Wiedenhofer v Commonwealth

[1970] HCA 54

HIGH COURT OF AUSTRALIA

GIBBS J.

WIEDENHOFER. V. THE COMMONWEALTH

(1970) 122 CLR 172

9 December 1970

Practice

Practice—Pleadings—High Court—Original jurisdiction—Defence—Judgment in default—Delivery of defence out of time—Whether affidavit of merits necessary—Statement of claim—Application to strike out—Customs Act proceedings—Whether acquittal relevant in subsequent civil proceedings—Customs Act 1901—1960 (Cth), s. 262—Judiciary Act 1903-1969 (Cth), s. 85—Rules of the High Court, O. 20, r. 29; O. 28, r. 11*.

Decision

December 9.
GIBBS J. On 1st September 1970, the plaintiff commenced an action against the Commonwealth of Australia. The statement of claim was delivered with the writ. By the statement of claim the plaintiff claims a declaration that he is entitled to certain cinematographic films and certain consequential relief. (at p173)

2. It is common ground that the time for delivery of a defence expired on 6th October 1970. No defence had been delivered by that date, and on the following day the plaintiff took out a motion for judgment. That motion is now before me. (at p173)

3. On 8th October 1970, the Deputy Crown Solicitor wrote to the solicitors for the plaintiff a letter in which he stated that the delivery of the defence had been delayed pending advice from counsel and that there had been an inadvertent failure to request an extension of time, and requesting that an extension of time for the delivery of the defence be now granted. The letter further stated that counsel had advised that certain parts of the statement of claim are irrelevant to any issue raised in the action and ought to be struck out on the ground that they are unnecessary and tend to embarrass or delay the fair trial of the action. He accordingly requested the plaintiff to amend the statement of claim. (at p173)

4. Further correspondence ensued, but the plaintiff has not agreed either to extend the time for delivery of the defence or to amend the statement of claim. Nevertheless, the defendant on 21st October 1970, did deliver a defence to the plaintiff's solicitors. Stating its effect very shortly, it sets up two substantial defences to the action : namely, that the films were prohibited imports and were lawfully seized as such and became forfeited and condemned to the Commonwealth ; and secondly that even if in truth the films were not prohibited imports the action is nevertheless barred by the provisions of s. 205 of the Customs Act 1901-1960 (Cth). (at p174)

5. The defendant has taken out a notice of motion seeking orders that certain parts of the statement of claim be struck out and seeking also an extension of time for delivery of the defence. That motion is also before me. (at p174)

6. Although O. 28 r. 11 provides that where a defendant makes default in delivering a defence the plaintiff may set down an action on motion for judgment and "shall recover the judgment to which upon the writ or statement of claim he is entitled", it has been held in decisions given on rules in similar terms that the Court has a discretion to refuse to make the order asked for (Charles v. Shepherd (1892) 2 QB 622, at p 624 ), and that a defence served after the expiration of the prescribed time but before judgment has been given cannot be disregarded (Gill v. Woodfin (1884) 25 Ch D 707, at p 709 and Gibbings v. Strong (1884) 26 Ch D 66, at p 69 ). (at p174)

7. It was however submitted on behalf of the plaintiff in the present case that judgment ought to be given for the plaintiff and that an extension for time should be refused because the defendant has failed to file an affidavit showing that it has a good defence on the merits. It was said in reliance on the remarks of the Earl of Selborne L.C., in Gibbings v. Strong (1884) 26 Ch D 66, at p 69 , that the reason why regard is had to a defence delivered out of time is to avoid the circuity which would result if judgment were given by default and subsequently set aside, and that therefore the general principle applicable to the setting aside of default judgments ought to be followed, namely, that a defendant ought not only to explain his default but ought also to file an affidavit of merits - that is an affidavit which shows that he has a prima facie defence. (at p174)

8. In my opinion, however, the discretion of the Court is not limited in that way. In the present case, where I have before me not only a motion for judgment but also a motion for extension of time for filing the defence, and where a defence has in fact been delivered although out of time, and there is no ground to suggest that this defence is merely frivolous or filed for the purpose of delay and an explanation has been given of the failure to deliver it within time, in my opinion it would lead to injustice to take any other course than to grant a reasonable extension of time and to refuse the motion for judgment. (at p175)

9. I propose therefore to allow a reasonable extension of time for the filing of the defence. (at p175)

10. I turn now to the motion to strike out parts of the statement of claim. The paragraphs which are in question read as follows :

"2. The plaintiff is and was at all material times the owner of nine cinematographic films (hereinafter referred to as 'the films') identified as 'Exhibit B' in Customs prosecution CC71340 of 1969 in the Court of Petty Sessions at Canberra in the Australian Capital Territory in which one Alan Thomas Carmody was informant and the plaintiff was defendant." "5. On 19th March 1970 the prosecution referred to in paragraph 1 hereof took place, the plaintiff being charged before His Worship Mr. K. Dobson S.M. that on or about 21st February 1969 he did unlawfully have in his possession prohibited imports, such imports being the films (inter alia)." "6. His Worship Mr. Dobson found that - (a) as to the first ten feet on each of the films the defendant (the plaintiff herein) was not guilty because it was not imported ; (b) as to the remainder of the films the defendant (the plaintiff herein) was convicted." "7. On 23rd June 1970 the said conviction was quashed on appeal to the Supreme Court of the Australian Capital Territory." (at p175)

11. The motion seeks that pars. 5, 6 and 7 be struck out in full and that the words of par. 2 commencing from and including the words "identified as Exhibit B" and ending with the concluding words of that paragraph be also struck out. (at p175)

12. It seems to me that the words objected to in par. 2 merely identify the films in question and the application to strike out those words is not now pressed. (at p175)

13. The application to strike out the paragraphs in question is made under O. 20 r. 29. The defendant submits that the fact that the plaintiff's conviction, on a charge that he had unlawfully had in his possession prohibited imports, has been quashed on appeal is quite irrelevant to the question whether the plaintiff is entitled to the goods. The decision of Barry J. in Little's Victory Cab Co. Pty. Ltd. v. Carroll (1948) VLR 249, at p 251 is relied on as authority for the view that an acquittal on a charge of a breach of the Customs Act is irrelevant in proceedings to recover goods seized, allegedly wrongly, by the customs authorities. That decision is undoubtedly in accordance with the general principle established by such cases as Helton v. Allen (1940) 63 CLR 691 and must be regarded as correct unless there is some provision of the Customs Act that renders the general principle inapplicable. (at p176)

14. On behalf of the plaintiff it was submitted that a conviction of the plaintiff would, under s. 262 of the Customs Act, have taken effect as a condemnation of the goods and he asserts therefore that a refusal to convict ought in the same way to be regarded as amounting to a refusal to condemn the goods which can give rise to an estoppel. With all respect this does not follow. There seems to me to be nothing in the Customs Act that gives an acquittal on a prosecution brought under that Act the force of an estoppel or makes the fact of an acquittal relevant to the question whether the goods were rightly seized. (at p176)

15. Reliance also was placed by the defendant on s. 85 of the Judiciary Act 1903-1969 (Cth). It was said that this section rendered the goods subject to the orders and judgments of the courts of the Australian Capital Territory before which the prosecution and the appeal were heard. It is sufficient in answer to this argument to say that those courts made no order and gave no judgment in respect of the goods in question and the provisions of s. 85 of the Judiciary Act do not in my opinion make the matters which were pleaded in pars. 5, 6 and 7 in any way relevant to the present proceedings. (at p176)

16. I have formed the view that the three paragraphs of the statement of claim which are objected to are plainly and on their face irrelevant to any issue in the case. Those paragraphs therefore in my opinion ought to be struck out of the statement of claim. (at p176)

Orders

My formal order will be that I refuse the plaintiff's motion for judgment and order that the defendant pay the plaintiff's costs of the motion to be taxed. On the motion of the defendant (1) I order that pars. 5, 6 and 7 of the statement of claim be struck out on the grounds that the said paragraphs are unnecessary ; (2) I extend time for delivery of the defence to 18th December 1970. I order that the taxed costs of the defendant's motion be the defendant's costs in the cause.