Nelungaloo Pty Ltd v The Commonwealth [No 4] [1953] HCA 87

High Court of Australia Dixon C.J. Williams, Webb, Fullagar and Kitto JJ. Nelungaloo Pty Ltd v The Commonwealth [No 4] [1953] HCA 87

ORDER Declare that within the meaning of s. 40A (1) of the Judiciary Act 1903-1950 there has arisen in the cause in the notice of motion mentioned a question or questions as to the limits inter se of the constitutional powers of the Commonwealth and those of the States and that the cause by virtue of the said Act has been removed into this Court. Order that the costs of the motion be costs in the cause.

Cur. adv. vult.

The following written judgments were delivered:—

Dec. 8 Dixon C.J.

This is an application on the part of the Attorney-General of the Commonwealth and also on the part of the Commonwealth and the other defendants in an action against them pending in the Supreme Court of New South Wales. The application is for either an order declaring that under s. 40A (1) of the Judiciary Act 1903-1950 the action has by force of that provision been removed into this Court or alternatively for an order under s. 40 of the Act removing the action into this Court. The plaintiff in the action is Nelungaloo Pty. Ltd., which was the plaintiff in the proceedings reported [2] . The claim then made by the plaintiff company was for the value of wheat delivered to the Australian Wheat Board for the board's cereal season 1945-1946.

1. (1948) 75 C.L.R. 495; (1951) A.C. 34; 81 C.L.R. 144; (1952) 85 C.L.R. 545.

In the present action the claim is in respect of wheat delivered to the board for the two following respective seasons, viz., 1946-1947 and 1947-1948. In respect of each of those seasons the plaintiff declares in two counts containing alternative causes of action. One set of counts is based on reg. 14 of the National Security (Wheat Acquisition) Regulations. The other set of counts is based on a duty which the pleading places upon the defendants as to the disposal of the wheat forming the pool in which the plaintiff's wheat of the cereal year was comprised. Each of the two respective counts based on reg. 14, after certain preliminary allegations, including an allegation that the property in the wheat vested in the Commonwealth by force of the regulations, states that the plaintiff duly delivered the wheat to the board and the board duly received and accepted the same and otherwise all conditions were performed and all things happened and all times elapsed necessary to entitle the plaintiff to be paid by the defendants compensation in accordance with reg. 14 of the regulations and to maintain this action to recover the same, but the defendants did not &c.