Kelly v Wigzell [1907] HCA 53; (1907) 5 CLR 126 (10 October 1907)

HIGH COURT OF AUSTRALIA

Jeremiah Kelly Complainant, Appellant; and Sydney Wigzell Defendant, Respondent.

H C of A

On appeal from the Supreme Court of Queensland.

10 October 1907

Griffith C.J., Barton and Isaacs JJ.

Power (with him Macleod), for the appellant.

Feez (with him Shand and Lukin), for the respondent.

Power in reply.

Griffith C.J.

The defendant, a tramway conductor, was prosecuted for the breach of a regulation made under the Brisbane Traffic Act 1905, which provides that:—"No conductor shall permit any person in excess of the maximum prescribed in clause 2 to travel in or upon any tramcar." The number prescribed for the tramcar in question was 50. There was evidence that there were 65 persons travelling in the tramcar, and the defendant was the conductor of it. It is said that that was not sufficient evidence that the defendant permitted them to travel in the car. I confess I have had some difficulty in grasping the argument. When the law prescribes that the person in charge of a vehicle shall not permit more than a certain prescribed number to enter that vehicle, surely it imposes on him the duty to count them to see that not more than that number enter; otherwise the law would be absolutely futile. The fact, therefore, that there are more persons than the law permits in the car is evidence, not only that they entered the car, but that the person in charge of it allowed them to enter it. There was, therefore, sufficient evidence of permission. Another point was made incidentally that the place in which the car was alleged to have been travelling was described as Melbourne Street, South Brisbane, whereas its true name is Victoria Place. According to the case stated, it bears both names. It is the end of Melbourne Street, where that street joins Victoria Bridge, and it is sometimes called Victoria Place. If there were anything in the point at all, it would be cured by sec. 48 of the Justices Act, which declares that objections to variances of that sort shall not be allowed. I think, therefore, that on the evidence defendant was manifestly guilty and ought to have been convicted. The Supreme Court took the contrary view, and this is an appeal by special leave from their decision. This Court gave leave to appeal, regarding the matter as one of general importance, since if such evidence is not sufficient to convict a conductor for a breach of the regulations, the regulations would be futile. The learned Chief Justice said:—"A conductor cannot eject a person having the right to travel from his car." Probably not. "He cannot eject any passenger unless he does so lawfully." I quite agree. He goes on:—"And therefore the respondent could only have turned those persons off this car who had entered it at a time when it already contained the maximum number." I agree again, but because he had the right to turn them off, and it was his duty to turn them off, and he failed to do so, he must take the consequences. The appeal must be allowed, and the case remitted to the Police Magistrate to convict.

Barton J.

I am of the same opinion. I think there was ample evidence to justify a conviction, and that evidence was wholly unanswered. On the question of permission, the regulation on which the prosecution was instituted is positive in its terms, it forbids the conductor to permit any person to enter the tramcar after the number prescribed by clause 2 have entered. The conductor enters upon his duties under the provisions of the Act under which this prosecution was instituted, and he must be taken to have known the regulation, or paragraph of the regulation, immediately preceding that under which the charge was laid. By it he is forbidden to allow any person to enter his car if the maximum number of persons—in this case fifty—are already upon it. It is therefore hard to see how he could fail to know that there were more than the maximum number on his car. The presence of more than the maximum number is primâ facie evidence that he knew there were more than the maximum number, and there was no answer given to that evidence. For those reasons I am of opinion that the appeal should be allowed.

Isaacs J.

I agree.

Power. As to the costs of the motion to rescind? That was a separate motion and we were brought to answer it.

Isaacs J.

Was there no notice that the two motions would be heard together?

Power. No. The motion to rescind was heard first on the first day of the sittings, and the case was low down in the list.

Griffith C.J.

There can be only one taxation of course. Have the costs been paid?

Power. No. The costs were taxed, but not paid.

Griffith C.J.

The respondent must pay the costs of the appeal and the motion to rescind, but of course there will be only one taxation.

Appeal allowed. Order appealed from discharged, appeal from justices allowed with costs, case remitted to the Police Magistrate, with direction to convict. Respondent to pay the costs of the appeal and of the motion to rescind leave.

Solicitor, for appellant, Hellicar (Crown Solicitor for Queensland).

Solicitors, for respondent, Thynne & Macartney.