Duncan v Vizzard [1935] HCA 43; (1935) 53 CLR 493 (17 June 1935)

Green Star Trading Company Proprietary Limited Defendant, Appellant; and Vizzard Informant, Respondent.

In these cases the Green Star Trading Co. Pty. Ltd., which is incorporated in Victoria, is charged on seven informations for that, being the holder of licences in respect of certain motor vehicles, it did operate them respectively on specified journeys within the State of New South Wales but failed to observe a condition of the licences. Duncan was charged with driving one of these motor lorries on an occasion on which it was not authorized to be so driven, i.e., on one of the journeys in question. The defendants were convicted before the magistrate but appealed to Quarter Sessons at Wagga Wagga. The Chairman stated a case for the Court of Criminal Appeal of New South Wales, i.e., the Supreme Court. Two of the questions in the case stated related to the validity of the State Transport (Co-ordination) Act 1931. The sixth question is directed to sec. 90 of the Commonwealth Constitution and the seventh to sec. 92. On the application of the informant this Court removed the proceedings, under sec. 40 of the Judiciary Act 1903-1933, into this Court. The questions arising under the Constitution would not call for decision if any of the remaining questions were answered in favour of the defendants. They are therefore an integral part of the cause which must be decided for the purpose of disposing of the constitutional questions. Licences had been issued in respect of the motor lorries under the State Transport (Co-ordination) Act 1931. The journeys upon which the motor lorries were travelling commenced in Victoria, and within New South Wales they ran admittedly for more than fifty miles upon a route described as "competitive with the railways." The licences were what are called non-competitive licences. The first condition which they contain authorizes the operation of the vehicle upon journeys which are not competitive with the railways to a greater extent than a distance of fifty miles except in the case of journeys to market carrying fresh fruit, vegetables, eggs or poultry from a farm. This condition was not observed and the prosecutions are based upon that fact. The first question in the stated case is concerned with an argument that, notwithstanding the limitation upon the authority to operate expressed in the first condition, the second condition impliedly authorizes the vehicle to operate upon journeys which are "competitive with the railways" for an unrestricted distance subject, however, to a payment of threepence per ton per mile. This raises a question of construction upon two very clumsily drawn conditions. The effect of the term of the second condition is to direct the payment of threepence per ton per mile for the full distance of any journey that is "competitive with the railways." Notwithstanding the second condition, the third condition says in effect that, if the conditions of the licence are complied with, the licence of the driver of the vehicle shall be exempt from the condition mentioned in sec. 18 (5) of the Act and, subject to any determination of the Commissioner to the contrary, from clauses 9 and 10 of the regulations in respect of journeys which are not "for a distance exceeding fifty miles competitive with the railways." Sec. 18 (5) provides that the Board may in a licence impose a condition that the licensee shall pay to the Board sums to be ascertained in a manner to be determined by the Board not exceeding threepence a ton a mile. The exemption provided by the third condition from the obligation to pay sums not exceeding threepence a ton a mile under sec. 18 (5) if not more than fifty miles of the journey competes with the railways is relied upon as raising an implication that the second condition applies only to journeys competing with the railways which exceed fifty miles. From this construction of the second condition the deduction is made that it contemplates an authorized journey in competition with the railways beyond fifty miles in distance. Upon this footing it is said that the conditions of the licence authorize a journey of any distance in competition with the railways subject to the payment of threepence a ton a mile. This deduction or inference seems to me unwarranted. Conceding that the second condition does contemplate the possibility of a journey in competition with the railways exceeding fifty miles, it does not follow that such a journey is authorized. The authority is contained in the first condition. The second condition is concerned with the liability to a sum of money and there is no reason why it should not express a responsibility incurred by a journey which does not observe the authority. The answer to question 1 (a) must be: Yes, and to 1 (b): No. It is not contested that the answers to the 2nd, 3rd, 4th and 5th questions must be: Yes. The 6th and 7th questions which relate to the Constitution should be preceded by a consideration of the remaining questions. Question 8 inquires as to the effect of a permit. Sec. 28 of the Act prohibits the operation of a public motor vehicle on any occasion not authorized by the licence except in pursuance of a permit or under an exemption. The effect of a permit is to remove anything done in actual pursuance of the permit from the prohibition contained in sec. 28. What the effect of the question is upon these questions has not so far been disclosed to me. Sec. 22, authorizing permits, is restricted to passenger vehicles. Question 9 asks: Has the Commissioner power to issue the permit? The Commissioner may grant a permit having effect under sec. 28 in relation to passengers if the power has been delegated to him under sec. 23. But neither of these questions calls for an answer. Question 10 must be answered: Yes. Question 11 appears to inquire whether if more than fifty miles is travelled in competition with the railways a permit is required for the whole journey or for the excess only. The distinction is without a difference because as soon as the fifty miles is exceeded the conditions of the licence are broken and then, and not before, the commission of the offence commences unless there is a permit allowing what otherwise would be an offence. In other words, the permit must be so expressed as to allow more than fifty miles to be travelled in competition with the railways in order to be useful to the licensee. There remain the constitutional questions, Nos. 6 and 7. It is conceded that the argument that the legislation contravenes sec. 90 of the Constitution is ruled against the defendants by Gilpin's Case[1]. The 6th question must accordingly be answered: No. The 7th question asks whether the legislation, the regulations, or the administration thereof contravene sec. 92. It is not easy to see why this question should be considered open after the decisions in R. v. Vizzard; Ex parte Hill[2]; Gilpin's Case[3]; Bessell v. Dayman[4]. But some ingenuity has been expended by counsel in an attempt, fruitless so far as I am concerned, to distinguish these cases on that ground that the conditions of the licence lead to an invasion of the freedom of inter-State trade. I can see no discrimination, direct or indirect, between intra-State and inter-State transportation; nothing but a co-ordination and rationalization of services accomplished according to a judgment of a discretionary character of an administrative board that fifty miles' irrational competition is a relatively harmless excess. This question must be answered: No. The cases should be remitted to the Court of Quarter Sessions to be dealt with in accordance with the answers given to the questions hereunder. Costs should be paid by the defendants.

Questions 1 (a): Yes; 1 (b): No; 2, 3, 4, 5: Yes; 6, 7: No; 8, 9, 11: Require no answer; 10: Yes.

It would be idle for me to discuss any of the questions stated in these cases other than the seventh question, which is: Does the State Transport (Co-ordination) Act 1931 and/or the regulations thereunder and/or the administration of the Act as disclosed by the evidence and the exhibits and particularly by the terms of the licences issued contravene sec. 92 of the Commonwealth Constitution in respect of the transactions or any of them which were or was being carried out by the defendants at the relevant times? In Vizzard's Case[5] I expressed the opinion that the Act did contravene sec. 92 of the Constitution and to that opinion I adhere.

I agree in the judgment that Rich J. has delivered subject to two observations which I desire to add. In dealing with the questions arising under State law, we are following Ex parte Walsh and Johnson; In re Yates[6] and Pirrie v. McFarlane[7]; see also R. v. Carter; Ex parte Kisch[8]. The second observation is that I regard the decisions of the majority of this Court in R. v. Vizzard; Ex parte Hill[9], O. Gilpin Ltd. v. Commissioner for Road Transport and Tramways (N.S.W.)[10] and Bessell v. Dayman[11], from which I dissented, as completely covering the use made of its authority by the Transport Board in granting licences in the form before us.

These are eight cases stated by the Chairman of the Wagga Wagga Quarter Sessions for the opinion of the Supreme Court of New South Wales sitting as the Court of Criminal Appeal. They all relate to the interpretation and administration of the New South Wales State Transport (Co-ordination) Act 1931. They have been removed into this Court from the Supreme Court on the application of the informant, Vizzard, who is prosecuting on behalf of the Commissioner for Road Transport and Tramways for New South Wales. The ground upon which the orders of removal were made was that certain questions have arisen involving the interpretation of secs. 90 and 92 of the Commonwealth Constitution.

The seven prosecutions against the company are under sec. 17 (5), which provides that if a licensee of a public motor vehicle fails to observe the conditions of his licence he shall be guilty of an offence. Duncan was charged under sec. 28 (1) (c) of the State Transport (Co-ordination) Act 1931 with having driven as a public motor vehicle a lorry licensed by the company upon an occasion when the lorry was not authorized by the licence issued in respect thereof to be so driven. The facts were fully investigated by the magistrate, who convicted in each case. All the defendants thereupon appealed to Quarter Sessions, the Chairman stating the cases on April 30th, 1935.

The main question raised by the stated cases is whether the special conditions indorsed on the licence issued in respect of the lorries impliedly authorized the lorry to operate without being subject to the restrictions imposed by clause 1 of the special conditions.

In order to make the contention clear it is necessary to refer to certain provisions of the Act. By sec. 12 (1) no person may operate a public motor vehicle unless he holds a licence issued by the Board for such vehicle. A proviso to sec. 12 (1) prevents the sub-section from applying to a public motor vehicle "that is being operated under and in accordance with" an exemption (under sec. 19) from the requirement of being licensed, or a permit granted under sec. 22. Sec. 22 deals with permits to use motor vehicles for the carriage of passengers, and sec. 19 gives the Board a general power to exempt a public motor vehicle from the requirement of being licensed under conditions deemed fit by the Board.

Sec. 18 (1) imposes on the holder of every licence—unless exempted by the Act or the regulations—certain obligations in respect of public motor vehicles, such as keeping prescribed books and records, producing such books, and making and verifying returns. Sec. 18 (5), which is a key provision, authorizes the Board, in any licence for a public motor vehicle authorized to carry goods, to impose a condition that the licensee shall pay certain sums of money to be ascertained as determined by the Board. Where such sums fall to be determined according to the mileage travelled, a maximum rate is prescribed, and, where the sums are not ascertained according to mileage, refunds are to be made if there is an excess over the maximum payable on a mileage basis. By sec. 18 (9) (b) the Board is empowered to exempt the licence for any public motor vehicle from having inserted therein the condition mentioned in sec. 18 (5), and the Board has a discretion to grant the exemption upon such conditions as it thinks fit. The special conditions applicable to all public motor vehicles here in question are headed "Special Conditions (Non-competitive licence)." The heading itself tends to destroy the theory that the conditions themselves impliedly authorize the vehicle to operate competitively with the railways or tramways beyond the permitted distance of fifty miles.

Clause 1 of the special conditions gives the vehicle an authority to operate within the State of New South Wales, but only, so far as is relevant, "on journeys none of which, for a distance exceeding fifty miles is competitive with the railways or tramways."

Clause 2 then prescribes that in respect of any journey "which is wholly or partly competitive with the railways or tramways" the licensee shall pay for the full competitive distance threepence per ton or part thereof, calculated upon the footing of the maximum payments on a mileage basis, which the Board is authorized by sec. 18 (5) to impose.

Clause 3 of the special conditions adds a proviso that, if the terms and conditions of the licence are complied with, both the licensee and the driver of the vehicle

The verbiage of this clause may be subject to criticism, but its intendment and meaning are not in doubt. Its object is to grant an exemption from the payment authorized to be imposed by sec. 18 (5) of the Act, and actually imposed in respect of the full competitive distance by clause 2 of the special conditions. Clause 3, in its last sentence, describes itself as an "exemption." The exemption gives relief from the restrictions mentioned, but it is strictly coterminous with the authority to operate the vehicle granted by clause 1 of the special conditions. The vehicle is to be "exempt ... in respect of any journey which is not, for a distance exceeding fifty miles, competitive with the railways or tramways." It is also to be "exempt ... in respect ... of a journey of any distance when the vehicle ... is used solely for the transport of fresh fruit ... from farm to market."

It is impossible to imply from these conditions any authority to drive or operate the vehicle on any journey which is, for more than fifty miles, competitive with the railways. On the contrary, the exemption granted by clause 3 may be said to offer an inducement to observe the main condition contained in clause 1 of the licence. The exemption from the money payment imposed by clause 2 of the special conditions is strictly conditioned by the observance of clause 1. The result is that, if the vehicle is operated on any journey which competes with the railways for a distance of (say) sixty miles, (1) the licensee fails to comply with the conditions of his licence and is guilty of an offence under sec. 17 (5) of the Act, (2) the driver is guilty of an offence under sec. 28 (1) (c) of the Act, (3) the exemption in clause 3 of the special conditions has no operation in respect of the particular journey, and (4) the licensee also becomes liable to pay to the Commissioner for the full competitive distance of sixty miles the charge of threepence per ton authorized by sec. 18 (5) and imposed by special condition 2.

That the interpretation contended for on behalf of the driver and the owner is without substance appears from the note inserted at the foot of the special conditions. It is as follows:—

Question 1 of the stated case should therefore be answered—1 (a): Yes; and 1 (b): No.

No dispute arises as to questions 2, 3, 4, 5, and 6, the defendants admitting that each of such questions must be answered in the sense adverse to them.

A question has been raised (Nos. 8 and 9) as to the power to issue a "permit" under sec. 28 (1), but this question has no real bearing upon the present case. As has been pointed out, a "permit" under sec. 22 relates to the carriage of passengers in motor vehicles, but the powers to grant an "exemption" are not so limited. The defendants' contention appears to be that, unless the Board has authority to grant permission to a licensee to operate the vehicle competitively with the railways for more than fifty miles, sec. 92 of the Constitution operates to invalidate the restrictions imposed by the Act and the licence in respect of journeys in New South Wales, which are the continuation of journeys within the State of Victoria. But the decisions of this Court in Willard v. Rawson[12], R. v. Vizzard; Ex parte Hill[13] and O. Gilpin Ltd. v. Commissioner for Road Transport and Tramways (N.S.W.)[14] are quite inconsistent with this argument. Those cases determine that the imposition of non-discriminatory limitations of choice as to the means and routes of land transport is not necessarily inconsistent with sec. 92, and that the New South Wales State Transport (Co-ordination) Act 1931 is valid.

It follows that question 7 of the stated case should be answered: No. It is admitted that question 10 must be answered: Yes. Question 11 does not arise directly, but it is reasonably plain that in sec. 28 (1) (c) the "occasion" which is referred to cannot be limited to the complete journey, and necessarily refers to every part of it.

Duncan v. Vizzard.—1 (a): Yes; 1 (b): No; 2: Yes; 3: Yes; 4: Yes; 5: Yes; 6: No; 7: No; 10: Yes; questions 8, 9 and 11: No answer necessary.

Green Star Trading Co. Pty. Ltd. v. Vizzard (seven cases).—1 (a): Yes; 1 (b): No; 2: Yes; 3: Yes; 4: Yes; 5: Yes; 6: No; 7: No.

The cases stated will be remitted to the Court of Quarter Sessions at Wagga Wagga with the answers set out above.

I also agree with the order proposed by Rich J. I have had the opportunity of reading the judgment prepared by Evatt J. and agree with it, also with the observations of Dixon J.

Questions answered as follows:—1 (a): Yes; 1 (b): No; 2, 3, 4, 5: Yes; 6, 7: No; 8, 9: Answer unnecessary; 10: Yes; 11: Answer unnecessary.

Solicitors for the appellants, Lusher, Young & Stellway, Wagga Wagga, by C. Throsby Young.

[1] [1935] HCA 8; (1935) 52 C.L.R. 189.

[2] [1933] HCA 62; (1933) 50 C.L.R. 30.

[3] [1935] HCA 8; (1935) 52 C.L.R. 189.

[4] [1935] HCA 5; (1935) 52 C.L.R. 215.

[5] [1933] HCA 62; (1933) 50 C.L.R. 30.

[6] [1925] HCA 53; (1925) 37 C.L.R. 36, at pp. 59, 75, 126, 130.

[7] [1925] HCA 30; (1925) 36 C.L.R. 170, and see p. 178.

[8] [1934] HCA 50; (1935) 52 C.L.R. 221, at p. 229.

[9] [1933] HCA 62; (1933) 50 C.L.R. 30.

[10] [1935] HCA 8; (1935) 52 C.L.R. 189.

[11] [1935] HCA 5; (1935) 52 C.L.R. 215.

[12] [1933] HCA 12; (1933) 48 C.L.R. 316.

[13] [1933] HCA 62; (1933) 50 C.L.R. 30.

[14] [1935] HCA 8; (1935) 52 C.L.R. 189.

High Court of Australia

Duncan v Vizzard [1935] HCA 43; (1935) 53 CLR 493 (17 June 1935)

HIGH COURT OF AUSTRALIA