Gilbert v Commissioner for Government Transport [1960] HCA 34; (1960) 103 CLR 1 (9 June 1960)

HIGH COURT OF AUSTRALIA

GILBERT v. COMMISSIONER FOR GOVERNMENT TRANSPORT [1960] HCA 34; (1960) 103 CLR 1

Transport (N.S.W.)

High Court of Australia
McTiernan(1), Kitto(2) and Windeyer(3) JJ.

CATCHWORDS

Transport (N.S.W.) - Licence to motor omnibus proprietor to conduct service - Right of Commissioner for Government Transport to conduct service traversing same route - Transport Act 1930-1956 (N.S.W.), ss. 13 (3), 158.

HEARING

Sydney, 1960, May 9, 10;
Melbourne, 1960, June 9. 9:6:1960
APPEAL from the Supreme Court of New South Wales.

DECISION

June 9.
The following written judgments were delivered:
McTIERNAN J. This appeal is brought from a decree dismissing a suit for an Wales in its equitable jurisdiction. (at p3)

2. The appellants, a firm of motor omnibus proprietors, were conducting a motor omnibus service in accordance with a service licence which had been issued to them by the Commissioner for Motor Transport pursuant to the Transport Act (N.S.W.) 1930-1956. The route for which this licence was issued was No. 205. It started at Ryde and had termini at North Ryde, Fuller's Bridge, Gladesville and St. Charles' School, Ryde. The appellants operated their omnibuses between Ryde and those termini respectively, on roads which were mentioned in the licence. The roads between Ryde and North Ryde connected Victoria Road and Epping Road. These two roads were highways from Ryde and North Ryde respectively to the city. Besides providing a connexion between these highways the appellants' omnibuses picked up and set down passengers on journeys between them. While the appellants' service licence was current the respondent established new omnibus services between Ryde and the city and North Ryde and the city. The route of each of these services between Ryde and North Ryde was practically the same as the part of route No. 205 between those places. The longest parts of the routes of the new services were from Ryde via Victoria Road towards the city and from North Ryde via Epping Road to the city, but the journeys made by the omnibuses operating the new services were continuous to the city via Ryde or North Ryde. The respondent's omnibuses not only provided a service connecting Ryde and North Ryde but they also picked up and set down passengers between those places as did the appellants' omnibuses. The timetables were different but to a very large extent the respondent's new services duplicated the service which the appellants were providing by route No. 205 between Ryde and North Ryde. The appellants alleged in the suit that the respondent was "operating" route No. 205. They challenged the right of the respondent to do this on the ground that the Commissioner for Motor Transport had not determined pursuant to s. 158 of the Act that the route should in the public interest be operated by the respondent. The substantial contention made on their behalf was that in the absence of such a determination the respondent could not lawfully operate his omnibuses on the roads between Ryde and North Ryde which they were using in the course of carrying on the new services. Most of the passengers carried by the appellants' omnibuses on route No. 205 were picked up and set down on those roads. In consequence of the duplication of transport services the number of passengers using the appellants' omnibuses operating on route No. 205 decreased and the appellants' service licence for the route became less valuable. (at p4)

3. The appellants sought an injunction for the purpose of restraining the respondent from operating any omnibuses for the carriage of passengers on route 205 unless or until the Commissioner for Motor Transport determined that route No. 205 should be operated in the public interest. (at p4)

4. It should be observed that by a series of Acts, which Sugerman J. mentioned, the powers originally conferred by the Transport Act upon a Trust were divided between the Commissioner for Motor Transport and the Commissioner for Government Transport. The powers which devolved upon the former Commissioner included control of privately-owned motor omnibus services by means of the licensing provisions of the Act, and the regulation of the routes of such services including discontinuance of routes. On the Commissioner for Government Transport devolved the power which s. 13 (3) conferred upon a Trust to establish and conduct motor omnibus services. (at p4)

5. The power which the Commissioner for Government Transport has under s. 13 (3) may be lawfully exercised without a licence issued under the Act. He has a discretion under s. 13 (3) to select the route on which he proposes to establish and conduct a motor omnibus service. However, as mentioned above, it was contended for the appellants that the Commissioner for Government Transport cannot lawfully select a route on which a privately-owned omnibus service is being conducted pursuant to a service licence issued under the Act, if the Commissioner for Motor Transport has not determined that the route should in the public interest be operated by the former Commissioner. This contention was based upon the inclusion in s. 158 of provisions of a compensatory nature which take effect upon the cancellation by the Commissioner for Motor Transport of a service licence. It is a condition precedent to the power given by the section to that Commissioner to cancel a service licence, that he has determined either that the route specified in the licence should be discontinued, or that it should be operated in the public interest by the Commissioner for Government Transport. It was contended for the appellants that if a publicly-owned omnibus service were established to compete with a privately-owned omnibus service, the service licence pursuant to which the latter was being conducted may become of little value and it should therefore be presumed that the Act does not contemplate that the power of the Commissioner for Government Transport under s. 13 (3) should extend to authorize him to conduct an omnibus service on a route specified as a service licence, unless the Commissioner for Motor Transport has made one or other of the determinations contemplated by s. 158 leading to the cancellation of the service licence and bringing into operation the compensatory provisions of the section. The difficulties in accepting the contention for the appellant are, I think, insurmountable, notwithstanding the presumption upon which the appellants rightly relied, that the legislature does not intend to take away vested rights without compensation. There are indeed, as has been mentioned, compensatory provisions in s. 158, but these do not extend to the purely hypothetical case by which the appellants sought to reinforce their contention that the respondent committed an excess of his statutory power under s. 13 (3) to operate motor omnibuses. That power is subject only to one express limitation, which is imposed by s. 13 (6). It is that the power must be exercised consistently with s. 12. The latter section contains standards which are hardly susceptible of judicial application but, in any case, there is no evidence which would justify a finding that the respondent did not take into account or that he did violate, those standards or any other principles in the Act, in selecting the same roads as in route No. 205 as a part of the route of his new services to the city. (at p5)

6. Section 158 does not appear to me to have any logical connexion with s. 13 (3) as a restriction upon that power. I think that s. 158 rather fits into the scheme of the Act limiting the life of a licence to a period of twelve months and enabling the holder of the licence to apply before it expires to the Commissioner for Motor Transport for a new licence. He had to determine the application upon principles which are contained in sub-s. (3), (4) and (5) of s. 137, and it could properly follow from those provisions that the application for the renewal of the licence would be refused. I think that when such an application was being considered, the occasion could arise for the Commissioner for Motor Transport to make one or other of the determinations contemplated by s. 158 with a view to the cancellation of the licence so that the compensatory provisions of s. 158 may take effect. I think that the determinations contemplated by s. 158 are, so to speak, not to come "out of the blue". (at p6)

7. The convenience of the public may reasonably justify, having regard to principles contained in the Act, that more than one omnibus service should run over the roads included in an existing service licence, even though such roads are the major part of the route in respect of which the service licence has been issued. There is nothing in the Act to preclude the possibility that the additional service would be one established and conducted by the Commissioner for Government Transport. There is evidence in the case that the operation of the respondent's new services on the roads included in route No. 205 between Ryde and North Ryde, while duplicating the appellants' services nevertheless increased the facilities for the transport of passengers without violating any of the standards laid down in s. 12 of the Act. The power of the Commissioner for Motor Transport to establish and conduct a motor omnibus service on a route or any part of a route specified in a service licence does not arise from a determination under s. 158. Such a determination by the Commissioner for Motor Transport, if such determination be the one, that the route or part of the route be operated by the Commissioner for Government Transport, merely calls for the exercise by that Commissioner of a power which resides in him by virtue of s. 13 (3). The result of such a determination by the Commissioner for Motor Transport is that the service licence for the route may be cancelled by him but the exercise of the power of the Commissioner for Government Transport on his own initiative would not operate as a condition precedent to the exercise of the other Commissioner's power to cancel a service licence. Moreover, it is clear from s. 136 (3) of the Act that the grant of a service licence does not result in the holder of the licence having a monopoly extending to the route. But it was contended for the appellants that by reason of implications arising from s. 158, that s. 136 (3), which denies the monopoly, only operates vis-a-vis the holder of a service licence for the route and an applicant for another service licence to carry on a motor omnibus service on the route, but not vis-a-vis the holder of the existing service licence and the Commissioner for Government Transport. I cannot agree that there is any justification found in the Act for implying any such limitation upon s. 136 (3). Section 136 (4) takes away from the holder of a service licence any right to the continuance of any benefits which might arise as a matter of implication from the grant of a service licence under the Act, except to the extent provided in s. 158. But any right arising under this section is dependent upon the cancellation of the licence in accordance with the provisions of the section. In the result I think that the challenge made by the appellants to the respondent's right to conduct his new services to the city on the road between Ryde and North Ryde included in route No. 205, should fail. In any case, I should not be prepared to hold, having regard to the total extent of the routes of the new services and their city termini and the areas through which the routes pass, that the respondent's omnibuses were, in fact, "operating the route", which is the subject of the appellants' service licence referred to. It follows that there was no unlawful encroachment on or usurpation of route No. 205, and the foundation which the appellants urged to support their claim for an injunction was without any substance. It is unnecessary to consider the question whether, if the respondent was exceeding his statutory powers as alleged, the remedy of injunction would lie. In my opinion the appeal should be dismissed. (at p7)

KITTO J. This appeal depends upon the construction of s. 158 of the Transport Act 1930 (N.S.W.). The appellants hold a current motor omnibus service licence issued under Pt. XIII of that Act. The licence makes it lawful for them to carry on within the Sydney Metropolitan Transport District a motor omnibus service in accordance with the Act and regulations and in conformity with the terms and conditions of the licence (s. 135). One of the conditions of the licence is that the route to be traversed and the timetable to be observed shall be as expressed in certain schedules. Schedule A, headed "Route", specifies a route which may be referred to as the main route, and certain extensions or deviations to be followed on occasions. The main route runs from Ryde to North Ryde, and provides a cross-country link between two generally parallel routes along which the respondent conducts omnibus services, namely a route from the city to Ryde and a route from the city through North Ryde to Epping. Schedule B is the timetable, and it shows when the extensions and deviations apply. The appellants are carrying on a motor omnibus service in accordance with the licence, and derive profits from so doing. (at p8)

2. The respondent, having authority by force of s. 13 (3) of the Act to establish and conduct a motor omnibus service upon any route within the district, has recently commenced to run some of its omnibuses, when they have travelled from the city to Ryde, across country to join the Epping-city route, and to run some of its omnibuses, when they have travelled from the city to North Ryde, across country in the reverse direction to join the Rydecity route. The cross-country course which these omnibuses follow coincides with a large part of the appellants' main route; and the respondent's omnibuses which follow it stop to pick up and set down passengers at places almost if not exactly the same as the stopping places used by the appellants. The case, in the view which I take of it, may be considered as if the appellants' licence related only to a fixed route, and the course newly adopted by the respondent's omnibuses followed precisely the whole of that route. (at p8)

3. The appellants, complaining that their business was adversely affected by the competition of the respondent's omnibuses along their route, instituted a suit in the Supreme Court of New South Wales in its equitable jurisdiction, claiming an injunction restraining the respondent from "operating over" their route unless and until the Commissioner for Motor Transport should have determined pursuant to the provisions of s. 158 that the route should in the public interest be operated by the respondent and the appellants' service licence should have been cancelled. They claimed this relief upon the ground that unless and until the events mentioned should have occurred, the respondent's conduct with respect to their route was ultra vires and in breach of the provisions of the Act. The suit came before Sugerman J., who dismissed it. From the decree which his Honour made, this appeal is brought. (at p8)

4. Whether the appellants had an equity to maintain the suit is a question which has been discussed to some extent in the course of the argument, but there is no need to decide it. I turn at once to s. 158, upon which the appellants base their argument. The section is expressed to apply in either of two events. One is that "the Trust" determines that a route in respect of which a service licence has been granted should be discontinued, and the other is that "the Trust" determines that such route should in the public interest be operated by "the Trust". In either of these events, "the Trust" is empowered to cancel the service licence as from a date to be specified in a notice to the holder, not less than one month after the service of the notice; and thereupon a series of provisions are to have effect. These provisions may be described, broadly but sufficiently for present purposes, by saying that the holder of the service licence may either have another route assigned to him or require "the Trust" to purchase in accordance with the section his omnibuses and plant and the land used in connexion with the operation of his route. (at p9)

5. The expression "the Trust" is defined by s. 4 of the Act to mean, in relation to the Metropolitan Transport District, the Metropolitan Transport Trust. For this body another, called The Transport Commissioners of New South Wales, was substituted by the Act No. 3 of 1932, ss. 7 and 9 (1); and later still another body, The Commissioner for Road Transport and Tramways, took its place by virtue of the Act No. 31 of 1932, s. 5 (3). In 1952, by the Transport (Division of Functions) Amendment Act 1952 (No. 15 of 1952), the functions under the Transport Act 1930 which had vested successively in the bodies mentioned were divided between two newly-created bodies. Having regard to the operation of the Act No. 24 of 1952, ss. 4 and 6, and the Act No. 48 of 1954, s. 5, these bodies may be identified now as The Commissioner for Motor Transport and The Commissioner for Government Transport, the latter being the respondent to this appeal. The division of functions by the Act No. 15 of 1952 gave the respondent those powers and functions under the Transport Act 1930 which were formerly exercised by "the Trust" in respect of (inter alia) motor omnibus services not privately-owned (see s. 4 (3)); and it gave the body now called The Commissioner for Motor Transport the residue of the powers and functions of "the Trust" (see s. 3). These included, by virtue of s. 134 of the Transport Act 1930, the control of the running of privately-owned motor omnibus engaged on passenger transport in the district, and in particular (a) the grant, alteration or closing of any route for a motor omnibus service and (b) the cancelling or suspending of such a service, and, by virtue of s. 135, the issue of motor omnibus service licences. The regulation of privately-owned passenger transport upon any route is entirely within the discretion of the Commissioner for Motor Transport: s. 136 (2). In addition to the provisions dealing generally with the division of functions in the way that has been described, the Act No. 15 of 1952 contained, in s. 18, provisions dealing specifically with the division of functions in relation to a group of sections which include s. 158. By reason of those provisions, s. 158 must be read now as if it began thus: "If The Commissioner for Motor Transport determines that a route in respect of which a service licence has been granted should be discontinued, or that such route should in the public interest be operated by The Commissioner for Government Transport, The Commissioner for Motor Transport may cancel the service licence issued as from a date to be specified in a notice to the holder, not less than one month after the service of the notice, and thereupon the following provisions shall have effect: - . . .". (at p10)

6. In the section as thus read, the appellants contend that there is an implication to the effect that the respondent shall not operate a route in respect of which a motor omnibus service licence is in force, unless the Commissioner for Motor Transport first makes one or other of the determinations referred to in s. 158 and cancels the licence pursuant to that section, thus bringing into effect the provisions entitling the licence-holder either to have another route assigned to him or to have his omnibuses and plant and the land used in connexion with his route purchased by the respondent in accordance with the section. The proposition, as so stated, may be accepted for the purposes of this appeal. But in order to derive assistance from the implication thus assumed to exist, the appellants must say, and they do say, that their "route" is "operated" by the respondent when his omnibuses traverse it as they now do and pick up and set down passengers at the stopping places along it. The argument presented for them rests upon special meanings which it attributes to the words "route" and "operated" respectively. The contention as regards "route" is that although in some places in the Act it means a physical track to be followed by omnibuses, in s. 158 it means an omnibus service; and that, it is said, is a composite notion embracing not only the track to be followed but also the timetable, the fares, and all other matters prescribed by the conditions of the licence. Then, as regards "operated", it is submitted that the question whether a licensee's "route" is "operated" by another person is one of fact and degree the answer to which is to be found by comparing the service which that other person provides - taking into consideration the track, the timetable, the fares and so on - with the service provided under the licence, and seeing whether the former offers a sufficiently substantial degree of competition with the latter. If the comparison be made in the present case, it is said, the conclusion should be reached that the appellants' route is being operated by the respondent. (at p11)

7. In support of the interpretations replied upon, no authority in dictionary or judicial statement has been produced. What is urged is that unless the section impliedly forbids the kind of thing which the respondent is doing in relation to the appellants' route, the private omnibus operator is at the mercy of the government omnibus authority, and that the Act in various sections evinces a solicitude for the private operator with which the existence of so unprotected a situation is inconsistent. The sections referred to in this connexion are ss. 12, 134, 135, 136, 137, 139, 140, 157, 167 and 168. I need not refer to the terms of these sections, or deal with them beyond saying that they throw little or no light on the construction of s. 158. When that section is examined it becomes, I think, evident that the appellants' argument misinterprets its language, and misunderstands its purpose and effect. (at p11)

8. In the first place, the interpretation which is placed upon "route" does not accord with the ordinary English meaning of the word, and no justification for adopting it is to be found in the context. It is used without definition. The relevant meaning given in the Oxford English Dictionary is "a certain direction taken in travelling from one place to another; a regular line of travel or passage". In the case of Kelani Valley Motor Transit Co. Ltd. v. Colombo-Ratnapura Omnibus Co. Ltd. (1946) AC 338 the Privy Council interpreted the word, as used, again without definition, in a Ceylon statute in pari materia with the legislation we are considering. Having referred to a highway as the physical track along which an omnibus runs, the judgment proceeds: ". . . a 'route' appears to their Lordships to be an abstract conception of a line of travel between one terminus and another, and to be something distinct from the highway traversed . . . In their Lordships' view it is of the essence of a route for which a licence is granted that it should run from one terminus to another" (1946) AC, at p 346 . The interpretation which the appellants' argument gives to the word cannot be supported. When s. 134 empowers "the Trust" (now The Commissioner for Motor Transport) to control the running of privately-owned motor omnibuses engaged upon passenger transport, and in particular to grant, alter or close any "route" for a motor omnibus service, it seems clearly enough to be referring to nothing other than a regular or established line of travel for omnibuses plying between two termini. When one considers the other provisions in which the word occurs, of which the most important are in ss. 135, 136, 137, 138 and 157, no reason to doubt the correctness of this interpretation appears. (at p12)

9. The question which arises next is the critical question for the appellants' argument. What does s. 158 mean when it speaks of a route being "operated" by the respondent? I cannot think that there is much difficulty in understanding the word, inelegant though its use in the context may be. If a route is the line of travel established for an omnibus service between two termini, to "operate" a route must be to provide the omnibus service, that is the whole omnibus service, for that line of travel. What is referred to is the operation, that is to say the complete and not a part of the operation, of the route. So long as the appellants provided the only licensed service for the route specified in their licence, they alone operated the route. If, during the currency of their licence, a licence were to be granted for the same route to another private omnibus owner, so that the route was thenceforth served by two private lines, one could not say that the route was operated either by the appellants or by the new licensee: it would be operated by the appellants and the new licensee between them. It is in this sense, as indicating the entire serving of an omnibus route by omnibuses, that s. 158 seems clearly to be using the expression "such route should in the public interest be operated by the Trust". (at p12)

10. Only if "operated" is so understood are the provisions of the section harmonious. The first of the events which form the alternative conditions for the application of the section is a determination to abolish the route as an established line. The second, on the interpretation which I accept, is nothing less than a determination that the licence-holder should be superseded by the respondent as the operator of the route. Each determination involves the loss of the route by the licence-holder, and it is that fact which makes cancellation of the service licence the appropriate step to take in order to clear the way for the carrying of the determination into effect. If the implication which the appellants find in s. 158 had the meaning they attribute to it, the section would be not only inharmonious but absurd. It would be inharmonious, because the events upon which it is expressed to take effect would lack a common feature justifying the single consequence provided for. Although the first of those events of necessity involves the complete loss of the route by the licence-holder, the second, according to the appellants, does not necessarily involve more than his subjection to a measure of competition. If this were so, cancellation of the licence would be quite inappropriate whenever the determination of the Commissioner for Motor Transport is that the respondent should provide only a supplementary omnibus service, as, for example, a service by a few omnibuses a day in order to cope with a peak-hour demand for passenger transport which the resources of the licensee could not fully supply. And it is not too much to say that the section would be absurd, for it would mean that such a determination as has just been mentioned, though it would suffice to create one of the situations in which the section is intended to apply, could not lawfully have effect given to it. The power of the Commissioner who had decided that in the public interest the government service should supplement, while not superseding, the privately-owned service would be no other than to cancel completely the licence for the latter; and the Commissioner for Government Transport would be under a prohibition against providing any service at all for the route until that step had been taken. (at p13)

11. The view of s. 158 for which the appellants contend should in my opinion be rejected, and for substantially the same reasons as those for which Sugerman J. rejected it in the Supreme Court. I think the case made for the appellants fails, and the appeal should be dismissed. (at p13)

WINDEYER J. Section 158 of the Transport Act deals with situations when, pursuant to s. 157, it is decided that the Commissioner for Government Transport should in the public interest take over from a private omnibus owner the provision of omnibus services for a particular route. If it be decided that the Government instead of the private owner is to conduct the service for that route, the section operates. It was argued, however, that by implication it goes much further and prevents the Government conducting any omnibus service in such a way that it would regularly encroach upon a service the subject of a private licence under the Act. The Government, it was said, may not run its omnibuses on a way and in a way that would result in them regularly competing with a licensed private service. It must either keep away from the private route or take it over completely, cancel the private licence and, in effect, buy the undertaking of the holder of the licence. (at p13)

2. I cannot see this implication in the Act. The meaning of the word "route" does not, I think, occasion any difficulty or lend support to the argument. The word is, no doubt, used with varying shades of meaning in different contexts in different parts of the Act - or perhaps it is more correct to say that differing contexts emphasize different aspects of the complex connotation that for the purposes of the Act the word has. The emphasis is sometimes on the way along which buses regularly go, sometimes upon the service to travellers thus provided or upon the right to provide it. This can be so too in ordinary parlance. A householder asked whether he lives on a bus route knows what is meant. A person licensed to carry on a bus service would know well enough what was meant if he were asked whether his route was proving profitable. Section 158 with its reference to a route being discontinued or being operated by the Commissioner for Government Transport employs expressions that those who are fastidious about words may condemn as jargon. But that does not make its meaning obscure. It is addressed to persons concerned with the administration of the transport system of a metropolis. It occurs among provisions relating to the regulation of that system in the interests of its total efficiency. It has, it seems to me, no application in the circumstances of this case. If the Government were to operate a bus service in such a manner that a private bus service licensed for a particular route could in practice no longer be carried on, then those facts might support an inference that it had been determined by the proper authority that that route should be operated by the Government instead of by the privately-owned service. In that case it would be necessary to consider the effect of the words that the Commissioner "may cancel the service licence". But that is not this case. I need say no more than that I entirely agree with what my brother Kitto has said. The decision of Sugerman J. was right and the appeal should be dismissed. (at p14)

ORDER

Appeal dismissed with costs.