Wiedenhofer v Commonwealth

High Court of Australia|1970-07-01|Before: Gibbs J

The application to strike out the paragraphs in question is made under O. 20 r. 29. The defendant submits that the fact that the plaintiff's conviction, on a charge that he had unlawfully had in his possession prohibited imports, has been quashed on appeal is quite irrelevant to the question whether the plaintiff is entitled to the goods. The decision of Barry J. in Little's Victory Cab Co Pty Ltd v Carroll [1] is relied on as authority for the view that an acquittal on a charge of a breach of the Customs Act is irrelevant in proceedings to recover goods seized, allegedly wrongly, by the customs authorities. That decision is undoubtedly in accordance with the general principle established by such cases as Helton v Allen [1] and must be regarded as correct unless there is some provision of the Customs Act that renders the general principle inapplicable.

[1948] V.L.R. 249, at p. 251. 2. (1940) 63 C.L.R. 691.

Reliance also was placed by the defendant on s. 85 of the Judiciary Act 1903-1969 Cth. It was said that this section rendered the goods subject to the orders and judgments of the courts of the Australian Capital Territory before which the prosecution and the appeal were heard. It is sufficient in answer to this argument to say that those courts made no order and gave no judgment in respect of the goods in question and the provisions of s. 85 of the Judiciary Act do not in my opinion make the matters which were pleaded in pars. 5, 6 and 7 in any way relevant to the present proceedings.

I have formed the view that the three paragraphs of the statement of claim which are objected to are plainly and on their face irrelevant to any issue in the case. Those paragraphs therefore in my opinion ought to be struck out of the statement of claim.

My formal order will be that I refuse the plaintiff's motion for judgment and order that the defendant pay the plaintiff's costs of the motion to be taxed. On the motion of the defendant (1) I order that pars. 5, 6 and 7 of the statement of claim be struck out on the grounds that the said paragraphs are unnecessary; (2) I extend time for delivery of the defence to 18th December 1970. I order that the taxed costs of the defendant's motion be the defendant's costs in the cause.

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

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Judgment (6 paragraphs)

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Cases Cited (1)