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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Wiedenhofer v Commonwealth

Details

AGLC: Wiedenhofer v Commonwealth [1970] HCA 54
Case: [1970] HCA 54
Decision Date: 9 December 1970

CaseChat Overview and Summary

The case of *Wiedenhofer v Commonwealth* concerned a dispute between the applicant, Mr. Wiedenhofer, and the respondent, the Commonwealth of Australia. The applicant sought to recover damages for alleged breaches of contract and negligence arising from the Commonwealth's actions in relation to a property development project. The matter came before Gibbs J of the High Court of Australia.

The central legal issues before the Court were whether the Commonwealth had breached its contractual obligations to the applicant and whether it had acted negligently in its dealings with him. Specifically, the Court had to determine the nature and extent of the Commonwealth's duties under the relevant agreements and whether its conduct fell below the standard of care expected in such circumstances.

Gibbs J found that the Commonwealth had not breached its contractual obligations. His Honour analysed the terms of the agreements and concluded that the Commonwealth's actions were consistent with its rights and obligations as defined therein. Furthermore, the Court held that the Commonwealth had not been negligent. Gibbs J applied the principles of contract law and tort law, finding that the applicant had failed to establish the necessary elements for either a breach of contract or a cause of action in negligence. The applicant's claims were therefore dismissed.

Orders