Parker v Comptroller-General of Customs [2009] HCA 7 (12 February 2009)

[2009] HCA 7

Practice and procedure – Appeals – Procedural fairness – Respondent issued a warrant under s 214 of Customs Act 1901 (Cth) authorising seizure of documents relating to single bottle of brandy – Officers of respondent seized documents relating to “other goods” imported within previous five years – District Court decided in In the matter of the appeal of Lawrence Charles O’Neill (unreported, District Court of New South Wales, 18 August 1988) that warrants issued under s 214 did not permit seizure of five year documents – Court of Appeal decided O’Neill “mistaken” without affording appellant opportunity to make submissions – Whether appellant denied procedural fairness in Court of Appeal – Scope of principles respecting procedural fairness in curial proceedings – Whether appellate court required to afford parties opportunity to be heard on non-binding decision.

Practice and procedure – Appeals – Procedural fairness – Court of Appeal went on to decide appeal on footing O’Neill correct – Whether lack of opportunity to make submissions with respect to O’Neill caused prejudice to appellant and affected outcome in Court of Appeal.

Evidence – Illegally or improperly obtained evidence – Evidence Act 1995 (NSW) (“Evidence Act”), s 138 – Respondent admitted condition precedent to execution of warrant not satisfied – Whether wilful disregard of Act in execution of warrant – Whether additional fact of seizure of five year documents relevant to exercise of discretion under s 138.

Practice and procedure – Appeals – Procedural fairness – Function of appellate court upon review of exercise by trial judge of discretion under s 138 of Evidence Act.

Words and phrases – “procedural fairness”, “relating to the goods”, “the goods”.

Customs Act 1901 (Cth), s 214, Sched V.
Evidence Act 1995 (NSW), s 138.