Tozer Kemsley & Millbourn (A'Asia) Pty Ltd v Collier's Interstate Transport Service Ltd

The plaintiff, Tozer Kemsley & Millbourn (A'Asia) Pty Ltd, brought an action against the defendant, Collier's Interstate Transport Service Ltd, in the Supreme Court of Victoria. The dispute concerned the alleged wrongful deprivation of 131 bundles of galvanized iron stored with the defendant. The plaintiff claimed the defendant had either delivered the goods to an unauthorised person or otherwise parted with possession, thereby breaching its duty as a warehouseman or converting the goods. The defendant admitted holding the goods as a warehouseman but denied the plaintiff's allegations regarding their disposal, alternatively pleading that the goods were delivered to a carrier authorised by the plaintiff and relying on an exemption clause in the storage warrant.

The High Court was required to determine whether the plaintiff had discharged the onus of proving that the defendant had failed to deliver the goods in accordance with the contract of bailment. Specifically, the court had to consider the burden of proof regarding the authorisation of the person to whom the goods were delivered, and whether the defendant's defence, including the exemption clause, was valid. The court also had to assess whether the evidence presented by the plaintiff, in the absence of evidence from the defendant, was sufficient to establish the plaintiff's case.

A majority of the High Court (Dixon C.J., Fullagar and Kitto JJ.) held that the plaintiff was entitled to succeed. Their reasoning was that the contract of bailment stipulated that the goods were deliverable to order by endorsement on the storage warrant. As the goods were not delivered in strict compliance with this condition, the burden lay on the defendant to prove that delivery was made to the plaintiff or under some other actual authority of the plaintiff. Williams and Webb JJ. concurred, finding that the burden of proof rested on the defendant both on this ground and due to the defendant's inconsistent statements regarding the identity of the recipient and the circumstances of the delivery. Fullagar and Kitto JJ. further found that the plaintiff had established a prima facie case of delivery to a person other than the authorised carrier. The exemption clause was also held not to cover misdelivery or delivery to an unauthorised person.

The appeal was allowed, the judgment of the Supreme Court of Victoria was set aside, and judgment was entered for the plaintiff for the value of the goods, £2,096.