Barclay v Linnane

April 18 Dixon C.J., Williams, Fullagar, Kitto and Taylor JJ.

This is an application for special leave to appeal by an informant in a prosecution under s. 133 (1) (a) of the Government Railways Act 1912-1955. The information was dismissed by the magistrate. The informant appealed from the dismissal to the Supreme Court by way of case stated but this appeal was dismissed by Clancy J. It is from the order dismissing the appeal that the informant now seeks special leave to appeal.

The defendant is a station assistant in the employ of the Railway Commissioner of New South Wales. Section 133 (1) provides that: "If any person employed upon the railway or in repairing and maintaining the works of the said railway - (a) is found drunk or under the influence of intoxicating liquor or any drug whilst so employed upon the said railway any railway officer or agent, or any special constable duly appointed, and all such persons as any of them may call to his assistance, may seize and detain such person so offending, or any person counselling, aiding or assisting any such offence, and convey him with all convenient despatch before any magistrate, or two justices of the peace, without any other warrant or authority than this Act, to be dealt with according to law." Sub-section (2) of s. 133 fixes a maximum penalty of six months' imprisonment or a fine of fifty pounds.

It appears from the findings of the magistrate that the defendant was an officer employed at Lucas siding, which is within the Darling Harbour railway yards. Lucas siding is vested in the Railway Commissioner and it consists, among other things, of a railway platform adjacent to railway lines.

The defendant was an officer in charge of the lost property section at Lucas siding. Among the purposes of the lost property section there is included what is called the "salvaging" of goods damaged in transit and the collection of miscellaneous items of property from various departmental sections within the yards. The lost property section at Lucas siding is not open to the public in general, although on occasions the members of the public may have access to it. The defendant's duties as a station assistant at the lost property section did not include any work upon the permanent way or in the signalling system or as a member of the running staff, nor, indeed, any contact with the running staff. The evidence for the informant was to the effect that on the day in respect of which the charge is laid the defendant was absent from his duty at Lucas siding for about an hour and as he returned he was found to be under the influence of liquor to such a degree that he could properly be described as in a drunken condition.

On these facts it was submitted to the learned magistrate on his behalf that the word "railway" as used in s. 133 (1) (a) possessed a restricted meaning. It meant no more than a line or track consisting of iron or steel rails on which carriages or wagons conveying passengers or goods are moved by a locomotive thus constituting a railway train and those things and those services ancillary and auxiliary to the actual running of railway trains, that is to say, signals, turntables and the like. The magistrate in effect adopted this construction of s. 133 (1) (a) and on that ground dismissed the information. In substance Clancy J. accepted the same view but expressed the opinion that the description of duties to be performed was to be preferred as a test to that of locality. It is because the Railway Commissioner regards this restrictive interpretation of s. 133 (1) (a) as of importance in the administration of his department that special leave is now sought from this Court.

It is hardly necessary to say that, apart from such a consideration as that put forward by the commissioner, the case is not of a description in which we would be disposed to exercise our power of granting special leave to appeal. But the application was argued before us fully and both parties concurred in the view that no further argument of the matter would be necessary should we give special leave to appeal.

We find ourselves quite unable to agree with the construction which has been assigned to the provision in the Supreme Court and by the learned magistrate. The history of the legislation was referred to but it throws but little light upon the meaning of s. 133 (1). The provision apparently finds its ultimate inspiration in the Railway Regulation Act 1840 (3 & 4 Vict. c. 97, s. 13), which was supplemented by the Railway Regulation Act 1842 (5 & 6 Vict. c. 55, s. 17). From this source s. 132 of the Railways Act 1858 (22 Vict. No. 19) was derived, where the crucial words were much in the same form, that is to say the person found drunk must be one employed upon the railway or in repairing and maintaining the works of the said railway. But in the provision of the Act of 1842 the words were "employed in conducting traffic upon the railway belonging to the said company". The change from "conducting the traffic" to "employed upon the railway" is possibly significant. We do not think, however, that the provision as it now stands in s. 133 (1) is really ambiguous or that it requires elucidation from the history of the legislation. In our opinion the meaning of the words in s. 133 (1) "any person employed upon the railway or in maintaining the works of the said railway" cannot be restricted so that they have nothing but the extremely limited application given to them by the decision from which it is sought to appeal. It may be conceded that many persons in the employ of the commissioner do not fall within the application of the words of s. 133 (1) in question. Those engaged solely in the over-all administration of the department certainly would not do so. Employees concerned in the procurement or purchase of supplies are hardly likely to fall within them. Employees in the claim agent's office or in a tourist bureau would not fall within the words. But the expression "employed upon the railway" appears to us to look to what may be called the whole operating portion of the railway system and to include all employees whose work takes an immediate part in the work of that operating system. It is, of course, a necessary element of the offence that the offender must be found drunk or under the influence of liquor or a drug whilst so employed on the said railway. This requirement would not be satisfied unless he was upon the premises or other property of the commissioner forming part of the operating system or possibly in some other way identifying himself with that system. We see no reason at all for saying that because the defendant was employed in the lost property section within the railway yards he fell outside the general conception conveyed by the words "employed upon the railway". We are therefore of opinion that the dismissal of the information and the dismissal of the appeal were erroneous.

We have nevertheless had some hesitation in granting special leave to appeal in a matter of this description. For the informant, however, an offer was made to submit to terms as to costs and we are impressed with the possible importance of the matter to the commissioner. We grant special leave to appeal upon the terms of the informant paying the costs of this application limited to one counsel. We treat the application as the appeal, allow the appeal and discharge the order of Clancy J. In lieu thereof the order upon the case stated will be that the matter be remitted to the magistrate with the opinion of the Court that the decision dismissing the information was erroneous.