Cullis v Ahern [1914] HCA 59; (1914) 18 CLR 540 (19 October 1914)

HIGH COURT OF AUSTRALIA

Cullis Defendant, Appellant; and Ahern Informant, Respondent.

H C of A

On appeal from the Supreme Court of Victoria.

19 October 1914

Griffith C.J., Isaacs and Powers JJ.

McArthur K.C. and Owen Dixon, for the appellant.

Mitchell K.C. and Starke, for the respondent,

Griffith C.J.

This matter has been seriously argued, but I find some difficulty in treating it with sufficient gravity. A by-law made by the municipal authority of Melbourne provides—shortly—that it shall not be lawful to drive any vehicle between sunset and sunrise without a rear light. That by-law was made under a power to make by-laws "for the good rule and government of the town." There can be no doubt that such a by-law as that now in question is within those words. It is the fact indeed, we are told, that in Victoria all regulations as to lighting vehicles are made by municipal by-laws, and there is no Statute on the subject. We think that that point is not arguable.

The only other point is that there is a Statute, No. 2237, which deals with the lighting of motor cars and motor cycles, and it is contended that the by-law, if applied to motor cycles, is inconsistent with that Statute. Sec. 12 (2) of that Act provides that "No person shall between sunset and sunrise drive ride or propel a motor cycle unless there is attached thereto a lighted lamp showing a bright white light visible in the direction towards which such motor cycle is being or is about to be driven or ridden sufficiently far to adequately signal the approach and position of such motor cycle and illuminate sufficiently the identifying number." That law applies to the whole of Victoria. It prescribes what I may call an irreducible minimum of obligation as to lighting of any person who drives a motor cycle within the State. But it does not follow that some other precaution may not be necessary in some parts of the State. In order to establish inconsistency between the by-law and the Statute the latter must be construed as covering the whole ground in respect of which the legislature has legislated, that is, as prescribing completely and exclusively the limits within which the liberty of drivers of motor cycles shall be confined. If it had been said expressly or by necessary implication that the only obligations that could be imposed upon drivers of motor cycles should be those mentioned in the Statute any attempt by a municipality to add to them would of course be inconsistent. I can find no indication of such an intention, and therefore am unable to find any inconsistency.

The appeal should be dismissed with costs.

Isaacs J.

I concur.

Powers J.

I concur.

Appeal dismissed with costs.

Solicitor, for the appellant, R. L. Cross.

Solicitors, for the respondent, Malleson, Stewart, Stawell & Nankivell.