O'Sullivan v Dejneko [1964] HCA 13; (1964) 110 CLR 498 (26 February 1964)

HIGH COURT OF AUSTRALIA

O'SULLIVAN v. DEJNEKO [1964] HCA 13; (1964) 110 CLR 498

Constitutional Law (N.S.W.) - Service and Execution of Process

High Court of Australia
Kitto(1), Taylor(2), Menzies(3), Windeyer(2) and Owen(2) JJ.

CATCHWORDS

Constitutional Law (N.S.W.) - Legislation purporting to affect resident of another State - Vehicle of resident driven within New South Wales with his knowledge and consent - Failure to comply with legislation - Conviction - Constitutional validity of legislation - Road Maintenance (Contribution) Act, 1958 (N.S.W.), ss. 3 (1), 5, 7 (2), 10 (1) (d).

Service and Execution of Process - Conviction of resident of another State - Extradition to State of conviction - Warrant of apprehension - Endorsement - Claim that legislation under &which convicted in excess of constitutional power - "To be returned to State in &which original warrant issued" - "Unjust or oppressive to return the person" - Service and Execution of Process Act 1901-1958 (Cth), s. 18 (1), (2), (3), (6)*.

HEARING

Sydney, 1963, November 22, 25;
Melbourne, 1964, February 26. 26:2:1964
APPEAL from the Supreme Court of South Australia.

DECISION

1964, February 26.
The following written judgments were delivered: -
KITTO J. On 23rd January 1963 the respondent was brought before a Special Australian Justice of the Peace upon a warrant for the apprehension of the respondent which had been issued by a Justice of the Peace in New South Wales. The endorsement had been made under the authority of sub-s. (1) of s. 18 of the Service and Execution of Process Act 1901-1958 (Cth). The warrant was dated 18th July 1960 and had been issued for the apprehension of the respondent by reason of his not having paid a fine of 12 pounds and costs under a conviction on 15th December 1959 which imposed imprisonment with hard labour for twenty-seven days for non-payment. (at p501)

2. The substantive powers of a magistrate upon a person's being thus brought before him are conferred by sub-ss. (3) and (6) of s. 18. Sub-section (3) is expressed to be subject to the section and is therefore subject to sub-s. (6). With that qualification it confers powers which are stated in the alternative. The first, in brief, is by warrant to order the person to be "returned" to the State in which the original warrant was issued - in this case, New South Wales - and for that purpose to be delivered into the custody of the person bringing the warrant or of a constable or other person to whom the warrant was originally directed. The second, also stated briefly, is to admit the person to bail on condition that he appears at such time, and at such place in the State in which the warrant was issued, as the magistrate specifies "to answer the charge or complaint or to be dealt with according to law". In the present case the magistrate exercised the first of these powers. I may say at once, since during the argument I was inclined to think that he ought rather to have exercised the second power, that I think that power is inappropriate to a case where the original warrant is not only for the person's apprehension but for his imprisonment for a specified period under a sentence imposed after a conviction. In such a case there is no question of his "appearing" at a specified place to answer a charge or complaint or to be dealt with according to law. The respondent has at all stages contended that the first power was not available to be exercised against him, because he has never been in New South Wales and therefore cannot be "returned" to that State. The magistrate overruled the contention, and in my opinion rightly. Unless sub-s. (3) is to be inoperative in a class of cases to which common sense suggests that it must have been intended to apply, the expression "to be returned" must have a wider meaning than that of being taken back to a State from which he has come and must refer rather to his being taken back with the original warrant to the State from which that warrant has been brought. (at p502)

3. The qualification made by sub-s. (6) is that if, on the application of the person apprehended, it appears to the magistrate that (a) the charge is of a trivial nature, or (b) the application for the return of the person has not been made in good faith in the interests of justice or (c) for any reason it would be unjust or oppressive to return the person either at all or until the expiration of a certain period, the magistrate may order the discharge of the person, or order him to be returned after a period and order his release on bail until the expiration of that period, or make such other order as he thinks fit. In the present case the magistrate was not satisfied that any of the conditions for the application of sub-s. (6) were satisfied, and he issued his warrant under sub-s. (3) ordering the respondent to be returned to New South Wales and for that purpose to be delivered into the custody of two named police officers of that State. (at p502)

4. The respondent, having under s. 19 of the Act a right to apply to a Judge of the Supreme Court of South Australia for a review of the magistrate's order, made an application which came before Hogarth J. The Judge had power under sub-s. (5) of s. 19 to confirm or vary the order or quash the order and substitute a new order in its stead. Only two main submissions were made on behalf of the respondent. One repeated what had been put to the magistrate as to the meaning of the word "returned" in sub-s. (3) (a). This his Honour rejected, and I need say no more about it. The other submission was that it would be unjust and oppressive to return the respondent to New South Wales, because the conviction under which he had been sentenced to pay a fine or in default to be imprisoned was for a breach of a New South Wales statutory provision which, as applying to the respondent, was beyond the power of the New South Wales legislature to enact. Hogarth J. came to the conclusion that this submission was well-founded, and for that reason he made an order quashing the order of the magistrate. From his Honour's order the appellant, on whose application it was that the magistrate's order had been made, appeals by special leave to this Court. (at p503)

5. The conviction of the respondent in New South Wales was under s. 10 (1) (d) of the Road Maintenance (Contribution) Act, 1958 (N.S.W.). The offence charged was failing to deliver to the Commissioner of Motor Transport a record, as required by s. 7 (2) of the same Act, of all journeys along public streets in New South Wales during the month of January 1959 of a certain commercial goods vehicle of which the respondent was the "owner". The requirement of s. 7 (2) is enacted in aid os s. 5, by which the "owner" of a commercial goods vehicle is made liable to pay to the Commissioner a charge towards compensation for wear and tear caused thereby to public streets in New South Wales. It appears that there was no evidence before the New South Wales court that on any journey along public streets of that State in January 1959 the vehicle had been driven by the respondent personally or by any servant or agent of his. Nor was there any evidence that the vehicle was in fact his. He was convicted as having been the "owner" of the vehicle in the artificially extended sense given to the word "owner" by par. (c) of the definition in s. 3 (1) of the Act: he was a person in whose name the vehicle was registered under South Australian legislation corresponding with the Motor Traffic Act, 1909 (N.S.W.), namely the Road Traffic Act, 1934 (S.A.) as amended. If it had not been proved in the South Australian proceedings that at the material times the vehicle belonged to the respondent, and that its use on the relevant journeys was within the scope of a general permission given by the respondent to his son, Hogarth J. might well have concluded that it would be unjust and oppressive to send him to New South Wales to be imprisoned for failing to send in a record of journeys with which he had had nothing to do and about which there was no reason to believe that he pssessed or could have obtained the necessary information. But there was evidence before the South Australian magistrate and again before Hogarth J., of admissions by the respondent that the vehicle was his and that his son had done all the driving. Moreover, the respondent himself gave evidence of an antecedent arrangement between himself and his son and from that evidence an obvious inference arose that he had lent the vehicle to his son, giving him a licence to use it sufficiently general in scope to embrace the relevant journeys of the vehicle along the public streets of New South Wales. In these circumstances, even though the journeys were not made on the respondent's behalf, there was nothing inherently unjust or oppressive in enforcing an obligation imposed upon him to deliver to the Commissioner a record of the vehicle's journeys in New South Wales in order that the road charge might be assessed as a charge payable by him. For in virtue of his ownership he might have limited his permission to use the vehicle by terms ensuring that he would receive the information necessary for the record, and (if he so desired) ensuring that his son should pay or provide for the road charges. I should add that he could not have made a case of injustice or oppressiveness out of the facts that the conviction was three years old and the fine was of small amount; for there was evidence of twenty-eight warrants outstanding for his apprehension in respect of offences under s. 7 (2), the total amount payable being 1,143 pounds. In these circumstances the only ground open to him was that s. 7 (2) was a provision which the New South Wales Parliament had no power to enact so as to apply in such a case as his. (at p504)

6. In the argument presented on his behalf the narrowness of the available ground was not, I think, sufficiently recognized. The question was treated as being whether the New South Wales Parliament had power to enact s. 7 (2) in relation to any person who was not an "owner" otherwise than by reason of the registration of the vehicle in his name in another State. The argument advanced was that the liability under s. 5 to pay the charge, and accordingly the liability under s. 7 to deliver a record of journeys, were imposed in respect of wear and tear which the Act assumed that the journeys had caused to the public streets along which the vehicle had passed, and that to impose liabilities of that character upon a person in another State regardless of whether the vehicle was in fact his and regardless of whether he had had any connexion whatever with the journeys was to impose liabilities not based upon a sufficient nexus between the person and New South Wales to bring the legislation within the competence of the New South Wales Parliament according to the principles considered in Croft v. Dunphy (1933) AC 156 and such cases in this Court as Commissioner of Stamp Duties (N.S.W.) v. Millar (1932) 48 CLR 618, at pp 628, 632 ; Trustees Executors and Agency Co. Ltd. v. Federal Commissioner of Taxation [1933] HCA 32; (1933) 49 CLR 220 and Commissioner of Stamps (Q.) v. Counsell 1937 HCA 40; (1937) 57 CLR 248, at p 255 . (at p505)

7. It may be that an argument along these lines should have succeeded if it had been raised by the respondent in the proceedings against him in New South Wales, because if the evidence of the registration in his name in South Australia be put aside there was no evidence in those proceedings connecting him with the wear and tear caused to the roads of New South Wales by the relevant journeys of the vehicle. I am prepared to assume this in the respondent's favour, without considering its correctness. In particular I reserve my opinion on the questions whether proof of the South Australian registration raised a prima facie presumption of ownership in the ordinary sense of the word, and whether there was not a further prima facie presumption that the son's use of the vehicle was lawful and was therefore a use either by or on behalf of, or at least with the leave and licence of, the respondent. But if the evidence which was ultimately adduced in the South Australian proceedings had been before the court in New South Wales there would have been no foothold for an argument that an application of ss. 5 and 7 to the respondent in respect of the relevant journeys was not supported by a sufficient connexion between him and the journeys to satisfy the test of legislative competence. The necessary connexion lay in the facts that the vehicle was his and that it was driven on the the journeys with his permission under a standing arrangement between his son and himself. Having the legal right to forbid and prevent the journeys, he gave his son such a general licence to use the vehicle that in every practical sense he sanctioned the journeys as surely as if he had given a specific consent to each of them. His relation to the journeys was in my opinion real enough and close enough to make it natural for New South Wales to look to him to contribute to the making good of the resulting wear and tear of the New South Wales roads; and in that consideration lies the constitutional justification for the application of ss. 5 and 7 to him. Having regard to the severability provision in s. 3 (2) it is irrelevant, even if true, that there may be cases in which those provisions could not validly apply to a person in whose name a vehicle is registered in another State. (at p505)

8. This, I think, should have been held to be the decisive answer to the respondent's contention that it was unjust or oppressive to return him to New South Wales to be imprisoned on a conviction under invalid legislation. The application of the legislation to him was not invalid, even assuming that its validity had not been made to appear in the New South Wales proceedings. In my opinion no case of injustice or oppression was made out, and the order of the South Australian magistrate for the return of the respondent to New South Wales should have been allowed to stand. (at p506)

9. The appeal should be allowed, the order appealed from should be set aside, and the order of the Special Magistrate should be confirmed. I would order the respondent Dejneko to pay the costs of the proceedings in the Supreme Court. Pursuant to an undertaking given on the application to this Court for special leave to appeal, the appellant should be ordered to pay the respondent's additional costs of the appeal occasioned by the appeal being heard in Sydney instead of Adelaide. I do not think that there should be any other order as to the costs of the appeal. (at p506)

TAYLOR, WINDEYER AND OWEN JJ. This is an appeal by special leave from an order of the Supreme Court of South Australia (Hogarth J.) quashing an order made by a Special Magistrate sitting at Adelaide. The respondent to the appeal, a resident of South Australia, had been convicted in Sydney on an information South Australia, had been convicted in Sydney on an information charging him with an offence against the New South Wales Road Maintenance (Contribution) Act and fined. The fine was not paid and a warrant for his arrest was issued in Sydney. A Justice of the Peace for the State of South Australia made an endorsement on the warrant, under s. 18 (1) of the Service and Execution of Process Act, authorizing its execution in that State. The respondent was thereupon taken into custody and application was made by the appellant, under s. 18 of the Act, to a Special Magistrate at Adelaide for an order that he be returned to New South Wales. The order was made and the respondent applied to the Supreme Court, under s. 19, to review it. In support of the application for review, the submission was made that the Road Maintenance (Contribution) Act, in so far as it purported to apply to a person in the position of the respondent, was not a law which the Legislature of New South Wales could validly enact. Hogarth J., before whom the application for review came, upheld the submission and proceeded then to consider whether, in these circumstances, it would be "unjust or oppressive" to order the respondent to be returned to New South Wales, this being a matter for his consideration by virtue of the combined effect of ss. 18 (6) and 19 (3) of the Service and Execution of Process Act. His Honour concluded that it would be "unjust and oppressive" to make such an order because the respondent had been convicted of an offence against an Act which, in his Honour's view, could not validly apply to him. Accordingly he quashed the order under review. (at p507)

2. The facts may be shortly stated. The respondent was, at all material times, a resident of South Australia who had never been in New South Wales. He was registered in South Australia under the provisions of the Road Traffic Act of that State as the owner of a motor vehicle, his occupation being described as that of "carrying", and he was in fact its owner. On 19th January 1959 the vehicle, a motor lorry, was seen being driven on a public street in New South Wales on its way apparently to Sydney. It was laden with goods and was being driven by the respondent's son with the respondent's consent but, so the respondent said, it was not being driven on his business or by his servant or agent. (at p507)

3. Section 5 (1) of the New South Wales Road Maintenance (Contribution) Act provides that the owner of every commercial goods vehicle shall pay to the Commissioner for Motor Transport "towards compensation for wear and tear caused thereby to public streets in New South Wales" a charge at the rate prescribed by the first schedule to the Act. Section 6 requires the owner of such a vehicle to keep an accurate daily record of all its journeys along public streets in New South Wales; and, by s. 7, he is directed to deliver to the Commissioner, from time to time, at his office in Sydney the record required to be kept under s. 6. Delivery may be made by sending the record by prepaid registered letter addressed to the Commissioner at his Sydney office (s. 7 (3) ), and any person who fails to deliver any such record to the Commissioner as required by the Act is guilty of an offence (s. 10 (1) (d) ). It was for this offence that the respondent was convicted. (at p507)

4. It was not disputed that the vehicle in question was a "commercial goods vehicle" as defined by the Act and the attack on the validity of the legislation was based upon the definition of "owner" in s. 3 (1). That word, when used in relation to a commercial goods vehicle, is defined to include "(a) every person who is the owner or joint owner or part thereof; (b) any person who has the use thereof under a hiring or hire-purchase agreement; and (c) any person in whose name the vehicle is registered under the Motor Traffic Act . . . or under any corresponding legislation or ordinance of any State or Territory of the Commonwealth, but does not include an unpaid vendor of the vehicle under a hire-purchase agreement". This definition undoubtedly shows that the New South Wales Legislature intended the Act to apply to every person who owns a commercial goods vehicle which is used on a public street in New South Wales, even if that is his only connexion with that State, and to every person who is registered as the "owner" of such a vehicle in a State or Territory outside New South Wales under a law of that State or Territory which corresponds to the New South Wales Motor Traffic Act. Admittedly the Road Traffic Act of South Australia is legislation corresponding to the Motor Traffic Act of New South Wales and the respondent, being both the owner of the vehicle in fact and registered as such in South Australia, was guilty of the offence charged unless it was beyond the competence of the Parliament of New South Wales to impose upon him the obligation to keep the record required to be kept by s. 6 and, by s. 7, required to be delivered to the Commissioner for Motor Transport. (at p508)

5. Hogarth J. dealt first with that part of the definition of "owner" found in s. 3 (1) (c). He pointed out that, under s. 19 of the Road Traffic Act of South Australia, "whenever the owner of the vehicle registered under the South Australian Act transferred ownership to some other person (whether by sale or other transaction) he was allowed twenty-one days from the transfer within which to notify the Registrar of Motor Vehicles", and that it followed "that on almost every occasion when the ownership of a vehicle registered under the South Australian Act passed from one person to another, there would be some period which might legally be as long as twenty-one days when the vehicle would be registered in the name of a person other than the owner". This, his Honour said, would mean that under the New South Wales Road Maintenance (Contribution) Act "the obligations imposed by ss. 5, 6 and 7 were capable of applying to a South Australian resident in whose name a vehicle was registered under the South Australian Act but who, owing to some transaction, was no longer the owner of it and had no interest in it or right to control its movements". For this reason his Honour considered that it was "beyond the legislative competence of a State Parliament to impose duties upon a person who is neither resident nor present within that State, based merely on the registration in his name under the laws of this State, of a vehicle which is used on public streets within the State in question". He went on then to consider the case of a commercial goods vehicle in fact owned by a resident of South Australia and used upon the public streets of New South Wales but used by someone other than the owner or his servant or agent and not being used for the owner's benefit. In such case his Honour was of opinion that there was no sufficient connexion between "mere ownership" of a vehicle by a person residing outside New South Wales and the user of the vehicle upon a public street in New South Wales to enable the New South Wales Parliament to impose obligations upon the owner. (at p509)

6. With respect we are unable to agree with either of these views. There is no doubt that the use of a motor vehicle upon a public street in New South Wales is a matter with which the Legislature of New South Wales may validly deal, subject to such limitations as may exist under the Commonwealth Constitution. The purpose of the Road Maintenance (Contribution) Act is to impose upon those whose vehicles use those streets an obligation to contribute towards their upkeep. But such an obligation cannot be imposed upon the vehicle. It can only be imposed upon someone who can contribute and the obvious person to select is the owner of the vehicle. He is the person in whom is vested the right either to use the vehicle himself or by his servant or agent or to permit or refuse to permit it to be used by others. In Broken Hill South Ltd. v. Commissioner of Taxation (N.S.W.) [1937] HCA 4; (1937) 56 CLR 337 , Starke J. said, "If the State can tax property located within its territory, then the constitutional authority of the State is not transcended because it taxes the owners, legal or equitable, of that property, whether domiciled or resident within the State or not. The situs of the property attracts the constitutional authority of the State to tax it, and thus enables it to cast the burden upon the owners of the property" (1937) 56 CLR, at p 366 . Here it is the presence in New South Wales of the vehicle and the use of it upon the public streets of New South Wales that attracts the constitutional authority of the State and enables its Legislature to impose the obligation of contributing to the upkeep of its streets upon the person who owns it, no matter where he is domiciled or resides or carries on business. It may perhaps be asked what would be the position of such an owner if his vehicle is used by another upon a public street in New South Wales without his consent, as for example where it is being used in New South Wales by a thief. The answer may well be that, as a matter of construction, the Act has no application to such a case but it will be time enough to consider that question when it arises. (at p509)

7. So far we have dealt with so much of the argument as relates to the competence of the New South Wales Legislature to impose the obligations with which the case is concerned upon a person whose only connexion with New South Wales is that he is in fact the owner of a vehicle which uses the public streets in that State. We turn now to consider the case of a person whose only connexion with New South Wales is that he is registered under a law corresponding to the Motor Traffic Act of New South Wales as the owner of a vehicle which is used on the public streets of New South Wales. Here again we are of opinion that the State Legislature may validly impose upon such a person the obligations to be found in ss. 5, 6 and 7 of the Road Maintenance (Contribution) Act. The registration of motor vehicles and their identification by means of registered numbers is a world-wide concept and it is an essential part of that concept that there should be some person who, by means of a system of registration, is associated with a registered vehicle so that duties and liabilities which may arise from its use may be imposed and enforced. Under legislation corresponding to the Motor Traffic Act of New South Wales registration as the "owner" of a vehicle is closely tied either to actual ownership or to the right to use the vehicle. And under such legislation, in this case the Road Traffic Act of South Australia, proof of the fact that a person is registered as owner of a vehicle is prima facie evidence of ownership. In the light of these matters it cannot, in our opinion, be said that the Road Maintenance (Contribution) Act, in so far as it imposes obligations upon a person resident and domiciled in South Australia who is registered in that State as the owner of a vehicle which is in fact used on a public street in New South Wales, is beyond power. (at p510)

8. One further matter remains to be dealt with. Hogarth J. based his opinion that it would be "unjust and oppressive", within the meaning of s. 18 (6) (c) of the Service and Execution of Process Act, to order that the respondent be returned to New South Wales upon the conclusion that the Road Maintenance (Contribution) Act could have no valid application to him. If that conclusion is wrong, as we think it is, it follows that his Honour's order cannot stand and that this Court must now exercise the discretion conferred by ss. 18 (6) and 19 (3) of the Act. We can see no sound ground upon which it could be held that it would be "unjust and oppressive" to order the respondent to be returned to New South Wales. The only question then is whether he should be returned in custody or whether, under s. 18 (3) (b), he should be admitted to bail on condition that he appear at a specified time and place in New South Wales there to be dealt with according to law. (at p510)

9. Counsel for the appellant told us that he raised no objection to the latter course being followed. Accordingly we are of opinion that the appeal should be allowed and the order of the Supreme Court of South Australia discharged. In lieu thereof it should be ordered that the order of the Special Magistrate be varied by striking out so much of it as directed that the respondent be delivered into custody and taken to New South Wales and there delivered into the custody of the Keeper of the Gaol at Malabar and, in lieu thereof, ordering that the respondent be admitted to bail in the sum of 100 pounds with one surety of a like amount conditioned upon him appearing to be dealt with according to law at such time and at such place in New South Wales as the Special Magistrate specifies. (at p511)

10. Special leave to appeal was granted upon the appellant undertaking to pay to the respondent such additional costs as might be occasioned to the latter by reason of the appeal being heard in Sydney and upon the appellant further undertaking to abide by the order of this Court as to the costs of the appeal. The first of these undertakings will no doubt be carried out, and in all the circumstances we think no order should be made as to the costs of the appeal. (at p511)

11. It should be added that before Hogarth J. and in the notice of appeal to this Court, the point was taken that no order could be made, under s. 18 (3) (a) of the Service and Execution of Process Act, that a person be "returned" to New South Wales if in fact he had never been there. Before us counsel for the respondent did not press that contention and we refrain from expressing any opinion upon it. (at p511)

MENZIES J. Notwithstanding the careful judgment of Hogarth J. to the contrary, I agree with the joint judgment that it is within the competence of the Parliament of New South Wales to impose upon the owner of a commercial goods vehicle resident in South Australia or the person in whose name such a vehicle is registered in South Australia the obligations of keeping the records and making the contributions required by the New South Wales Road Maintenance (Contribution) Act in respect of the journeying of the vehicle upon the roads of New South Wales. I am unable to accept the argument that such an owner or registered owner of a vehicle used in New South Wales has no connexion whatever with New South Wales and cannot therefore be subjected by the Parliament of that State to obligations connected with its use. Similarly the Parliament of a State could impose upon the foreign owner of a ship liability for damage caused by the ship to port installations within the State. Sometimes it may be difficult to enforce obligations so imposed and it is no doubt for convenience that the Admiralty practice of proceeding in rem was developed - see Halsbury's Laws of England, 3rd ed., vol. 1, p. 49. This, however, is another matter. (at p511)

2. I also agree with the order proposed. (at p511)

ORDER

Appeal allowed. Order of Supreme Court discharged. In lieu thereof order that the order of the Special Magistrate be varied by striking out so much of it as directs that the respondent be delivered into custody and taken to New South Wales and there delivered into the custody of the Keeper of the gaol at Malabar and substituting therefor an order that the respondent be admitted to bail in the sum of 100 pounds with one surety of a like amount conditioned upon his appearing to be dealt with according to law at such time and at such place in New South Wales as the Special Magistrate shall specify.

Costs of the proceedings in the Supreme Court to be paid by the respondent Dejneko.

In accordance with the undertaking given by the appellant O'Sullivan on the granting of special leave to appeal, order that the additional costs of the respondent Dejneko occasioned by the appeal being heard in Sydney instead of in Adelaide be paid by the appellant.