Banks v Transport Regulation Board

Banks v Transport Regulation Board - [1968] HCA 23 - HCA 1968 case summary — Zoe

[25]

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the market value of his licence at the time the Board decided to revoke it was not less than $9,000 and that had it not been revoked it would still be worth at least that sum in the market.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.

[35]

Pollock B. in Smelting Co. of Australia v. Commissioners of Inland Revenue [1] evidently regarded the definitions in Thomas v. Sorrell [2] 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 [3] . 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 [2] 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.

[40]

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 [1] 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 [2] , 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 [1] . Consequently, I do not feel constrained by Nakkuda Ali v. Jayaratne [2] to hold either that certiorari is not available in this case or that the licence is a mere privilege and not property.

[82]

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.

[111]

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 [1] ) 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. 1. (1865) 6 B. & S. 401 [122 E.R. 1243].

[157]

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 [1] ; Reg. v. Criminal Injuries Compensation Board; Ex parte Lain [2] . 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.

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