Poulton v Commonwealth [1953] HCA 101

High Court of Australia Fullagar J. Williams, Webb and Kitto JJ. Poulton v Commonwealth [1953] HCA 101

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgment was delivered:—

Nov. 14, 1952 Fullagar J.

The plaintiff in this action, Malcolm Coote Poulton, was at all material times a dealer in wool. The defendants in the action, as originally framed, were the Commonwealth of Australia, the Australian Wool Realization Commission (a corporation constituted under the Wool Realization Act 1945-1950 Cth.) and Michael Joseph Donlon, George Henry Donlon and William Donlon. The three lastnamed defendants were brothers who carried on a business of wool growing in partnership under the name of Donlon Brothers. Michael Joseph Donlon died after the commencement of the action, leaving a will in which his two brothers were named as executors. The plaintiff alleged that in November 1942 he had bought certain wool from Donlon Brothers and submitted that wool for appraisement under the National Security (Wool) Regulations then in force, and he claimed (to state the matter for the moment only in the most general way) that in respect of that wool he was entitled to share in the "profits" which are the subject matter of the Wool Realization (Distribution of Profits) Act 1948-1952. The amount directly involved in the case is small, but I was informed that it was in the nature of a "test case", and that it was expected to determine, for a very large number of similar cases in which wool was handled (to use a neutral term) by dealers, whether the share of "profit" attributable to the wool should go to the dealer or to the grower.

When the case was called on for hearing, the solicitor for George Henry Donlon and William Donlon announced that he appeared for the surviving brothers both in their personal capacity and in their capacity as executors of the will of Michael Joseph Donlon. His clients had entered an appearance but had not delivered a defence, and he informed me that they did not propose to take any part in the proceedings. Mr. Wallace of counsel then announced that he appeared for Robert Donald Bakewell, and asked that his client should either be added as a defendant or have leave to intervene as a representative party on behalf of himself and all other members of organizations affiliated with the Australian Wool Growers' Council. It appeared from affidavits filed that many members of those organizations had had their wool handled by dealers. Also it appeared from the pleadings that the argument for the plaintiff would involve or include an attack upon certain provisions of relevant Commonwealth legislation, the validity of which it was in the interest of the members of those organizations generally to support. Having regard to these facts and to the fact that Messrs. Donlon Brothers did not propose to take part in the proceedings, I was of opinion that, although the Commonwealth and the defendant commission were already before me and proposing to contest the plaintiff's claim, I ought to accede to Mr. Wallace's application. I also thought, having regard to the interest of those whom Mr. Bakewell sought to represent in maintaining the validity of the legislation attacked, that it would be preferable to join him as a defendant rather than merely permit him to intervene. Accordingly I ordered that he be joined as a defendant in the capacity proposed.