Antill Ranger and Co Pty Ltd v Commissioner for Motor Transport [1955] HCA 25

Antill Ranger and Co Pty Ltd v Commissioner for Motor Transport [1955] HCA 25 - HCA 1955 case summary — Zoe

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Sir Garfield Barwick Q.C. (with him P. M. Woodward), for the plaintiff Edmund T. Lennon Pty. Ltd. The plaintiff submits that the State is unable to remove all legal remedy for conduct by itself and its officials which by virtue of the Commonwealth Consti- tution it may not authorize or justify. That submission may be a narrow statement of a wider proposition that the State may not under any guise validate its own legislative acts which are beyond its competence or validate administrative acts done in pursuance of such invalid legislation. The wider proposition would deny a power to validate under any guise, and to remove all legal conse- quence from an administrative act done in pursuance of invalid legislation is a form of validation. If this general proposition be not true, then it seems that a general law purporting to remove legal consequence from these administrative acts could circumvent the constitutional limitation entirely. The submission may be tested by reference to s. 92 of the Constitution, not as a basis for the argument but as a convenient illustration, and the Court is asked to assume that ss. 3 and 4 of Act No. 45 of 1954 had been enacted initially with the State Transport (Co-ordination) Act 1931 but without the temporal words " before the commencement of this Act" in s. 3 (a). The new sections are taken and read with the Principal Act but their references to facts and circumstances are treated as references to the Principal Act in the form in which it was at the time of the application of the Act to those facts and circumstances. Thus, notionally, the Principal Act is treated as unrepealed in the form in which it was when the matters occurred. The result would be sections authorizing the licensing provisions and imposition of charges side by side with sections of the nature of ss. 3 and 4. The licensing provisions would work if operated by way of justification without acts otherwise tortious or giving rise to causes of action. When the statute is determined to be invalid the authority for the justification goes, and at the very moment when the act calling for justification or authority is done and for which reference is made to the licensing provisions for justification s. 3 would operate to take away all possibility of legal consequence to the doer for such act. The barring of the remedy strictly does not render the act lawful but it does erect a kind of de facto authority to do the act which by hypothesis the State had no legislative authority to authorize. Thus by putting the sections in question beside the licensing system in the Act, the State would provide in effect a justification for doing it. This demonstrates that there would be no power, not for the narrower reason that s. 3 would itself be any impediment - though it is put alternatively on that

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legislative authority to do that which, by hypothesis, the State has no power to authorize or justify. As the next step - the argu- ment the Court is asked to assume the introduction into s. 3 as part of the Principal Act a date certain as to which the section would operate. By so introducing a time element the de facto authority granted to offending conduct by taking away the cause of action at the moment such conduct occurs is not affected. Finally, the fact that s. 3 is enacted not with the Principal Act but at a later stage does not make any difference. The Principal Act by the licensing provisions attempts to authorize the administrative Acts for which there was no legislative competence. Section 3, without the words " before the commencement of this Act" would cover past Acts and would work forward. The words " before the com- mencement of this Act" are not radical to the point of principle, but the considerations are the same at whatever point of time the State sought to deny legal consequence to an act which it could neither authorize or justify because of lack of constitutional com- petence. The State might place certain limitations upon the enforcement of a right of action, as to the time within which it must be enforced or the manner of enforcement, but it cannot deprive its invalid action of legal consequence. As a second basis of invalidity the plaintiff submits that the Act No. 45 of 1954 is itself an infringement of s. 92 and in this regard adopts the argu- ments of the plaintiff Antill Ranger & Co. Pty. Ltd. In so far as the section seizes upon the inter-State nature of the transaction as the significant reason for the loss of the cause of action or barring of the claim it cannot be said that its impact on the freedom is other than direct. The enactment impairs the freedom in two ways, first, it touches the particular transaction of the individual, secondly, by its very existence it acts as a deterrent to persons who have no inter-State transactions at the moment. To say that money wrongfully taken for licences may be retained is to discourage inter- State trade. The statute imposes a continuing burden upon a transaction which should have been continuously unburdened.

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~~ causes of action and their remedies therefor. The reason for the Act under which the moneys were paid being unlawful is irrelevant. It is sufficient that the Act was unlawful for any reason. The reference in the present Act to inter-State trade serves only to identify the causes of action in reference to which the Act is intended to operate. Such reference identifies the persons who may have claims, and the causes of action extinguished are the ordinary civil causes of action which do not arise from any provision _ of the Constitution. The rights extinguished are not part of inter- State trade. They are not trade rights. An Act operating on a civil - cause of action that arose whilst a person was engaging in inter-State trade, is not the trade itself, and even if the Act can be regarded as - operating on the trade of the plaintiffs, it cannot be said to operate - so as to restrict the plaintiffs' trade, commerce and intercourse. The present challenge is to an Act extinguishing a claim or barring a remedy, not to the Principal Act or anything done thereunder, and that Act coming into operation after the completion of the inter-State transaction cannot be said to restrict that trade. The - restriction, if any, on the plaintiffs' trade arose out of the Principal Act. It is submitted that if the plaintiffs' trade suffered any impedi- _ ment, that impediment was imposed at a particular point of time that preceded Act No. 45 of 1954. Section 92 does not prevent a State Parliament from providing time limits for bringing actions, nor from dealing with property within its borders. It is submitted the journeys were completed and the present Act does not operate on the plaintiffs as traders. On the authority of The Commonwealth v. Bank of New South Wales (2) the plaintiffs must show that the Act challenged restricts their freedom to engage in those Operations. - Any burden is not enough. It must be such a burden as will amount toarestriction : McCarter v. Brodie (3); Hughes & Vale Pty. Ltd. v. State of New South Wales [No. 1] (4) ; Hospital Provident Fund Pty.

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When s. 92 says that trade, commerce and intercourse among the States shall be free, it gives an immunity from interference by governmental action that cannot be transient or illusory. In pro- tecting the freedom of individuals to trade across State lines it invalidates any law purporting to confer any anterior authority to stop him doing so. Can the State by its functionaries stop him without legal justification and immediately afterward confirm the Act, give it a legal justification and deny him all remedy ? It seems implicit in the declaration of freedom of inter-State trade that the protection shall endure, that is to say, that if a governmental interference could not possess the justification of the anterior authority of the law because it invaded the freedom guaranteed, then it could not, as such, be given a complete ex post facto justifi- cation. By the words "as such " is meant that it cannot be given a justification ex post facto in virtue or by reason of its very nature as an interference with the freedom of inter-State trade. Yet that is what is done by the statute now in question. It takes the operation of the vehicle in the course of inter-State trade or for the purpose thereof. It takes the collection of the money under the purported authorities to which it refers, authorities pro tanto invalid because the vehicle was operating in the course of or for the purposes of inter-State trade. It assumes that a cause of action thereupon arose. On that basis it extinguishes every cause of action so arising and bars the remedy. It leaves the inter-State trader with no means of reparation and in exactly the same condition as he would occupy had there been an antecedent valid legal authority for the exaction. One of the effects of s. 92 is that legislation cannot impose a burden on inter-State trade. If the executive authority takes his money and the legislature says it may keep it, that surely amounts to a burden. It would defeat s. 92 to allow validity to such a statute. Section 3 cannot consistently with s. 92 operate to extinguish the plaintiff's supposed cause of action and s. 4 cannot operate to bar the remedy.

At a glance

Court

Decision date

Before

Source

Judgment (205 paragraphs)