High Court of Australia|1955-06-09|Before: Webb JJ

Hughes & Vale Pty Ltd v Queensland [1955] HCA 29; (1955) 93 CLR 247 (9 June 1955)

HUGHES AND VALE PTY. LTD. v. THE STATE OF QUEENSLAND [1955] HCA 29; (1955) 93 CLR 247

Dixon C.J.(1), McTiernan(1), Williams(2), Webb(1), Fullagar(3), Kitto(4) and Taylor(5) JJ.

DIXON C.J., McTIERNAN See addendum, (1955) 93 CLR, at p 183 AND WEBB JJ. the opinion of the Court. The substantial matter for determination is how far The State Transport Facilities Acts Amendment Act of 1954 (Q.) is efficacious in giving to s. 23 of The State Transport Facilities Acts 1946 to 1954 a valid application to the use of vehicles for the carriage of goods in the course of inter-State trade. Section 23 (1), which has not itself been amended by the Amendment Act of 1954, provides that a person shall not use or permit or allow to be used on any road (that is, of course, in Queensland) a vehicle for the carriage of passengers or goods or both unless they are being carried under and in accordance with a provision of the material part of the Act. What this means appears from the ensuing section which likewise remains unamended. Section 24 provides that it shall be lawful to use upon a road any vehicle afterwards specified in the section at any time when such vehicle is being used solely for a purpose thereinafter specified in relation to such vehicle. A vehicle is defined by s. 7 so that it includes any mechanically propelled vehicle except a tram or a train. There follow in s. 24 some thirty categories defining the allowable uses of vehicles either by reference to the class of vehicle, the character filled by the owner, the purpose, the occasion, the conditions or the licence or permission of the authorities. The most material categories for present purposes are expressed in pars. (25) and (26). Paragraph (25) specifies any vehicle approved for use in carrying on a licensed service at any time when such vehicle is carrying passengers or goods or both under and in accordance with the terms and conditions of the licence for such service. The reference to the licensing of services and the approval of vehicles relates to s. 27, another provision which stands unamended. Section 27 says that, subject to the Act, the Commissioner for Transport may (i) license any person to provide and carry on a service for the carriage of passengers or goods or both, and (ii) approve of the vehicles to be used for the purpose of carrying on that licensed service. Paragraph (26) of s. 24 specifies any vehicle permitted under this Act to be used for any purpose at any time when such vehicle is being used for such purpose under and in accordance with the terms and conditions of the permit. The reference here is to s. 56 (1) which authorizes the commissioner to permit the use of a vehicle for a purpose specified by him. The provision goes on to enable him to attach terms and conditions to the issue of a permit. (at p254)

2. Various provisions of the Act in the form it took before the amendment combined to invest the commissioner with a very large measure of control over motor transport services and the use of motor vehicles whether for passengers or goods. The control extended not only over the manner in which such services should be conducted or the vehicles should be used, but over the right to use the roads at all for such services or vehicles. The basis of the control was of course the general prohibition contained in s. 23 of any use of the roads by motor vehicle except under and in accordance with a provision of the Act. It is almost unnecessary now to say that all this could have no valid operation over vehicles engaged in inter-State trade commerce or intercourse. That having been made clear by the judgment of the Privy Council in Hughes & Vale Pty. Ltd. v. State of New South Wales (No. 1) [1954] UKPCHCA 5; (1955) AC 241; (1954) 93 CLR 1 given on 17th November 1954, the Parliament of Queensland passed on 10th December 1954 the Act No. 53 of that year entitled The State Transport Facilities Acts Amendment Act 1954 in order to deal specially with inter-State transportation. The plan adopted by the Amendment Act was to introduce into the principal Act a new Part, Pt. IVA, the purpose of which is to exclude modify and amend the provisions of the Act in its application to the use of motor vehicles in inter-State commerce. The Part contains twenty-one sections, the first of which s. 48A, says that the provisions of the State Transport Facilities Act extend to the use on roads of vehicles for the carriage of passengers or goods or both in the course of inter-State trade subject to the modifications enacted in that Part. (at p254)

3. The real question in the case is whether, as a result of these modifications the operation of s. 23 on an inter-State goods transportation service is consistent with s. 92 of the Constitution. In dealing with this question we are concerned only with services for the carriage of goods as distinguished from other uses of motor vehicles for the purpose of trade, commerce and intercourse among the States. It is not so much the distinction between goods services and passenger services that matters; it is the distinction between transport services and other uses of vehicles for inter-State carriage. For the provisions of the legislation appearing ex facie to apply to the use of motor vehicles upon inter-State journeys in the course of other businesses or vocations or indeed for any other purpose seem to be somewhat different even if their validity may be no less open to suspicion. (at p255)

4. Both the plaintiffs carry on business as carriers of goods by road. They use vehicles of which they respectively are owners for the carriage of goods on journeys between Brisbane, Sydney, Melbourne and Adelaide, that is from each of those cities to one or more of the others. The plaintiffs do not use their vehicles on intra-State journeys in any of the States of which these are the capital cities. Sections 23, 24 (25) and 27 in combination mean that the plaintiffs cannot exercise their trade in Queensland unless they obtain from the commissioner licences to provide and carry on services for the carriage of goods. A licensing system of this kind can be valid only if the conditions which by law govern the grant of a licence are such that the requirement that a licence shall be obtained involves in substance no impairment of the freedom of trade, commerce and intercourse among the States. (at p255)

5. The same considerations apply as are discussed in our decision in Hughes & Vale Pty. Ltd. v. State of New South Wales (No. 2) [1955] HCA 28; (1955) 93 CLR 127 concerning the validity of the provisions of the State Transport Co-ordination Act 1931-1954 (N.S.W.) that relate to inter-State trade. There is a general similarity between those provisions and the material provisions of the Queensland State Transport Facilities Acts 1946 to 1954 but they are not identical. The Queensland law requires a licence for the carrying on of the inter-State carrying service called an inter-State licence; otherwise it is an offence to use the vehicles on the roads. Under the constitutional law of the United States governing such matters, the fact that it is the service, or business that is licensed, as distinguished from the vehicles or the use of the roads, would not be considered immaterial, particularly with reference to the validity of the imposition of a charge as a condition of the licence. A State cannot tax or burden the privilege of carrying on inter-State commerce. But as this enactment is framed it seems to be rather a matter of form than substance, so far at all events as concerns s. 92. The application for the inter-State licence is made to and is dealt with by the Commissioner for Transport. He provides the form of application which must contain or be accompanied by such particulars as he may require reasonably, having regard to the circumstances of the application. The applicant must furnish particulars of the vehicles he proposes. to use for the purposes of the service: s. 29 and s. 48F. The commissioner must approve the vehicles to be so used, which must be insured in accordance with The Motor Vehicles Insurance Acts 1936 to 1945 and registered in accordance with The Main Roads Acts 1920 to 1943 and Regulations. The commissioner must consider the application for the inter-State licence and have regard to certain matters. He is directed to do so by par. (i) of sub-s. (2) of s. 48G, where the considerations are set out as follows: - "(a) character, fitness, and experience of the applicant; (b) suitability and fitness of the vehicles proposed to be used for the purpose of the service to which the application relates; (c) condition and suitability of roads on which it is proposed to use those vehicles; and (d) number and type of other vehicles using those roads". (at p256)

6. It will be seen that the qualities covered by the words "character, fitness, and experience" give a very wide scope to the commissioner. He may reject an applicant for no very definite or tangible reason. How are the words to be applied to incorporated companies or even firms? There is less uncertainty perhaps about the fitness or suitability of the vehicles for the service but when that is combined with the condition and suitability of the roads the resulting standard is not very certain. It leaves the judgment of the commissioner very much at large in assessing the desirability of the service from the point of view of his administration and no doubt of the administration of the Commissioner of Main Roads. The reference to the number and type of vehicles using the road suggests that the crowding of the road, the weight of traffic borne by it, and the tendency of types of vehicle to impose more wear and tear are elements which may govern the grant of a licence. The power to refuse for such a reason might well mean in a given case that inter-State trade was turned off the road to make room for intra-State vehicles. A power of excluding vehicles from a road in favour of others may be necessary in some circumstances but the conditions in which it arises need defining and moreover in such a way that discrimination against inter-State trade is not within the authority conferred. (at p256)

7. Paragraph (ii) of sub-s. (2) provides that the commissioner shall refuse an application in any case where he is satisfied that the applicant is not of good character or has not the necessary fitness or experience or that the vehicles proposed to be used for the purposes of the service are not suitable or are not fit for such purposes. Then the third paragraph empowers the commissioner to refuse the inter-State licence if he thinks that the granting of a licence would endanger public safety. It is not easy to limit this expression to any particular degree of risk. One would suppose that the paragraph was pointed at the overcrowding of the roads and the use of vehicles that were too heavy or of excessive dimensions. It might cover some of the ground of par. (i) (c) and (d). But it is not really an objective test: it gives an indefinite, not to say, elastic criterion depending very much on the attitude or approach of the commissioner. Paragraph (iv) falls into two parts. First it says "subject to paragraphs (i), (ii) and (iii) of this subsection the commissioner shall grant an application for an inter-State licence." Paragraphs (ii) and (iii) expressly authorize a refusal and it is perfectly clear that the words "subject to" mean, in reference to those paragraphs, that they are paramount. Paragraph (i) does not in terms say that the application may be refused on the grounds it enumerates. But the words "subject to paragraph (i)" give it the same paramountcy and the section must mean that the matters it sets out must be considered as possible grounds for refusing to license the service. As pars. (ii) and (iii) cover so much of the ground comprised in par. (i), the point may not be so important as it might at first appear. But it seems clear enough that he may refuse an application for any reason that appears to the commissioner to fall within any one of the subjects mentioned in pars. (i), (ii) and (iii). If it could be shown that he had misconstrued the provisions and acted on a ground which was in truth extraneous he might be directed on mandamus to reconsider the application. But except in that not very likely event the applicant would have no remedy. The second part of par. (iv) goes on to say "but (the Commissioner) may - (a) impose terms and conditions reasonably necessary for the preservation of public safety, the regulation of traffic, the preservation and maintenance of roads, and the use and enjoyment by the public of roads; (b) require payment of a reasonable charge for the use by the vehicles approved for use in carrying on the licensed service in question of the roads on which those vehicles are so used." It is almost unnecessary to say that the conditions which the commissioner considers reasonably necessary for any one of the objects mentioned may be very restrictive and may form a real impediment to carrying on the trade. Yet it may be impossible to say that the imposition of the condition was beyond his power. The requirement that a charge should be paid by the licensee for the use of the roads raises the same question that was discussed with reference to s. 18 (4) (b) of the State Transport Co-ordination Act 1931-1954 (N.S.W.) in Hughes & Vale Pty. Ltd. v. State of New South Wales (No. 2) (1955) [1955] HCA 28; 93 CLR 127 . It is unnecessary to go over the same ground again. In the Queensland Act the charge is governed by s. 48K (2) and there are important differences from the provisions of the New South Wales sub-sections. The exaction is described as "a reasonable charge for the use by the vehicles approved for use in carrying on the service licensed under an inter-State licence of the roads on which those vehicles are used under the authority of the licence". Otherwise there is no guidance as to the shape it is to take or the basis of its assessment. The "amount of the charge" however is to be "calculated" in respect of each and every inter-State licence by a committee. The committee consists of the Under Secretary of the Treasury, the Commissioner of Main Roads, and the Commissioner for Transport or their deputies. The charge is payable by the licensee and "the amount as stated in an inter-State license of that charge, and of any and every instalment thereof, shall become due and payable, and shall be paid, to the commissioner at the time and in the manner stated in the license, and any unpaid amount may be recovered by the commissioner as a debt." It would seem that a specific "amount" is to be stated in the licence, yet the licence may be of any duration up to seven years (s. 31 (1)), and is renewable subject to the same grounds of objection as an original application (s. 48I). Further, it is provided by s. 48K (2) (ii) that the charge shall be payable equally by all inter-State licensees in respect of all vehicles of the same description and weight using the same roads and under the same circumstances. It may be possible to construe these provisions in a way that makes a mileage or ton mileage rate permissible, but at all events it is clear that a charge may be fixed which has no relation at all to the actual use of the roads. There is little doubt that it must be specified in the licence and it is by no means clear that it may be varied during the currency of the licence. The quantum is subject to no limitation except what the commissioner thinks to be reasonable. For once the "amount" is named in the licence it is fixed and supplies the measure of liability. What method of arriving at the charge will be employed is left entirely to the committee. The authority to make exaction cannot be justified on the grounds which form the subject of discussion in the New South Wales case [1955] HCA 28; (1955) 93 CLR 127 . Under s. 37 as modified by s. 48M approval of the vehicles must be obtained. Having regard to the views which have already been expressed in this and the New South Wales case [1955] HCA 28; (1955) 93 CLR 127 it is enough to say that, assuming par. (i) of s. 48M is sufficiently definite, the test laid down by par. (ii) may possibly be open to objection as involving a subjective judgment on the part of an administrative agency according to a standard that is too vague. (at p259)

8. However, from what has been said already it follows that the operation of s. 23 (1) is not qualified or controlled by Pt. IVA in such a way as to make it possible to regard it as attempting no invasion or impairment of the freedom of inter-State transport as a form of trade, commerce and intercourse among the States. Section 56 and s. 48Q enable the commissioner to give a permit for the use of a vehicle specified by him. But in effect the same provisions govern his refusal of a permit and the conditions he may attach to a permit as apply in the case of a licence. These provisions therefore do not advance the matter. (at p259)

9. The statement of defence contains a number of paragraphs setting up the inadequacy of Queensland roads to carry present day traffic without placing restrictions upon the use of them by certain types of vehicle, upon the number of vehicles to use them at certain times and so on. The narrowness of bitumen strip is one point made; the size of certain transport vehicles is another; the congestion of the roads at times is a third point. Then there are certain very general allegations relating to matters of obvious public knowledge such as wear and tear, the difficulty and costs of construction and maintenance and so on. In one sense a court must take into consideration all matters of such a description in forming a conclusion as to the operation of a law as a mere regulation of traffic not impairing freedom of inter-State trade. But the kind of thing set out in this defence is not for the most part a matter of allegation and proof. In the present case to take them into account is by no means enough to sustain the enactment. The question in the case stated directed to this subject may be ignored. It is enough to declare that the provisions of s. 23 and of Pt. IVA of The State Transport Facilities Acts 1946 to 1954 have no valid application to vehicles which are being used in a service for carrying goods in the course of inter-State trade and do not apply to the plaintiffs or either of them in so far as they use or permit or allow to be used on any road such a vehicle. (at p259)

WILLIAMS J. The relevant provisions of the Queensland Acts have been set out in the joint judgment. The Act passed by the Parliament of Queensland in an attempt to fill the legislative void with respect to the regulation of the inter-State carriage of goods in Queensland flowing from the application of the decision of the Privy Council in Hughes & Vale Pty. Ltd. v. State of New South Wales (No. 1) [1954] UKPCHCA 5; (1955) AC 241; (1954) 93 CLR 1 to the existing Queensland legislation in the State Transport Facilities Amendment Act of 1954. This Act amends The State Transport Facilities Act 1946 to 1951 in a manner which in substance bears a definite similarity to the manner in which the State Transport (Co-ordination) Act 1931-1952 (N.S.W.) was amended by The State Transport (Co-ordination) Amendment Act 1954, although there are many differences in detail. The similarities and differences between the Queensland and New South Wales Acts have been analyzed and discussed in the joint judgment. It is clear from this analysis that the new Queensland Act of 1954 suffers from constitutional disabilities, in relation to s. 92. of the same inherent character as those displayed by the New South Wales Act. When the principles embodied in the decision of this Court in Hughes & Vale Pty. Ltd. v. State of New South Wales (No. 2) [1955] HCA 28; (1955) 93 CLR 127 are applied to the Queensland Act it immediately appears, I think, that The State Transport Facilities Amendment Act of 1954 will not suffice to endow The State Transport Facilities Acts 1946 to 1954 with constitutional validity in relation to vehicles which are being used in a service for carrying goods in the course of inter-State trade. (at p260)

2. Accordingly I agree with the proposed order. (at p260)

FULLAGAR J. This matter comes before the Full Court on a special case stated, under O. 35, r. 1, of the Rules of this Court, by the parties to an action. The statement of claim in the action alleges that each of the plaintiffs carries on the business of a carrier of goods by road by means of motor vehicles, and that it engages exclusively in the carriage of goods on inter-State journeys. A declaration is claimed that The State Transport Facilities Act 1946 to 1954 (Q.) or certain specified sections thereof, are invalid. The defence admits the facts alleged in the statement of claim, and proceeds to make certain allegations of fact which it is not necessary to set out in full. The substance of them may be stated by saying that the road system of Queensland which carries traffic to and from other States is very defective, that its maintenance (to say nothing of its improvement) is a very costly matter, that goods-carrying vehicles are mostly heavy vehicles which cause more wear and tear than lighter vehicles and are apt to cause congestion of traffic on unduly narrow highways, and that persons who operate services for the carriage of goods or passengers ought to be trustworthy and responsible persons. The case stated does no more than set out the pleadings, and the questions which it asks are (a) whether the facts pleaded in the defence are relevant to the validity of the legislation attacked, (b) whether, if such of those facts as are relevant are established, the plaintiffs will be entitled to any of the declarations sought, and (c) whether, independently of the facts so pleaded, the plaintiffs are entitled to any of the declarations sought. (at p261)

2. The attack on the Queensland Transport Acts is based on s. 92 of the Constitution. The legislation in question was amended in substantial respects by Act No. 53 of 1954. Before those amendments were made it followed a pattern identical in substance and effect, though differing in many details, with that of the State Transport (Co-ordination) Act 1931-1952 (N.S.W.) which was the subject of the decision of the Privy Council in Hughes & Vale Pty. Ltd. v. State of New South Wales (No. 1) (1). The scheme of the Act centres round ss. 23 and 24. Section 23, which occurs in Pt. III of the Act, provides that no person shall use or permit or allow to be used on any road a vehicle for the carriage of passengers or goods unless the passengers or goods, as the case may be, are being carried upon that vehicle in accordance with a provision of Pt. III of the Act. Section 24 then sets out the cases in which it is to be lawful to use a vehicle on a road for the carriage of passengers or goods. The list of lawful users is a long one, but most of them are of a special and limited character. The list, however, includes: - "(25) any vehicle approved for use in carrying on a licensed service at any time when such vehicle is carrying passengers or goods . . . under and in accordance with the terms and conditions of the licence for such service", and "(26) any vehicle permitted under this Act to be used for any purpose at any time when such vehicle is being used for such purpose under and in accordance with the terms and conditions of the permit". Part IV of the Act contains elaborate provisions relating to licences, and Pt. VI of the Act provides for "permits" to use vehicles for special purposes and for limited periods. The granting of a licence or a permit is a matter of absolute discretion, fees are chargeable in either case, and conditions may be imposed in either case. A breach of a condition is an offence. (at p261)

3. It is obvious that the Act, as it stood before 1954, is covered by the decision of their Lordships in the Hughes & Vale Case (No. 1) [1954] UKPCHCA 5; (1955) AC 241; (1954) 93 CLR 1 and that s. 23, so far as it purports to apply to persons or vehicles engaged at the relevant time exclusively in inter-State commerce, is invalid. It is also obvious that the amendments made by the Act of 1954 had for their object the creation of a licensing system which should apply in respect of inter-State commerce and should not be open to objection under s. 92. The plan followed, however, is exactly the same in substance as that followed in the State Transport Co-ordination (Amendment) Act 1954 (N.S.W.). It consists in setting up a separate licensing system in relation to the inter-State carriage of passengers and goods while leaving standing the old system in relation to intra-State carriage. The two systems are parallel and are similar in all respects, the only difference being that the amending Act introduces, in respect of inter-State licences, what are, or purport to be, certain relaxations and modifications of the conditions on which a licence may be granted and of the conditions which may be attached to a licence if a licence is granted. It has been held in Hughes & Vale Pty. Ltd. v. State of New South Wales (No. 2) [1955] HCA 28; (1955) 93 CLR 127 that the New South Wales Act of 1954 is not effective to alter the position in any way, and that the prohibition placed on the carriage of passengers or goods without a licence, so far as it purports to apply to inter-State carriage, contravenes s. 92 and is invalid. It seems very clear that the Queensland Act of 1954 is equally ineffective to alter the position in any way. No distinction can be drawn between the two Acts, and what has been said in the Hughes & Vale Case (No. 2) [1955] HCA 28; (1955) 93 CLR 127 is equally applicable to the present case. (at p262)

KITTO J. I agree in the joint judgment delivered by the Chief Justice, subject to the views I have expressed as to charges in the case of Hughes & Vale Pty. Ltd. v. State of New South Wales (No. 2) (1). (at p262)

TAYLOR J. The reasons which led me to the conclusion that the State Transport (Co-ordination) Amendment Act 1954 (N.S.W.) was invalid lead me also to the conclusion that The State Transport Facilities Acts 1946 to 1954 (Q.) cannot validly operate with respect to vehicles whilst engaged in trade or commerce among the States. The provisions of the latter Acts have been analyzed in the reasons expressed in the joint judgment and it is unnecessary that this should be done again. It is sufficient for me to say that I agree with what has been said concerning the meaning and operation of those Acts and with the order proposed. (at p262)

In answer to the questions submitted by the special case declare that the provisions of s. 23 and Pt. IVA of The State Transport Facilities Acts 1946 to 1954 (Q.) have no valid application to vehicles which are being used in a service for carrying goods in the course of inter-State trade and do not apply to the plaintiffs or either of them in so far as they use or permit or allow to be used on any road such a vehicle.

State Transport Co-ordination Act 1931

State Transport (Co-ordination) Act 1931

State Transport Co-ordination (Amendment) Act 1954

State Transport Facilities Acts Amendment Act 1954

State Transport Facilities Act 1946

State Transport (Co-ordination) Amendment Act 1954

Hughes & Vale Pty Ltd v Queensland [1955] HCA 29;

At a glance

Court

Decision date

Before

Source

Judgment (21 paragraphs)

Hughes & Vale Pty Ltd v Queensland [1955] HCA 29; (1955) 93 CLR 247 (9 June 1955)

Parties

Legislation Cited (6)

Cases Cited (3)