Barton v Commissioner for Motor Transport

1. (1955) 93 C.L.R. 83; (1956) 94 C.L.R. 177. 2. (1955) A.C. 241; (1954) 93 C.L.R. 1. 3. (1955) 93 C.L.R., at p. 101.

The passage quoted contains the whole reason for the decision in the Antill Ranger Case [1] : my own view did not differ in any way from that of the majority. The passage is entirely inappropriate to the enactment in question in the present case. Section 27 is limited as to subject matter, but, within the field of that subject matter, is quite general in application. It has been in force since 1940 - long before the decision of the Privy Council in The Commonwealth v. Bank of New South Wales [4] , which first cast doubt on the validity of the earlier transport cases. It is simply a statute of limitation of a very ordinary and familiar kind, which substitutes, in the case of certain public authorities, a shorter period than that which is generally applicable to causes of action of the kind dealt with. The period cannot be said to be unreasonable. The position might have been different if the period fixed had been extremely short. If the period had been a day or a week, it might have been suggested that the practical and substantial effect of the section was to take away causes of action. But we were referred to a large number of statutes in pari materia, in some of which the period was shorter than one year, and I think it impossible to maintain that the period of one year is otherwise than reasonable.

1. (1955) 93 C.L.R. 83; (1956) 94 C.L.R. 177. 2. (1949) 79 C.L.R. 497.

To such an enactment s. 92 of the Constitution has, in my opinion, nothing to say. A person whose freedom to engage in inter-State trade has been infringed is entitled - and must be left entitled - to seek redress in the courts. But he must seek that redress within the framework of the system of substantive and adjective law under which he lives. If he seeks redress by way of an action for money had and received, he must establish what the common law requires to be established in order that an action for money had and received may be maintained: he cannot, for example, recover the amount of a merely voluntary payment: see the Antill Ranger Case [1] . Nor, whatever form of redress he seeks, is he immune from the rules of procedure of the court in which he seeks redress. If, for example, security for costs is required in a court of first instance or a court of appeal, he must give security for costs. If the defendant pleads a statute of limitation appropriate to the remedy sought, his action will be barred: see again the Antill Ranger Case [1] . Such law and rules as I have mentioned do not place a real burden upon him within the meaning of the cases on s. 92. To subject him to them is merely to place him in the same position as any other litigant, and s. 92 does not make him a specially privileged litigant. Section 27 does not, as the Barring Act considered in the Antill Ranger Case [2] did, deprive him of practically effective redress. As I have said, if a statute fixed an extremely short period for bringing an action, the position might well be different, but that would be because what was ostensibly a statute of limitation would be seen to be in substance something more and to have the real effect of depriving the plaintiff of practically effective redress.

1. (1955) 93 C.L.R., at p. 100. 2. (1955) 93 C.L.R., at p. 100. 3. (1955) 93 C.L.R. 83; (1956) 94 C.L.R. 177.

For these reasons I am of opinion that s. 27, as it stood before 1956, barred the plaintiff's claim in the present action. The amendment made by Act No. 16 of 1956 was, in the view which I take, without practical effect, since the cases which it purports to bring within s. 27 were, at all times since its original enactment, within the scope of that section.

The questions in the case stated should be answered: - 1. It is valid and applicable to the plaintiff's claim. 2. It is unnecessary to answer this question. 3. (a) The plaintiff is so barred. (b) It is unnecessary to answer this question.

By a special case which has been removed into this Court under s. 40 of the Judiciary Act 1903-1955 Cth., the parties to an action pending in the Supreme Court of New South Wales seek the determination of three questions. The fact which they have agreed and upon which they submit the questions to the Court are few and may be briefly stated. The plaintiff is a carrier of goods by road, and the defendant is a body corporate constituted by s. 6 of the Transport (Division of Functions) Further Amendment Act 1952 N.S.W.. The action is for the recovery of certain sums which, between 4th October 1951 and 12th June 1954, the plaintiff paid to persons or bodies described as predecessors of the defendant, for permits to operate public motor vehicles within the State of New South Wales in the course and for the purposes of inter-State trade. The permits were issued in purported pursuance of the State Transport (Co-ordination) Act 1931 as amended, or in pursuance of licences issued to the plaintiff under that Act. The decisions of the Privy Council and this Court in the first Hughes & Vale Case [1] established that the provisions which purported to make such permits necessary were invalid by reason of s. 92 of the Constitution.

1. (1955) A.C. 241; (1954) 93 C.L.R. 1; (1953) 87 C.L.R. 49.

The questions submitted all relate to the availability, as a defence to the action, of the provisions of s. 27 of the Transport (Division of Functions) Act 1932-1956 N.S.W., either in the form in which it was originally enacted by the Transport (Division of Functions) Amendment Act 1940 N.S.W. or with the addition made to it by the Motor Traffic and Transport (Further Amendment) Act 1956 N.S.W.. The section consists of two paragraphs, the first being the provision enacted in 1940 and the second the addition made in 1956. They have been set out in the preceding judgments and I need not repeat them.

The first two questions in the special case, taken together, ask whether, by reason of s. 92 of the Constitution, s. 27, either in its original form or as amended, is invalid or inapplicable to the plaintiff's action; and the third question asks whether, if the moneys claimed are otherwise recoverable, the plaintiff is barred from recovering them by s. 27 in its original form or as amended in 1956. It seems to me to be clear that the addition made in 1956 cannot validly apply to the action. The latest of the causes of action relied upon relates to a payment made on 12th June 1954. The 1956 Act was not assented to until 13th September 1956. To afford a defence to the action the addition which it made to s. 27 must have operated immediately upon its commencement as an absolute bar to the recovery of the moneys claimed; for no sensible distinction can be drawn between an absolute prohibition and the imposition of a time limit after the stated time has expired. That an absolute bar to the recovery of moneys which have been paid for licences in such circumstances as are referred to in the special case is obnoxious to s. 92 has been decided by the Privy Council, affirming a decision of this Court, in Commissioner for Motor Transport v. Antill Ranger & Co. Pty. Ltd. [1] .

Then as to the original provision of s. 27. I respectfully agree with the Chief Justice that the present action does not fall within the precise description of the actions for the commencement of which the provision sets a limit of time. But I think that there is another reason also for holding that the provision may have no application to this action, apart altogether from any consideration arising out of s. 92 of the Constitution. As I have said, the moneys which the plaintiff sues to recover were paid by him for permits issued under the State Transport (Co-ordination) Act 1931, as amended, or of licences issued to the plaintiff under that Act. The payees are described as "the predecessors of the defendant", an expression which admittedly refers to the officials who, at the respective times of the payments, were performing the functions which now belong to the defendant under the Act of 1931. The payments were made, therefore, to public officials who, in receiving them, were acting and were known to the plaintiff to be acting in their official capacities as collectors of such moneys on behalf of the Government. They were bound to account for such moneys to the Government, for s. 25 provided that all fees payable in respect of licences or permits under the Act should be paid into a special fund which, under s. 26, was to be kept in the Treasury and to be subject to the Audit Act. It is true that the moneys in the fund were vested in the same functionaries and were to be expended by them in accordance with statute (s. 26 (3)), but that does not affect the point that the plaintiff's moneys were collected on behalf of the Government.

It is said in Halsbury's Laws of England, 2nd ed., vol. 26, p. 265, par. 578 that if money has been paid, erroneously or otherwise, by a private individual to an officer of the Crown as such, it cannot be recovered from him as money had and received. The authority cited is the case of Whitbread v. Brooksbank [1] , in which Lord Mansfield C.J. said, with the concurrence of the rest of the judges of the King's Bench, that "an action for money had and received will not lie against an Excise officer for an overpayment". A few years later, in Greenway v. Hurd [2] Lord Kenyon stated what he conceived to be the reason for the rule. He said, "This in principle is like the case of Sadler v. Evans [3] , where it was held, that an action for money had and received against a known agent would not lie, but that the party must resort to the superior" [4] . A case may no doubt be taken out of this principle by additional facts; but if no more is established against an official than that moneys which the Crown has claimed have been paid to him as the appropriate recipient of such moneys for the Crown, the principle applies so that any claim by the payer to recover the moneys must be a claim against the Crown and not against the official. This accords with the statement of the law, based on Sadler v. Evans [3] and Greenway v. Hurd [2] , which is found in Addison on Contracts , 10th ed. (1903), pp. 329, 330: "If money be paid to a known agent for the use of his principal, an action for money had and received cannot be sustained against the agent if it appears that the principal has the least colour of right to the money; for the courts will not try the right of the principal to the money in an action against the agent. The agent having received the money on behalf of the principal, and for his use, is accountable to the latter for it and the agent, whether he has paid over the money, or whether he has not, is answerable to the principal alone." In Sadler v. Evans [3] Lord Mansfield explained the view the judges took by saying: "They thought, the principles upon which actions for money had and received to the plaintiff's use are founded, did not apply to the circumstances of the present case. It is a liberal action, founded upon large principles of equity, where the defendant cannot conscientiously hold the money. The defence is any equity that will rebut the action. This money was paid to the known agent of Lady W. He is liable to her for it; whether he has actually paid it over to her, or not: he received it for her" [5] . No doubt reasoning such as this was in Lord Kenyon's mind when he said, referring to the excise officer who was sued in Greenway v. Hurd [2] . "If the defendant had not paid the money over, he would have subjected himself to punishment; and it would be hard that he should also be punished by an action if he did pay it over" [1] .

1. (1774) 1 Cowp. 66, at p. 69 [98 E.R. 970, at p. 972]. 2. (1792) 4 T.R. 553 [100 E.R. 1171]. 3. (1766) 4 Burr. 1984 [98 E.R. 34]. 4. (1792) 4 T.R., at p. 555 [100 E.R., at p. 1172]. 5. (1766) 4 Burr. 1984 [98 E.R. 34]. 6. (1792) 4 T.R. 553 [100 E.R. 1171]. 7. (1766) 4 Burr. 1984 [98 E.R. 34]. 8. (1766) 4 Burr., at p. 1986 [98 E.R., at p. 35]. 9. (1792) 4 T.R. 553 [100 E.R. 1171]. 10. (1792) 4 T.R., at p. 555 [100 E.R., at p. 1172].

The questions before us must be considered on the facts appearing in the special case and on those facts alone. We are not told how the payments which the plaintiff seeks to recover came to be made. There is nothing to exclude the principle of law to which I have referred. The case therefore cannot be regarded as one in which, as in Snowdon v. Davis [2] and Steele v. Williams [3] , the money has been obtained from the plaintiff by wrongful conduct for which the defendant is responsible, or as one in which the money has been paid to the defendant otherwise than for the use of the Crown. The meaning of the special case, clearly enough, is that the Crown was entitled by virtue of statutory provisions to have the payments made to it by the plaintiff unless the relevant provisions were prevented by s. 92 of the Constitution from applying to the case, and that the payments were made to the defendant or his "predecessors" by reason of a claim by the Crown that its right to insist upon them was not displaced by s. 92. For all that appears, therefore, the position of the defendant may be analogous to that which Isaacs J. described in relation to the Collector of Customs in Sargood Bros. v. The Commonwealth [4] : "The money was handed to him, therefore, for the Crown , and he was impliedly empowered by the plaintiffs to do with it what an officer in his position would be expected to do in the ordinary course of his duty, that is, pay it over to the Treasury, which we must assume he did in accordance with the Audit Act In the circumstances, the principles on which the action for money had and received is founded have no application to him, and he cannot be sued" [5] . See also per Higgins J. [6] ; Buchanan v. The Commonwealth [7] .

1. (1808) 1 Taunt. 359 [127 E.R. 872]. 2. (1853) 8 Ex. 625 [155 E.R. 1502]. 3. (1910) 11 C.L.R. 258. 4. (1910) 11 C.L.R., at p. 304. 5. (1910) 11 C.L.R., at p. 310. 6. (1913) 16 C.L.R. 315.

The hypothesis of the special case, as stated in the third question, is that the moneys sued for are recoverable unless the plaintiff is barred from the recovery thereof by s. 27. This hypothesis postulates one of two possible situations. Either there are facts, not stated in the special case, of such a kind that the defendant is himself liable to the plaintiff for the moneys notwithstanding the principle of law to which I have referred, or the Crown alone is liable and the defendant must be regarded as sued as representing the Crown. In the latter case the more appropriate procedure would have been that provided by the Claims against the Government and Crown Suits Act 1912 N.S.W.. But there is nothing novel in an action against an official being treated conventionally as an action against the Crown; indeed that was done in one of the cases often cited in relation to the principle I have been discussing: Campbell v. Hall [1] . There, the plaintiff sued a collector of duties to recover money which he complained had been unlawfully exacted, and the court, before dealing with the substantial questions that arose as to the lawfulness of the exaction, made it clear that they did so on the footing that the money, which was still in the hands of the defendant, "so continued with the privity and consent of His Majesty's Attorney-General, for the express purpose of trying the question as to the validity of imposing this duty".

If the special case had stated facts resulting in a liability on the part of the defendant as distinguished from a liability on the part of the Government, it would no doubt be correct to describe the action, on the authority of such cases as Greenway v. Hurd [2] ; Waterhouse v. Keen [3] ; Selmes v. Judge [4] ; Midland Railway Co. v. Withington Local Board [5] and Cree v. St. Pancras Vestry [6] as an action "for something done" under the State Transport (Co-ordination) Act 1931; and the only question remaining would be the question on which earlier in this judgment I have expressed my concurrence with the Chief Justice. But in the absence of anything in the special case to indicate that the parties have submitted their questions of law on the footing that there are facts resulting in a liability to be borne by the defendant himself and not simply a liability to be met out of Government funds, it seems to me that, because of the hypothesis that the moneys sued for are recoverable unless s. 27 prevents their recovery, the special case ought to be understood as implying that the parties are at one in treating the action as really an action against the Government of New South Wales. If that is the case, s. 27 cannot apply any more than it would apply to an action against a nominal defendant appointed under the Claims Against the Government and Crown Suits Act. If such a nominal defendant, relying upon the precise words of s. 27, should say that he is a "person", and that the action against him is for something done under such an Act as s. 27 refers to, the answer would have to be given that s. 27 protects individuals in respect of their own liabilities, its protection being, as the Court holds in Shepherd v. State of New South Wales [7] , plainly inappropriate to the Crown. And it could make no difference if the nominal defendant happened to be not only a "person" but one of the commissioners appointed under the Transport (Division of Functions) Act 1932.

1. (1792) 4 T.R. 553 [100 E.R. 1171]. 2. (1825) 4 B. & C. 200 [107 E.R. 1033]. 3. (1871) L.R. 6 Q.B. 724. 4. (1883) 11 Q.B.D. 788. 5. (1899) 1 Q.B. 693. 6. (1957) 97 C.L.R. 673.

For these reasons, together with those stated by the Chief Justice, I am of opinion that the answers proposed by his Honour should be given.

The reasons published by Fullagar J. express my own views on the questions raised in this matter and I have nothing to add. Accordingly, I am of the opinion that the questions asked should be answered as proposed by him.