John F Goulding Pty Ltd v Victorian Railways Commissioners [1932] HCA 37

High Court of Australia|1932-07-01

Refusal to deliver wpon demand - Prior loss of goods - When ¥, ©, ov A. "of action arises - Victorian Railways - Delivery of goods for carriage - 1932, 0 deliver to consignee - Delivery to persons other than owner - Goods - d with more than siz monthe prior to commencement of action - Demand for M&UBOUBNE,

of goods made within six months of commencement of action - " Act Mav 30, 31. ined of " - Whether action commenced "within six months after" - Sypney, Act 1928 (Vict.) (No. 3759), sec, 200, Aug. 15.

'The plaintiff delivered to the defendants, the Victorian Railways Commis- Starke, Dixon gers, certain goods'to be carried by rail and upon arrival to be redelivered "™* "Sy.°"™" to the order of the plaintiff. The goods were safely carried by the defendants o their destination, but after discharge from the trucks all the goods were by or delivered to persons, none of whom was the owner or authorized hy it to receive them. Afterwards the plaintiff made a demand for the goods and, the defendants having previously parted with the goods, there was in _effeot a refusal of such demand. More than six months after the loss of the

Ww Joun F. GovuLpInG Pry. Lx. . 'VicToRIAN Ramways Commas- SIONERS.

Held, (1) that the words "the act complained of " in sec, 200 of the Rail Act 1928 refer to the cause of action sued upon ; (2) that, notwithstandin previous loss of the goods by the defendants, a new cause of action in deti arose upon their failure to deliver the goods on the plaintiff's request.

Wilkinson y. Verity, (1871) L.R. 6 C.P. 206, approved and followed, -

Decision of the Supreme Court of Victoria (Full Court): John F. Go Ply. Lid. v. Victorian Railways Commissioners, (1932) V.L.R. 243, reverse

the plaintiff 55 bales of corn-sacks to which it was entitled against the defendants and the plaintiff claimed a return of l corn-sacks or their value and £5 damages for their detention; ( that the defendants having contracted to carry and deliver the

plaintiff and so wrongfully converted or alternatively deta the same, and the plaintiff claimed the value of the corn-sadl as damages for the conversion, alternatively the return of th said corn-sacks or their value and £5 damages for their detentio The defendants gave notice that they would rely by way of statuto defence upon sec. 200 of the Railways Act 1928 (Vict.), whit provides that "all actions to be brought against the Commission or against any person for anything done or purporting to hav been done under Parts II. and III. of this Act shall be commenced within six months after the act complained of was committed," am "if any such action is brought after the time limited for b the same . . . the jury shall find or judgment shall be gi for the defendant"; and also upon sec. 6 of the Railways Ac 1928, which provides : - ''(1) When any goods delivered to bi carried along or upon any railway have been carried safely to thi place to which the Commissioners . . . have undertaken t carry them and have been duly discharged from the truck i which they have been carried, the Commissioners I until the removal of such goods by the consignees ite b

sponsible only as bailees for custody in respect of any damage H.C. or A.

that may arise or accrue with reference to such goods. (2) If rs

goods are not removed from the premises of the Commissioners _Joux F. vithin twenty-four hours. . . from the time of such discharge, pee

Commissioners . . . may charge a reasonable sum for the ss

ing thereof." The section further provides for the recovery ets : r1s- such sum. SIONERS.

The material facts were that in November 1930 the plaintiff

ned to itself at the defendants' stations at Galaquil and h the 55 bales of corn-sacks in question, 37 bales going to alaquil and 18 bales to Beulah. The 18 bales carried to Beulah discharged from the trucks about 17th and 20th November , and were stacked in or on the railway shed or platform the 37 bales sent to Galaquil were discharged from the trucks or before 27th November 1930 and were stacked on the Between 27th November and 7th December 1930 all bales were removed by or delivered to persons, none of whom the owner or an assignee of the plaintiff or authorized by plaintiff to receive the goods. A woman caretaker at one ition and an officer temporarily relieving the station-master at the mistakenly, but in good faith, permitted their removal by persons. The defendants did not dispute that in respect of removal they would in some form of action have been liable, they contended that sec. 200 of the Railways Act 1928 was an wer to the plaintiff's claim, since the plaint summons was not

of the demand. At the end of the hearing, the plaintiff, ing abandoned its claim for conversion and for breach of the t except so far as it was founded on the demand in May 1931, d that " the act complained of " was a failure to deliver

}demand which was within the six months specified in sec. 200 of the Railways Act. The learned County Court Judge decided that act complained of " was not the refusal to deliver on demand the conversion early in December 1930 and that, therefore, sec. the Railways Act was an answer to the plaintiff's claim.

On appeal to the Full Court of Victoria this decision was a by Cussen A.C.J. and Mann J., Lowe J. dissenting: John F. Pty. Lid.v. Victorian Railways Commissioners (1).

From that decision the plaintiff now appealed to the High Court

Walker and Sholl, for the appellant. There was here uncontra dicted evidence of a course of dealing between the parties by w the defendants contracted to deliver the plaintifi's goods only upo the plaintiff's written order, and the learned County Court Jud, so found. The judgments of the majority of the Supreme Cour do not pay regard to this evidence. Sec. 4 of the Railways A 1928 makes the Commissioners common carriers till the goods aré discharged from the trucks, and sec. 6 is intended only to cut d the liability to that of bailees for custody without otherwise ints fering with the bailment.

[Drxon J. The Acting Chief Justice seems to say that thera composite obligation to keep safe and deliver.]

There are two independent obligations. Bullen & Leake, Pre of Pleadings, 3rd ed. (1868), p. 89, gives two separate forms for actions relating to failure to keep safely and failure to deliver up on reques [Counsel referred to the Common Law Procedure Statute 1865 (Vict. sec. 444.] The old action of detinue still stands. That forms action are not now entirely immaterial is well illustrated by tl decision of the Court of Appeal in Ireland in Cullen v. Barclay (2). That shows that a plaintiff may fail in detinue and yet succeed in contract. This case is governed by Wilkinson v. Verity (3). gist of the action of detinue was the detainer.

(Hudson. Possession by the defendant was a necessary part of the cause of action.) 4

But not if the defendant was a bailee who had by his own wrong ceased to possess.

(Dixon J. referred to Southcote's Case (4) and Baker vy. Courage & Co. (5).

(Starke J. Is it clear on the cases that a cause of action in detinue arises on demand only ?]

(1) (1932) V.L.R. 243. (4) (1601) 4 Co. Rep. 8b; 76 ER,

(2) (1881) 10 LR. 106: (3) (1871) LR. 6 CP. 2 (3) (1909) 101 L.. 854, at p. 858,

is submitted so. The Acting Chief Justice was wrong in this H. ©. or A.

ise both on the facts, in that he did not advert to the evidence of a res,

of dealing, and on his construction of sec. 6, in that he thought Jou F.

ere was no implied obligation on the defendants to redeliver on pages

request. The case of Granger v. George (1) is no authority, being 7

aply a decision on trover. It appears from the report that the Soe m in assumpsit broke down, and it is difficult to see why stovzns.

el made the admission that that claim was barred. The -

his own wrong. {Srarke J. Clerk and Lindsell on Torts, 8th ed. (1929), p. 233, e that the distinction between detinue sur bailment and detinue trover was originally fundamental.

| basis and then looks at the statute to see if the implication n Wilkinson v. Verity (3) is permissible thereunder, the answer is at the defendant in Verity's Case also was simply a bailee for stody, and sec. 6 has not altered that position here.

[Starke J. What of the County Court Judge's view that the parting with the goods was the real "'act complained of " ?] e plaintiff did not complain of that and there was no need for plaintiff even to mention it. It complained of the refusal to eliver.

_ [Starke J. The decisions under the Public Authorities Protection ict 1893, in England, seem to show that sec. 200 may not apply this case at all. (Bradford Corporation v. Myers (5).)]

_ Hudson, for the respondent. The true construction of sec. 6 is hat once goods are discharged from the truck, the contract between parties is at an end and their rights are solely dependent on that ion. The Legislature has gone out of its way to determine

(1) (1826) 5 B, & C. 149; 108 ER. (3) (1871) LR. 6 C.P. 206. 56, (4) (1923) 33 G.LR. 538, (2) (1847) 5 C.B. 318, at p. 329; 136 (5) (1916) 1 A.C. 242,

from that point all contractual relationship. _ Evidence as to prior course of dealing is quite irrelevant. The section aims o1 at some protection during the necessary period which must elaj before removal. The liability is not as bailees for custody generally, but merely a liability as bailees for custody in respect of " damage or loss" accordingly during a particular period. It is admitted that part of the Commissioners' duty is to take care, but deliv after taking care is simply a sequel - something which takes pl not as a result of any obligation, but simply because the Commis- sioners have the goods there. The consignee comes and exercises his right to remove the goods, and indeed performs his duty to do so. " Delivery " is nowhere referred to. Sec. 6 (2) is not intended to set up the Commissioners in the separate business of warehouse- men; there is no reference in the general scheme of the Act to the establishment of large warehouses or storehouses. That sub- section is intended to impel the consignee to carry out his duty to' remove the goods.

[Srarke J. There must be an obligation to deliver if the con- signee comes for the goods.]

Only if they have the goods. If they have not, the loss should be sued for, not the non-delivery.

([Drxon J. Sec. 6 seems directed exclusively to determining the responsibility of a common carrier and giving a statutory as opposed to a contractual right to charge demurrage. It is not a free posses- sion; the railways are entitled to retain the goods till the carriage is paid. On your contention would not sec. 6 make it ultra vires for the Commissioners to enter into an engagement not to deliver till the consignee presented some particular credentials, or to enter into a typical mail contract ?]

Yes, that may well be so. In the next place the obligation of the bailee is one obligation only. He merely promises safe custody.

[McTiernan J. Suppose the bailee did carry or keep safely, but then refused to deliver ?]

A new cause of action for detinue or conversion, but independent of the bailment, would arise. [He referred to Whitehead v. Walker (1).] | Verity's Case (2) should not be applied by this Court.

(1) (1842) 9 M. & W. 506; 152 E.R. 214. (2) (1871) LR. 6 C.P. 206,

y. Palmer (1) is distinguishable; and where a bailee can show H.C. or A.

conversion which would not render him liable to another action, =

if his non-liability in such circumstances is due to a Statute of Joux F.

s, he should be permitted to do so. pte {McTrmrnan J. referred to the definition of "bailment" in ye

, Ind ed., vol. 1., p. 724, and Bac. Abr., tit. " Bailment." pooriony

[Srarxe J. referred to Beaumont v. Jeffery (2). STONERS.

_ (Dixon J. referred to Jones on Bailments, p. 1, and Story on

Sholl, in reply. A demand was necessary in all cases of detinue whether sur bailment or sur trover ; therefore here there was no cause of action till demand, and even if the obligation was indivisible, and even if there had been no bailment at all, a cause of action arose in detinue within the statutory period. Of course, the bailee might _ here say " I was not in possession at the time of demand," and unless a bailment was shown he could set up his own wrong to that extent, '0 that the question would come down again to that of the bailment. it he has not so pleaded and, therefore, the plaintiff should succeed m the count in detinue independent of the bailment. [He referred to "s Entries (1693), p. 186, No. 834; Wentworth on Pleadings 798), vol. vil., pp. 635 et seqq.] The action of detinue came from where a request was always necessary. _ [Drxon J. There was in pleading a distinction between a general 'request and a special request. (His Honor referred to Gledstane v. lewitt (3), Kettle v. Bromsall (4) and Bach v. Owen (5).) 4 _ [Starke J, referred to Com. Dig., tit. " Pleader."] _ Ifa special request: was necessary it was proved in this case within requisite period. If it is material that the obligation to redeliver d be separate, it was so at common law apart from the Railways There was an obligation on a bailee for custody to redeliver on Bailments, p. 379), and the obligation to do so arose only mn demand in the absence of special provision (In re Tidd ; Tidd v. ell (6); Wilkinson v. Verity (7) ). (1) (1858) 5C.B. (N.S.) 84; 141 E.R. (4) (1738) Willes 118, at p. 121; 125 E.R. 1087, at p. 1088. (1925) Ch. 1. (5) (1793) 5 T.R. 409 ; 101 E.R. 229,

(3) (1831) 1G. & J. 565; 148 ER. (6) (1893) 3 Ch. 154. a8 (7) (871) LR. 6 C.P. 206.

The learned Judge did not follow the consequences of his decisi to a conclusion. If a bailee wrongfully parted with the goods,

bailment, nor could it be said that the only breach, or the by from which the cause of action must arise, was the wrongful pa If there were a limitation of liability in the original bailment, defendants would surely be entitled to rely on that, which could not do if the refusal gave a new action independent of th bailment. So if the goods were damaged, but were still in th bailee's possession, and he refused to deliver them up, there must be two independent breaches of contract or duty, for the measure o damages would be different in each case.

(Starke J. How do you explain Heugh v. London and No Western Railway Co. (1), and other cases of that sort ?]

Those cases do not show the limits of the duty. Otherwise the plaintiff would have to allege and prove a breach of the duty, but what happened there was that the defendant sustained the onu which was on him, of showing that the goods were lost without negligence. Historically, the bailee's liability was origin absolute and this exemption was in time allowed him, but it was h who had to prove it. In Heugh's Case (1) the plaintiff did not exercise the election mentioned in Verity's Case (2). He could have done so and sued in detinue. Loss without negligence might

on request did not exist, but because it had been determined by frustration.

(Drxon J. In a number of cases it was held that delivery by a carrier without an intention to act contrary to the rights of the tru owner was not a conversion. ] 4

We complain not of conversion, but of failure to deliver. Anyhow _ negligence at least has been found here. Heugh's Case (1) was discussed in Hiort v. Bott (3). Lastly, neither sec. 6 nor nature of the Railways undertaking makes any difference. Sec. 7 refers to "delivery" and shows that it was intended that the

(1) (1870) LR. 5 Ex. 51. (2) (1871) LR. 6 C.P. 206. (3) (1874) LR. 9 Ex. 86, at p. 90.

gnment note showing that the goods were consigned by the ff to itself ought to have shown that some order for delivery be contemplated. There is no hardship on the Railways plaintiff succeeds, for it is unnecessary to suppose, as the 'of the Supreme Court did, that the plaintiff might come afterwards with a demand. It is simple to imply an ition to deliver on demand within a reasonable time. That Legislature intended no specially favourable treatment for the ays is shown by the fact that it made the Commissioners ommon carriers. [Reference was also made to Cowell's Inter- 2nd ed. (1684), tit. " Bailment " ; Buckland's Text Book, pp. 270, 315, 386, 390, 464-472, 496-498 ; Poste's Gaius, p. 597; Institutes, p. 563 ; Moyle's Justinian, pp. 441 n, and 608 n.J

upon arrival to be redelivered to the order of the plaintiff. The were safely carried to the place to which they were consigned, but pon request, made by the plaintiff within six months before the com- iement of the action, the defendants failed to redeliver the goods. sec, 200 of the Railways Act 1928 actions against the defendants anything done or purporting to have been done under Parts II.

curred before its commencement inasmuch as they had then dy lost the goods. In the Courts below the plaintiff did not that the section afforded a defence if " the act complained of " ed, not in the failure after request to redeliver, but in the loss of the goods. Before us the question was mentioned , even so, the section applies (see Palmer v. Grand Junction iy Co. (1); Bradford Corporation v. Myers (2)). We find it ary to consider this question.

(1) (1839) 4M. & W. 749; 150 E.R. 1624. (2) (1916) 1 A.C,, at p. 249,

ys might contract with reference thereto. In this case, the H.C. or A.

Ww Jonx F. Govtprse Pry. Lro. v. VicrorIAN Ramways Commis- SIONERS.

The prior loss of the goods upon which the defendants rely constituting the plaintiff's real complaint was occasioned by negligent misdelivery of the goods, after arrival, to persons who not entitled to receive them. When the statute speaks of "act complained of," we think it refers to the cause of action su upon. Thus the question is whether, notwithstanding the previ loss of the goods by the defendants, a new cause of action arose up their failure to deliver the goods on the plaintiff's request. In opinion such a cause of action did then accrue to the plaintiff. conditions of the bailment upon which the defendants received the goods into their possession imposed upon them a duty after the arrival of the goods to deliver them up in compliance with a request made by or under the authority of the plaintiff. This duty was not absolute but qualified ; it would not be broken if the defendants were disabled from delivery through destruction or loss of the goods which reasonable care and skill on their part could not avoid. But unless the bailment were prematurely extinguished, it would con- tinue until redelivery pursuant to request or until, in default of request, the goods were lawfully disposed of in some other manner warranted by statute or by the conditions, express or implied, of the bailment. Any dealing with the goods by the defendants entirely inconsistent with the bailment would enable the plaintiff to assert its possessory title. But the election to do so would reside in the plaintiff. The defendants, by such a wrongful act of their own, could not against the will of the bailor terminate the bailment_ or discharge themselves of the obligations of bailees. The facts must be taken to be that the plaintiff did not, before demanding its goods, treat the immediate right to possession of them as revested in it by the defendants' wrongful misdelivery. The defendants remained entitled to recover the goods from those who had wrong- fully obtained them. If possession had been resumed by the defendants, they would then have held the goods under the original bailment. Indeed, even if the defendants had lost possession of the goods without negligence on their part but by the exercise of reasonable care they might have regained them, their failure to deliver them to the plaintiff would not be excused.

| The exact point decided by Wilkinson v. Verity (1), as determining aha plea of the Statute of Limitations, we understand to be that upon 'a bailment, terminable upon demand, in that case for safe custody, 'the bailee by wrongfully parting with the chattel, no matter if in 'consequence of a sale or other unlawful dealing, does not invest the bailor, independently of his election, with a complete cause of action against the bailee consisting in an immediate, as distinguished from his reversionary, right to possession. This conclusion is stated by Willes J. as follows (2): "On the other hand, if the action of detinue is resorted to, as it may be (Com. Dig. Detinue A.), for the

breach of his duty as bailee, by detention after demand, independent of any other act of conversion, such as would make him liable in 'an action of trover, it should seem that the owner is entitled to sue, é at election, either for a wrongful parting of the property (if he discovers and can prove it), or to wait until there is a breach of the _ bailee's duty in the ordinary course by refusal to deliver up on : request ; and that, in the latter case, it is no answer for the bailee to say that he has by his own misconduct incapacitated himself from complying with the lawful demand of the bailor." We find nothing unsatisfactory in this doctrine. Indeed, the point remaining up to that time open for decision was an extremely narrow one. "The authorities, from those to be found in Brooke's Abridgment,

tit, Detinue, down to Reeve v. Palmer (3), agree that where the defendant in detinue had at one time possession of the plaintiff's
goods, under such circumstances that he was bound to return them on demand, he cannot defend an action of detinue by pleading that in consequence of something amounting to a default on his part, as between him and the plaintiff, he, the defendant, has no longer possession of the goods, and, consequently, cannot comply with a the demand ; and, therefore, as the plea in the present case does not allege that the goods were lost without any default on the defendant's part, it would be bad if it appeared that the defendant ever had the plaintiff's goods" (per Blackburn J., Goodman v. Boycott (4) ).

(1) (1871) LR. 6 C.P, 206. (4) (1862) 2B. &S. ljatp.9; 121 (2) (1871) LR. 6 CP., at p. 210, E.R. 975, at p. 97. (8) (1858) 5 GB, (N.S.)84; 141 E.R. 33.

1932, ea Joun F. GovuLpinG Pry. Lrp. a VicToRIAN Ramways Comas- SIONERS,

Apart from any question arising upon the character of the bail- ment upon which the judgment of Cussen A.C.J. seems to depend, that appears to have been then left unsettled was whether the commission by the bailee of a wrongful act wholly repugnant his holding gave to the bailor, immediately and independently o any election on his part, a complete cause of action in detinue, jus as if the possession of the bailee had been obtained originally by ; tortious taking instead of a bailment, or as if the bailment had bee determined and his possession had become wrongful. The decisi that, without his election, such a cause of action did not so accrue, that the bailor might pursue, according to its tenor, the obligation of the bailee to deliver up the chattel on demand, and bring detinue in respect of his non-compliance, may have been influenced by th doctrine under which a refusal in advance to perform a contra may be treated as an actionable breach, but the decision is in con- formity with principles much more general. Some criticisms have been made of the conclusion upon the ground that it produces unsatisfactory result in reference to the time limit upon actions, but these objections appear to neglect the need created by procedural nature of statutes of limitation for exactly ascertainin the causes of action which independently exist, and also to pay to little attention to the anomalous operation which such provisions, going, as they do, only to remedies, must always have upon possessory and proprietary rights in chattels (e.g., Miller v. Dell (1) ).

In the Supreme Court, Cussen A.C.J. took the view that conditions upon which the defendants received the goods included no separate and independent term for redelivery upon request, and that, in the absence of such an independent obligation, the delivery of the goods amounted to a final and absolute breach of the defend- ants' duty to the plaintiff, giving a complete cause of action once for all. This analysis of the obligations established by the bailment - denies, not that the bailee became bound to take care that the goods should be safely and securely kept and to redeliver them upon request, but that these are separate and independent duties. If we understand it correctly, it regards the duty to redeliver as arising only if at the time of request the goods are in the bailees' possession |

r possibly it treats the duty of safe custody and delivery as but a ing e obligation broken entirely by the loss of the goods by neglect. after giving it the closest consideration, we are unable to adopt lysis as a correct interpretation of the relations of the parties, 'as an answer to the application of the general rule of law.

he dominant or principal object of the bailment was the delivery e goods by the carrier at the place of destination to the persons itled to receive them. The reason why care for the safe custody

ve duty, became an obligation is because it remained incum- upon the defendants to deliver. It may be permissible to safe custody and delivery as in a sense the subjects of a obligation, as a single duty requiring a series of acts and

es. But we do not think failure in one of these require- can be treated as a final and complete breach of duty anni- g the obligation so far as it is executory. The contrary tion of the duties is implicit in the rule, so frequently that detinue lies against a bailee who has, before demand,

or breach of duty (Jones v. Dowle (1) ; Reeve v. Palmer (2) ).

very statement of the rule implies that the duty to redeliver mains in spite of the precedent default or breach of duty. Nor in our opinion, any ground for restricting the application tule, or for excluding the present case from its operation. ailee's default in losing the goods may or may not, according circumstances of the loss, involve a conversion, although ly it will mean a breach of contract. But the existence of causes of action, in any event, is irrelevant to the accrual of he cause of action in detinue. From very early times it was z y in detinue upon bailment that the chattel should in the defendant's possession, or even continue in existence e Serjeant Manning's notes to Williams v. Archer (3) ). Once it decided, as it was in Wilkinson v. Verity (4), that the bailee's 841) 1 Dowl. (N.S.) 391; 9 (3) (1847) 5 C.B., at pp. 327-329; 19; 152 E.R. 9. 136 ER., at pp. 903-904.

(1858) 27 LJ. C.P. 327; 5 CB. (4) (1871) LR. 6 C.P. 206, WS.) 84; 141 E.R. 33.

o, as dependent on the observance of the duty of safe custody ; H.C. or A.

H.C. or A. misdealing with the chattel did not, independently of the bailor's ee election, accelerate the duty to redeliver, it necessarily followed Joux F. that the wrong of detinue, besides being distinguished in point gouromme of legal conception from the conversion and the breach of contract, Vicrorrax Where these existed, actually took place at a different time and upon -

ad a different occasion. We cannot agree with Mann J. that that 'OMMIS-

stoners. decision was wrong. We think the dissenting judgment of Lowe J.

Starke J. is right. We have not thought it necessary to state the circum- - MeTiernan J. stances of the case in more detail in view of the very full treatment - of them contained in the judgments of the Supreme Court; nor have we thought it necessary to discuss sec. 6 of the Railways Act i 1928, which, so far as it affects our conclusion, results, as the Supreme Court pointed out, in substantially the same rule as at common law for determining the responsibility of the defendants for the goods _ after the termination of their carriage and before actual delivery. -

Appeal allowed. Judgment of the Supreme Court dismissed. In lieu thereof order that the judgment of the County Court be discharged and that judgment be entered in the action Sor the plaintiff for £596 11s. 3d. with costs to be taxed including the costs certified for by the County Court Judge. The respondents - to pay the costs of this appeal and of the appeal to the Supreme Court.

Solicitor for the appellant, Bernard Nolan. Solicitor for the respondent, Frank G. Menzies, Crown Solicitor for Victoria.

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