Commissioner for Motor Transport v Terry

High Court of Australia|1968-03-08|Before: Windeyer JJ

High Court of Australia Barwick C.J. McTiernan, Kitto, Menzies and Windeyer JJ. Commissioner for Motor Transport v Terry [1968] HCA 5

During the months of February and March 1963, according to the particulars of claim filed by the appellant in the Small Debts Court at Redfern, New South Wales, the first-named respondent to this appeal was the licensee under the provisions of the State Transport (Co-ordination) Act, 1931-1956 N.S.W. (the Act) of a public motor vehicle which he operated from Brookvale to Muswellbrook in that State carrying goods for more than fifty miles of the journey in competition with the government railways. A condition of his licence to operate such vehicle was claimed to be that he should pay to the appellant the sum of threepence per ton, or part thereof, of the aggregate of the weight of the vehicle unladen, and of the weight of loading the vehicle is capable of carrying for each and every mile, or part thereof, travelled by the vehicle along a public street on a journey wholly or partly competitive with the railways.

The respondent challenged the jurisdiction of the Small Debts Court to entertain an action for recovery of the amounts payable to the Commissioner under the terms of the licence, upon the ground that the exaction of such amounts under the licence constituted the taking of a duty to the Crown within the meaning of s. 11 (1) of the Small Debts Recovery Act, 1912-1961 N.S.W., and that therefore the action commenced by the default summons related to such taking. The magistrate decided that he had jurisdiction to hear the action, whereupon the respondent sought of the Supreme Court of New South Wales a writ of prohibition to restrain the magistrate from proceeding upon the default summons. The Supreme Court, Court of Appeal Division, by majority granted the writ of prohibition. The Supreme Court were unanimous in the view that the amounts payable under the condition of the licence were duties due to the Crown within the meaning of the Small Debts Recovery Act. A majority of that Court further held that the provision of s. 39 (1) of the Act neither superseded the provisions of s. 11 (1) of the Small Debts Recovery Act in respect of the sums payable under the licence, nor increased the jurisdiction of the Small Debts Court to enable it to entertain an action to recover such sums. The appellant by this Court's special leave now appeals against the order of the Supreme Court for the issue of the writ of prohibition.

The exception from the jurisdiction of courts in which small debts might be recovered of matters relating to the taking of any duty to the Crown is of long standing in Australia. In providing for the creation of such courts to be called courts of request by s. 20 of 4 Geo. IV c. 96, matters relating to the taking or demanding of any duty payable to the King were excepted from the jurisdiction which could be given to them. Later, the same exception was made in the authority given by s. 18 of 9 Geo. IV c. 83 to create courts of requests. Later still, in establishing courts of petty sessions as courts of requests in 1846, s. 4 of 10 Vict. No. 10 excepted from the jurisdiction of such courts any case where the matter in question related to the taking of any duty to Her Majesty. There is no need to seek with any precision, or to discuss what might seem to be the policy behind these enactments carried forward, as they are in this respect in s. 11 (1) of the Small Debts Recovery Act. They do not appear to be derived from any English statute. The heads of the exception are clear and it is imperative in its terms. But I think it can be said that no readily discernible policy prompting the exception would appear to require any restriction of the meaning which would otherwise be assigned to the word "duty" in the context of the section. The only question in relation to the provision, in my opinion, is as to the denotation of the words "duty to Her Majesty". Are the sums exigible under the condition of the licence duties to the Crown, or rather more precisely, does a claim to be paid such sums as a debt involve a matter relating to the taking of a duty to the Crown?

It is profitable, I think, to examine in the first place the precise nature of the amounts payable under the condition of the licence. One purpose, if not the principal purpose of the Act, is the protection from the competition of road transport of the railways conducted as a business enterprise by the State government: thus the protection of the revenues of the State is such a purpose. Another purpose, so it is said, is the recovery of some reasonable amount in or towards the recoupment of expenditure by the State upon the construction and maintenance of the highways of the State: but that again is a purpose of aiding the revenues of the State. The long title of the Act may not parade nor indeed concede these purposes, but none the less the substantial provisions of the Act themselves clearly evidence them.

Every motor vehicle which is used or let or intended to be used or let for the conveyance of passengers or of goods for hire or for any consideration or in the course of trade or business whatsoever or which plies or travels or stands in a public street for or on hire or in the course of any trade or business, is a public motor vehicle: see definition Public motor vehicle, s. 3 (1) of the Act. No public vehicle, unless specially exempted, may be operated except in the course of or for the purposes of inter-State trade unless it is licensed under the Act and the operator is the holder of such licence. Operation in breach of the Act constitutes an offence: s. 12. Every licence granted under the Act, in addition to being subject to the performance and observance of the provisions of the Act and of the regulations thereunder, is subject to the performance and observance of the provisions contained in or attaching to the licence, all of which, i.e. the provisions of the Act and regulations as well as the express provisions of the licence, are conditions of the licence: s. 17 (1). Failure to comply with or observe any of the terms or conditions of or attaching to the licences constitutes an offence: s. 17 (5), and renders the licence liable to cancellation: s. 21. A permissible condition which may be imposed by the licence is that the licensee shall pay to the Commissioner of Road Transport such sums as shall be ascertained as the Commissioner determines. But if such sum or sums are to be ascertained according to mileage travelled, a ceiling is set by the Act: s. 18 (5).

If a vehicle is operated in contravention of the Act, which includes of course its operation without a licence, the Commissioner may impose upon its operator an obligation to pay to him, on demand, sums not to exceed the sums which could have been made payable under a licence of the vehicle. But payment of the sums so imposed does not release the operator from the penalties for the offence committed in operating the vehicle: see s. 37.

All amounts payable to the Commissioner under the provisions of s. 18 (5) and s. 37 which I have summarized are to be paid into the State Transport (Co-ordination) Fund established under the Act: s. 25. That fund is a fund to be kept in the Treasury. To its credit in addition to the moneys which the Act directs to be paid into it, there is placed all moneys appropriated by Parliament for the purposes of the Act. Out of the fund, in addition to the costs of administration of the Act, there may be paid subsidies to feeder-bus services, amounts to the Country Main Roads Fund, established under the Main Roads Act, 1924-1950 N.S.W., the Government Railways Fund, established under the Government Railways Act, 1912-1951 N.S.W., and to the general fund of any transport trust, constituted under the Transport Act, 1930 N.S.W.. Otherwise the fund may be applied to the purposes for which it is appropriated by Parliament, in which respect it is subject to s. 46 of the Constitution Act, 1902 N.S.W. which requires the receipt by the House of a message from the Governor before appropriation.

The State Transport (Co-ordination) Board is a body corporate and a statutory body representing the Crown: see s. 4 of the Act. Thus, the sums for the recovery of which the default summons was issued in this case, are sums payable as a debt due to a servant of the Crown who seeks to recover them for the government, and who is required, upon their recovery, to pay them into a fund in the Treasury expendable for purposes of government. The debt to the Commission is not consensual in origin but derives from an impost placed upon the respondent by the servant of the Crown pursuant to powers given him by the Act, which, as I have indicated, itself determines the destination of the sums received in solution of the debt which the sum imposed constitutes by virtue of the Act.

We are not here concerned with the distinction which has been found in relation to the Australian Constitution to exist between a statutory impost for the benefit of the revenue generally and one which is merely, at any rate in purpose, for the recoupment of expenditure by the government upon what is regarded as a facility provided by the State for the benefit of the persons on whom the charge is laid. Nor are we concerned with the distinction drawn between licences and fees on the one hand and excise duties on the other, nor with the nomenclature employed in the discussion of such differences. The question here is whether the imposition of the sums in question is a taking of a duty to the Crown to which the demand for their payment relates. I have referred to the early statutory uses of the expression. We were referred in argument to contemporary dictionaries. From these it appears that the word was at that time used to refer to a payment due to the revenue of the Crown levied by force of law, though a duty was seen to differ from a tax in being levied on or in respect of specific commodities or activities, and not merely upon individuals. It is true that, historically, legislation affecting the then colonies of New South Wales and Van Diemen's Land had been concerned with the imposition of duties of excise: see 59 Geo. III c. 114 and 3 Geo. IV c. 96. But this circumstance cannot be allowed, in my opinion, to control the meaning of the word "duty" as used in the statute; and particularly cannot be allowed to limit its operation to duties of excise. It clearly could not refer to such duties in a State statute in 1912: see Australian Constitution, s. 90.

The statutory exaction in this case was made for the purposes of the revenue and is, in my opinion, quite clearly a tax, something the Crown could not impose without Parliamentary authority. It is imposed upon an activity, the carriage of goods on public roads - and possibly in some instances on particular public roads: see s. 17 (2) - and in particular circumstances, e.g. in competition with the government railways. It is not imposed on individuals generally but specifically upon or in respect of the activity, and is quantified by the extent of the activity. Thus, in my opinion, even if the word "duty" as used in s. 11 (1) of the Small Debts Recovery Act describes a lesser area than the word "tax", it covers the sums payable under the licence. It seems to me not to matter that the debt may be created by the operation of a condition of the licence or by the authorized act of the appellant upon operation of a vehicle without a licence. I therefore find myself in agreement with the members of the Court of Appeal who all concluded that the action commenced by the default summons related to the taking of a duty to the Crown.

Therefore, unless s. 39 (1) of the Act authorizes the Small Debts Court so to do, s. 11 (1) precludes it from entertaining the action commenced by the default summons. It is convenient, I think, to set out the terms of the section of the Act:

(1) In addition to any other remedy of the board for the recovery thereof, any amount due in respect of the condition referred to in subsection four of section eighteen or in subsection five of section eighteen or any amount due under section thirty-seven may be recovered by the board or by any person authorised by the board or by an authorised officer in a summary manner before any two justices of the peace or a stipendiary or police magistrate.

(2) Such amounts shall be recoverable in addition to the penalties for the offence.

The section embraces both the case of the operator who has failed to comply with the condition of the licence as to payment of the mileage charged, and that of the operator who has used a vehicle in contravention of the Act. In each case an offence has been committed, and the section in sub-s. (2) contemplates and acknowledges that situation. The remedy for the recovery of the sums due is "in addition to any other remedy". Those words are directed, in my opinion, to civil remedies. Section 38A which might be thought to provide another remedy for recovery of the sums due, was inserted in the Act by amendment in 1951, whereas s. 39 is an original provision. The language of the section is appropriate to the procedure under the Justices Act and inappropriate to the procedure under the Small Debts Recovery Act. It is found in the Act in association with a section which uses the same expressions and deals with proceedings under the former Act: s. 38. It is said that the section ought to be read as a reference to Small Debts Court proceedings because otherwise the operator who fails to pay the debt due under the licence may be imprisoned therefor. It is true that if the procedures of the Justices Act are used, a term of imprisonment in default of payment of a sum ordered to be paid must be specified as part of that order: see s. 82 (2), Justices Act. But s. 38A, for example, expressly contemplates that imprisonment may be ordered for non-payment of sums due pursuant to ss. 18 (5) and 37 of the Act. And there is nothing unusual, even at this time of our history, for stringent remedies to be provided for the protection of the revenue. No doubt difficulty in policing the use of roads by public vehicles prompts the enactment of severe consequences for failure to comply with the Act, and licences granted under it. But however that may be, I have reached the firm conclusion that s. 39 refers only to the procedures under the Justices Act, and that it is not intended to and does not relax or supersede the provisions of s. 11 (1) of the Small Debts Recovery Act. Consequently, in my opinion, for these reasons the Supreme Court was right in restraining the Small Debts Court from proceeding with the action commenced by the default summons.

I think that the reasons for judgment of Walsh J. in the Court of Appeal of the Supreme Court of New South Wales are right. I do not think it is necessary to add anything to his Honour's reasons. I would allow the appeal.

In my opinion the appeal should be dismissed. I agree in the judgment of the Chief Justice.

As will become apparent, I consider that this is a very unsatisfactory case which can be dealt with only upon assumptions which I am not confident are correct.

The facts have not been ascertained; indeed, the relevant documents were not copied in the record of proceedings. Some documents were, however, produced in Court and it would seem that the respondents obtained a motor lorry licence under the State Transport (Co-ordination) Act, 1931-1956 N.S.W., subject to the following special conditions:

(1) The within-mentioned vehicle is authorized to operate as a goods motor vehicle on or in routes, roads, areas, or districts within the State of New South Wales on journeys none of which, for a distance exceeding fifty (50) miles, is competitive with the railways or tramways.

(2) In respect of any journey which is wholly or partly competitive with the railways or tramways, the licensee shall pay to the Department of Motor Transport for the full competitive distance (in addition to any other sums payable under the State Transport (Co-ordination) Act, 1931, as amended, and this licence or either of them): - Threepence per ton, or part thereof, of the aggregate of the weight of the vehicle unladen and of the weight of loading the vehicle is capable of carrying for each and every mile, or part thereof, travelled by the within-mentioned vehicle along a public street.

(3) Provided that the terms, conditions and authorities of or attached to this licence are complied with, the licensee and the driver of the vehicle herein referred to, and each of them, shall be exempt from the condition mentioned in subsection 5 of section 18 of the State Transport (Co-ordination) Act, 1931, as amended, and, unless the Department otherwise determines, from the obligations imposed by Regulations 9 and 10 under that Act in respect of any journey which is not, for a distance exceeding fifty (50) miles, competitive with the railways or tramways. For the purposes of the terms, conditions and authorities of or attached to this licence and of this exemption, where goods are transhipped from one public motor vehicle to another or are carried by a public motor vehicle to a receiving depot, shop or store, and are carried from the place of transhipment or from such receiving depot, shop or store by a public motor vehicle, the whole journey shall be regarded as one journey, and if the vehicle to which this licence relates takes part in it, it shall be regarded as having undertaken the whole journey.

The appellant sued the respondents in a court of petty sessions exercising the jurisdiction conferred by the Small Debts Recovery Act, 1912-1961 N.S.W. for the recovery of sums alleged to have become due by virtue of the foregoing condition in the events which happened, namely, the operation by the respondents of their vehicle between Brookvale and Muswellbrook for the carriage of goods for more than fifty miles in competition with the railways. The magistrate decided that the Court had jurisdiction to hear and determine this claim, whereupon a rule nisi for prohibition was granted which the Full Court (Herron C.J. and Sugerman J.A., Walsh J.A. dissenting) made absolute [1] . From that decision this appeal has been brought by special leave.

The case turns, I think, upon s. 39 of the State Transport (Co-ordination) Act, which is in the following terms:

(2) Such amounts shall be recoverable in addition to the penalties for the offence.

It is also necessary to refer to s. 37, which is as follows:

(1) If any person operates any public motor vehicle in contravention of this Act the board may impose upon him an obligation to pay to them on demand such sums as the board determines, but such sums shall not exceed the sums that could have been made payable to the board under subsections four and five of section eighteen had the person operating the vehicle been the holder of a license to operate it and had the board imposed therein the conditions provided by such subsections.

(2) This section shall not relieve such person or any other person from the penalties for the offence.

I am in doubt about the character of the sum claimed in the default summons which was issued, namely, £65 0s. 3d. The terms of the condition set out above are inconsistent with its being a condition imposed under s. 18 (5): see cl. (3) thereof which in the event of compliance with the condition imposed exempts the holder from "the condition mentioned in subsection 5 of section 18". Furthermore it seems to me that a condition authorized by s. 18 (5) must relate to licensed operations, not unlicensed operations. Here the claim is for amounts due and payable to the Commissioner in respect of unlicensed operations seemingly on the footing that cl. (2) extends to unlicensed operations and is, inter alia, a prospective imposition of liability under s. 37. On this basis the liability of the defendants for the sum claimed rests upon s. 37.

I cannot say that I am satisfied about this but, despite my uncertainty, I am prepared to proceed upon the footing - which the parties appeared to adopt - that the real question now at issue is whether amounts payable pursuant to s. 37 are recoverable by proceedings taken under the Small Debts Recovery Act, 1912-1961. Whether what is claimed is, in fact, an amount of that description, can be determined if and when the summons is heard.

The appellant's argument that such amounts are so recoverable rested simply upon the provisions of s. 39, supra, that amounts due under the section are recoverable "in a summary manner before any two justices of the peace or a stipendiary or police magistrate". The proceedings in the Court of Petty Sessions at Redfern under the Small Debts Recovery Act complied exactly with that description, so it was said, and any limitation upon jurisdiction to be found in the Small Debts Recovery Act is irrelevant. Thus, for instance, although the jurisdiction conferred by the Small Debts Recovery Act is limited in amount, it was claimed that s. 39 authorized the recovery of any amount therein described notwithstanding it was larger than the limit to be found in the Small Debts Recovery Act. Furthermore, and of particular significance here, it was said that the limitation of jurisdiction to be found in s. 11 (1) of the Small Debts Recovery Act had no application. This is as follows:

No court shall have jurisdiction in any of the following cases: -

(1) Where the matter in question relates to the taking of any duty to Her Majesty or any fee of office or to any annual rent or other matter in which rights in future may be bound or to any general right or duty.

The opposing contention was that s. 39 does authorize proceedings before a court of petty sessions but does not authorize resort to the Small Debts Recovery Act, except at least upon the basis of compliance with all its provisions, so that if the amount here claimed is a duty to Her Majesty it is not recoverable in the proceedings that were taken.

Were it not open to the Commissioner to proceed under the Justices Act, I would be disposed to agree with the contention that s. 39 authorizes proceedings within the jurisdiction conferred by the Small Debts Recovery Act regardless of the limitations therein to be found, but in the circumstances that s. 39 can be given operation by proceedings under the Justices Act, it seems to me that it is not necessary to read it as authorizing the taking of proceedings under the Small Debts Recovery Act disregarding the limitations to be found therein, but taking advantage of s. 17 which makes judgments and orders thereunder final and conclusive. I have therefore come to the conclusion that resort to the Small Debts Recovery Act is open only in respect of a claim within the jurisdiction conferred by that Act. As to this, I agree with the judgments of Herron C.J. and Sugerman J.A.

The foregoing conclusion makes it necessary to determine whether the amount which the appellant claims falls within the description of a "duty to Her Majesty", for if it does the amount is not recoverable under the jurisdiction conferred by the Small Debts Recovery Act: see s. 11 (1) supra.

As I have already said, I am deciding this case upon the footing that what is claimed by the appellant is a sum due under an obligation imposed pursuant to s. 37 of the State Transport (Co-ordination) Act upon the respondents for operating their motor vehicle in contravention of the Act. I do not regard such a sum as a "duty to Her Majesty". These words are, I think, of narrow import and are not apt to comprehend a liability imposed in respect of a contravention of the Act.

Although, therefore, I am against the appellant's main contention, I accept the argument that a claim for a sum due and payable under s. 37 of the Act is not excluded from the jurisdiction conferred by the Small Debts Recovery Act by reason of the limitation in s. 11 (1) thereof. Furthermore, I am disposed to think that, if the moneys in question were payable by virtue of a condition imposed under the authority of s. 18 (5) of the State Transport (Co-ordination) Act - as the Full Court apparently assumed - those sums would still not fall within s. 11 (1). The matter is very much one of impression, but the question of liability to pay a sum under a condition in a licence granted by the Commissioner and accepted by the licensee, hardly seems to me to be within the august description of a question relating to "the taking of any duty to Her Majesty".

The Small Debts Recovery Act, 1912-1957 N.S.W. provides (by ss. 6 and 11) that "no court of petty sessions sitting for the purposes of the Act" shall have jurisdiction in (among other cases) any case "where the matter in question relates to the taking of any duty to His Majesty". The word "duty" in this phrase has, I think, the general meaning given in Jacobs' Law Dictionary, 4th ed. (1739), and in Tomlin's Law Dictionary, (1835) as: "Any thing that is known to be due by law, and thereby recoverable is a duty before it is recovered." The word was in use in the early nineteenth century to denote a tax, impost, custom or toll: see e.g. Walker's Dictionary (1837 ed.). It was sometimes used in a sense which did not comprehend all imposts or charges: see the phrase "tax or duty" in 4 Geo. IV c. 96 s. 27. But I see no reason for giving it any special or restricted meaning in the phrase "the taking or demanding of any duty payable to the King". This limitation on the jurisdiction of courts sitting to exercise jurisdiction under the Small Debts Recovery Act may seem odd today; but it is of long standing in New South Wales. It first appeared in 4 Geo. IV c. 96 s. 20 which authorized the creation of courts of requests, as they were called, in New South Wales. Courts of that name came into existence in the Colony in 1824 for the summary decision of claims of small amount. The authority for their institution seems to have been the product of a suggestion which Field J. made to Bigge in a letter dated 23rd October, 1820: see Historical Records of Australia, Series IV, vol. I, p. 865. The limitations upon the jurisdiction of courts of requests was repeated in 9 Geo. IV c. 83 s. 18. Local enactments of the Legislature of New South Wales dealing with such courts, established for various parts of the Colony, include 10 Geo. IV No. 2; 10 Geo. IV No. 3; 11 Geo. IV No. 3; 3 Wm. IV No. 2; 3 Vict. No. 6; 4 Vict. No. 25. In 1842, by 6 Vict. No. 15, the law on the topic was amended and consolidated. The former absolute limitation upon the jurisdiction of the courts of requests was then modified to provide that, except with the consent of the Attorney-General, they should not have power to determine any action where the matter in question related to the taking of any duty to Her Majesty. But in 1846 the Act 10 Vict. No. 10 repealed the earlier enactments. It may be regarded as the ancestor, although not the immediate ancestor, of the present Small Debts Recovery Act. As a result of this Act of 1846 and of two later Acts, 33 Vict. No. 11 and 42 Vict. No. 15, all courts of petty sessions in the Colony became available for the recovery of small debts, except in matters expressly excluded from their jurisdiction. One of those excluded was that with which we are concerned, which was again expressed as "where the matter in question relates to the taking of any duty to Her Majesty". I do not know what originally prompted this restriction. It is tempting to think that it may have had its origin in one of the notorious controversies which had occurred in the Colony before 1823. Or it may have been simply that the models for the New South Wales courts of requests were certain eighteenth century English courts which went by that name: see Holdsworth, History of English Law, vol. I, pp. 188-190. These English courts had local jurisdictions. In New South Wales matters of a general character, including civil pleas of the Crown, were the province of the Supreme Court. Whatever its original reason, the provision of s. 11 of the Small Debts Recovery Act is quite explicit. And in my opinion the case in the Small Debts Court at Redfern between the present parties was one in which the matter in question related to the taking of a duty to the Crown. I agree with what the Chief Justice has said about this. Therefore, unless s. 39 (1) of the State Transport (Co-ordination) Act, 1931-1956 enlarges the jurisdiction of courts of petty sessions sitting for the purposes of the Small Debts Recovery Act or abrogates or overrides the effect of s. 11, the proceedings in the Court at Redfern should be restrained.

In Ex parte The Municipal Council of Kiama [1] Pring J. said: "In my opinion, where a court of limited jurisdiction is created by statute, and more especially where, as in the case of the Small Debts Court, its decisions on law and fact are final and conclusive, it would require very strong and precise words in another statute to enlarge its jurisdiction." That seems to me in point, and I am of the same opinion. I read s. 39 of the State Transport (Co-ordination) Act as giving an independent jurisdiction to justices, to be exercised according to the Justices Act, 1902, see s. 4 (1), not as part of their jurisdiction as a small debts court.

I do not wish to add anything further to what the Chief Justice has said in his judgment, which I have had the advantage of reading. I would dismiss the appeal.

At a glance

Court

Decision date

Before

Source

Judgment (43 paragraphs)

Parties