Commonwealth v Sterling Nicholas Duty Free Pty Ltd [1972] HCA 19

High Court of Australia Barwick C.J. McTiernan, Menzies, Windeyer and Owen JJ. Commonwealth v Sterling Nicholas Duty Free Pty Ltd [1972] HCA 19

ORDER Appeal allowed with costs. Orders and declarations made by the Supreme Court of New South Wales set aside and in lieu thereof order that the suit be dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

1972, Feb. 29 Barwick C.J.

The respondent Sterling Nicholas Duty Free Pty. Ltd. carries on the business in Sydney of a duty free shop with the concurrence of the Department of Customs and Excise. Goods may there be purchased for delivery on board ship or aircraft, an entry of the goods for export being made by the respondent on behalf of the purchaser. The respondent's authority from the Customs extends to such delivery. The property in the goods, at least in instances of the kind with which this case is concerned, may have passed to the purchaser before any such delivery of the goods. No difficulty appears to have been experienced in the course followed by the respondent in connexion with goods delivered to ships or with respect to goods delivered to aircraft for placement in the hold of the craft. However, difficulties have arisen in cases where purchasers have desired to have the purchased goods with them in the cabin of a departing aircraft. The problem in this connexion is how to effect the export of the goods following upon their entry for export. In the case of a purchaser who desires to have the goods with him or her in the cabin of the aircraft the respondent may lawfully remove the goods purchased by such a purchaser from its store and, so far as the Customs Act 1901-1968 Cth and regulations are concerned, carry them to the airport and there effect their export. But, two legal obstacles have been said to stand in the way of the completion of such a delivery of goods to such a departing passenger purchaser in the airport. First, it is said that delivery of goods, whether or not the property of the passenger purchaser, to that person within the airport is a breach of s. 7 (1) of the Airports (Business Concessions) Act 1959 Cth. Second, it is said that only a delivery of such goods to a passenger purchaser in a particular area, namely the holding room, can lawfully be made in conformity with the control of the Customs to which admittedly the duty free goods are subject up to the time of their export from Australia.