In the recent judgment of Comptroller General of Customs v Zappia  HCA 54 (14 November 2018), the High Court unanimously allowed an appeal from a judgment of the Full Court of the Federal Court of Australia, which set aside a decision of the Administrative Appeals Tribunal ("the AAT").
Zaps Transport (Aust) Pty Ltd ("Zaps") operated a warehouse. John Zappia was the sole Director of Zaps and his son Domenic Zappia ("the Respondent") was employed by Zaps as its General Manager and its Warehouse Manager. In May 2015, some 400,000 cigarettes were stolen from Zaps' warehouse with the stolen goods being classified as "dutiable goods", which, at the time of the theft, had not been entered for home consumption. The Customs Act 1901 (Cth) (the "Act") provides at s 35A(1) that a person who:
In the judgment, their Honours also outlined the definition of “dutiable goods” at [para 2]:
A demand was made by the Collector to the Respondent, the respondent's father and Zaps for “customs duty which would have been payable on those goods had they been entered for home consumption on the day of the demand”, with their Honours noting at [para 16] of the judgment:
The Respondent, the respondent's father and Zaps applied to the AAT for review of the Collector's decisions to demand payment from each of them. Each demand was affirmed at the AAT.
The Respondent then appealed to the Full Court of the Federal Court. By majority, the Full Court of the Federal Court allowed the appeal, with White and Moshinsky JJ saying:
"that s 35A(1) on its proper construction "is not to be understood as directed to the kind of control exercised by an employee of a licensed warehouse, acting in that capacity" [at 42 of the High Court's decision]
The Full Court of the Federal Court set aside the decision of the Tribunal and declared that the demand made by the Collector on the Respondent was "invalid and of no effect".
By special leave, the Applicant then appealed to the High Court. The High Court overturned the decision of the Full Court of the Federal Court, and held that an employee of a warehouse licence holder is capable of being a person who "has, or has been entrusted with, the possession, custody or control" of the relevant goods.
Kiefer CJ and Bell, Gageler and Gordon JJ concluded in their joint judgement [at paras 41 and 42]:
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Comptroller General of Customs v Zappia  HCA 54 (14 November 2018)
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