Wiedenhofer v Commonwealth [1970] HCA 54

High Court of Australia Gibbs J. Wiedenhofer v Commonwealth [1970] HCA 54

Dec. 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.

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.

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.

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.