Banks v Transport Regulation Board (Vic) [1968] HCA 23; (1968) 119 CLR 222 (10 May 1968)

HIGH COURT OF AUSTRALIA

BANKS v. TRANSPORT REGULATION BOARD (VIC.) [1968] HCA 23; (1968) 119 CLR 222

Certiorari - High Court - Statutes

High Court of Australia
Barwick C.J.(1), McTiernan(2), Kitto(3), Taylor(4) and Owen(5) JJ.

CATCHWORDS

Certiorari - Taxi-cab licensing board - Decision to revoke licence - Erroneous grounds - Hearing - Decision of board subject to confirmation or disallowance by Governor in Council - Whether certiorari lies to quash order after confirmation - Transport Regulation Act 1958 (Vict.), ss. 23*, 31**, 32***, 44 (1)****.

High Court - Appeal as of right - Decision of Supreme Court of State - Refusal to issue writ of certiorari - Revocation of taxi-cab licence by statutory board - Whether judgment involving directly or indirectly a question to or respecting property or a civil right of a value in excess of $3,000 - Judiciary Act 1903- 1965 (Cth), s. 35 (1) (a) (2)*.

Statutes - Interpretation - Regulation-making power - Validity of regulation - Regulation-making power to prescribe form and conditions to be set out in licences or permits - Power to prescribe all such matters and things as are authorized or permitted to be prescribed or are necessary or expedient to be prescribed for carrying Act into effect - Validity of regulation that every licence shall be subject to the provisions of the Act and Regulations or any other legislation relating to the licensed vehicle - Transport Regulation Act, 1958 (Vict.), ss. 44 (1) (e), 44 (1) (l) - Transport Consolidated Regulations 1960 (Vict.), reg. 11*.

HEARING

Melbourne, 1968, February 21, 27, 28; May 10. 10:5:1968
APPEAL from the Supreme Court of Victoria.

DECISION

May 10.
The following written judgments were delivered:-
BARWICK C.J. The appellant, the holder of a metropolitan taxi-cab licence of the State of Victoria (the Act), was served in April last with a notice that the Transport Regulation Board constituted by s. 4 of the Act (the Board) proposed to consider the revocation or suspension of his licence on the grounds that:

"(a) You failed to notify the Board of your change of address,
pursuant to reg. 19 (e), Pt II, of the Transport Consolidated
Regulations 1960.
(b) Between 1st April 1966 and 15th March 1967 you
committed
wilul and continued breaches of the condition
of the said licence in that:-
(i) without the written authority of the Board you
transferred the control, use and management of the
vehicle to which the above licence relates, to another
person, contrary to the provisions of reg. 16, Pt II
of the Transport Consolidated Regulations 1960,
(ii) you have not yourself driven the vehicle to which
the above licence relates."

The notice set a time in June 1967 for the appellant's attendance before the Board if he desired to object to such revocation or suspension. The appellant did attend, assisted by a transport consultant. Evidence was taken before the Board including that of the appellant. But, as we were informed by counsel for the respondent, no grounds or particulars of grounds for revocation or suspension of the licence were put forward or suggested at this hearing other than those specified in the notice which I have already quoted. The Board reserved its decision. On 14th June it notified the appellant through the transport consultant as follows:

"Further to the appearance of your client Mr. I. G. W.
Banks at proceedings on 5th June 1967 towards revocation
or suspension of his metropolitan taxi cab licence MT.2765.
I am to advise that the Board has recorded a decision that the
said licence be revoked.
Pursuant to the provisions of the Transport Regulation Act
the Board's decision will now be forwarded for approval by
Governor in Council and you will be advised of the Governor
in Council's decision upon review." (at p227)

2. On 19th June the Board's decision to revoke the appellant's licence was transmitted to the Governor in Council with a covering memorandum by the Acting Minister of Transport. The memorandum simply recited the Board's decision and recommended its approval and that the appellant's licence be revoked on 19th June, the date on the memorandum. As far as appears, no other material was placed before the Council. On 20th June the Governor in Council apparently accepted the Minister's recommendation and approved the decision of the Board, the approval being indicated by a stamp to that effect placed on the Minister's memorandum. On 23rd June the Board conveyed to the appellant the approval by the Governor in Council of the Board's decision. The Board wrote:

"This will serve as formal notice that on 20th June 1967,
the Governor in Council approved of the Board's decision
revoking licence No. MT.2765 on vehicle Reg. No. T.1858
on grounds as per notice to show cause dated 28th April 1967.
"In view of the above decision any operation of the vehicle
is now illegal and will render you liable for penalty under the
Transport Regulation Act." (at p227)

3. On 29th June the appellant, as he was entitled to do under s.32 (3) of the Act, required the Board to give him in writing the reasons for its decision to revoke his licence. On 30th June the Board informed the appellant as follows:

"In reply to your letter of 29th June I am to advise that the
Board revoked licence MT.2765 issued in the name of Ian
G. W. Banks because after hearing Mr. H. J. Lawrence who
appeared on his behalf, and after hearing Mr. Banks who
gave evidence on oath, the Board was satisfied that the matters
alleged against Ian G. W. Banks in show cause notice dated
28th April 1967 had been sustained." (at p228)

4. The "show cause notice" referred to in this letter is the notice of April the substance of which I have already recited. An attempt by the appellant to obtain some elucidation of these brief "reasons" failed, the Board saying that it could not usefully add to the advice already forwarded, i.e., its letter of 30th June. (at p228)

5. On 17th July the appellant obtained from the Supreme Court of Victoria an order that the Board show cause before it why a writ of certiorari should not be issued to remove the order and decision of the Board into that Court for the purpose of quashing them. The order specified a number of grounds which included the following:

(1) That the notice of April did not specify any grounds
capable of constituting grounds on which the Board was
entitled under s. 32 of the Act to revoke the appellant's
licence.
(2) That there was not any lawful condition of or attached
to the licence with which the appellant had not complied.
(3) That there was no finding that any such breach had been
committed with frequency.
(4) That any such breach had not been wilfully committed
by the appellant.
(5) That the Board did not consider all the matters required
by s. 32 to be considered by it. (at p228)

6. The matter thus instituted was ultimately heard by a Full Court. Terms were worked out between the parties to cover the operation of the appellant's taxi-cab meanwhile. (at p228)

7. The Full Court discharged the order to show cause upon a preliminary point taken by the Board, the now respondent. Its primary submission was that certiorari would not in any case issue to the Board. But failing acceptance of that claim, the Board submitted that the writ should not be issued after the Governor in Council had approved the Board's decision. The Full Court came to the conclusion that it was the Order in Council which was effective to revoke the appellant's licence and that the Governor in Council had power to make the order it had made. The Court further concluded that the Order in Council could not be the subject of certiorari and, without expressing any view as to the validity of the Board's decision, decided that in the circumstances nothing would be achieved by quashing it. (at p228)

8. From this decision of the Full Court, the appellant appealed to this Court claiming to be able to do so as of right. The respondent lodged a notice of objection to the competency of the appellant's appeal. The appellant thereupon sought special leave to appeal in the event that the Court decided that the appeal he had lodged as of right was incompetent. The respondent's objection to competency having been set down, the matter was listed for hearing, along with the appellant's motion for special leave. As the necessary papers had been lodged, the parties were prepared to proceed with the appellant's appeal in the event of special leave being granted. Thus, the Court has now heard all that the parties would wish to say in support of or in opposition to the appellant's appeal. (at p229)

9. The first question therefore is as to the competence of that appeal. The appellant's submission is that the judgment of the Supreme Court involved directly or indirectly a question to or respecting property or a civil right of a value in excess of $3,000 (s. 35 (1) (a) (2), Judiciary Act 1903-1965 (Cth)). It is necessary to examine all the elements of this proposition. The property or civil right to which the appellant points is the licence he held to operate a taxi-cab, which is a commercial passenger vehicle within Pt II of the Act, in the metropolis of Melbourne. Such a vehicle may not operate, i.e., carry passengers for hire or reward on any public highway unless licensed under that part (s. 19). Such a licence may be granted by the Board for a period of years, not less than four nor more than seven (ss. 22 and 26). It may be renewed and shall be renewed to the holder unless for some sufficient reason to be stated by it in writing the Board is of opinion that such a licence should not be granted at all or that its renewal should not be granted to the existing holder (s. 27). The licence is transferable with the approval of the Board to a suitable person. The Board is to be paid a fee on such transfer rated to the value of the licence and the length of time it has been operative (s. 27A and Second Schedule). Assuming the fees payable thereunder are duly paid, and that the requisite standard of service is maintained with vehicles fit and suitable for the purpose, such a licence, not having been obtained by fraud, may only be revoked or suspended in the hands of a fit and proper person for breach of a condition of or attached to it (ss. 28 (4), 29, 30B, 32 and 32A). The appellant, whose competence in this regard was not challenged, swore in these proceedings that the market value of his licence at the time the Board decided to revoke it was not less than $9,000 and that had it not been revoked it would still be worth at least that sum in the market. This statement was not contradicted by the respondent. I take it to mean that at relevant times a person fit and proper to hold such a licence would have paid at least the sum of $9,000 for its transfer to him. There is no suggestion by the respondent of any circumstance upon which it would have claimed the right to refuse its transfer to any such person nor so far as appears could there have been any. In my opinion, it is fully established that the licence held by the appellant was of a value in excess of $3,000. (at p230)

10. The matter before the Supreme Court was the appellant's motion for the issue of a writ of certiorari to quash the Board's decision to revoke his licence. Involved in the motion was the question whether or not that licence had lawfully been revoked. The judgment of the Court no less involved that question because it refused to issue the writ of certiorari. I do not think it matters that the Court's reasons do not deal with the validity of the Board's decision, or that they do deal with the validity and operation of the Order in Council. The existence of the licence was at least indirectly involved in the Court's judgment. It seems to me inescapable that the judgment of the Full Court did, as I think directly, but certainly indirectly, involve a question as to the existence or continued existence of the appellant's licence. (at p230)

11. The remaining question is whether that licence was property or a civil right.

"A dispensation or licence", said Vaughan C.J. in Thomas
v. Sorrell
[1673] EWHC J85 (KB); [1673] EWHC J85 (KB); (1673) Vaugh 330, at p 351 [1673] EWHC J85; (124 ER 1098, at p 1109)
"properly passeth no interest, nor alters or
transfers property in any thing, but only makes an action
lawful, which without it had been unlawful. As a licence to
go beyond the seas, to hunt in a man's park, to come into his
house, are only actions, which without licence, had been
unlawful.
"But a licence to hunt in a man's park, and carry away
the deer kill'd to his own use; to cut down a tree in a man's
ground, and to carry it away the next day after to his own
use, are licences as to the acts of hunting and cutting down the
tree; but as to the carrying away of the deer kill'd, and
tree cut down, they are grants.
"So to licence a man to eat my meat, or to fire the wood in
my chimney to warm him by, as to the actions of eating,
fireing my wood and warming him, they are licences; but it is
consequent necessarily to those actions that my property be
destroyed in the meat eaten, and in the wood burnt, so as in
some cases by consequent and not directly, and as its effect,
a dispensation or licence may destroy and alter property." (at p230)

12. From this passage has stemmed the repeated notion that a mere licence does not create any estate or interest in the property to which it relates: it only makes an act lawful which without it would be unlawful, Halsbury's Laws of England, 3rd ed., vol. 23, p. 430. This distinction thus drawn and the nature of such a licence as that to which the citation refers have been applied at times to the case of a statutory licence as if it were no more than the mere grant of permission by an owner of property to another to do something with or in relation to that property. Thus, in Reg. v. Metropolitan Police Commissioner; Ex parte Parker (1953) 1 WLR 1150, at p 1154 , Lord Goddard C.J. speaking of a London cab driver's licence issued under the London Cab Order 1934, said:

"The present position with regard to the revocation of a
licence is to be found in par. 30 of the London Cab Order,
1934, and the regulations issued under the order that I have
just cited clearly show that a licence may be revoked or
suspended. Indeed, leaving out of account such very
exceptional things as irrevocable licences granted under seal
and possibly licences coupled with an interest, the very fact
that a licence is granted to a person would seem to imply that
the person granting the licence can also revoke it. The licence
is nothing but a permission, and if one gives a man permission
to do something it is natural that the person who gives the
permission will be able to withdraw the permission. As a
rule, where a licence is granted, the licensor does not have to
state why he withdraws his permission. Unless he has given
a licence for a definite period, thereby giving some contractual
right, he can withdraw it."

Paragraph 30 of that order provided:

"A cab-driver's licence shall be liable to revocation or
suspension by the Commissioner of Police if he is satisfied, by
reason of any circumstances arising or coming to his knowledge
after the licence was granted, that the licensee is not a fit
person to hold such a licence." (at p231)

13. I would find it difficult in any case to reconcile the decision of the Court of Appeal in this case with the decision of the House of Lords in Ridge v. Baldwin [1963] UKHL 2; (1964) AC 40 to which I shall later refer. In particular, I do not find the description of the licence which found favour with the Lord Chief Justice appropriate to a statutory licence to which a fit and proper person has a right and which relates to such an occupation as that of a cab driver. I do not think such a licence can be equated to the mere grant of a permission by a private person in respect of his own property. But even if Lord Goddard's explanation of the nature of the cab driver's licence in that case should be accepted as correct for the purposes of that case, it does not, in my opinion, touch the question whether the licence itself was or was not property within the meaning of a statute defining the cases in which an appeal may be brought. (at p231)

14. Pollock B. in Smelting Co. of Australia v. Commissioners of Inland Revenue (1896) 2 QB 179, at p 185 evidently regarded the definitions in Thomas v. Sorrell [1673] EWHC J85 (KB); [1673] EWHC J85 (KB); (1673) Vaugh 330 (124 ER 1098) and in cases which relied upon them as depending "upon technical rules of law which in no way assist one in coming to a conclusion as to the meaning of the word 'property'" in a statute. In the case before his Lordship, the question was whether the sale of a sole licence to exercise a patent was an agreement for the sale of any interest in property within the meaning of a Stamp Act. His Lordship, observing upon the width of the words of the statute, said that they included "property of whatsoever kind". He said "that looking at the object and scope of this statute the word 'property' does include this licence". That decision was affirmed on appeal: see same case (1897) 1 QB 175 . So it seems to me that even if it be right (though I think it is not) to extend Vaughan C.J.'s statements in Thomas v. Sorrell [1673] EWHC J85 (KB); [1673] EWHC J85 (KB); (1673) Vaugh 330 (124 ER 1098) to the case of a licence granted under statute to ply a trade or to operate a vehicle upon a public highway, they cannot be definitive when the question is whether or no such a licence is property within the meaning of a section such as s. 35 (1) (a) (2) of the Judiciary Act. Whilst that provision is on the one hand designed to limit by reason of the relatively small value of the property or right involved the cases in which appeals may be brought to this Court, it does on the other hand exhibit an intention to widen quite generously the range of decision or judgment which, if the stated value be present, will found a right of appeal: for it extends to judgments which indirectly involve any claim, demand or question to or respecting any property or civil right. I find in the terms of such a provision no warrant for giving to the word "property" any narrow or technical meaning. In my opinion, it includes, to use Pollock B.'s expression, "property of whatsoever kind". In my opinion, the licence granted under Pt II, revocable only in the stated circumstances and transferable to a fit and proper person, is property within the meaning of s. 35 (1) (a) (2) of the Judiciary Act. (at p232)

15. In my opinion, therefore, the appellant has an appeal as of right against the decision of the Full Court refusing a writ of certiorari. (at p232)

16. I turn now to the merits of that appeal. The Board is given by the statute power to revoke a licence granted under Pt II. It may only do so upon the ground that a condition of or attached to the licence has been broken with frequence, or with wilfulness, or with danger to the public so that the Board becomes satisfied that because of one of these qualities or attributes of the breach the licence should be revoked: s. 32. (at p233)

17. The Board was thus empowered to revoke the appellant's licence upon being thus satisfied. To this end it had to decide three matters: first, that the appellant had broken a condition of or attached to the licence, and second, if so, that he had done so with frequency, or wilfully, or to the danger of the public and, thirdly, that it was satisfied that the nature of the breach in one of these respects was such as to warrant the revocation of the licence. I have already indicated my view that the licence was property within the meaning of s. 35 of the Judiciary Act. It was also property within the meaning of the principles to which I am about to refer. The Board was thus empowered to decide questions affecting the appellant's property: and it might be added, property which provided a means and perhaps the sole means of the livelihood of the holder of the licence (see the condition set out in the form of the licence to which I later refer). (at p233)

18. The principles upon which to decide whether a body such as the Board is bound to act judicially are widely discussed in Ridge v. Baldwin [1963] UKHL 2; (1964) AC 40 and need no elaboration here. I would express with the utmost respect my entire agreement with the speech of Lord Reid in that case. However, having regard to the somewhat different relationship of this Court to the Judicial Committee to that which obtains between the House of Lords and that body, in sharing Lord Reid's views I need to state my own position in relation to the decision of the Privy Council in Nakkuda Ali v. Jayaratne (1951) AC 66 , with which his Lordship dealt at p. 77 of the report. I regard that case as no more than a decision as to the true meaning of the Defence (Control of Textiles) Regulations 1945 of Ceylon. As I read the reasons of their Lordships they were not willing to regard the nature of the power given by such regulations in wartime as itself sufficient to require the Controller of Textiles to act judicially and to make him amenable to supervision by the prerogative writs made available to the Supreme Court of Ceylon by s. 42 of the Courts Ordinance. Their Lordships rather thought, as it seems to me, that the stipulation in the Regulations that the Controller should have reasonable ground for belief of the facts, the existence of which conditioned the exercise of his power, militated against rather than assisted the conclusion that the exercise of the power should be judicial. In my opinion, at most, this decision would bind this Court in the case of a statutory provision made in wartime in like terms and with respect to a comparable subject matter. The Court is not bound by the process of reasoning followed by their Lordships and in this respect is entitled to observe that its basis in a radical respect was erroneous: see Ridge v. Baldwin [1963] UKHL 2; (1964) AC 40 . Consequently, I do not feel constrained by Nakkuda Ali v. Jayaratne (1951) AC 66 to hold either that certiorari is not available in this case or that the licence is a mere privilege and not property. (at p234)

19. The nature of the power given to the Board and the consequences of its exercise combine, in my mind, to make it certain that the Board is bound to act judicially and that its proceedings are subject to the prerogative writs. Not merely has the Parliament not given any positive indication in the statute that the Board in deciding to revoke the licence, shall not be required to act judicially and be immune from supervision in the exercise of an absolute and unfettered administrative discretion but it has specified with some precision the specific matters of which the Board should be satisfied before exercising the granted power and has imposed upon the Board the obligation to give written reasons to the licensee for its decision to revoke his licence. These are important aspects of s. 32 and reinforce the conclusion I would draw from the nature of the power itself. There is therefore no need for me to consider what effect, if any, the removal by the Act No. 4198 of 1935 of the words "final and without appeal" in relation to the decisions of the Board as they appeared in s. 37 of the Transport Regulation Act 1933 may have had upon the drawing of such a conclusion if the matter were otherwise in doubt. (at p234)

20. In this case, the Board, as, in my opinion, it was bound to do, gave notice to the appellant purporting to inform him of the conditions in or attached to the licence which it claimed that he had broken with frequency or wilfully. Whether or not the Board, upon the proper construction of s. 32, can erroneously decide for itself that a condition has been broken - a matter which does not presently arise and need not be now decided - at least what it finds to have been breached must be in law and in fact a condition of or addition to the licence. It cannot, in my opinion, upon any reasonable construction of s. 32, be said that the Board has been given power to decide for itself unexaminably what are the conditions of or attached to the licence. That, in my opinion, is a matter for decision by the courts. It is therefore necessary to examine the contents of the notice to ascertain whether it does specify a breach of such a condition. This is not undertaken in order to determine the validity of the notice: that matter was not raised in this case. But as the Board has based its decision upon its findings against the appellant on the matters set out in the notice and upon no other matters, it must follow that the contents of the notice indicate the basis of the Board's decision. (at p235)

21. The Parliament by s. 23 has determined what are to be conditions of every licence under Pt II of the Act. It has also by the same section given the Board power to attach to any licence any or all of a number of stated conditions. Section 44 (1) gives the Governor in Council a power to

"make regulations for or with respect to
. . . .
(e) the form and conditions of and any particulars to be set
out in licences permits or certificates . . . .
(l) generally, all such matters and things as . . . are necessary
or expedient to be prescribed for carrying this Act into
effect." (at p235)

22. In my opinion, the first of these paragraphs of s. 44 does not authorize the importation or attachment of a condition into or to a licence issued under Pt II of the Act. Though not clearly expressed, in my opinion, it merely authorizes a regulation to be made prescribing the form of such a licence and the manner of expression in it of the conditions to which it is subject and of any other particulars of it. Section 32 (1) in speaking of the conditions of or attached to the licence is referring, in my opinion, to the conditions which s. 23 imposes or authorizes the Board to attach to the licence. Any regulations made under s. 44 (1) (e) must, in my opinion, be limited, so far as they refer to conditions, to prescribing which of such conditions shall be, and in what form it or they shall be, set out in the licence issued pursuant to Pt II. Conditions of the licence cannot be created by regulations made under this paragraph. (at p235)

23. Paragraph (l) of s. 44 (1) clearly will not authorize an addition to, or variation of or in, the conditions which the Act by s. 23 imposes or authorizes. Such a course is plainly not necessary or expedient for carrying the Act into effect. The legislature has itself set the limit of the conditions to which the licence may be subject. To impose further conditions is, in my opinion, not to implement the Act, but rather to add to or vary or depart from its express provisions: cf. Morton v. Union Steamship Co. of New Zealand Ltd. [1951] HCA 42; (1951) 83 CLR 402 . (at p235)

24. An examination of the Transport Consolidated Regulations 1960 shows that no regulation has been made in purported pursuance of s. 44 (1) (e) or (l) except reg. 11 and perhaps reg. 1 of Pt VIII of the Regulations. The latter would not seem to my mind to be authorized by s. 44: but this may be of no consequence if forms are authorized from time to time by specific regulations. In my opinion, reg. 11 in so far as it attempts to import additional conditions into a licence issued under Pt II is not authorized by s. 44 and is ineffective to make the observance of the Act, or the Regulations or of any other Act a condition of the appellant's licence. (at p236)

25. I now turn to the notice of April to ascertain whether the grounds it specifies involve a breach or breaches of a condition of or attached to the licence. The only condition of the licence which is expressed as such in the form of the appellant's licence is that

"the licensee shall himself drive and retain at all times
control use and management of the licensed vehicle or any
similar classified vehicles licensed in his name by the Board
as his sole means of employment".

It was not submitted that this curiously worded condition was outside the power given to the Board by s. 23 (2) (f), namely, to "attach" to the licence "such other conditions appropriate to the service to be provided as the Board thinks proper to impose in the public interest". I shall therefore assume, without deciding, that the condition thus expressed in the form of licence is a condition appropriate to the service to be provided by a metropolitan taxi-cab, and that, whatever it means, which remains a question, it is a condition of the appellant's licence. (at p236)

26. The form of licence bears an indorsement under the caption "Warning":

"This assessment does not authorize the operation of the
vehicle until the payment of fees has been acknowledged by
the imprint of cash register receipt hereon. This form must
be returned immediately with the full amount of fees payable
to the Secretary, Transport Regulation Board.
It must also be returned for endorsement immediately upon
any change of address of the owner or upon disposal of the
vehicle." (at p236)

27. In my opinion, this indorsement does not constitute a condition of the licence to operate the taxi-cab. It is no more, in my opinion, than a direction as to what is to be done with the form, firstly before the fees for the issue of the licence have been paid, and, secondly, after there has been a change of address by the owner or upon disposal of the vehicle. I might mention in passing that presumably the address of the owner to which this indorsement refers is that which is shown in the form of the licence: cf. reg. 19 (e). In the appellant's case this was a post office box number at Melbourne General Post Office. (at p236)

28. In the body of the licence document it is said that the appellant is authorized to operate the described vehicle " . . . in accordance with conditions set out in any document which purports to contain conditions of this licence". We were referred to no such document: nor to any regulation authorizing the use of this form of licence. But perhaps most importantly whilst s. 23 (2) does authorize the attachment of conditions, they must be conditions within the confines of s. 23 (2). A document "which purports to contain conditions" does not, in my opinion, satisfy that limitation. (at p237)

29. Clause (a) of the notice of April treats a failure to notify a change of address as a breach of condition. But, even if the indorsement on the form of licence to which I have referred were a condition, it does not require notification of a change of address. It merely requires the form to be subsequently produced for a notation to be made of the change of address. The notice relates the failure of which it complains to reg. 19 (e) of the Transport Consolidated Regulations. But, as I have already indicated, the observance of these regulations cannot, in my opinion, be made a condition of the licence. Section 23 (1) (b) stipulates the extent to which the observance of the regulations is such a condition. And, in any case, that regulation merely provides that

"the holder of a licence . . . shall return such document . . .
to the Secretary to the Board . . .
(e) within three days after change of . . . address as shown
in such licence . . . ". (at p237)

30. As I observed earlier, the address set out in the appellant's licence was a post office box number which so far as appears remained unchanged throughout. (at p237)

31. For all these reasons, it is, to my mind, abundantly clear that what was claimed to be a breach of a condition of the licence in par. (a) of the notice was incapable in law of being such a breach because the licence to operate the taxi-cab was not subject to the "conditions" said by this paragraph of the notice to have been breached. In addition, no allegation was made of frequency or wilfulness of the breach or of any danger to the public involved in the breach. (at p237)

32. Paragraph (b) of the notice treats the transfer of the control, use and management of the vehicle to another person without the Board's written authority as a breach of a condition. The submission of counsel for the respondent was that reg. 16 of Pt II of the Transport Consolidated Regulations had been imported as a condition into the licence by reg. 11 of that Part of those Regulations so as to support this paragraph of the notice. I have already dealt with this submission and expressed my opinion that the Act does not authorize such a course. That is sufficient to dispose of this paragraph as affording notice of the breach of a condition. It is noticeable, however, that in this paragraph the alleged breaches of condition are said to be wilful and continued. I do not know upon what material the Board relied to justify the assertion of wilfulness but I observe that there was evidence placed before this Court that the Board had resolved to approve the transfer of the control use and management of a metropolitan taxi-cab to a driver holding a driver's certificate issued by the Board authorizing him to drive a metropolitan taxi-cab, if it were effected by an agreement in one of the forms of agreement approved by the Board and notified to licensees. In the event of the execution by a licensee of such an agreement, the Board's resolution was "to be deemed to be the written authority of the Board" for the purposes of reg. 16 of Pt II of the Regulations. There was also evidence that the appellant had executed an agreement in the terms approved by the Board to a person holding the appropriate certificate. I find no need to rely upon this evidence for the purpose of this judgement. But I cannot but observe that it was not disputed by any contrary evidence and that it naturally excites wonder at the course pursued by the Board and, if he had all the material before him as one might expect, by the Minister in this case. (at p238)

33. The third paragraph of the notice claims that the appellant wilfully and continually breached a condition of the licence in that he had not himself driven the vehicle to which the licence related. This is a direct reference to the condition expressly set out in the form of the licence, and which I have assumed falls within the Board's powers under s. 23 (2) of the Act. There is nothing in the Act itself which suggests to my mind that it was intended to limit a person to one licence in respect of a single vehicle with which to operate a metropolitan taxi-cab service. The condition expressed in the form of licence itself recognizes that a licensee may have licenses for more than one metropolitan taxi-cab. I suppose one is entitled judicially to know that such cabs are operated by limited liability companies who use a fleet of cabs driven by persons who may or may not be their employees. The resolution of the Board which is in evidence and to portion of which I referred earlier quite clearly recognizes and is built upon that situation. (at p238)

34. It seems to me that the conditions expressed in the licence should be construed against that background. In my opinion, doing the best one can with its awkward and inapt language, the clause requires a licensee to make the operation of the licensed cab or cabs his sole means of employment and to drive one of the cabs covered by his licences. How such a construction fits in with the practice of issuing licences to limited liability companies is not a matter I have any present need to pursue. (at p239)

35. It seems to me that so construing the condition, par. (b) (ii) of the notice does embrace an act which could be held to be a breach of a condition of the licence. As it is alleged to have been done wilfully and continuously - in the sense of repeatedly - it would have been possible for the Board in respect of it to make a decision conformably to the requirements of s. 32. (at p239)

36. But the Board has merely stated that it was satisfied that the "matters" alleged in the notice had been sustained. As a statement of reasons purporting to satisfy the duty imposed by s. 32 (3), the Board's letters of 30th June and 6th July are quite inadequate. The only safe conclusion to draw from the Board's statement is that the Board treated the matters alleged in all the paragraphs of the notice of April as in totality the ground of revocation. Clearly, the Board was not entitled to do so because, as I have said, the matters in pars. (a) and (b) (i) could not have been held to be breaches of a condition or conditions of the licence. Thus, though a decision based solely upon par. (b) (ii) might have been sustainable, a decision not so confined cannot. (at p239)

37. The Board's power under s. 32 to decide to revoke depends, in my opinion, at least upon a decision that an act which in law could amount to a breach of what is in law a condition of the licence has danger to the public. Here, upon my view of what the Board has purported to do, the Board merely decided that acts, all of which could not in law be held to be in breach of conditions of the licence, were committed by the appellant. That does not satisfy the condition of the exercise of the Board's power of revocation. (at p239)

38. In my opinion, therefore, the decision of the Board to revoke the appellant's licence was void: as is any revocation of the licence in pursuance of the decision. Although I agree, as I have said, with Lord Reid's speech in its entirety, I have no need in this respect to rely upon the proposition that a decision reached in violation of natural justice by a body bound to act judicially i s void and not merely voidable. Here, upon my analysis, the condition of the exercise by the Board of its power of revocation is lacking: it is not a case depending upon a denial of natural justice. Upon its face, the Board did not make its decision solely upon its satisfaction that a frequent, or wilful, or publicly danngerous breach of a condition or conditions in or attached to the licence had occurred. Consequently, it lacked power to revoke the licence and putting on one side the effect of the order in council, a purported revocation by the Board would be void. (at p240)

39. Section 31 of the Transport Regulation Act provides as follows:

"31. (1) No decision of the Board granting or refusing to
grant any application for a commercial passenger
vehicle licence or revoking or suspending for a period
exceeding thirty days any such licence shall have any
force or effect until such decision is reviewed by
the Governor in Council:
Provided that nothing in this sub-section shall
apply to any decision of the Board granting a
licence temporarily for a period not exceeding
three months for any particular purpose of limited
duration.
duration.
(2) In reviewing any decision as aforesaid the Governor
in Council may by Order within six months of the
Board giving a decision -
(a) approve the decision of the Board;
(b) disapprove the decision of the Board; or
(c) make any determination in the matter which
the Board might have made -
and every such Order shall be given effect to as
soon as may be by the Board.
(3) Notwithstanding anything in the foregoing
provisions
of this section where -
(a) the Board refuses to grant a new licence to the
existing holder of a licence; and
(b) the decision refusing to grant such licence is
approved by the Governor in Council -
such decision shall not have any force or effect
until the expiration of a period of six months after
such approval, and the period of the licence shall
be deemed to be extended until the expiration of
such period of six months." (at p240)

40. As I have indicated, the Board's decision was transmitted to the Governor in Council under cover of a memorandum by the Minister by which he recommended the approval of the Board's decision. (at p240)

41. It is quite clear that the Act by s. 31 contemplated that there should be an effective review by the Governor in Council of the Board's decision. This review was substituted for a right of appeal to the Supreme Court (see s. 379 of the Transport Regulations Act 1933 (No. 4198)) and was intended as a real protection to the citizen against unwarranted action on the part of the Board. The statute therefore placed upon the Governor in Council an obligation to consider the matter for himself and to reach a conclusion, upon all the material available to the Board, whether or no the Board's decision should be approved, or disapproved, or whether the circumstances called for some other action on the part of the Council within s. 32 (2) (c). The statute did not create, in my opinion, a situation where the Governor in Council could act merely on the recommendation of a Minister: nor was the situation comparable to the conversion of a ministerial or Cabinet decision in point of policy into a decision of the Executive Council. That Council was by the statute given both the power and the duty to consider the matter for itself. In so saying, I fully realize the inconvenience in which a proper consideration of such matters must involve the Governor in Council. But Parliament has taken the course of creating that situation. It cannot be avoided, in my respectful opinion, by mere indorsement of a Minister's recommendation. Of course, certiorari will not go to the Governor in Council but that does not deny that the proceedings of the Governor in Council in performance of a statutory function may be void and in an appropriate case be so declared. (at p241)

42. However, in connexion with this statute the question which arises is as to the effect of the approval by the Governor in Council of a decision of the Board. Sub-section (1) of s. 31 clearly contemplates that when so approved the decision of the Board shall have force and effect. It is only until it is so approved that it does not have force or effect. If, of course, it is disapproved or superseded by a determination made by the Governor in Council under s. 32 (2) (c), no question of its operation as a decision will arise. But it is said, and with the submission the Supreme Court agreed, that once the Governor in Council has approved the decision, it is the order of the Governor in Council which is relevantly effective. Presumably on this view the decision of the Board is thus rendered ineffective. This proposition is sought to be derived from the final words of s. 31 (2) which provide - "and every such order (i.e., of the Governor in Council) shall be given effect to as soon as may be by the Board". (at p241)

43. I think it is important to observe that the decision of the Board to which sub-s. (1) refers is a decision that the licence be revoked. The decision itself does not effect a revocation but calls for a further administrative step in carrying out the Board's decision. That step will not have been taken at the time of the commencement of the review of the Board's decision by the Governor in Council. Consequently, when the Governor in Council approves the Board's decision, it is necessary for the Board's decision to be carried out by some administrative step, including a notification to the licensee. Also, if the Governor in Council approves the Board's decision, it is necessary to ensure that the Board should not alter its decision. Therefore the final sentence of sub-s. (2) of s. 31 provides that the Board shall give effect to the order of the Governor in Council, that is, to an order approving the Board's decision. To give effect to the Council's approval of the Board's decision requires, in my opinion, that the decision of the Board itself be put into effect. This does not mean, in my opinion, that an order of the Governor in Council in the terms of the Board's order has been made and that it is that order which has to be put into effect. Sub-section (3) of s. 31 to my mind indicates that the function of the approval of the Governor in Council is to allow the decision of the Board which is approved itself to have force or effect. Upon such approval, there is authority derived from the Board's decision to revoke the licence to which it relates. The date as or from which the revocation is to be operative is set out in the Minister's memorandum and presumably is covered by the approval of the Governor in Council. But that only means, in my opinion, that the Order of the Council is that the Board's decision shall be carried out by the revocation of the licence on and from the specified date. It does not, in my opinion, supplant the decision of the Board by an independent decision of the Council to revoke the licence. (at p242)

44. It follows, in my opinion, that the approval of the Governor in Council of a void decision of the Board cannot be regarded as the making of an order by the Council in like terms to those expressed in the purported decision of the Board. To allow such a consequence would be to treat the Act as having given to the Governor in Council greater powers than the Act gives to the Board - a result which perusal of the Act does not justify. It is, in my opinion, quite plain from the terms of sub-s. (2) of s. 31 that the Act does not purport to give to the Governor in Council any greater power relevantly than it gives to the Board: see in this connexion par. (c) of sub-s. (2). (at p242)

45. If the decision of the Board be void, as I think it is, its approval by the Governor in Council does not, in my opinion, prevent the Court quashing it. So to do does not directly impinge upon the ineffective action of the Governor in Council in having approved it. Consequently, in my opinion, this appeal should be allowed, and a writ of certiorari granted to quash the decision of the Board which has been approved and which, if it were valid, would now have force or effect as an order of the Board's authorizing the revocation of the appellant's licence to operate a metropolitan taxi-cab and to quash the revocation of the appellant's licence effected in pursuance of that decision. (at p242)

McTIERNAN J. I am of opinion that the appellate jurisdiction conferred by s. 35 (1) (a) (2) of the Judiciary Act 1903-1965 (Cth) extends to the judgment of the Full Court of the Supreme Court of Victoria in this case for the reason that it involves, at least indirectly, a question respecting the licence in issue which is I think "property" in the ordinary sense of the word and its value may be fairly assessed at no less than $3,000. I have nothing to add to what the Chief Justice has said on this point. With respect I think the judgment of the State Full Court is right. The question whether certiorari should go against the respondent Board in respect of its decision of which the appellant complains turns in the end on s. 31 of the Transport Regulation Act 1958. His licence was effectually revoked by the order of the Governor in Council made in exercise of the powers conferred by s. 31. The construction and effect of that section are in my opinion correctly explained by Gowans J. who delivered the judgment of Winneke C.J., Adam J. and himself. I think that because of the operative effect under s. 31 of the order of the Governor in Council, if a writ of certiorari, as applied for here, were granted, it would be nugatory. Lex non cogit ad inutilia. In my opinion the appeal should be dismissed. (at p243)

KITTO J. In this case I think it is clear that the appeal lies as of right by virtue of s. 35 (1) (a) (2) of the Judiciary Act 1903-1965 (Cth). I think, too, that beyond doubt the Board, in considering whether to revoke the appellant's licence, was under a legal obligation to act judicially, that is to say in a judicial spirit and manner, and that the proceedings which led to the revocation of the licence are therefore subject to supervision by the Supreme Court under its jurisdiction in certiorari. In Testro Bros. Pty. Ltd. v. Tait [1963] HCA 29; (1963) 109 CLR 353, at pp 368-370 I discussed the authorities that bear on this aspect of the matter, and need not repeat the discussion here. Although the majority of the Court took a different view from mine as to the position under the legislation which was in question in that case there was no relevant difference of opinion, I think, upon any question of general principle. (at p243)

2. As to the more particular points in the case, I need only say that I have had an opportunity of reading the judgments prepared by Taylor and Owen JJ., and that, subject to the observation that I do not feel the same doubt as Taylor J. concerning the allegation in par. (a) of the notice to show cause, I agree in their Honours' reasons and conclusions. (at p243)

3. I hope it will not be thought unhelpful if I add that an overhaul by competent legal advisers of the Board's regulations, forms and procedures in relation to licences seems to be called for in the interests both of the Board itself and of those whose livelihoods depend so much on the due and fair performance of the Board's functions. (at p244)

4. I would overrule the objection to the competency of the appeal, and allow the appeal. (at p244)

TAYLOR J. This is an appeal from an order of the Supreme Court by which an order nisi for a writ of certiorari addressed to the respondent Board was discharged. (at p244)

2. The evidence shows that the appellant was the holder of a metropolitan taxi-cab licence issued pursuant to the provisions of the Transport Regulation Act 1958 (Vict.). The licence was current until 25th September 1967 and was expressed to be "subject to all of the provisions of the Transport Regulation Act and any Regulation made thereunder or of any other Act, Regulation, or By-Law relating to Commercial Passenger Vehicles". The licence was further expressed to be "subject to the condition that the licensee shall himself drive and retain at all times control, use and management of the licensed vehicle, . . . as his sole means of employment". Thereupon, the respondent on 28th April 1967 caused to be forwarded to the appellant a notice in the following terms:

"TAKE NOTICE that the Board proposes to consider the
revocation or suspension of licence numbered MT-2765 on
the grounds that:-
(a) You failed to notify the Board of your change of address,
pursuant to reg. 19 (e) Pt II of the Transport Consolidated
Regulations 1960.
(b) Between 1st April 1966, and 15th March 1967 you
committed
wilful and continued breaches of the condition
of the said licence in that:-
(i) without the written authority of the Board you
transferred
the control, use and management of the vehicle
to which the above licence relates, to another person,
contrary to the provisions of reg. 16 Pt II of the
Transport Consolidated Regulations 1960,
(ii) you have not yourself driven the vehicle to which
the above licence relates.
AND FURTHER TAKE NOTICE that if you desire to object to
the revocation or suspension of the said licence, you should
attend before the Board at the Board's Offices at the corner
of Lygon and Princes Streets, Carlton on Monday 5th June
1967, at 10.45 a.m." (at p244)

3. The matter came before the Board on 5th June 1967 when the appellant appeared and on 13th June 1967 the Board determined that the appellant's licence should be revoked. The ground of the determination was that "the matters alleged in the show cause notice dated 28th April 1967 had been sustained". The appellant was informed by letter of 14th June 1967 of the Board's determination and he was advised that pursuant to the provisions of the Act "the Board's decision will now be forwarded for approval by Governor in Council". The matter came before the Governor in Council on 20th June 1967 with a recommendation "that the decision of the Board . . . be approved and that the licence . . . be revoked upon the date hereon". Approval was duly given by the Governor in Council on the same day but it was not until 17th July 1967 that the appellant obtained his order nisi for certiorari. (at p245)

4. Section 32 (1) of the Act provides that:

"A licence or permit may be revoked or suspended by
the Board on the ground that any of the conditions of or
attached to the licence or permit have not been complied with,
but the Board shall not revoke or suspend a licence unless
owing to the frequency of the breach of the conditions of or
attached to the licence, or to the breach having been
committed
wilfully, or to the danger to the public involved in the
breach, the Board is satisfied that the licence should be revoked
or suspended."

It is, I think, not open to question that in exercising its functions under this section the Board is bound to act judicially and that, in the absence of special considerations to which the provisions of s. 31 may give rise, it is subject to the control of the Supreme Court by certiorari. It is, however, the Board's contention that the provisions of the latter section so operate that in the circumstances of the present case certiorari does not lie. Whether this contention should be upheld depends, in my view, upon the effect which that section, upon its true interpretation, had in this case. (at p245)

5. It may be observed in passing that the decision of the Board was simply that the appellant's licence be revoked and the date from which the revocation was to be effective depended, not on the specification of a date by the Governor in Council, but simply upon the operation of s. 31 (1) of the Act. This sub-section provides that:

"No decision of the Board granting or refusing to grant
any application for a commercial passenger vehicle licence or
revoking or suspending for a period exceeding thirty days any
such licence shall have any force or effect until such decision is
reviewed by the Governor in Council:
Provided that nothing in this sub-section shall apply to
any decision of the Board granting a licence temporarily for a
period not exceeding three months for any particular purpose
of limited duration."

But it is contended that the later sub-sections of s. 31 make it clear that it was by force of what I shall for the moment call the decision of the Governor in Council that the appellant's licence was revoked and, that being so, that it must be held that certiorari does not lie. Those sub-sections are as follows:

"(2) In reviewing any decision as aforesaid the Governor in
Council may by Order within six months of the Board giving
a decision -
(a) approve the decision of the Board;
(b) disapprove the decision of the Board; or
(c) make any determination in the matter which the Board
might have made -
and every such Order shall be given effect to as soon as may
be by the Board."
"(3) Notwithstanding anything in the foregoing provisions
of this section where -
(a) the Board refuses to grant a new licence to the existing
holder of a licence; and
(b) the decision refusing to grant such licence is approved
by the Governor in Council -
such decision shall not have any force or effect until the
expiration of a period of six months after such approval,
and the period of the licence shall be deemed to be extended
until the expiration of such period of six months."

I do not find any support for the Board's contention in sub-s. (3). On the contrary that sub-section makes it clear that where the Board refuses to grant a new licence to the existing holder of a licence and the decision refusing to grant such licence is approved by the Governor in Council it is the Board's decision which is to become effective at the expiration of a period of six months after such approval. The difficulty, if there be one, in the way of the appellant is to be found in the somewhat confused wording of sub-s. (2). The word "Order" where it first appears in the sub-section refers naturally enough to the instrument by which the approval, disapproval or other determination of the Governor in Council is expressed. But the sub-section proceeds to provide that "every such Order shall be given effect to as soon as may be by the Board". But if the decision of the Board is simply approved it is that decision which comes into operation by force of sub-s. (1); in other words, the condition for the operation of the Board's decision is fulfilled. However where the Governor in Council disapproves of a decision of the Board or makes any determination in a matter which the Board might have made, but has not, it may be that it will be necessary for the Board to act in such a way as to give effect to the disapproval or other determination. The position is that in some cases it may be that the rights of a licensee or an applicant for a licence depend upon the Order in Council (cf. Reg. v. Hastings Board of Health [1865] EngR 455; (1865) 6 B & S 401 (122 ER 1243) ) but in others their rights will continue to depend upon the decision of the Board notwithstanding the fact that it does not become effective until the approval of the Governor in Council has been given. In these circumstances and because I take the view that we should not hold that subjects have been deprived of the protection of the prerogative writs except by clear words, I do not think that the fact that the Governor in Council has simply approved of the Board's decision is fatal to the appellant's application. Nor, with the greatest respect to the Supreme Court, do I think that the changes made in the legislation in 1935 provide any safe ground for thinking otherwise. I, therefore, proceed to consider the grounds upon which the appellant's claim to relief was founded. (at p247)

6. The first matter alleged in the notice to show cause (par. (a)) was that the appellant had failed to notify the Board of his change of address, pursuant to reg. 19 (e), Pt II, of the Transport Consolidated Regulations 1960. But what that sub-regulation provides is that the holder of a licence

"shall return such document . . . to the Secretary to
the Board . . . (e) within three days after change of abode or
address as shown in such licence, permit or certificate".

Paragraph (a), therefore, does not in terms allege a contravention of reg. 19 (e) and an information couched in the terms of that paragraph would be bad. But this does not necessarily mean that, in this respect, the proceedings before the Board were defective, for initiating proceedings in inquiries of this nature are not subject to the pleading rules observed in courts stricto sensu. It was, in my view, sufficient if the notice fairly indicated to the appellant that the matter alleged against him was a contravention of reg. 19 (e) so that he had "a fair opportunity . . . to correct or contradict any relevant statement" (per Viscount Haldane in Local Government Board v. Arlidge (1915) AC 120, at p 133 ). We have not before us a transcript of the proceedings before the Board so that it is impossible for us to say whether he had such an opportunity or not, or, whether the question which the Board considered under par. (a) was an alleged contravention of reg. 19 (e). In the circumstances I would not be disposed to think that the appellant had made out a case for certiorari simply because of the informality of the allegation in par. (a). (at p247)

7. There is, however, a more substantial matter for consideration in relation to this paragraph. As already appears the Board's power to revoke the appellant's licence was dependent upon it reaching the conclusion that a condition or conditions of or attached to the licence had not been complied with. But if the requirement of reg. 19 (e) was a condition of the licence it was solely because the provisions of reg. 11 made it so. That Regulation provides:

"Every licence, permit, or certificate granted and issued
by the Board shall be subject to the terms and conditions
printed or written thereon, and to the observance of the
provisions of the Act and these Regulations, or of any other Act
relating to the vehicle or any Regulation or By-law made
thereunder, which shall be deemed to be conditions of every
licence, permit, or certificate (as the case may be). Failure
to comply with such terms, conditions and provisions as
aforesaid by the person directed to comply with same shall
be deemed to be a breach of these Regulations."

It is, however, the appellant's contention that this Regulation is in excess of of the regulation-making power conferred by the Act. There is, I think, much force in this contention. Section 23 (1) of the Act provides that:

"It shall be a condition of every licence -
(a) that the vehicle is maintained in a fit and serviceable
condition;
(b) that the provisions of any Act or regulation thereunder
with respect to limits of speed which are applicable to such
vehicle are complied with in relation to such vehicle; and
(c) that in relation to such vehicle the provisions of any
Act or regulation thereunder relating to the limitation
of hours of driving are observed."

Additionally sub-s. (2) provides that:

"The Board may in its discretion attach to any licence all
or any of the following conditions, namely -
(a) that the vehicle shall operate only upon specified routes
or in a specified area;
(b) that not more than a specified number of passengers shall
be carried at any one time on the vehicle;
(c) that specified time-tables shall be observed;
(d) that reasonable specified fares or hiring rates shall be
charged;
(e) that prescribed records shall be kept; and
(f) such other conditions appropriate to the service to be
provided as the Board thinks proper to impose in the
public interest."

But notwithstanding these provisions the Board maintains that reg. 11 is justifiable under the provisions of s. 44 (1) (b) (v), or s. 44 (1) (e), or, ultimately, under the general provisions of s. 44 (1) (l). (at p248)

8. The first of these provisions is to the effect that

"The Governor in Council may make regulations for or with
respect to . . . prescribing and regulating in respect of vehicles
. . . conditions relating to the operation and use of such
vehicles."

In terms the provision does not authorize regulations prescribing what shall be the conditions of the various forms of licences which may be issued under the Act. But even if it should be held to extend so far reg. 11 cannot by any stretch of imagination be regarded as a prescription of conditions relating to the operation and use of licensed vehicles; that Regulation is, according to its tenor, so sweeping that it deems to be conditions of a licence statutory and regulatory provisions whether or not such provisions relate to conduct in no way concerned with the operation and use of licensed motor vehicles. (at p249)

9. The Board also relies upon the provisions of par. (e). The effect of this provision is to authorize the making of regulations for or with respect to "the form and conditions of and any particulars to be set out in licences permits or certificates". The language is difficult but it seems to me to be concerned more with the form of and the authorities conferred by the various licences permits and certificates issued under the Regulations (cf. reg. 4) than with the prescription or formulation of conditions which are to be conditions of such licences permits or certificates for the purposes of s. 31. This view, I think, finds some support in the fact that the Act, by s. 23, expressly declares what shall be the conditions of every licence and, further, vests in the Board a discretion to attach to any licence other conditions of the nature specified including such conditions, appropriate to the service to be provided as the Board thinks proper to impose in the public interest. But however this may be I do not see reg. 11 as a regulation which prescribes or formulates the conditions of or attached to licences issued under the provisions of the Act and Regulations; it simply purports to pick up every provision of the Act and Regulations or of every other Act "relating to the vehicle" (whatever that expression may mean) and of every regulation or by-law made thereunder and deems those provisions, as they may happen to exist from time to time, to be conditions of every licence or permit or certificate. In my view this cannot, on any view, be said to be a valid exercise of a power to make regulations for or with respect to "the form and conditions of . . . licences permits or certificates". Nor do I think that par. (l) of s. 41 (1) carries the Board's case any further. This paragraph is in a common enough form and, having regard to the earlier provisions of the Act, it does not authorize the making of a regulation in the form of reg. 11. (at p250)

10. This conclusion means also that par. (b) (i) of the notice to show cause, which informally alleges a breach of reg. 16 of Pt II, also failed to disclose a ground upon which the appellant's licence might have been revoked for it is only by virtue of reg. 11 that a contravention of that regulation qualifies as a non-compliance with a condition of his licence. It is true that there was expressed in the licence a condition relating to conduct of the licensee in some respects similar to the conduct alleged in par. (b) (i) but the point is that that paragraph, in effect, alleged a breach of reg. 16 and the Board apparently found that there had been such a breach and took this into account in reaching its decision to revoke the licence. Additionally it seems to me that a breach of reg. 16 could never be a ground for revoking a licence. Upon a breach of reg. 16 the holder's licence becomes, ipso facto, void and should, pursuant to reg. 19 (a), be returned to the Board. But it is not rendered void merely if the Board is of the opinion that there has been a breach of the regulation; the operation of the section is dependent upon a breach actually having occurred. Accordingly, in cases where there is a dispute as to whether there has been a breach of this regulation the licensee's rights fall to be determined by the resolution of this question according to law in the ordinary way. (at p250)

11. In my view it is apparent that there were substantial errors of law on the face of the proceedings and that they were of such a character as to entitle the appellant to certiorari. (at p250)

OWEN J. The appellant sought from the Supreme Court a writ of certiorari directed to the respondent Board to quash a decision made by the Board purporting to revoke a metropolitan taxi-cab licence which had earlier been issued by it to the appellant. The application was refused and the appellant thereupon appealed to this Court. An objection to the competency of the appeal was made and during the hearing of that objection the appellant, while submitting that an appeal lay as of right, sought special leave to appeal should that submission fail. (at p250)

2. In the light of the evidence before us as to the value of the licence to the appellant I am disposed to think that an appeal lies as of right but I do not think it necessary to determine that matter finally since I am of opinion that the case is one in which, if there is no appeal as of right, special leave to appeal should be granted. (at p250)

3. The history of what seem to me to be the relevant events is as follows: (at p250)

4. In 1956 a taxi-cab licence was issued to the appellant by the Board and thereafter was renewed from year to year. The licence, as renewed in February 1967, bore on its face under the heading "Warning" the statement that

"This assessment does not authorize the operation of the
vehicle until the payment of fees has been acknowledged by
the imprint of cash register receipt hereon. This form must
be returned immediately with the full amount of fees payable
to the Secretary, Transport Regulation Board.
It must also be returned for endorsement immediately upon
any change of address of the owner or upon disposal of the
vehicle."

The licence contained the following statements:

"The owner of the Commercial Passenger Vehicle described
on the back hereof is hereby authorized to operate such vehicle
during the currency period shown hereon as a Metropolitan
Taxi-Cab as defined in Regulations applicable to vehicles so
classified also in accordance with conditions set out in any
document which purports to contain conditions of this licence.
When so operated the vehicle shall be subject to all of the
provisions of the Transport Regulation Act and any Regulation
made thereunder or of any other Act, Regulation, or By-Law
relating to Commercial Passenger Vehicles.
This licence is non transferable and is also subject to the
condition that the licensee shall himself drive and retain at all
times control, use and management of the licensed vehicle,
or any similar classified vehicles licensed in his name by the
Board, as his sole means of employment." (at p251)

5. On 28th April 1957 the Board issued a notice to the appellant in the following form:

"TAKE NOTICE that the Board proposes to consider the
revocation or suspension of licence numbered MT-2765 on the
grounds that:-
(a) You failed to notify the Board of your change of address,
pursuant to reg. 19 (e) Pt II of the Transport Consolidated
Regulations 1960.
(b) Between 1st April 1966 and 15th March 1967 you
committed
wilful and continued breaches of the condition of
the said licence in that:-
(i) without the written authority of the Board you
transferred the control, use and management of the
vehicle to which the above licence relates, to another
person, contrary to the provisions of reg. 16 Pt II
of the Transport Consolidated Regulations 1960,
(ii) you have not yourself driven the vehicle to which
the above licence relates.
AND FURTHER TAKE NOTICE that if you desire to object to the
revocation or suspension of the said licence, you should attend
before the Board at the Board's Offices at the corner of Lygon
ABC and Princes Streets, Carlton on Monday 5th June 1967, at
10.15 a.m." (at p252)

6. It is convenient at this stage to refer to certain provisions of the Transport Regulation Act under which the Board is constituted as, inter alia, the licensing authority of metropolitan taxi-cabs, and to a number of regulations made or purporting to be made under that Act. Section 23 (1) provides that it shall be a condition of every licence that the vehicle is maintained in a fit and serviceable condition; that the provisions of any Act or regulation with respect to speed limits applicable to such vehicle are obeyed; and that the provisions of any Act or regulation relating to the limitation of hours of driving are observed. By s. 23 (2) the Board is given a discretion to attach to any licence all or any of certain other conditions. They relate to the routes or areas in which the taxi-cab may operate, the number of passengers that may be carried, the timetables to be observed, the fares that may be charged, the records to be kept and "such other conditions appropriate to the service to be provided as the Board thinks proper to impose in the public interest". Section 44 (1), which contains the regulation-making power, empowers the Governor in Council by par. (e) to make regulations and includes a power to make regulations with respect to "the form and conditions of and any particulars to be set out in licences . . . ". Regulation 11 purports to make every licence issued by the Board subject

"to the observance of the provisions of the Act and these
Regulations, or of any other Act relating to the vehicle or any
Regulation or By-law made thereunder, which shall be deemed
to be conditions of every such licence."

I pause here to say that, having regard to the provisions of s. 23, I feel considerable doubt whether reg. 11 is within the regulation-making power contained in s. 44 (1) (e) but, for reasons which will appear later, it is unnecessary to decide whether this is so or not. (at p252)

7. Section 31 is in the following terms:

"(1) No decision of the Board granting or refusing to grant
any application for a commercial passenger vehicle licence or
revoking or suspending for a period exceeding thirty days
any such licence shall have any force or effect until such
decision is reviewed by the Governor in Council.
(2) In reviewing any decision as aforesaid the Governor in
Council may by Order within six months of the Board giving
a decision -
(a) approve the decision of the Board;
(b) disapprove the decision of the Board; or
(c) make any determination in the matter which the
Board might have made -
and every such Order shall be given effect to as soon as may
be by the Board.
(3) Notwithstanding anything in the foregoing provisions
of this section where -
(a) the Board refuses to grant a new licence to the existing
holder of a licence; and
(b) the decision refusing to grant such licence is approved
by the Governor in Council -
such decision shall not have any force or effect until the
expiration
of a period of six months after such approval, and the
period of the licence shall be deemed to be extended until the
expiration of such period of six months."

And, by s. 32 (1) and (3),

"(1) A licence or permit may be revoked or suspended by
the Board on the ground that any of the conditions of or
attached to the licence or permit have not been complied with,
but the Board shall not revoke or suspend a licence unless
owing to the frequency of the breach of the conditions of or
attached to the licence, or to the breach having been
committed
wilfully, or to the danger to the public involved in the
breach, the Board is satisfied that the licence should be revoked
or suspended."
"(3) Where the Board under this section revokes or suspends
any licence or permit it shall if so required by the owner of the
vehicle in respect of which such licence or permit was granted
give in writing its reasons for such revocation or suspension." (at p253)

8. Following upon the Board's notice of 28th April 1957 the appellant appeared before it on 5th June 1967 and objected to the proposed revocation of his licence. Evidence was given - to what effect does not appear - and the Board reserved its decision. By a letter dated 14th June 1967 the Board informed the appellant that it had "recorded a decision that the licence be revoked" and that that decision would be forwarded for approval by the Governor in Council. On 23rd June 1967 it wrote a further letter to the appellant stating, as was the fact, that on 20th June 1967 the Governor in Council had approved of the respondent's decision "revoking the licence . . . as per notice to show cause dated 28th April 1967". On 29th June 1967 the appellant's solicitors asked the Board to supply its reasons for revoking the licence and to this it replied on 30th June 1967 that it had revoked the licence because it was "satisfied that the matters alleged . . . in show cause notice dated 28th April 1967" had been sustained. Shortly afterwards the appellant obtained from the Supreme Court an order nisi for a writ of certiorari to quash the Board's decision. The matter came before the Full Supreme Court upon an application to make the order absolute and the Court refused the application. Their Honours were disposed to take the view that in an appropriate case a decision of the Board under s. 32 to revoke a licence would be reviewable on certiorari. They pointed out, however, that before the application for the writ had been made the Board's decision had been reviewed and approved by the Governor in Council under s. 31. In these circumstances they were of opinion that it was the Order of the Governor in Council and not the decision of the Board which operated to revoke the licence. Certiorari would not lie to quash the Order of the Governor in Council and accordingly they considered that no good purpose would be served by quashing the Board's decision since there would still remain a valid Order of the Governor in Council revoking the appellant's licence. I have no doubt that their Honours were right in thinking that in determining whether or not a licence should be revoked under s. 32 of the Act the Board is a body which is amenable to the supervisory jurisdiction of the Supreme Court exercisable by means of the writ of certiorari. It is bound to act in a judicial fashion and has authority to determine questions affecting the rights of the subject notwithstanding the fact that its determinations are subject to review by the Governor in Council: R. v. Boycott; Ex parte Keasley (1939) 2 KB 651 ; Reg. v. Criminal Injuries Compensation Board; Ex parte Lain (1967) 2 QB 864 . With all respect, however, I cannot agree with their Honours that when a decision of the Board to revoke a licence is approved by the Governor in Council under s. 31 it is the Order of the Governor in Council that effects the revocation of the licence and that when such an Order is made the decision of the Board ceases to have any operative effect. Whether this is so or not depends, of course, upon the construction of the section but I do not read it as did the learned judges of the Supreme Court. Sub-section (1) directs that no decision of the Board revoking a licence shall have any force or effect until such decision is reviewed by the Governor in Council. This plainly points to the conclusion that the Board's decision - if and when it is approved by the Governor in Council - is to take effect. The approval puts an end to what might be called the stay of proceedings for which the sub-section provides. Sub-section (3), which deals with a decision of the Board to refuse to grant a new licence to the existing holder of a licence and an approval by the Governor in Council of that decision, points in the same direction. The difficulty in construing the section arises from the wording of sub-s. (2) which directs the Board to give effect to an Order of the Governor in Council approving or disapproving of the decision of the Board or making any determination which the Board might have made. The statutory direction that effect shall be given by the Board to the Order of the Governor in Council is a necessary provision in a case in which the Board's decision is disapproved or in a case in which a determination is made by the Governor in Council which the Board might have made but did not in fact make. In such cases there is no decision of the Board capable of being put into force and the Order of the Governor in Council is the effective determination. Where, however, the Governor in Council approves of the Board's decision, the Order of the Governor in Council is not an Order revoking the licence but one which does no more than approve the decision of the Board which, as from the date of the Order of approval, becomes effective and which is then to be put into force and effect by the Board. It is that decision which then operates to revoke the licence. Accordingly I am of opinion that the fact that prior to the date of the application for the writ the Governor in Council had approved the Board's decision did not justify the refusal of the writ. (at p255)

9. It remains to consider whether, in this case, the Board had jurisdiction to decide that the appellant's licence should be revoked and this involves an examination of s. 32 (1). The power of revocation conferred by that section may be exercised only if there has been a failure by the licensee to comply with a condition of or attached to the licence and is not to be exercised unless owing to the frequency of the breaches of those conditions or to the breach having been committed wilfully or to the danger of the public involved in the breach, the Board is satisfied that the licence should be revoked. (at p255)

10. The grounds upon which the Board based its decision to revoke the licence are those set out in its notice to the appellant of 28th April 1967, ground (a) of which alleged that he had failed to notify the Board that he had changed his address "pursuant to reg. 19 (e)". Assuming, although as I have already said I think it a doubtful assumption, that reg. 11 is valid and that as a result reg. 19 (e) is to be treated as a condition of the licence, what reg. 19 (e) requires is that the holder of a licence shall return it to the Board within three days after a change of the address shown on the licence. The matter charged in ground (a) cannot therefore be regarded as a breach of a condition of the licence. Ground (b) (i) alleged that between 1st April 1966 and 15th March 1967 the appellant had committed wilful and continuous breaches of a condition of the licence in that he had without the written authority of the Board transferred the control, use and management of the taxi-cab to another person contrary to the provisions of reg. 16. But reg. 16 cannot, in my opinion, be regarded as a condition of the licence for a breach of which it may be revoked since it provides that in case of a breach of its provisions the licence shall become void. Section 32, however, presupposes that the licensee holds a valid licence which, in certain circumstances, the Board may revoke and ground (b) (i) does not therefore disclose a ground upon which a decision to revoke the licence could be based. (at p256)

11. Ground (b) (ii) alleged that the appellant had committed wilful and continuous breaches of a condition of the licence in that between 1st April 1966 and 15th March 1967 he had not himself driven the taxi-cab. This is, I suppose, a reference to the condition printed on the face of the licence that the licensee shall himself drive and retain at all times the control, use and management of the licensed vehicle "as his sole means of employment". But ground (b) (ii) disregards these final words and cannot be regarded as charging a breach of this condition and, as in the case of the two preceding charges, a decision to revoke the licence could not be based upon it. (at p256)

12. I would add that the Board's decision was, as it said, based upon findings that each of the charges made was sustained and if one only of them is incapable of being regarded as charging a breach of a condition of the licence the Board's decision cannot be supported as being one made within its jurisdiction. If - as I think - no one of them is capable of being read as alleging non-compliance with a condition of or attached to the licence, the fact that the Board exceeded its jurisdiction becomes even more apparent. (at p256)

13. I would allow the appeal. (at p256)

ORDER

Objection to competency overruled and motion dismissed with costs.

Appeal allowed with costs. Order of the Full Court of the Supreme Court of Victoria set aside and in lieu thereof order that the order nisi for writ of certiorari to quash the decision of the Board and the revocation of the appellant's licence No. MT.2765 to operate a metropolitan taxi-cab be made absolute with costs.