Edmund T Lennon Pty Ltd v Commissioner of Road Transport

[1957] HCA 51

97 C.L.R.]

OP AUSTRALIA.

[HIGH COURT OF AUSTRALIA.]

EDMUND T. LENNON PROPRIETARY\

Plaintiff ;

LIM

ITED...........................................J

COMMISSIONER OF ROAD TRANSPORTDefendant.

Pleading—Declaration for money had and received without stating facts by reason of which money alleged to have been had and received—Plea that claim barred by reason of particular statutory provision—Whether plea adequate to cover cause of action.

Section 27 of the Transp>ort {Division of Functions) Act 1932-1952 (N.S.W.) provides that:—“All actions against any of the Commissioners appointed under this Act or against any person for anything done or omitted or pur­ porting to have been done or omitted under this Act or under any other Act (whether passed before or after the commencement of this Act) which confers or imposes any power, authority, duty or function on any^suoh Commissioner, or in the exercise or performance of any power, authority, duty or function conferred or imposed by any such Act, shall be commenced within one year after the act or omission complained of was committed or made.”

In an action the declaration was simply for money had and received by the defendant for the use of the plaintiff and the defendant’s plea was “ that the alleged cause of action did not accrue within one year before action brought in accordance with the provisions of the Transport {Division of Functions) Act 1932-1952 and in particular s. 27 thereof.” The plaintiff demurred to the plea.

Held by Dixon C.J., McTiernan, Webb, Kitto and Taylor JJ., Fullagar J. dissenting, that the plea was inadequate to cover the cause of action and accordingly that the demurrer should be allowed.

Cause removed into the High Court under s. 40 of the Judiciary

Act 1903-1955.

In an action commenced in the Supreme Court of New South Wales in which Edmund T. Lennon Pty. Limited was plaintiff and the Commissioner for Road Transport was defendant the declaration filed by the plaintiff was in the following terms : “ Edmund T.

Lennon I’ty. Ijiniited a conr])any duly incorporated and entitled to sue in and by its said corporate name and style by Lionel Dare its attorney sues the t’ornmissioner for Motor Transport a body corporate and liable to be sued in and by its said corporate name and styk; for money ])ayable by the defendant to the plaintiff for money had and rec.eived l)y the defendant for the use of the plaintiff and the plaintilT claims the sum of seventy-three thousand two hundred and seventy jiounds three shillinj^s and tenpence (£73,270 3s. lOd.).” I’o this declaration the defendant pleaded : “ The defendant the Commissioner for Motor Transport by Finlay Patrick McRae its attorney says as to £73,095 Os. 4d. parcel of the money claimed that the sum of £73,095 Os. 4d. being part of the moneys sought to be recovered by the plaintiff in this action are moneys of the nature and character referred to in ss. 2, 3 and 4 of the State Transport Co-ordination {Barring of Claims and Remedies) Act 1954 and that the said moneys were dealt with as in the said Act mentioned and the defendant further says that by virtue of the said Act the plaintiff’s cause of action is extinguished and its right to recover the said money is barred. 2. And for a second plea the defendant says as to £28,464 16s. lid. parcel of the money claimed that the alleged cause of action did not accrue within one year before action brought in accordance with the provisions of the Transport {Division of Functions) Act 1932-1952 and in particular s. 27 thereof.”

The plaintiff replied and demurred to such pleas as follows : “ The plaintiff joins issue with the defendant upon all his pleas herein. And the plaintiff says that the defendant’s first plea herein is bad in substance. On the argument of this demurrer it will be contended that the said plea is bad in substance for the follow­ ing amongst other grounds. 1. That it discloses no defence to the claim of the plaintiff. 2. That in so far as it purports to extinguish the plaurtiff’s cause of action or to bar its right to recover the money the subject of this action the State Transport Co-ordination {Barring of Claims and Remedies) Act 1954 and the relevant sections thereof are and each of them is ultra vires the Parliament of the State of New South Wales. 3. That in an action in which the plaintiff herein was the plaintiff and the defendant herem was a defendant the High Court of Australia declared that s. 3 (a) of the State Transport Co-ordination {Barring of Claims and Remedies) Act 1954 does not validly operate to extinguish any cause of action to which in consequence of the invalidity or inapplicability of the State Transport {Co-ordination) Act 1931 (or that Act as amended) by reason of s, 92 of the Constitution the plaintiff was at the passing of the State Transport Co-ordination- {Barring of Claims and Remedies)

97 C.L.K.]

OF AUSTKALIA.

Act 1954 entitled as against the defendant for the recovery of moneys demanded of the plaintiff in purported pursuance of s. 18 (5) or s. 37 of the said State Transport {Co-ordination) Act 1931 (or that Act as amended) or of a condition imposed upon a licence or permit or demanded upon the issue of such a licence or permit and the said Court further declared that s. 4 of the said State Transport Co-ordination {Barring of Claims and, Remedies) Act 1954 does not validly operate to bar the remedy for the enforcement of the within or any such cause of action. And the plaintiff for a second demurrer further says that the defendant’s second plea herein is bad in substance. On the argument of this demurrer it will be contended that the said plea is bad in substance for the following amongst other grounds :—1. That it discloses no defence to the claim of the plaintiff. 2. That s. 27 of the said Transport {Division of Functions) Act does not apply to the cause of action of the plaintiff herein. 3. That the action herein is not an action against the defendant for anything done or omitted under any valid Act of Parliament which conferred or imposed any power, authority, duty or function on the defendant or in the exercise or performance of any power authority duty or function lawfully conferred or imposed by any such Act.” The defendant filed a joinder in demurrer alleging that the first and second pleas were good in substance, and the demurrer was then removed into the High Court under s. 40 of the Judiciary Act 1903-1955 for argument.

This matter was argued together with the cases of Shepherd v. State of New South Wales (1) and Barton v. Commissioner for Motor Transport (2) and the argument appears in the report of the latter case.

Sir Garfield Barwick Q.C. and G. D. Needham, for the plaintiff.

R. Else-Mitchell Q.C. and D. S. Hicks, for the defendant.

Cur. adv. mdt.

Judiciary Act 1903-1955 in order that it might be argued at the same time as Barton v. Commissioner for Motor Transport (2) and Shepherd v. State of New South Wales (1). A consideration of the pleadings suggests that perhaps, before

The following written judgments were delivered :— brought in the Supreme Court of New South Wales by writ of summons dated 14th January 1955. The demurrers were removed into this Court under s. 40 of the

(1) (1957) 97 r.L.R. 673.

(2) (1957) 97 C.L.R. 633.

making tliat order, tlie Court should have insisted that they be put

in better shape.

To begin with, wliat may l̂e supposed to be the intended defendant is misnamed. The declaration contains one count. It is for money ])aya ble by the defendant to the plaintiff for money had and received by the defendant for the use of the plaintiff. There is nothing in eithei' plea a.nd there are no particulars under the declaration which would show l)y reason of what facts the plaintiff alleges the money to lmv(' bc’cn received to the use of the plaintiff. The first plea, however, states facts designed to bring the cause of action under ss. 2, 3 and i of the State 'Transport Co-ordination {Barring of Claims and Remedies) Act 19.54. It is agreed that this plea cannot be supjjorted now, by reason of the decision in Antill Ranger & Co. Pty. Ltd. V. Commissioner for Motor Transport (1). It is the second plea which is in question. That plea is as follows : “And for a second plea the defendant says as to £28,464 16s. lid. parcel of the money claimed that the alleged cause of action did not accrue within one year before action brought in accordance with the provisions of the Transport {Division of Functions) Act 1932-1952 and in par­ ticular s. 27 thereof.” It is to be noticed that the Act is referred to in the plea as extending to 1952 not to 1956. That is because the plea' was pleaded before Act No. 16 of 1956 came into force. In my reasons in Barton v. Commissioner for Motor Transport (2) I have expressed the view that so much of s. 27 as was added by the last-mentioned Act cannot validly apply to causes of action which accrued twelve months before its enactment, namely twelve months before 13th September 1956, in so far as such causes of action arise as a result of the operation of s. 92 of the Constitution on the pro­ visions of the State Transport {Co-ordination) Acts.

As to so much of s. 27 as was enacted by Act No. 46 of 1940, the difficulty in this case is the inadequacy of the facts stated on the record. Everything must be spelt out of the expression used in the second plea “ in accordance with the provisions of the Transport {Division of Functions) Act 1932-1952 and in particular s. 27 thereof.” In my opinion enough is not stated in the plea to raise the question which it sought to litigate. It is, however, no doubt evident as a practical matter from the judgment prepared in Barton v. Com­ missioner for Motor Transport (2) what view I would take in the present case had the facts been adequately stated. As it is, I think that the demurrer must succeed against the second plea, simply because of the inadequacy of the plea to cover the cause of action.

(1) (]9.55) 9.3 C.L.R. 83 ; (1956) 94

(2) (1957) 97 C.L.R. 6.33.

C.L.R. 177.

Accordingly, in my opinion, there should be judgment m the demurrer for the plaintiff in the case of both the first and the second plea.

McTiernan J.

I agree with the judgment and the reasons of

the Chief Justice.

Webb J. The plaintiff’s demurrer to pleas in this action was removed from the Supreme Court into this Court under s. 40 of the Judiciary Act 1903-1955. The plaintiff’s claim is for £73,270 3s. lOd., presumably being moneys paid for permits and licences to operate commercial goods vehicles in inter-State trade.

Assuming the material facts to be similar to those in Barton's Case (1) and Shepherd’s Case (2), I thmk there should be judgment in the demurrer for the plaintiff and for the reasons already given in those cases.

Fullagar J.

The writ of summons in this case was issued out

of the Supreme Court of New South Wales on 14th January 1955. The plaintiff sued to recover from the defendant, a statutory corporation sole, a sum of £73,270 3s. lOd. as money had and received by the defendant to the use of the plaintiff. The moneys in question are moneys alleged to have been demanded by the defendant and received by it under the State Transport (Co­ ordination) Act 1931 (N.S.W.) as amended from time to time. This Act (so far as material) was held by the Privy Council to be unconstitutional in Hughes and Vale Pty. Ltd. v. State of New South Wales [Ao. 1] (3). The defendant delivered two pleas on 17th January 1956. By its first plea it relied on the State Transport Co-ordination (Barring of Claims and Remedies) Act 1954 (N.S.W.). By its second plea it relied as to £28,464 16s. lid., part of the money claimed, on s. 27 of the Transport (Division of Functions) Act 1932-1952 (N.S.W.). The plaintiff on 2nd March 1956 demurred to both pleas. Smce both demurrers raised constitutional (juestions, they were removed into this Court by order made under s. 40 of the Judiciary Act of the Commonwealth.

Since the filing of the demurrers the State Transport Co-ordination (Barring of Claims and Remedies) Act 1954 has been held to be unconstitutional. It follows that the demurrer to the first plea must be allowed.

(1) (19.57) 97 C.L.R. 6.3.1.

. (3) (195.5) A.C. 241 ; (1954) 93 C.L.R.

(2) (1957) 97 C.L.R. 673.

1.

go fjj j. iiio demurrer to the second plea is concerned, the case does not dilTer in any material respect from Barton v. Commissioner for Motor Transport (I). For the reasons which I have given in that case, I am of o])inion that this demurrer should be overruled.

Kitto J. I agree in the judgment of the Chief Justice and have nothing to add.

'I’u.VN.SI'OUT.

Taylor J. On the hearing of this matter it was conceded that the decision in Antill Ranger & Co. Pty. Ltd. v. Commissioner for Motor Transport (2) made it inevitable that the demurrer to the first plea should be allowed.

The second plea, however, invokes the protection of the limitation prescribed by s. 27 of the Transport {Division of Function,s) Act 1932-1952 but there is nothing in the declaration or the plea to show that the plaintiff’s action is of the general character described by that section. No doubt the parties intended to raise for con­ sideration questions similar to those which were discussed in Barton v. Commissioner for Road Transport (1) and Shepherd

State of New South Wales (3) but the pleadings are defective for this purpose. The result is, of course, that the demurrer should be allowed though it would follow from the views to which 1 sub­ scribed in the last-mentioned cases that, if the pleadmgs were in an appropriate form, I would think the contrary result should follow. But it is not open to us to deal with the demurrer by assuming the existence of facts which are not alleged and, accordingly, the demurrer should be allowed.

Judgment in demurrer upon the first and second

plea for the plaintiff with costs.

Solicitors for the plaintiff, Lionel Dare, Read. (& Martin.

Solicitors for the defendant, F. P. McRae, Crown Solicitor for

the State of New South Wales by Thomas F. Mornane, Crown

Solicitor for the State of Victoria.

R. D. B.

(1) (1957) 97 C.L.R. 633.(3) (1957) 97 C.L.R. 673.

(2) (1955) 93 C.L.R. 83 ; (1956) 94

C.L.R, 177.