Kerr v Pelly [1957] HCA 42; (1957) 97 CLR 310 (2 July 1957)

HIGH COURT OF AUSTRALIA

KERR v. PELLY [1957] HCA 42; (1957) 97 CLR 310

Vehicles - Constitutional Law (Cth.)

High Court of Australia
Dixon C.J.(1), McTiernan(2), Webb(3), Fullagar(1), Kitto(1) and Taylor(1) JJ.

CATCHWORDS

Vehicles - Road user - Weighing of vehicles and loads - Weighbridge - "Public" weighbridge - Direction - Power - Ordinance - Main Roads Act 1924-1954 (N.S.W.), s. 51 (1) (f) - Local Government Act 1919-1955 (N.S.W.), ss. 575-579 - Ordinance 30c, cll. 5, 6, 10, 11.

Constitutional Law (Cth.) - Freedom of inter-State trade, commerce or intercourse - Goods - Conveyed by motor vehicle from one State to another State - Use of State roads - Weight - Ascertainment - Direction by authorised officer - Weighbridge - "Public" - Power - Regulatory or prohibitory - The Constitution (63 & 64 Vict. c. 12), s. 92 - Main Roads Act 1924-1954 (N.S.W.), s. 51 (1) (f) - Local Government Act 1919-1955 (N.S.W.), ss. 575-579 - Ordinance 30C, cll. 5, 6, 10, 11.

HEARING

Sydney, 1957, March 27; July 2. 2:7:1957
APPEAL from a Court of Petty Sessions of New South Wales.

DECISION

July 2.
The following written judgments were delivered:
DIXON C.J., FULLAGAR, KITTO AND TAYLOR JJ. This is an appeal by the The offence of which the defendant was convicted is that created by cl. 11 of Ordinance 30C adopted by the Governor in Council under the power conferred by s. 51 of the Main Roads Act 1924-1950, aided by ss. 575-579 of the Local Government Act 1919, as amended. (at p317)

2. Clause 11 of the ordinance provides that a driver or person in charge of any vehicle shall, when called upon by any one of certain officers, proceed to a weighbridge or other weighing device and permit the inspection and weighing of such vehicle and any goods therein or thereon. The provision extends to obeying signals to stop and certain other directions. (at p317)

3. The facts constituting an offence under cl. 11 were established against the defendant but his answer was that he was engaged in inter-State trade commerce and intercourse and was therefore outside the scope of the regulation. It is not necessary to consider this contention in detail. It is enough to say that the argument by which it was supported fell into two parts. One part dwelt upon the possibility of the abuse of the power given by cl. 11 by frequent directions at various points on an inter-State journey which would in the aggregate constitute a serious impairment of the inter-State transaction. To this particular argument it is enough to say that if such a use of the power were made in any given case it would amount to an interference with trade commerce and intercourse which would be void; but the possibility of an attempt being made to use the authority conferred by cl. 11 for such a purpose does not itself invalidate the authority: see Wilcox Moffin Ltd. v. State of New South Wales [1952] HCA 17; (1952) 85 CLR 488, at p 522 . (at p318)

4. The main part of the argument, however, under s. 92 was that cl. 11 forms part of a general regulation of the use of inter-State vehicles in carrying loads of goods which is calculated to interfere with the freedom assured by s. 92. This is not an occasion to discuss or decide generally the validity of such a regulation of traffic as is contained in an ordinance of the character of that now in question namely No. 30C, for, as will appear, there are reasons arising under the terms of the power conferred by State law which entitle the defendant to succeed before any consideration of s. 92 is reached. But it is proper to say that in the argument that was presented to us no considerations were brought forward which would warrant the conclusion that the regulations connected with cl. 11 (1) were void under s. 92. The reasons why the prosecution must fail as a matter of State law are of a commonplace and unimportant kind, depending as they do on nothing but a failure to frame the clause in accordance with the subordinate power under which it was adopted. But as the defendant relied on the point, and it seems a good one, we must give effect to it. Clause 11 (1) refers to a weighbridge or other weighing device. The power under which the clause is made part of the ordinance is restricted to requiring a vehicle to proceed to a public weighbridge. The power is contained in s. 51 (1) (f) of the Main Roads Act 1924-1954. So far as material that power is as follows: - "Upon the recommendation of the (Main Roads) board, ordinances may be made under the Local Government Act . . . for carrying this Act into effect, and in particular for and with respect to . . . (f) the weighing of vehicles and loads, the estimation of weight according to a prescribed scale for various classes of goods, the requiring of vehicles and loads to be taken to a public weighbridge for weighing, and the marking of weight on the vehicles." The presence in this power of the words "the requiring of vehicles and loads to be taken to a public weigh-bridge for weighing" makes it impossible to construe the expression in the earlier part of par. (f), which refers generally to the weighing of vehicles and loads, as in itself authorising a clause which requires vehicles to be taken to a weighbridge that is not a public weigh-bridge or to be taken to another weighing appliance. (at p319)

5. Section 18 of the Interpretation Act of 1897 provides that where an Act confers power to make, grant or issue certain instructions, including ordinances, the expressions used in any such instrument shall, unless the contrary intention appears, have the same meanings respectively as in the Act conferring the power. Unfortunately the expressions in the power contained in the Act and in cl. 11 of the ordinance are not the same. The power refers to a public weighbridge and the clause of the ordinance refers to a weighbridge or other weighing appliance. It seems to be an unavoidable conclusion that so much of cl. 11 as relates to weighbridges and weighing appliances goes beyond the power and accordingly cannot be supported. It may be added that the power of municipal councils to establish a public weighbridge is contained in s. 480 of the Local Government Act, and the meaning of the expression in s. 51 of the Main Roads Act is not open to doubt. (at p319)

6. It follows that the prosecution must fail on this ground. Because s. 92 of the Constitution was relied upon, the matter became one within the federal jurisdiction of the magistrate. An appeal lies to this Court accordingly under s. 39 (2) (b) of the Judiciary Act 1903-1955. Once the appeal is here it must be decided according to law, whether State or federal law. It is therefore necessary on the grounds stated to allow the appeal and set aside the conviction. (at p319)

McTIERNAN J. I would dismiss this appeal. I am of opinion that it is not beyond the power to make ordinances which is given by s. 51 of the Main Roads Act 1924-1954 to provide, as in Ordinance 30C, cl. 11 (1), that the driver or person in charge of a vehicle shall comply with an order "to proceed to a weighbridge or other weighing device". There is power conferred by par. (f) of s. 51 (1) of the Main Roads Act 1924-1954 to make ordinances for and with respect to the weighing of vehicles and loads. That grant of power contemplates weighing by "a weighbridge or other weighing device". Such weighbridge or weighing device may be "public" or not. This power to make ordinances with respect to "the weighing of vehicles and loads" extends to creating, by ordinance, the obligation of driving to any weighbridge or other weighing device in order that the vehicle and load may be weighed. To the power to make ordinances with respect to the weighing of vehicles and loads, s. 51 (1) (f) adds the power to make ordinances with respect to "the requiring of vehicles and loads to be taken to a public weighbridge for weighing". Under this power, an ordinance may be made creating an obligation for the vehicle to be taken to a "public weighbridge", and to no other weighbridge. This power is not exercised by Ordinance 30C, cl. 11 (1) . The ordinance-making authority has seen fit to make an ordinance authorising an officer, competent under cl. 11 (1) , to direct the vehicle to proceed to any weighbridge or weighing device, whether public or private. This conclusion is in accordance with the decision of Collins J. in Ex parte Cullen; Re Pelly (1956) 2 LGRA 31 . (at p320)

2. Sub-section 4 of s. 51, inserted therein by s. 20 of Act No. 40 of 1936, would appear to proceed upon the footing that the provision, with which this case is concerned, of cl. 11 (1) of Ordinance 30C was valid. Sub-section 4 involves legislative ratification of the provision, if ratification were necessary. (at p320)

3. I agree that there is nothing in cl. 11 (1) of the ordinance contrary to s. 92 of the Constitution. (at p320)

WEBB J. This is an appeal from the judgment of a court of petty sessions in Sydney given on 20th October 1956 whereby the appellant was convicted that on 18th June 1955 at Muswellbrook in New South Wales he being the driver in charge of a motor vehicle upon a main road did fail to comply with a direction given by a duly authorised servant of the Commissioner for Main Roads to proceed to a weighbridge, and was fined 5 pounds. The complaint was made under Ordinance 30C made under the Main Roads Act 1924- 1954 and also under the Local Government Act 1919. Section 51 (1) of the Main Roads Act provides as follows: - "51. (1) Upon the recommendation of the board, ordinances may be made under the Local Government Act, 1919, but subject to the Metropolitan Traffic Act, 1900, for carrying this Act into effect, and in particular for and with respect to - (a) the preservation of trees and vegetation on main roads; (b) the prevention of damage to main roads; (c) the prevention of the doing of things likely to injure main roads; (d) the regulation of the weight of vehicles using main roads and the loads on such vehicles; (e) the regulation of the use of vehicles likely to injure main roads; (f) the weighing of vehicles and loads, the estimation of weight according to a prescribed scale for various classes of goods, the requiring of vehicles and loads to be taken to a public weighbridge for weighing, and the marking of weight on the vehicles; and (g) the restriction of traffic or of any specified class of traffic to protect main roads from injury." (at p321)

2. Then the power to make regulations requiring vehicles and loads to be taken to a weighbridge for weighing is confined to a public weighbridge. If par. (f) of sub-s. (1) of s. 51 did not contain the words "the requiring of vehicles and loads to be taken to a public weighbridge, for weighing" there would have been power to make cll. 10 and 11 which are not confined to public weighbridges. However, the legislature, having directed its mind to the question under what conditions vehicles should be taken to a weighbridge, confined the requirement to a public weighbridge. It follows, I think, that we should not hold there was power under the opening words of par. (f) namely "the weighing of vehicles and loads" to make such a regulation as cll. 10 and 11. Support for this view is found in the decision of this Court in R. v. Wallis [1949] HCA 30; (1949) 78 CLR 529 and more particularly in the judgment of Dixon J. (1949) 78 CLR, at pp 549, 550 . See also British Medical Association v. The Commonwealth [1949] HCA 44; (1949) 79 CLR 201, at p 292 . (at p321)

3. I think then that cll. 10 (1) (b) and 11 (1) are ultra vires. (at p321)

4. The regulations were also attacked as being prohibitory of inter-State trade and contrary to s. 92 in that as regards cll. 10 and 11 they authorised the stoppage among other things of inter-State vehicles and the directing of the driver to proceed up to three miles in any direction to a weighbridge. It is not now necessary to decide this point; but I would not be prepared to hold that such a provision, which is directed to ensuring the maintenance and safety of roads and bridges, is invalid or inapplicable to inter-State traders because of the inconvenience to which they might necessarily be put. Indeed it seems to me that such provision is essential for the proper conduct of trade, whether intra-State or inter-State. It is an example of what is clearly permissible according to the Privy Council in Hughes & Vale Pty. Ltd. v. State of New South Wales (No. 1) (1955) 93 CLR 1, at p 24 , where their Lordships agree with Fullagar J. that the limiting of the weight of loads on public highways, like the rule of the road, is something that nobody would doubt as being generally applicable without infringing s. 92 and that in such matters of regulation a very wide range of discretion must be attributed to the legislative body. (at p322)

5. I would quash the conviction. (at p322)

ORDER

Appeal allowed with costs. Conviction of the defendant-appellant quashed.