Duncan v Vizzard [1935] HCA 43

Duncan v Vizzard [1935] HCA 43 - HCA 1935 case summary — Zoe

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Gesmpre Ce: respect thereof to be so driven, to wit, on a journey from Corowa, Pi New South Wales, to Griffith, New South Wales. Upon this occasion

- petrol owned by the company was transported on one of its lorries driven by Duncan from Melbourne, Victoria, via Corowa, New South Wales, to Griffith, situate about 160 miles within New South Wales, and was there delivered to a customer in pursuance of a contract for sale and delivery entered into between the company and the customer, in Melbourne, which provided that delivery should be made by the company's own lorries. There was an indirect railway route from Corowa to Griffith, via Culeairn, and there was also a direct railway route to Griffith, via Narrandera, from the border town of Tocumwal, situate about thirty miles westerly from Corowa. Two of the cases against the company were in respect of journeys from Melbourne to Griffith. The other cases related to journeys from Melbourne to various towns in New South Wales situate considerably more than fifty miles from the border. In all except one of those cases the towns referred to were served from the point of entry into the State by an indirect railway route. In the remaining case there was a direct railway route from the point of entry, Albury, to Wagga Wagga, where the goods transported on that occasion were delivered. The goods so transported on these journeys consisted of general merchandise and, for the most part, were transported by the company for hire from consignors in Melbourne to consignees in the various towns in New South Wales. The goods did not come within the category of farm, orchard, garden, or dairy produce. Permits under the Act had not been granted in respect of any of the journeys. On the front of the licences issued under the Act in respect of the lorries appeared the following : - " This is to certify that . . . the vehicle described herein is hereby registered for use within the State of New South Wales as a motor lorry under the Motor Traffic Act 1909-1930, and licensed as a goods motor vehicle under the State Transport (Co-ordination) Act 1931, in the name of the above-mentioned person. This certificate of registration and

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goods motor vehicle on or in routes, roads, areas, or districts within the State of New South Wales : - (a) on journeys none of which, for a distance exceeding fifty miles, is competitive with the railways ; or tramways ; (6) when used solely for the transport of fresh fruit, vegetables, eggs or poultry from farm to market on journeys of any distance. (2) In respect of any journey which is wholly or partly competitive with the railways or tramways, the licensee shall pay tothe Commissioner . . . for the full competitive distance _ (in addition to any other sums payable under the State Transport

(Co-ordination) Act 1931, and this licence or either of them) : - three- pence 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. (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 and each of them, shall be exempt from the condition mentioned in sub-sec. 5 of sec. 18 of the . . . Act, and, unless the Commis- sioner otherwise determines, from the obligations imposed by regula- tions 9 and 10 under that Act in respect of any journey which is not, for a distance exceeding fifty miles, competitive with the railways or tramways, or of a journey of any distance when the vehicle . . . is used solely for the transport of fresh fruit, vegetables, eggs or poultry from farm to market." There was evidence that, as compared with transport by railways, transport by road was cheaper, quicker and more convenient. The magistrate convicted in each case. The defendants thereupon appealed to Quarter Sessions. In cases stated by the Chairman on 30th April 1935, questions substantially as follow were reserved for the opinion of the Court of Criminal Appeal : -

(a) Do the licences issued to the company under the State Transport (Co-ordination) Act 1931 authorize the vehicles

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of the licences. Duncan was charged with driving one of these motor lorries on an occasion on which it was not authorized to be so driven, i.e., on one of the journeys in question. The defendants were convicted before the magistrate but appealed to Quarter Sessons at Wagga Wagga. The Chairman stated a case for the Court of Criminal Appeal of New South Wales, i.e., the Supreme Court. Two of the questions in the case stated related to the validity of the State Transport (Co-ordination) Act 1931. The sixth question is directed to see. 90 of the Commonwealth Constitution and the seventh to sec. 92. On the application of the informant this Court removed the proceedings, under sec. 40 of the Judiciary Act 1903- 1933, into this Court. The questions arising under the Constitution would not call for decision if any of the remaining questions were answered in favour of the defendants. They are therefore an 'integral part of the cause which must be decided for the purpose of disposing of the constitutional questions.. Licences had been issued in respect of the motor lorries under the State Transport (Co-ordina- tion) Act 1931. The journeys upon which the motor lorries were travelling commenced in Victoria, and within New South Wales they ran admittedly for more than fifty miles upon a route described as "competitive with the railways.'' The licences were what are called non-competitive licences. The first condition which they contain authorizes the operation of the vehicle upon journeys which are not competitive with the railways to a greater extent than a distance of fifty miles except in the case of journeys to market carrying fresh fruit, vegetables, eggs or poultry from a farm. This condition was not observed and the prosecutions are based upon that fact. The first question in the stated case is concerned with an argument that, notwithstanding the limitation upon the authority to operate expressed in the first condition, the second condition impliedly authorizes the vehicle to operate upon journeys which are "competitive with the railways" for an unrestricted distance subject, however, to a payment of threepence per ton per mile. This raises a question of construction upon two very clumsily drawn

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distance of any journey that is " competitive with the railways." Notwithstanding the second condition, the third condition says in an effect that, if the conditions of the licence are complied with, the °°: licence of the driver of the vehicle shall be exempt from the condition mentioned in sec. 18 (5) of the Act and, subject to any determination of the Commissioner to the contrary, from clauses 9 and 10 of the regulations in respect of journeys which are not " for a distance exceeding fifty miles competitive with the railways." Sec. 18 (5) provides that the Board may in a licence impose a condition that the licensee shall pay to the Board sums to be ascertained in a manner to be determined by the Board not exceeding threepence a ton a mile. The exemption provided by the third condition from the obligation to pay sums not exceeding threepence a ton a mile under sec. 18 (5) if not more than fifty miles of the journey competes with the railways is relied upon as raising an implication that the second condition applies only to journeys competing with the railways which exceed fifty miles. From this construction of the second condition the deduction is made that it contemplates an authorized journey in competition with the railways beyond fifty miles in distance. Upon this footing it is said that the conditions of the licence authorize a journey of any distance in competition with the railways subject to the payment of threepence a ton a mile. This deduction or inference seems to me unwarranted. Conceding that the second condition does contemplate the possibility of a journey in competition with the railways exceeding fifty miles, it does not follow that such a journey is authorized. The authority is contained in the first condition. The second condition is concerned with the liability to a sum of money and there is no reason why it should not express a responsibility incurred by a journey which does not observe the authority. The answer to question 1 (a) must be: Yes, and to 1 (b): No. It is not contested that the answers to the 2nd, 3rd, 4th and 5th questions must be: Yes. The 6th and 7th questions which relate to the Constitution should be preceded by a consideration of the remaining questions. Question 8 inquires as to the effect of a permit. Sec. 28 of the Act prohibits the operation of a public motor vehicle on any occasion not authorized by the licence except

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Question 9 asks: Has the Commissioner power to issue the permit ? The Commissioner may grant a permit having effect under sec. 28 in relation to passengers if the power has been delegated to him under sec, 23. But neither of these questions calls for an answer. Question 10 must be answered : Yes. Question 11 appears to inquire whether if more than fifty miles is travelled in competition with the railways 4 permit is required for the whole journey or for the excess only. The distinction is without a difference because as soon as the fifty miles is exceeded the conditions of the licence are broken and then, and not before, the commission of the offence commences unless there is a permit allowing what otherwise would be an offence. In other words, the permit must be so expressed as to allow more than fifty miles to be travelled in competition with the railways in order to be useful to the licensee. There remain the constitutional questions, Nos. 6 and 7. It is conceded that the argument that the legislation contravenes sec. 90 of the Constitution is ruled against the defendants by Gilpin's Case (1). The 6th question must accordingly be answered: No. The 7th question asks whether the legislation, the _ regulations, or the administration thereof contravene sec. 92. It is not easy to see why this question should be considered open after the decisions in R. v. Vizzard ; Ex parte Hill (2); Gilpin's Case (1) : Bessell v. Dayman (3). But some ingenuity has been expended by counsel in an attempt, fruitless so far as I am concerned, to distin-

guish these cases on that ground that the conditions of the licence lead to an invasion of the freedom of inter-State trade. I can see no discrimination, direct or indirect, between intra-State and inter- State transportation; nothing but a co-ordination and rationaliza- tion of services accomplished according to a judgment of a discre- tionary character of an administrative board that fifty miles' irrational competition is a relatively harmless excess. This question

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Before

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Judgment (100 paragraphs)