The High Court has unanimously dismissed an appeal against the unanimous decision of the Queensland Court of Appeal in Thiess v Collector of Customs. In 2004, Thiess imported a yacht that, because of its tonnage, should not have attracted any import duty. Thiess’s customs broker, however, mistakenly believed the yacht was of a lower tonnage that would attract a different tariff classification and require an import duty, which the broker later paid. Thiess learned of the mistake two years later, and sought an ‘act of grace’ refund of the duty and GST, which was not paid. Thiess commenced proceedings in 2010, six years after the duty was paid. Fraser JA, for the Court of Appeal, held that Customs had a lawful defence to Thiess’s claim relating to both the import duty and the GST charged: s 167(4) of the Customs Act 1901 (Cth) bars an action for recovery of duties unless the original payment is made under protest, and any action must be commenced within six months of the payment date. Thiess neither made the payment under protest nor commenced an action within six months. The claim for repayment of the GST failed due to a four-year notice limitation. Fraser JA also rejected the plaintiff’s argument the statutory provisions relevant to those claims contravened s 51(xxxi) of the Constitution.

The Court rejected the appellant’s argument that the opening words of s 167(4) related only to a statutory cause of action created by s 167(2). Instead the Court considered s 167 to be part of the overall scheme of the Act, namely to give Customs control over imports, requires registration of payable duties, and to make payment of the duties a condition of the importer finally receiving the goods. Section 167(1) allows a mechanism for payment under protest, and by barring any other recovery action sub-s (4) encourages the importer to first identify the duty the importer thinks is payable and to then use the statutory mechanism under sub-s (2) to resolve any dispute over the amount payable to Customs. The scheme of the Act was inconsistent with implying any further qualifications, in this instance to the time limits specified in s 167(4).