Commonwealth v Sterling Nicholas Duty Free Pty Ltd - [1972] HCA 19 - HCA 1972 case summary — Zoe

CTHHCA

Commonwealth v Sterling Nicholas Duty Free Pty Ltd

[1972] HCA 19

High Court of Australia|1972-07-01|Before: Owen JJ, Hope J

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At a glance

Source facts

Court

High Court of Australia

Decision date

1972-07-01

Before

Owen JJ, Hope J

Source

Original judgment source is linked above.

Judgment (75 paragraphs)

[1]

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

[2]

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.

[3]

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.

[13]

This construction, in my opinion, accords with what I apprehend to be the policy of the provision as disclosed by the Act as a whole. The Act is obviously an Act to enable the Commonwealth to grant business concessions on airports constructed on land acquired by the Commonwealth for the purpose of civil aviation. Sections 6 and 8 of the Act provide the means of creating such concessions. The concessionaires will be conducting the business of selling goods or of providing services. On any construction of the word "supply" they are quite unlikely to be conducting in the airport a business of supplying goods, i.e. not selling, but merely "supplying". Section 7 (1) is evidently enacted to protect the concessionaires against competition within the airport in the same areas of business as those in respect of which the concessions are granted. The limitation on the prohibition on sale, namely the sale for delivery within the airport, emphasizes this relationship of s. 7 (1) to the business of the concessionaire who, if authorized to sell, will only be authorized to sell for delivery within the airport. The terms of s. 8 (1) are tied to those of s. 7 (1). There are in this connexion none of those considerations which have led to the use of the word "supply" as a means of preventing their distribution in statutes dealing with the sale and distribution of alcoholic liquors. Further if the mere delivery of goods within the airport was intended to be forbidden, it is somewhat strange that it was thought necessary or appropriate expressly to forbid sale for delivery within the airport. It must have been contemplated that goods sold for delivery within the airport would accordingly be delivered within the airport, though it must be conceded that theoretically a sale of goods for delivery within the airport might not be completed by such delivery. But such a result could have little relevance to the concessionaire who was entitled to make, but confined to, sales of goods for delivery within the airport. I cannot think that the form of the sub-section was specifically designed to deal with uncompleted sales of goods for delivery within the airport and that the word "supply" was used to embrace deliveries within the airport of sales made elsewhere.

[38]

It is to be observed that not all sales within an airport are prohibited. The prohibition is against sales of goods for delivery within the airport and such sales are prohibited without regard to actual delivery. It is the sale of this sort that is prohibited; delivery is not, as such, prohibited. The first question here is whether delivery pursuant to a contract of sale requiring delivery of the goods within the airport amounts to the supply of those goods within the airport. The word "supply" is a word of wide import. It could, perhaps, in some circumstances be applied to the giving of a book or a box of chocolates. As used here, however, the word cannot have such a wide connotation. The prohibited supply does not cover anything which is not part of a business transaction. It is significant that what is prohibited by s. 7 may be authorized under s. 8 as a business concession. It is, however, obviously part of a business transaction to deliver goods that have been sold elsewhere for delivery at a particular place. I have come to the conclusion that such delivery amounts to supplying goods whether the delivery is regarded as pursuant to a contract or as made upon the authority of the purchaser. It is an essential element of the company's business that, unless delivery is made to an aircraft, it should occur at the point of the departure of the passengers to board outgoing aircraft. It must be within the airport. Such delivery is, in my judgment, the supply of goods within the airport. It was argued for the company that it could not "supply" goods at the airport because the property in the goods had passed, at the latest, upon entry for export. To accept this, however, would be to accept an altogether too narrow meaning of the word "supply". The supply of goods does not necessitate a change in ownership of the goods supplied. In many cases the word "supply" is equivalent to the word "provide" and it often happens that a person is provided by others with what belongs to him. Thus a shop, which has a home delivery service, supplies goods upon delivery notwithstanding that they may have been bought in the shop, or by telephone, or by mail order. A supplier is not merely one who sells. He may be one who delivers. It would, I think, be wrong to call the company the supplier of goods at the point when an entry for export has been passed. To become a supplier something more would still be necessary, namely the delivery of goods to the purchaser. Looking at the transaction from the point of view of the customer, it is, I think, obvious that it is not until delivery that the purchaser is supplied with the goods which he has bought.

[53]

This Court Doth Declare that Sterling Nicholas Duty Free Pty. Ltd. is not prohibited by s. 7 of the Airports (Business Concessions) Act, 1959, from delivering at Sydney (Kingsford Smith) Airport to persons about to depart overseas by air, goods sold to those persons in its shop at Nos. 113-115 Oxford Street, Darlinghurst, the title to which goods vested in these persons prior to their delivery at the said Airport. Much argument before his Honour and much argument before us revolved round the word "supply" and what is connoted by supplying goods. In my view this was to introduce an irrelevant consideration. Admittedly the extent of the prohibition in par. (a) of s. 7 (1) is debatable - clarity has been sacrificed to the brevity of a compendium. For my part, although others take a different view, I read this provision distributively or some would say reddendo singula singulis. As I read it, it states that "a person shall not sell any goods or supply any services". To read it as meaning a person shall not sell or supply any goods or sell or supply any services makes it I think worse than clumsy: it means that one has to decide what is meant by a sale of services. That in law is an unusual expression. When used it seems that it does not mean rendering services for reward but selling the services of one's servants so as to put them under the buyer's orders. But a prohibition against supplying services without authority at an airport is I think understandable. It connotes, I think, some undertaking regularly carried on, presumably for reward - such as providing porterage for passengers' baggage, booking accommodation for incoming travellers, arranging transport, or taking photographs. Merely helping someone with his suitcases would not, I think, be supplying a service, nor would driving him to or from the airport. As to goods, admittedly there is not the same difficulty with "sell or supply" as twins. But here "supply" stands alongside "sell for delivery". Presumably it does not mean deliver or "deliver" would have been used. In any event the prohibition must be read as it is written not distorted; and to my mind only by reading it distributively as I suggest can it be given a plain meaning. I therefore reject the proposition that we are here concerned with what is meant by supplying goods. However, as others do not see the case in this way, I shall make a few observations on the assumption that it is an offence to "supply any goods" within an airport. What then does supply there mean? 1. [1971] 1 N.S.W.L.R., at p. 371.