Comptroller General of Customs v Zappia [2018] HCA 54

HIGH COURT OF AUSTRALIA

KIEFEL CJ, BELL, GAGELER, NETTLE AND GORDON JJ

COMPTROLLER GENERAL OF CUSTOMS APPELLANT

AND

DOMENIC ZAPPIA RESPONDENT

Comptroller General of Customs v Zappia [2018] HCA 54 14 November 2018 S91/2018

ORDER

1. Appeal allowed.

2. Set aside orders 1, 2 and 3 of the order of the Full Court of the Federal Court of Australia made on 19 September 2017 and, in their place, order that the appeal to that Court be dismissed.

On appeal from the Federal Court of Australia

Representation

S P Donaghue QC, Solicitor-General of the Commonwealth, with D F C Thomas and R A Minson for the appellant (instructed by Australian Government Solicitor)

G O'L Reynolds SC with R S Angyal SC, D P Hume and J K Mee for the respondent (instructed by Hall Partners)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Comptroller General of Customs v Zappia

Customs and excise – Customs control – Dutiable goods – Possession, custody or control of dutiable goods – Where company held warehouse licence under Customs Act 1901 (Cth) – Where dutiable goods stolen from company's warehouse before goods entered for home consumption – Where respondent employed by company as general manager and warehouse manager – Where s 35A(1) of Customs Act relevantly provided that a person who "has, or has been entrusted with, the possession, custody or control" of dutiable goods subject to customs control and who fails to keep goods safely shall, on demand by Collector, pay amount equal to customs duty which would have been payable if goods had been entered for home consumption on day of demand – Where respondent served with demand by Collector under s 35A(1) – Where respondent applied to Administrative Appeals Tribunal for review of Collector's demand – Where Tribunal found respondent directed what was to happen to goods on day‑to-day basis – Whether respondent was person who "has, or has been entrusted with, the possession, custody or control" of dutiable goods subject to customs control.