Tozer Kemsley & Millbourn (A/asia) Pty Ltd v Collier's Interstate Transport Service Ltd [1956] HCA 6

High Court of Australia Dixon C.J. Williams, Webb, Fullagar and Kitto JJ. Tozer Kemsley & Millbourn (A/asia) Pty Ltd v Collier's Interstate Transport Service Ltd [1956] HCA 6

ORDER Appeal allowed with costs. Discharge judgment of Supreme Court and in lieu thereof enter judgment for the plaintiff in the action for £2,096 and costs including costs of pleadings, interrogatories, discovery, if any, and shorthand notes.

Cur. adv. vult.

The following written judgments were delivered:—

1956, Feb. 24 Dixon C.J.

At the trial of this action the plaintiff called very little testimony and the defendant called none. The result was a judgment for the defendant, from which the plaintiff now appeals. No doubt the parties know what are the real circumstances of the case and what is the precise point of controversy they came to litigate. But that knowledge is denied to the Court because, as it seems reasonable to guess, in an effort, in which each of the parties unfortunately persisted, to avoid calling the more material witness or witnesses, they have contrived to reduce the question upon which their rights or liabilities will depend to the entirely artificial inquiry whether the evidence offered by the plaintiff together with two documents put in by the defendant sufficiently support the cause of action pleaded by the plaintiff to make it proper, in the absence of evidence from the defendant, to give judgment for the plaintiff.

The action is against a bailee for damages for failing to deliver up goods in accordance with the bailment. The goods in question consist of one hundred and thirty-one bundles of galvanized iron, about 13 tons 2 cwt. in weight and of a value of £2,096. The defendant, it appears, takes merchandize into storage at certain stores at Brooklyn near Melbourne. On 24th October 1951 the defendant received into these stores for warehousing one thousand four hundred and forty-four bundles of galvanized iron in respect of which it gave two storage warrants one for one thousand and fifty bundles that had formed part of a cargo of one ship and another warrant for three hundred and ninety-four bundles that had formed part of a cargo of a second ship. Then on 20th November 1951 the defendant received a further six hundred and six bundles of galvanized iron into storage that came from a third ship. The warrants were all in the same form. Each acknowledged that the defendant held the goods it mentioned to the order of the Commonwealth Bank and that they were "deliverable to order by indorsement hereon". At the foot of the conditions was a note "Please present when lifting goods. Stored in open not responsible for any damage". The conditions contained a clause exempting the defendant from responsibility for loss or damage arising from a number of causes including "any other loss or damage (whether caused by or arising from any negligence of the proprietors or of their servants or agents or otherwise) which can be covered by insurance by the owner or depositor of the goods". The Commonwealth Bank indorsed the warrants "after payment of all charges deliver to the order of" the plaintiff. The plaintiff did not indorse the warrants with its order. It is not disputed by the plaintiff that the defendant redelivered to the plaintiff or its order all the bundles of galvanized iron except one hundred and thirty-one which formed part of the one thousand and fifty bundles the subject of the storage warrant first-mentioned. In its pleading the plaintiff said that on or about 4th June 1952 the defendant delivered the one hundred and thirty-one bundles to one Cann (mistakenly called Cannon in the pleadings) or otherwise parted with possession thereof and in consequence the plaintiff was wrongfully deprived of the goods, and the defendant broke its duty as a warehouseman or alternatively converted the goods. These allegations were denied by the defendant but alternatively it pleaded in effect that on or about 27th or 28th May 1952 the plaintiff instructed the defendant to deliver the goods in dispute to the carrier of a person named Duncan and that Cann was the carrier of Duncan. By way of particulars under this alternative allegation the defendant said that Duncan had authorized a man named Power to collect the bundles of iron from the defendant and that Cann was acting as servant or agent of Power. The defendant also relied on the condition of exemption contained in the warrant.