Edmund T Lennon Pty Ltd v Commissioner of Road Transport [1957] HCA 51; (1957) 97 CLR 667 (11 July 1957)

HIGH COURT OF AUSTRALIA

EDMUND T. LENNON PTY. LTD. v. COMMISSIONER OF ROAD TRANSPORT [1957] HCA 51; (1957) 97 CLR 667

Pleading

High Court of Australia
Dixon C.J.(1), McTiernan(2), Webb(3), Fullagar(4), Kitto(5) and Taylor(6) JJ.

CATCHWORDS

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.

HEARING

Melbourne, 1957, February 12, 13;
Sydney, 1957, July 11. 11:7:1957
CAUSE removed into the High Court under s. 40 of the Judiciary Act 1903-1955.

DECISION

July 11.
The following written judgments were delivered: -
DIXON C.J. The plaintiff demurs to two pleas in an action brought in the The demurrers were removed into this Court under s. 40 of the Judiciary Act 1903-1955 in order that it might be argued at the same time as Barton v. Commissioner for Motor Transport [1957] HCA 50; (1957) 97 CLR 633 and Shepherd v. State of New South Wales [1957] HCA 52; (1957) 97 CLR 673 . A consideration of the pleadings suggests that perhaps, before making that order, the Court should have insisted that they be put in better shape. (at p670)

2. To begin with, what may be supposed to be the intended defendant is misnamed. The declaration contains one count. It is for money payable by the defendant to the plaintiff for money had and received by the defendant for the use of the plaintiff. There is nothing in either plea and there are no particulars under the declaration which would show by reason of what facts the plaintiff alleges the money to have been 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 4 of the State Transport Co-ordination (Barring of Claims and Remedies) Act 1954. It is agreed that this plea cannot be supported now, by reason of the decision in Antill Ranger & Co. Pty. Ltd. v. Commissioner for Motor Transport [1955] HCA 25; (1955) 93 CLR 83; (1956) 94 CLR 177 . 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 pounds 16s. 11d. 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." 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 [1957] HCA 50; (1957) 97 CLR 633 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 provisions of the State Transport (Co-ordination) Acts. (at p670)

3. 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. Commissioner for Motor Transport [1957] HCA 50; (1957) 97 CLR 633 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. (at p670)

4. Accordingly, in my opinion, there should be judgment in the demurrer for the plaintiff in the case of both the first and the second plea. (at p671)

McTIERNAN J. I agree with the judgment and the reasons of the Chief Justice. (at p671)

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 pounds 3s. 10d., presumably being moneys paid for permits and licences to operate commercial goods vehicles in inter-State trade. (at p671)

2. Assuming the material facts to be similar to those in Barton's Case [1957] HCA 50; (1957) 97 CLR 633 and Shepherd's Case [1957] HCA 52; (1957) 97 CLR 673 , I think there should be judgment in the demurrer for the plaintiff and for the reasons already given in those cases. (at p671)

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 pounds 3s. 10d. 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 (Coordination) 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 (No. 1) (1955) AC 241; (1954) 93 CLR 1 . 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 pounds 16s. 11d., 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. Since both demurrers raised constitutional questions, they were removed into this Court by order made under s. 40 of the Judiciary Act of the Commonwealth. (at p671)

2. 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. (at p671)

3. So far as the demurrer to the second plea is concerned, the case does not differ in any material respect from Barton v. Commissioner for Motor Transport [1957] HCA 50; (1957) 97 CLR 633 . For the reasons which I have given in that case, I am of opinion that this demurrer should be overruled. (at p672)

KITTO J. I agree in the judgment of the Chief Justice and have nothing to add. (at p672)

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 [1955] HCA 25; (1955) 93 CLR 83; (1956) 94 CLR 177 made it inevitable that the demurrer to the first plea should be allowed. (at p672)

2. The second plea, however, invokes the protection of the limitation prescribed by s. 27 of the Transport (Division of Functions) 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 consideration questions similar to those which were discussed in Barton v. Commissioner for Road Transport [1957] HCA 50; (1957) 97 CLR 633 and Shepherd v. State of New South Wales [1957] HCA 52; (1957) 97 CLR 673 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 I subscribed in the last-mentioned cases that, if the pleadings 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. (at p672)

ORDER

Judgment in demurrer upon the first and second plea for the plaintiff with costs.