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High Court of Australia |
ANTILL RANGER & CO. PTY. LTD. v. COMMISSIONER FOR MOTOR TRANSPORT [1955] HCA 25; (1955)
93 CLR 83
Constitutional Law (Cth.)
High Court of Australia
Dixon C.J.(1), McTiernan(1), Williams(1), Webb(1), Fullagar(2), Kitto(1) and
Taylor(1) JJ.
CATCHWORDS
Constitutional Law (Cth.) - Freedom of inter-State trade commerce and intercourse - State statute - Validity - Moneys collected in respect of operation of public motor vehicles in course of inter-State trade - Invalidity of statute authorizing collection - Payments made under protest - Claim to recover moneys so paid - Enactment by State of statute extinguishing causes of action and barring remedies - Validity - The Constitution (63 & 64 Vict. c. 12), s. 92 - State Transport (Co-ordination) Act 1931-1952 (No. 32 of 1931 - No. 24 of 1952) (N.S.W.), ss. 18 (4), (5), 37, 47 - State Transport Co-ordination (Barring of Claims and Remedies) Act 1954 (N.S.W.), ss. 2, 3, 4 - Judiciary Act 1903-1950 (No. 6 of 1903 - No. 80 of 1950), s. 58.
HEARING
Sydney, 1955, March 24, 25, 28;DECISION
June 9.2. The nature of the proceeding before us determines the precise limits of the question. It is a demurrer to a plea. The demurrer has been removed from the Supreme Court into this Court under s. 40 of the Judiciary Act 1903-1950 on the application of the Attorney-General for New South Wales. The action was commenced in the Supreme Court on 23rd July 1954, that is before the decision of the Privy Council in Hughes & Vale Pty. Ltd. v. New South Wales (No. 1) (1954) 93 CLR 1 , which was given on 17th November 1954 and before, as a consequence of that decision, Act No. 45 of 1954 was passed. It was in fact assented to on 16th December, the same date as the assent to No. 48 of 1954. The plaintiff had declared in the action three days earlier. The declaration consisted of a simple count for money had and received against the Superintendent of Motor Transport, a functionary whose name was altered by Act No. 48 of 1954, s. 5, to Commissioner for Motor Transport. On 1st February 1955 the defendant filed a single plea to the declaration. It is a plea by way of confession and avoidance. The material part of the plea avers that "after the commencement of this action the Parliament of the State of New South Wales passed into law an Act known as the State Transport Co-ordination (Barring of Claims and Remedies) Act 1954 and that the moneys sought to be recovered by the plaintiff in this action are moneys of the nature and character referred to in ss. 2, 3 and 4 of the said Act and that the said moneys were dealt with as in the said Act mentioned and the defendant further says that by virtue of the said Act the plaintiff's cause of action is extinguished and its right to recover the said moneys is barred." The demurrer is to this plea. (at p97)
3. The plea will be bad unless the allegations it contains afford an answer to every set of facts which would give a cause of action against the defendant in money had and received and so, if established, would support the plaintiff's declaration. What may be established to support the declaration may, however, be taken to be limited by the plaintiff's particulars and they were indorsed on the writ: see s. 24 of the Common Law Procedure Act 1899 (N.S.W.) O. XIII, r. 4 of the Supreme Court Rules. The particulars identify the sum it is sought to recover as moneys paid between 15th October 1952 and 31st May 1954 under protest by the plaintiff to the defendant for charges demanded in pursuance of the purported powers of the defendant under the State Transport (Co-ordination) Act 1931-1952. For the purpose of testing the sufficiency of the plea it is proper to suppose that the declaration will be supported, within the scope of these particulars, by a set of ultimate facts constituting a cause of action in money had and received which will be consistent with the allegations in the plea but otherwise least favourable to its validity. The plea alleges that the moneys it is sought to recover are moneys of the nature and character referred to in ss. 2, 3 and 4 of Act No. 45 of 1954 and of course it must be taken that in all respects they correspond with that description. (at p97)
4. On the footing stated the question is whether constitutionally the Act can apply to the cause of action and so bar or extinguish it. (at p97)
5. It is necessary to give, as briefly as may be, the substance of the three sections. Section 2 deals with the application of the moneys to which it relates. By s. 25 of the State Transport (Co-ordination) Act 1931-1952, called in Act No. 45 of 1954 the Principal Act, it was necessary that the amounts payable to the commissioner under s. 18 (4) and (5) and s. 37 of that Act, and fees payable for licences and permits thereunder, should be paid into the State Transport (Co-ordination) Fund. Section 26 of that Act authorized the disbursements from the Fund. What s. 2 of the Act now in question does is to provide that moneys dealt with under s. 26 shall be deemed to have been lawfully so dealt with. It is not part of the purpose of this provision to bar recovery from the persons who collected any such moneys by a person from whom they were collected if a cause of action otherwise existed in that person. The section may therefore be neglected except as supplying a description of which the plea avails itself to define, by reference, the character the moneys filled. To satisfy the description given in s. 2 the moneys must consist of sums collected received or recovered in relation to the operation of a public motor vehicle in the course of or for the purpose of inter-State trade before 16th December 1954; the moneys must have been collected etc. or purported to have been collected etc. either pursuant to s. 18 (4) and (5) or s. 37 or on the issue of a licence or permit under the Principal Act or of a document purporting to be such a licence or permit or pursuant to any condition imposed on the issue thereof. Section 18 (4) and (5) of the Principal Act deal with the imposition of a charge under a condition of a licence to carry passengers or goods; s. 37 with the imposition of a charge upon public motor vehicles operated in contravention of the Act. Section 3 (a) of Act No. 45 of 1954 is really the provision upon which the plea depends. The description of the moneys with which it deals is precisely the same as that contained in s. 2 but it provides that any and every cause of action, claim and demand whatsoever by any person whomsoever against Her Majesty or the State of New South Wales or any Minister or the Superintendent of Motor Transport or against any authority, officer or person acting or purporting to act in the execution of the Principal Act for the recovery of any of the sums of that description shall be extinguished. Section 4 so far as relevant provides that no action, suit, claim or demand shall lie or be brought or made or allowed or continued by or on behalf of any person against Her Majesty or the State of New South Wales or any Minister or the Superintendent of Motor Transport or against any authority, officer or person for the recovery of any of the sums referred to in s. 3 (a). In terms s. 3 (a) and s. 4 would cover the plaintiff's case, as it appears upon the record, and would extinguish the plaintiff's cause of action and bar the plaintiff's remedy. The question is whether to allow it this operation is consistent with the Commonwealth Constitution and more particularly with s. 92. If it is not consistent with the Constitution then, by s. 1 (3), the Act is to be read as not covering the case. On this record it must be assumed for the purpose of the demurrer that the moneys sued for were moneys collected over the plaintiff's protest from the plaintiff by the defendant in relation to the operation of the plaintiff's motor vehicles in the course of or for the purpose of inter-State trade, whether collected as under s. 18 (4) or (5) or s. 37, and that they were involuntary payments which the defendant exacted from the plaintiff colore officii under threats, express or implied, that, by seizure of the vehicles or some other means unauthorized by any valid law, he would prevent the plaintiff carrying out transactions of inter-State transportation in which the vehicles were engaged. Since, on the facts assumed, s. 92 protected the plaintiff from any such exaction or seizure or the like, the defendant was acting unlawfully and as an executive officer of the State, in violation of the freedom guaranteed by s. 92 to trade commerce and intercourse among the States. (at p99)
6. The cause of action to which the plaintiff thus became entitled is not for infringement of some right given to him by s. 92. "Juristically it is doubtless true that s. 92 does not confer private rights upon individuals: at all events so I decided in James v. The Commonwealth (1939) 62 CLR, at pp 361, 362 . It may perhaps also be true that its purpose is not the protection of the individual trader. But it assumes that without governmental interference trade, commerce and intercourse would be carried on by the people of Australia across State lines, and its purpose is to disable the governments from preventing or hampering that activity." - per Dixon J. in Bank of New South Wales v. The Commonwealth [1948] HCA 7; (1948) 76 CLR 1, at p 388 . In delivering the judgment of the Privy Council in The Commonwealth v. Bank of New South Wales (1950) AC 235; (1949) 79 CLR 497 Lord Porter said: "It is true, as has been said more than once in the High Court, that s. 92 does not create any new juristic rights, but it does give the citizen of State or Commonwealth, as the case may be, the right to ignore, and, if necessary, to call on the judicial power to help him to resist, legislative or executive action which offends against the section" (1950) AC 235, at p 305; (1949) 79 CLR, at p 635 . The plaintiff's cause of action is in this sense the consequence of s. 92, although it is given by the common law. (at p99)
7. The taking of the money from the plaintiff was not merely against his will and wrongful. It was done in opposition to the constitutional guarantee of freedom the enjoyment of which he was asserting. The statute now in question does not give him some other remedy by which he may regain the money or obtain reparation. It does not impose a limitation of time or require affirmative proof of the justice of the claim. It simply extinguishes the liability altogether, not only the liability of the officers of the State but of the State itself. The effect is to leave the plaintiff in the same position as if the exaction of the tax or charge had been lawful under the Constitution. Is it competent to the State to legislate in such a way? The answer must depend on s. 92. There is no due process clause in our Constitution. It is not a question of exceeding the limits of some affirmative power defined according to subject matter. It is a question of infringing upon a constitutional immunity. (at p100)
8. The question is not an easy one. Obviously the denial of the plaintiff's right to repayment now of the money taken from it between October 1952 and May 1954 does not amount to an interference with its present freedom to enter upon or complete a transaction of trade or commerce that is in contemplation or in course of execution. But it does bring to nought the justifiable reliance which the plaintiff placed on s. 92 when the plaintiff protested, as it must be taken to have done, against payment of the money and sought to exercise the freedom of inter-State trade assured by the Constitution. On the other hand, if the de facto situation arising at the end of 1954 from the decision of the Privy Council in Hughes & Vale Pty. Ltd. v. New South Wales (No. 1) (1954) 93 CLR 1 is looked at as a whole and from the State's point of view, it might seem reasonable to bar claims to money that had been exacted under provisions which had been administered for so long a time as valid. It was not a simple situation. The claims to the repayment of money were doubtless numerous. Only those were enforceable as a matter of legal right which were in respect of involuntary payments. Those who had paid without protest or show of resistance and under no express or implied threat or the like could not recover. If the State was to stand on legal right, this meant an inquiry and investigation in every instance. The claimants might include persons whose payments had been made years ago, at any time in fact within six years. It might well be that the carriers who actually made the payments had more or less recouped themselves by increased freights. Considerations such as these might seem to give the matter a somewhat different aspect and distinguish it from a bare attempt to legislate so as to avoid the legal consequences of offending against the Constitution. The difficulty, however, of this view of the matter is that the statute extinguishes all claims alike. It is not an attempt to clear up a difficult administrative situation or a prospect of litigation by substituting some other means of reaching an expeditious but just result. Every liability is covered which arose from the administrative enforcement of the unconstitutional provisions. In this very case the plaintiff had issued its writ long before the decision of the Privy Council. However strongly payment might have been resisted by an inter-State trader and however great may have been the threatened duress which occasioned the payment, the statute would extinguish his right. It is for this reason that it seemed important to note exactly the assumptions of fact that on the state of the record must be made for the purposes of deciding the demurrer. (at p101)
9. When s. 92 says that trade, commerce and intercourse among the States shall be free, it gives an immunity from interference by governmental action that cannot be transient or illusory. In protecting the freedom of individuals to trade across State lines it invalidates any law purporting to confer any anterior authority to stop him doing so. Can the State by its functionaries stop him without legal justification and immediately afterward confirm the Act, give it a legal justification and deny him all remedy? It seems implicit in the declaration of freedom of inter-State trade that the protection shall endure, that is to say, that if a governmental interference could not possess the justification of the anterior authority of the law because it invaded the freedom guaranteed, then it could not, as such, be given a complete ex post facto justification. By the words "as such" is meant that it cannot be given a justification ex post facto in virtue or by reason of its very nature as an interference with the freedom of inter-State trade. Yet that is what is done by the statute now in question. It takes the operation of the vehicle in the course of inter-State trade or for the purpose thereof. It takes the collection of the money under the purported authorities to which it refers, authorities pro tanto invalid because the vehicle was operating in the course of or for the purposes of inter-State trade. It assumes that a cause of action thereupon arose. On that basis it extinguishes every cause of action so arising and bars the remedy. It leaves the inter-State trader with no means of reparation and in exactly the same condition as he would occupy had there been an antecedent valid legal authority for the exaction. One of the effects of s. 92 is that legislation cannot impose a burden on inter-State trade. If the executive authority takes his money and the legislature says it may keep it, that surely amounts to a burden. It would defeat s. 92 to allow validity to such a statute. Section 3 cannot consistently with s. 92 operate to extinguish the plaintiff's supposed cause of action and s. 4 cannot operate to bar the remedy. (at p101)
10. The demurrer should be allowed. Judgment in demurrer should be given for the plaintiff. The cause should be remitted to the Supreme Court to deal with according to law consistently with this judgment. (at p101)
FULLAGAR J. In considering this case I have been very much pressed by the very exceptional circumstances which led to the enactment of the State Transport Co-ordination (Barring of Claims and Remedies) Act 1954. It is by no means a simple case of a State legislating to rid itself of a liability justly resting upon it. The moneys in question were exacted under legislation which was believed not without reason to be valid. Not only were the claims for repayment doubtless numerous, but most probably the payments were made in a great variety of circumstances. In some cases, no doubt, an action at common law for money had and received would lie, while in other cases it would not. In many cases - perhaps in most - the charges paid would in fact have been "passed on" by the carrier to his customer, so that the carrier suffered little or no real loss. On the other hand, many persons - perhaps after considerable expenditure on plant, etc. - must have been prevented or deterred altogether from carrying on a business which they were entitled to carry on, and most of these could have no redress at law. Others again had taken the risk of operating without a licence, and these (though a few may have escaped detection) had been prosecuted and punished. These again could have no redress at law. A further factor in the situation was that, although the charges actually imposed were invalid, the State could (as has now been held) have lawfully demanded some amounts by way of contribution to the maintenance of highways. In the face of a situation so complex and many-sided, it may well have seemed that to cut the knot and deny redress to all alike provided a solution which was not merely rational but, on the whole, fair enough. (at p102)
2. I have not been able, however, to find any legal principle on which the Act of 1954 can be upheld, or to see any escape from the view that it is unconstitutional. It seems to me that, in the last analysis, this case is governed by the same considerations as those which have led to the decision in Deacon v. Grimshaw Infra, p. 104. . (at p102)
3. The plaintiff's action is for money had and received. There are several elements in its cause of action, any one or more of which it may fail ultimately to establish. What the Act says is that, if it does establish all those elements, it must nevertheless fail. The right asserted is a common law right, but an essential element in the cause of action is that the moneys in question were unlawfully exacted from it. If the unlawfulness of the exaction depended upon State law, the State could, of course, by statute make the exaction retrospectively lawful, or abolish the common law remedy in respect of the exaction. But the unlawfulness of the exaction does not depend upon State law. It depends on the Constitution. No State law can make lawful, either prospectively or retrospectively, that which the Constitution says is unlawful. And that is what s. 3 of the Act of 1954 in substance purports to do, when it says that every cause of action arising out of an exaction made unlawful by the Constitution shall be "extinguished". (at p103)
4. Section 3 deals with rights, which it extinguishes. Section 4 deals with remedies, which it denies. The technical distinction between rights and remedies is well recognized in English law, and is sometimes of practical importance. But I do not think that the distinction is of any significance here. If the Constitution preserves a common law right, it must be taken to preserve the appropriate common law remedy. If it protects a common law right against State invasion, the State cannot make that protection ineffective by denying all remedy for State invasion. (at p103)
5. So far as the State itself is concerned, it might be said that the State is sovereign within its own territory, and that no remedy can be pursued against it in the courts without its consent. As a general rule this is, of course, true, but, within the limited class of case to which s. 58 of the Judiciary Act 1903-1950 applies, the position is governed by that section, which is an exercise of the power given by s. 78 of the Constitution. A claim for repayment of moneys alleged to have been exacted in contravention of s. 92 is a matter arising under the Constitution or involving its interpretation. It is also a "claim in contract" within the meaning of s. 58: see Lorimer v. The Queen (1862) 1 W & W (L) 244 ; Daly v. Victoria (1920) 28 CLR 395, at p 399 . It seems to me that the general power of a State to say whether a remedy may be pursued against it in the courts or not is limited by s. 58, and, so far as such claims are concerned, is taken away. So far, therefore, as the State itself is concerned, s. 4 of the Act of 1954 is inconsistent with a paramount law of the Commonwealth. (at p103)
6. I would add only one observation. If the Act did no more than limit the remedy, while leaving practically effective redress open to the plaintiff, I am disposed to think that it would not be inconsistent with the Constitution. It might, for example, provide that no person other than the State should be liable, or that all questions of liability should be determined by a special tribunal: cf. Burrill v. Locomobile Co. [1922] USSC 14; (1922) 258 US 34 (66 Law Ed 450) ; Anniston Manufacturing Co. v. Davis [1937] USSC 101; (1937) 301 US 337 (81 Law Ed 1143) . But s. 4 simply takes away all remedies against anybody, and no severance or reading down seems to me to be possible. (at p103)
7. I agree with the order proposed. (at p103)
Deacon v. Grimshaw. (at p104)
DIXON C.J. AND McTIERNAN J. This case comes before us on materials that are
not very satisfactory. But in substance its purpose
is to obtain a decision
upon the operation of s. 3 (b) of the State Transport Co-ordination (Barring
of Claims and Remedies) Act
1954 (N.S.W.) (No. 45 of 1954) of New South Wales
to bar a claim in tort, the tort consisting in the seizure of the plaintiff's
motor
vehicle because it was proceeding in the course of inter-State trade in
disregard of the provisions of the State Transport Co-ordination
Act 1931-1952
(N.S.W.). The reasons given in relation to s. 3 (a) of Act No. 45 of 1954 in
Antill Ranger & Co. Pty. Ltd. v. Commissioner
for Motor Transport and Edmund
T. Lennon Pty. Ltd. v. New South Wales, cases which were argued with the
present case, are applicable
to s. 3 (b) which cannot constitutionally avail
as a defence to such a claim. It is unnecessary to repeat what has been said
in the
judgments in those cases. (at p104)
2. We have had the advantage of reading the judgment prepared by Fullagar J. and we agree in the reasons his Honour has given. (at p104)
3. The question in the special case should be answered - No. (at p104)
WILLIAMS J. I agree with the reasons for judgment of Fullagar J. and with the proposed order. (at p104)
WEBB J. I would answer the question in the case "No" for the reasons given by Fullagar J. whose judgment I have had the advantage of perusing; and also for the reasons given in the joint judgment in Antill Ranger & Co. Pty. Ltd. v. Commissioner for Motor Transport (1955) 93 CLR 96 . (at p104)
FULLAGAR J. This case comes before the Full Court on an agreed statement of facts in an action commenced in the Court on 30th June 1952. The plaintiff is a resident of Victoria, and the defendant a resident of New South Wales, and the jurisdiction to entertain the action arises under s. 75 (iv.) of the Constitution. The plaintiff's claim arises out of an alleged trespass to chattels, and the question to be decided is whether the provisions of s. 3 (b) of the State Transport Co-ordination (Barring of claims and Remedies) Act 1954 (N.S.W.) afford a defence to the action. (at p104)
2. The plaintiff was at all material times the owner of a certain motor vehicle, which is described as a "refrigerated pantechnicon". On 12th June 1952 this vehicle, carrying a load of twelve tons of margarine, and driven by a servant of the plaintiff, left Sydney for Melbourne. The plaintiff held no licence or permit under the State Transport (Co-ordination) Act 1931-1952 (N.S.W.) in respect of the vehicle or in respect of its journey. On the assumption, therefore, that that Act was a valid enactment in so far as it applied in terms to inter-State commerce, both the plaintiff and his driver were committing offences under ss. 12 and 28 thereof. Section 47 (2) of the Act provides that an authorized officer may seize any motor vehicle in respect of which he suspects that an offence has been or is being committed against the Act, and may "detain the same pending investigation and legal proceedings". The defendant was an "authorized officer" within the meaning of s. 47, and it may be assumed that he suspected in fact that an offence was being committed. When the plaintiff's vehicle reached Goulburn, he seized and detained it with its load of margarine. On 20th June the margarine was released and carried to Melbourne by another vehicle, but the vehicle which had been seized was detained until 2nd July. In the meantime this action had been commenced, and notice of motion for an interlocutory injunction had, by leave of a Justice, been served on the defendant with the writ. On the release of the vehicle the notice of motion was struck out. (at p105)
3. On 17th November 1954 in Hughes & Vale v. New South Wales (No. 1) (1954) 93 CLR 1 the Privy Council, reversing the decision of a majority of this Court, held that certain provisions of the State Transport (Co-ordination) Act 1931-1952 were invalid is so far as they purported to apply to persons or vehicles engaged in inter-State commerce. On 16th December 1954 the State Transport Co-ordination (Barring of Claims and Remedies) Act 1954 came into force. Section 3 of this Act, so far as material, provides that any and every cause of action by any person against any person acting or purporting to act in the execution of the Principal Act . . . (b) for or in respect of any act matter or thing done or purporting to have been done by any person in the execution of the Principal Act in relation to the operation of any public motor vehicle in the course of or for the purposes of inter-State trade shall be extinguished. The defence in the action had been delivered on 22nd August 1952, but, after the passing of the Act of 1954, it was amended by consent so as to include a paragraph whereby the defendant relies on s. 3 (b) of that Act. (at p105)
4. The pleadings in the action do not follow the course which one would have expected, and it seems to me to be necessary - or at least desirable - to begin by looking at the case apart altogether from the Act of 1954, and treating it as if it had been correctly pleaded and the action had taken its normal course in the absence of that Act. The plaintiff's claim is for infringement of a common law right, and he shows a prima facie cause of action if he alleges that his goods have been seized and detained. The plea to that claim is by way of confession and avoidance: the physical acts are admitted, but they are justified by reference to s. 47 (2) of the Transport Act. It is necessary for the defendant in his plea to allege (1) that he was an authorized officer within the meaning of s. 47 (2) of the Act, (2) that he suspected that an offence against the Act was being committed by the plaintiff or his driver, and (3) that the detention was made "pending investigation and legal proceedings". The plaintiff may then, by his replication, traverse the three allegations of fact contained in the plea, and he will in any case allege that the vehicle at the relevant time was engaged exclusively in inter-State trade. To this last plea the defendant will demur on the ground that it affords no answer to the defence based on s. 47 (2). We may suppose the next step to be that the demurrer is set down for argument. (at p106)
5. It seems to me that the demurrer must raise a question of considerable difficulty. It is clear that s. 47 (2) is not wholly invalid, but it is equally clear that s. 92 of the Constitution, as interpreted in the Hughes & Vale Case (No. 1) (1954) 93 clr 1 requires s. 47 (2) to be "read down" in some way in accordance with s. 1 (3) (a) of the Act. But to what extent and in what way is its valid operation to be curtailed? It must receive the maximum effect permitted by the Constitution. It seems to me that two possible qualifications may be read into it with a view to defining its constitutional effect. In the first place, it may be said that it is quite consistent with the decision in the Hughes & Vale Case (No. 1) (1954) 93 CLR 1 that an official should be empowered to intercept and seize a vehicle - even a vehicle in fact engaged at the time exclusively in inter-State commerce - and detain it until it can be ascertained whether an offence against the Act is being committed in respect of it. The substantive provisions of the Act are valid so far as they apply to intra-State carriage. It may be said that the power of the State Parliament extends to the prevention and detection, as well as to the punishment, of offences validly created, and that a general power of seizure and detention provides the only practicable means of prevention and detection. On this view the qualification required by s. 3 (2) would have to be attached to the words "offence against this Act" in s. 47 (2), and those words would have to be read as meaning "offence created by this Act and committed otherwise than in the course of inter-State commerce." If the view that this is the only qualification to be imposed in order to satisfy s. 92 were accepted, it seems to me that the demurrer should be allowed and, if the allegations of fact in the defence have been traversed, the action will proceed to trial on the issues thus raised. It would be necessary then for the defendant to prove that he "suspected" that the vehicle was concerned in the commission of an offence constituted by some act done otherwise than in the course of inter-State trade. If it appeared that he knew that the vehicle was at the relevant time engaged exclusively in inter-State carriage, he would fail in his proof. (at p107)
6. The alternative view is that s. 92 requires a further qualification of the literal terms of s. 47 (2) of the Act, and that a power to seize and detain pending investigation and legal proceedings cannot be validly given in respect of any vehicle in fact engaged at the time of seizure in inter-State carriage. This view is, in my opinion, the correct view. Although the maximum operation of s. 47 (2) consistent with s. 92 must be permitted, yet no operation of it can be permitted which has the effect of authorizing a real interference with the freedom of any person to engage in inter-State commerce. And it is difficult to imagine a clearer interference with that freedom than the actual seizure and detention for an indefinite period of a vehicle in fact engaged at the time of seizure exclusively in the carriage of goods or passengers from a place in one State to a place in another State. A statute of a State cannot, in my opinion, validly authorize such an interference. As Lord Atkin said in James v. Cowan (1932) AC 542, at p 558; [1932] HCA 21; (1932) 47 CLR 386, at p 396 the Constitution is not to be mocked by substituting executive for legislative interference with freedom. The fact that the seizure and detention are authorized only on condition that a suspicion is entertained cannot alter the character of what is done. It does not follow that the State is deprived of all power of effectively "policing" the Act so far as it validly operates. On this view of the extent of the valid operation of s. 47 (2) the demurrer must be overruled, and, unless the facts alleged in the replication have been traversed, that is the end of the matter, and the plaintiff has only to prove his damages. (at p107)
7. So far the matter has been considered apart altogether from s. 3 (b) of the Act of 1954. It has seemed desirable so to consider it, because only by so doing can the true nature of the plaintiff's cause of action, and the true effect of that sub-section, be fully understood. What is brought out is that the plaintiff's success in the action depends on s. 92 of the Constitution. It is quite true, as counsel for the defendant urged, that s. 92 does not itself provide his cause of action: what he primarily asserts is not a constitutional or statutory right but a common law right. But the successful assertion of the right depends on s. 92. It is because, and only because, s. 92 destroys an otherwise perfectly good statutory defence that the common law right subsists so that effect must be given to it in the courts. It subsists and is effective because, and only because, s. 92 says that in the particular case it shall subsist and be effective. The plaintiff's cause of action may not arise from s. 92, but it is saved and preserved by s. 92. (at p108)
8. This is the situation into which s. 3 (b) of the Act of 1954 steps, and, when once the nature of that situation is appreciated, it appears to me impossible to maintain that that sub-section affords a valid defence to the action. It says simply that the plaintiff's cause of action shall be extinguished. That means that a cause of action, which subsists and is effective because of the operation of s. 92, is no longer to subsist or be effective. This is to contradict s. 92. Section 3 (b) attempts, in effect, to do exactly the same thing as s. 47 (2) attempted to do. Section 47 (2) purported to provide prospectively a statutory defence to an action for trespass and detention of chattels. The defence fails because the trespass and detention infringe the freedom of inter-State commerce, which s. 92 preserves. Section 3 (b) purports to substitute ex post facto another statutory defence. This other defence must fail for the same reason. No State statute can justify either prospectively or ex post facto an act which is at once a wrong at common law and an invasion of an immunity given by the Constitution. (at p108)
9. It was urged for the defendant that s. 3 (b) of the Act of 1954 had no relation to inter-State commerce and could not be said to restrict, impede or burden, any activity possessing the character of inter-State commerce. In a sense this is, of course, true: the sub-section has no prospective operation at all. But it is none the less, in my opinion, inconsistent with s. 92. For its direct effect is seen, when the position is analysed, to be to deprive persons, who were in the past engaged in inter-State commerce, of the protection of s. 92, which they would otherwise be entitled to invoke for their inter-State commercial activities. (at p108)
10. The question submitted to this Court is whether par. 11 of the amended defence (which relies on s. 3 (b) of the Act of 1954) affords any defence to the plaintiff's claim in his action. This question should, in my opinion, be answered: No. (at p108)
KITTO J. I entirely agree in the conclusion of my brother Fullagar and in his reasons. (at p109)
2. In my opinion the argument addressed to us in support of the validity of s. 3 of the State Transport Co-ordination (Barring of Claims and Remedies) Act 1954 (N.S.W.) can hardly be regarded as much more than playing with words. No doubt it is often said, and with a sufficient approximation to accuracy for many occasions, that s. 92 denies operation to such laws only as directly obstruct, restrict, impede or burden inter-State trade, commerce or intercourse. The argument really depended upon extracting from these words and others of like import an implication that s. 92 cannot have anything to say to a law which was not in force at the time of the activity of inter-State trade, commerce or intercourse for the protection of which the section is invoked. (at p109)
3. Such an attempt to limit the operation of s. 92 overlooks the fact that the section, expressed as a grant of freedom for classes of activities, is a grant of freedom to individuals in respect of such activities. Its meaning is therefore not fully stated by saying that it removes from each transaction of inter-State trade, commerce or intercourse, at its inception, such barriers as existing laws may purport to place in its way. It is from certain effects which laws would otherwise have upon persons that the section confers immunity. If a law adversely affects a person by reference to some transaction of his of inter-State trade, commerce or intercourse or some essential ingredient of such a transaction, and if it is not of a kind the operation of which the conceptions of the section assume, the question whether it was in force at the time of the inter-State activity, or came into force thereafter and with a purported ex post facto operation, is, to my mind, beside the point. (at p109)
TAYLOR J. I agree substantially with the reasons given by Fullagar J. in
this matter. The only point upon which I am inclined to
differ from him is the
precise extent to which s. 47 (2) of the State Transport (Co-ordination) Act
1931 should, in view of the decision
of the Judicial Committee in Hughes &
Vale Pty. Ltd. v. State of New South Wales (No. 1) (1954) 93 CLR 1 , be
held
to be or to have
been operative with respect to vehicles engaged in trade or
commerce among the States. I am inclined to
think
that the first of the
alternative views expressed by him on this point is the correct one but this
difference can, in no way,
affect
the final conclusion.
Accordingly I am of
the opinion that the question raised by the case should be answered in the
negative.
Edmund
T. Lennon Proprietary
Limited v. State of New South Wales
and Others (at p110)
DIXON C.J., McTIERNAN, WILLIAMS, WEBB, KITTO AND TAYLOR JJ. The object of this action was to raise the same question as that decided in Antill Ranger & Co. Pty. Ltd. v. Commissioner for Motor Transport. The relief claimed, however, consists in declarations of right. The statement of claim has been demurred to and it is the demurrer that is before us. The pleading as it stood at the opening of the argument did not even allege that the payments made by the plaintiff were not voluntary payments and did not allege any facts sufficient to show that apart from Act No. 45 of 1954 the moneys would have been recoverable. However, the statement of claim was amended during the argument. (at p110)
2. The substance of the matter is decided in Antill Ranger & Co. Pty. Ltd. v. Commissioner of Motor Transport and really the only question that remains in this case is whether, applying the decision to this case, the allegations in the pleading suffice to enable the plaintiff to obtain some form of relief. On the whole, there seems to be enough to sustain the pleading on demurrer and to justify declarations in the following form: - Declare that s. 3 (a) of the State Transport Co-ordination (Barring of Claims and Remedies) Act 1954 does not validly operate to extinguish any cause of action to which in consequence of the invalidity or inapplicability of the State Transport (Co-ordination) Act 1931 (as amended) by reason of s. 92 of the Constitution the plaintiff was at the passing of that first-mentioned Act entitled as against any of the defendants for the recovery of moneys demanded of the plaintiff in purported pursuance of s. 18 (5) or s. 37 of the said State Transport (Co-ordination) Act 1931-1952 or of a condition imposed upon a licence or permit or demanded upon the issue of such a licence or permit. Declare that s. 4 does not validly operate to bar the remedy for the enforcement of any such cause of action. (at p110)
3. The demurrer should be overruled and such a declaration made accordingly. (at p110)
DECISION
FULLAGAR J. This action seeks in effect a declaration that if the plaintiff chooses to bring an action against the defendants, and if the defendants or any of them choose to raise a particular defence, that particular defence must fail. Apart from very special circumstances, of which there is no suggestion here, no declaration of such a character ought, in my opinion, to be made. The only proper course is to leave the plaintiff to bring its action, to which there may be found to be other defences. However, in the present case no objection that the action was misconceived was raised, and, if the demurrer is to be treated as properly raising the questions which were argued, then I am of opinion that it should be allowed for the reasons given in Antill Ranger & Co. Pty. Ltd. v. Commissioner for Motor Transport (1955) 93 CLR 96 . (at p111)2. I agree with the order proposed. (at p111)
ORDER
Antill Ranger & Company Proprietary Limited v. Commissioner of Motor Transport.case to be paid by the defendant.Edmund T. Lennon Proprietary Limited v. State of New South Wales and Others.
s. 3 (a) of the State Transport Co-ordination (BarringAntill Ranger & Company Proprietary Limited v. Commissioner of Motor Transport.
of Claims and Remedies) Act 1954 does not validly
operate to extinguish any cause of action to which in
consequence of the invalidity or inapplicability of the
State Transport (Co-ordination) Act 1931 (or that
Act as amended) by reason of s. 92 of the
Constitution
the plaintiff was at the passing of the State
Transport Co-ordination (Barring of Claims and
Remedies) Act 1954 entitled as against any of the
defendants for the recovery of moneys demanded of
the plaintiff in purported pursuance of s. 18 (5) or
s. 37 of the said State Transport (Co-ordination) Act
1931 (or that Act as amended) or of a condition
imposed upon a licence or permit or demanded upon
the issue of such a licence or permit. Declare that
s. 4 does not validly operate to bar the remedy for the
enforcement of any such cause of action.
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