By John McKechnie AO, KC
It may come as a surprise to younger readers that in Perth, well into the 1950’s, milk was delivered house to house by milkos who used horses for transport.
The same was true in Melbourne where our tale is set. Mr Hubbard senior started a dairy in 1902 in Hampton, a suburb of Melbourne. By 1955, Mr Hubbard had long retired and handed over to his son Patrick who had
big plans. In September 1950 a group of milk retailers, carriers and dairy farmers formed a public company to supply pasteurised milk in metal capped bottles, the first milk selling organisation to combine in this way. Patrick was the general manager and the Hubbards substantial shareholders.
Horses had been used and stabled at the dairy since the 1920’s although not continuously. From 1952 though horses began to be kept overnight at the dairy – not in nice clean stables but in tumble down accommodation.
And so, the flies multiplied. And the smell. And the noise.
Finally, Mr Munro, who lived next door had enough. He approached the Sandringham municipal council, the agricultural department, even the RSPCA. All to no avail. Finally, he did what the judge said he should have done in the first place and sued for nuisance in the Supreme Court.
The trial, before Justice Sholl, took eight days.
At the heart of Mr Munro’s complaint was the fact that the noise kept him awake at night. Now to many, the occasional broken night’s sleep is a price to be paid for living in a modern vibrant city. But not to the law.
Justice Sholl quoted the Master of the Rolls Sir Wilfred Greene from a case in 1937:
“I certainly protest against the idea that if persons, for their own profit and convenience choose to destroy even one night’s rest of their neighbours, they are doing something which is excusable. To say that the loss of one or two nights rest is one of those trivial matters in respect of which the law will take no notice appears to me to be quite a misconception.”
Perhaps Sir Wilfred occasionally suffered from insomnia.
At this point in the judgment, no doubt the Defendant’s lawyers probably realised they had backed a loser. Mr Munro obtained an injunction and damages. He no doubt slept well in his bed that night, and for many nights thereafter.
By 1955, the days of horse drawn milk floats were numbered.
The judge gave milkos some free advice. After pointing out that delivery of milk by electric or motor vehicles may be on the way, he continued:
“The general improvement in living and social standards in this country which is very estimable in itself is likely to cause a necessary acceleration in that progress which milk distributors would be wise to recognise.”
Southern Dairies Ltd fell into liquidation 15 years later.
If you own a horse and want to stay out of trouble with your neighbours, don’t name it ‘Munro’.
(Adapted from Munro v Southern Dairies Ltd (1955) VLR 332).
