Keith Henry and Co Pty Ltd v Stuart Walker and Co Pty Ltd [1958] HCA 33

Keith Henry and Co Pty Ltd v Stuart Walker and Co Pty Ltd [1958] HCA 33 - HCA 1958 case summary — Zoe

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South Wales (McLelland J.) in an equity suit, in which the pr appellant was plaintiff and the present respondents were de The second defendant, the Minister for Trade and Customs of Commonwealth, though he is still technically a party to ceedings, was not represented - apart from a formal appear withdrawal of counsel - upon this appeal, and no relief is against him. For the purposes of this appeal the facts, which set out in detail in the judgment of McLelland J. may be st fairly shortly, but first it is necessary to refer to certain reg which form, so to speak, the background of the case. The the Customs (Import Licensing) Regulations, which were made w the Customs Act 1901-1936 (Cth.) and came into force on th lication in the Commonwealth Gazette on 1st December 19: Regulation 3 of these regulations prohibits the importation of goods without a licence. Succeeding regulations provide making of applications to the Minister for licences. By regs. 11 an absolute discretion is given to the Minister to grant or n a licence or to grant a licence subject to such terms and cot as he may approve or determine. Regulation 12 provides that Minister may revoke any licence, and reg. 13 that a licence not be transferable. It should be mentioned that, at the tim the events with which we are concerned began and for some | thereafter, it was not the practice, in the administration o regulations, to grant a licence except for goods which were actt available abroad for exportation. 4 The plaintiff, which is a company incorporated in New s Wales, carries on the business of an importer and distributor. defendant company (which we will call the defendant) is also i porated in New South Wales. It carries on a business of suppli butchers' requisites, including hog casings used in the manuf of sausages. At all material times hog casings were in short s1 in Australia. In 1948 the plaintiff interested itself in the obtai of casings from Ireland, and by 1950 it had established bu relations with three suppliers in Ireland. These were Dillon Clover Meats Ltd. and Roscrea Bacon Factory Ltd. Mr. Keith Henry spoke in his evidence of " correspond written agreements " with these firms, no written ag

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goods should be produced to the defendant's bank, and the plain made its licence available to the defendant for this purpose. In course the goods, preceded no doubt by the shipping docume arrived in Sydney, invoiced to the defendant. The goods cleared through the Customs by a customs agent employed by defendant, and the defendant took delivery of them. For the p pose of clearing them through the Customs it was, of course, nec again that an import licence should be produced to the o the Customs Department. For this purpose the plaintiff made its import licence available to the defendant, having prey obtained from the department an indorsement upon it to the that there was "no objection " to the entry by the defen the goods to which it applied. Later the Irish supplier paid to plaintiff its commission of 2/6d. sterling per bundle. The pr originally quoted to the defendant by the plaintiff was the pri quoted to the plaintiff ry the Irish supplier plus the amount of #l plaintiff's " commission ". The sale of goods effectuated in this wa would seem to have been a sale of goods by the Irish supplier to tl defendant. The goods were delivered by the supplier to defendant, and the defendant paid the price to the supplier. and about the transaction the plaintiff rendered services in bringit the parties together, in giving the order, in causing the goods tob insured under its open marine policy, and (last but not least) obtaining and making available its import licence. The entire t1 action might, of course, have taken another form, and, if it possibly have foreseen what was going to happen five years la is at least probable that the plaintiff would have seen to it thal did take a different form. But it could not foresee the future, a the form which the transaction did take was doubtless adoj a McLelland J. observes, because, from a business point of seemed convenient and advantageous both for the plaintiff and | the defendant. Between 1950 and 1955 there were a large number of si transactions in hog casings, in which the plaintiff and the and one or other of the three Irish firms took part. The transactit took the same form in each case. There appear, indeed, to h been three cases in which the letter of credit was established by plaintiff. It would appear also that after 1952 the insurance effected with the defendant's insurer. But for the purposes of present case these variations are immaterial. Government policy with regard to the licensing of impor naturally varied from time to time during the relevant years.

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import licences to the plaintiff and the defendant respectively on that basis. For the quarter July to September 1955 the plaintiff's allocation was £1,141 and the defendant's £2,820. Ifthe importations "under the plaintiff's licences had been credited to the plaintiff, it is said that the plaintiff's allocation would have been £2,332 more (ie. £3,478) and the defendant's £2,332 less (i.e. £488). It is of no

consequence in the present case whether the departmental view that " the defendant was really the " importer " of the casings in question was sound or not. When the circular of 29th April 1955 was "4 drafted, the problem which would arise as to the respective positions of the plaintiff and the defendant was presumably not foreseen. When that problem did arise, it affected nobody except the plaintiff =* and the defendant, and one would not have expected a rigid adher- ence to the formula of the circular. Since future licences were in "question, and since in the past nobody could have imported without = a licence, one would rather have expected that the allocation would be made on the basis of past licences to the extent to which they had been acted upon. But the problem which arose was a problem for the department to solve. It was a matter for the discretion of the department, and (provided, of course, that it did not act on » wholly irrelevant considerations) that discretion was absolute. Only one other matter need be mentioned. On Ist November 955 the defendant wrote to the plaintiff, asking it to obtain quota- ions for hog casings from its "principals" in Ireland. The acm Plaintiff did not reply to this letter, and on 7th November 1955 the » defendant sent a cable and a letter to each of the three Irish suppliers, » saying that it had written to the plaintiff and received no reply, and asking them to forward quotations direct. None of the Irish iers replied to the cable or to the letter. The whole of the relevant facts have now been stated. That . Keith Henry should be resentful over what has happened is ily understandable. But it is impossible to find in the facts of case any cause of action at law or in equity. If the defendant induced any of the Irish suppliers to break a contract with the intiff, the plaintiff might have had an action for damages at common law. But there is no suggestion that anything of the kind as taken place. The immediate source of grievance to the plaintiff

At a glance

Court

Decision date

Before

Source

Judgment (54 paragraphs)