Sidebottom v Giuliano

FEDERAL COURT OF AUSTRALIA

Sidebottom v Giuliano [2000] FCA 607

CUSTOMS AND EXCISE – excisable goods subject to control of Customs – request to account for excisable goods – whether request can be made when revenue needs no protection

Excise Act 1901 (Cth) s 60

Collector of Customs (NSW) v Southern Shipping Co Ltd (1962) 107 CLR 279

RAYMOND SIDEBOTTOM , LESLEY SIDEBOTTOM, AUSTRALIAN PETROLEUM SUPPLIES PTY LTD, GV LIQUID TANKERS PTY LTD and RPM COMMODITIES PTY LTD  v  E GIULIANO, THE COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA and LIONEL BARRIE WOODWARD, THE CHIEF EXECUTIVE OFFICER OF CUSTOMS

V 179 of 2000

JUDGE:         FINKELSTEIN J
DATE:           12 MAY 2000
PLACE:         MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 179 of 1999

BETWEEN:	RAYMOND SIDEBOTTOM , LESLEY SIDEBOTTOM, AUSTRALIAN PETROLEUM SUPPLIES PTY LTD, GV LIQUID TANKERS PTY LTD and RPM COMMODITIES PTY LTD Applicants
AND:	E GIULIANO, THE COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA and LIONEL BARRIE WOODWARD, THE CHIEF EXECUTIVE OFFICER OF CUSTOMS Respondents
JUDGE:	FINKELSTEIN J
DATE OF ORDER:	12 MAY 2000
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.   The application be dismissed.

2.   The interlocutory injunction granted on 24 September 1999 be discharged.

3.   The applicant pay the respondents’ taxed costs of the application.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 179 of 1999

BETWEEN:	RAYMOND SIDEBOTTOM , LESLEY SIDEBOTTOM, AUSTRALIAN PETROLEUM SUPPLIES PTY LTD, GV LIQUID TANKERS PTY LTD and RPM COMMODITIES PTY LTD Applicants
AND:	E GIULIANO, THE COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA and LIONEL BARRIE WOODWARD, THE CHIEF EXECUTIVE OFFICER OF CUSTOMS Respondents

JUDGE:	FINKELSTEIN J
DATE:	12 MAY 2000
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. An investigation by the Australian Customs Service suggests that quantities of petroleum products were transported to a depot in Saxton Street, Numurkah, in the State of Victoria, mixed with other products to produce blended petroleum products and then entered into home consumption without payment of excise duty. Section 54 of the Excise Act 1901 (Cth) requires the manufacturer of excisable goods or, where the owner of goods enters them for home consumption, the owner of those goods, to pay the excise duty imposed on those goods. Certain blended petroleum products are excisable goods for the purposes of the Excise Act: see generally the definitions in s 77G.

2. Mr Giuliano, the first respondent, is a Collector of Customs. He has information that the blended petroleum products (if that is a proper description of the products) were in the possession, custody or control of the applicants who allowed those goods to enter into home consumption. Section 60(1) of the Excise Act provides:

   “Where a person (including a manufacturer) who has, or has been entrusted with, the possession, custody or control of excisable goods which are subject to the control of the Customs:

   (a)fails to keep those goods safely; or