page 38, paragraph 14 and following, under the heading “APPLICANT’S ARGUMENT”.

CALLINAN J: It is fairly clear, is it not? It is a neat point, whether it is a matter of law or whether it is a matter of fact?

MR SIFRIS: Yes. That is wide enough to be embraced by the notice of appeal. Then one gets to this case, if you like, whether there was an error in relation to this case and, if there was, whether special leave should be granted.

CALLINAN J: Well, that is the applicant’s first ground of appeal, I think, that there was a factual error in the Court of Appeal in holding that the evidence could not support a purpose of manufacture, in effect, by the mere cutting of it.

MR SIFRIS: Yes. Well, what the appeal then is is it would be an appeal to the High Court on largely a factual matter - - -

CALLINAN J: No, the other point remains. The applicant has to succeed on the question which you say is a question of fact, but we do occasionally take questions of fact.

MR SIFRIS: Yes, I understand that, your Honour.

CALLINAN J: And it is rare that we get an entirely discrete and singular point of law.

MR SIFRIS: Yes. What we submit is that Justice Buchanan looked at the evidence and we, in our respectful submission, submit that there is no error in the process of reasoning. His Honour did conclude, and was entitled to conclude, that there was some missing evidence, and the missing evidence was why is it that cut tobacco is, merely by the fact that it is cut, converted into a manufactured process or into something that is manufactured, simply because it is cut? None of the averments on the other side were directed to that missing evidence.

GUMMOW J: I think we are seized of all that.

MR SIFRIS: If your Honour pleases.

GUMMOW J: We do not need to call on you, Mr Maxwell.

MR MAXWELL: If the Court pleases.

GUMMOW J: There will be a grant of leave in this matter. It would a half-day case or a one-day case?

MR MAXWELL: Your Honour, I think you could do it in half a day. It is a very short point.

GUMMOW J: Yes, I think that may be right. Yes, thank you.

AT 12.04 PM THE MATTER WAS CONCLUDED