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[1959] HCA 5
High Court of Australia
1959-07-01
Windeyer JJ, McTiernan J, Webb JJ, Fullagar J
Original judgment source is linked above.
High Court of Australia Dixon C.J. McTiernan, Fullagar, Kitto, Taylor, Menzies and Windeyer JJ. Mason v New South Wales [1959] HCA 5
ORDER Order that judgment be entered in the action for the plaintiffs in the sum of £5,467 with costs.
This action is brought by husband and wife, both residents of Victoria, against the State of New South Wales for the recovery of moneys obtained from them in purported pursuance of the State Transport (Co-ordination) Act 1931-1954.
The plaintiffs say that the moneys are recoverable because the provisions of the State Transport (Co-ordination) Act under which they were obtained were incapable, consistently with s. 92 of the Constitution, of applying to inter-State transportation and yet it was in respect of inter-State journeys of the plaintiffs' vehicle that the State obtained the moneys from the plaintiffs. The action is brought in the original jurisdiction of the Court under s. 75 (iv.) of the Constitution. A trial took place before McTiernan J. who after the closing of evidence directed, at the request of the parties, that the cause should be argued before the Full Court. To the order his Honour caused a memorandum to be annexed to the effect that he would be prepared to accept the only oral evidence given as truthful. Section 22 of the State Transport (Co-ordination) Act 1931 N.S.W. as amended by No. 24 of 1952, as from 27th October 1952, provided for the issue of permits subject to any conditions that might be prescribed or imposed by the State transport authority for amongst other things the carrying of goods by motor vehicle in specified districts over specified routes. By Act No. 48 of 1954, s. 2 (1) (a), the section was amended again and sub-sections were added by way of amplification. The provision as it thus emerged was made retrospective to the commencement of the original Act viz. 31st August 1931. In the middle of 1953 the plaintiffs began regularly to carry goods between Melbourne or some other city in Victoria and Sydney or some other city in New South Wales. The decision of this Court in Hughes and Vale Pty. Ltd. v. State of New South Wales [1] was delivered on 16th April 1953. Special leave to appeal from the decision was granted by the Queen in Council on 17th June 1953.
The majority of the High Court had held that the decisions of this Court in the so called transport cases ought not to be overruled. These are the decisions by which the valid operation upon the inter-State carrying of goods of the provisions of the State Transport (Co-ordination) Act 1931 N.S.W. was originally upheld. Some of the judges forming the majority considered that the decisions were entirely right, others did not go so far. I myself maintained my dissent from them but I thought that I should not then give effect to my opinion that they were erroneous but that I should treat the provisions of the Act as validly applying to inter-State as well as intra-State journeys.
By the "transport cases" is meant R. v. Vizzard: Ex parte Hill [2] ; Bessell v. Dayman [3] ; O. Gilpin Ltd. v. Commissioner for Road Transport and Tramways (N.S.W.) [4] ; Duncan v. Vizzard [5] and Riverina Transport Pty. Ltd. v. Victoria [6] .
In McCarter v. Brodie [7] decided not quite three years earlier than Hughes and Vale Pty. Ltd. v. New South Wales [1] the question whether the foregoing decisions should be followed was raised in a specific form. The majority of the Court, Latham C.J., McTiernan, Williams and Webb JJ., was of the opinion that they should be followed. Fullagar J. and I took the opposite view and were for overruling them. But that decision having been given I took the view in Hughes and Vale Pty. Ltd. v. New South Wales [1] that I should follow it formally, leaving it to the Privy Council to overrule them if their Lordships should see fit to do so, as in the result they did.
Among persons who had made themselves at all familiar with the question there must have been much speculation as to the decision of the Privy Council. In the result as is well-known their Lordships took the view that the legislation was invalid in so far as it purported to apply to inter-State carrying and that the "transport cases" (supra) should be overruled. That decision was given on 17th November 1954 [1] .
The amounts which the plaintiffs seek in this action to recover from the State of New South Wales were all paid during the period between the decision of the High Court and that of the Privy Council. The plaintiffs bought their truck and, so to speak, the inter-State trade attaching to the vehicle in April 1953 and the first journey from Melbourne was made on 1st June 1953. They bought the truck from a carrier who had contracted with a large undertaking, the custom of which, as it was rightly believed, would go with the vehicle. The vendor explained the situation in his own way to the male plaintiff. The latter had learned from various carriers who patronized him in his former trade of a petrol vendor that a law case was to come on in England which, it was expected, would decide that inter-State carriers were not subject to the State Transport (Co-ordination) Act 1931 N.S.W.. Some carriers had had painted upon the sides of their vehicles the encouraging formula - "Section 92 states that trade between the States must be absolutely free". In selling the vehicle and the custom to the plaintiffs, the vendor had told the male plaintiff that the carriers' association to which the vendor belonged had advised him to pay any moneys for permits under protest but had said that rather than have the vehicle seized he must pay. He produced a copy of the Act and showed the plaintiff the provision (s. 47) under which an authorized officer might seize a motor vehicle in respect of which he suspected that an offence had been or was being committed. The plaintiff seems to have been greatly struck by its significance on reading in the section that it was possible for an employee of the Railway Commissioner or Road Transport Commissioner to act thus if authorized by his respective commissioners. Beginning on 1st June 1953 the male plaintiff carried on a more or less regular business in carrying goods between Melbourne or sometimes Yallourn and Sydney or Newcastle. He used the one vehicle and for each journey obtained a permit under s. 22 of the Act. On applying for a permit he appears usually to have made a protest against having to do so and to pay the amount levied which was in most cases the maximum of three pence a ton mile of the weight of the vehicle and the weight of the load it could carry. In about a twenty to twenty-five per cent of the cases he wrote his protest on his cheque. The issuing clerks to whom he expressed his protest made various replies, but the effect of all of them was that a protest was as familiar as it was futile. He noticed many other carriers lodging forms of protest with the money. He gave some evidence of occasional challenges during the period in question to himself and other carriers by inspectors by the roadside. He saw one carrier held and not allowed to proceed because he could not produce a permit, saying that a companion following bore both permits.
The evidence appears to me to be slight and feeble. There seems to have been no attempt to prove what departmental system of instructions for enforcing the legislation was then in operation. No answers to interrogatories were put in; perhaps no interrogatories were administered. No copies of instructions to the police or other officers as to the seizure of cars or of any authorization under s. 47 were called for by the plaintiffs. The male plaintiff, who was the only witness, was not asked the direct question as to his beliefs and the grounds thereof in reference to the course which would be taken if he did not secure a permit and pay the moneys demanded upon the issue of the permits.
The proofs are anything but exact or cogent or persuasive but no evidence was called in answer. The question is what inferences in favour of the plaintiffs may safely be drawn from these scanty materials. If it were not for the general circumstances which, so to speak, lie behind the specific facts proved in evidence I should have great hesitation in adopting any affirmative inference such as the plaintiffs would need in order to succeed if the matter had arisen between subject and subject. But as it is I think one may safely infer that had the plaintiffs attempted to carry goods between points in New South Wales and points in Victoria without a permit under s. 22, being also without a licence under s. 15, the vehicle would have been stopped and seized. It is necessary to bear in mind that since 1935 when the transport cases had been decided there had been a regular enforcement against inter-State carriers as well as other carriers of the provisions of the State Transport (Co-ordination) Act. The resurgence some fifteen years later of the attempt to obtain a reconsideration of the old decisions meant no weakening of the administrative enforcement of the law. See for example the statement of facts in Deacon v. Grimshaw [1] . The appeal to the Privy Council was obviously a thing in which the whole road transport industry took a lively interest. The question what should be done pending news of the result was one which obviously concerned State transport authorities as much as it did the carriers themselves. The plaintiffs made it plain enough that they paid for permits only under a sense of constraint and with the intention of making a claim for a refund of the money if the decision of the Privy Council should uphold the contention that consistently with s. 92 the State could not enforce its demand for the money. In all these circumstances I think that it is a proper inference that, in the case of each journey in question, the plaintiffs paid the money unwillingly and only because they apprehended on reasonable grounds that without the permit which could not otherwise be obtained officers acting under the authority of the State of New South Wales would or might stop the motor vehicle and refuse to allow it to proceed upon the journey. It may further be inferred that responsible officers of the government concerned with the administration of the Act were aware that it was on this basis that moneys were being paid by inter-State carriers; if not by all, at all events by a great number of them. So far as the male plaintiff went, the actual receiving clerks may be taken to know that his payments were made under protest. Doubtless there were occasions on which he failed to express his protest formally. But he had repeatedly stated his protest and he had made his position sufficiently clear. We are not in this case dealing with a claim against a public officer for the repayment of money he has exacted without authority nor with a claim against a corporate body which has so acted by its servants or agents. We are dealing with a claim against the Crown in right of the State. The moneys collected fell within s. 25 of the Act and under that provision and s. 26 they went into a fund in the Treasury called the State Transport (Co-ordination) Fund where the money is subject to certain specific appropriations and otherwise to appropriation by Parliament. (See s. 26 (8) and (9)). As to the vesting of the moneys in the "board" by s. 26 (3) see the history of the transport authority administering the Act briefly stated in Hughes and Vale Pty. Ltd. v. New South Wales [1] and further dealt with in Barton v. Commissioner for Motor Transport [2] .
For myself I entertain some doubt whether the law to be applied in the present case is the law relating to the recovery by one subject from another of moneys paid by the former in consequence of a demand by the latter lacking lawful justification. The demand of the moneys amounted to, or at least formed part of, an infringement of the constitutional freedom of inter-State trade. It was made with the full authority of the State under the terms of a public general statute. There is, I think, no doubt now that s. 92 does not directly confer private rights upon the individual. But it does protect him from the operation of any purported exercise of State (and for that matter Commonwealth) legislative or executive authority incompatible with full freedom of inter-State trade commerce and intercourse. I have not been able completely to reconcile myself to the view that if the weight of a de facto governmental authority manifested in a money demand is not resisted although it is incompatible with s. 92 the money belongs to the Crown unless the payment was the outcome of the actual threatened or apprehended withholding of something to which the payer was entitled or the actual threatened or apprehended impeding of him in the exercise of some right or liberty. But English authority seems now to say that moneys paid to the Crown as and for taxes cannot be recovered from the Crown upon its turning out that the moneys were not exigible notwithstanding that they were demanded by the Crown, unless the circumstances were such that they would be recoverable as between subject and subject, exempli gratia as involuntary payments or payments made under a mistake of fact. See William Whiteley Ltd. v. The King [1] ; National Pari-Mutuel Association Ltd. v. The King [2] and Sebel Products Ltd. v. Commissioners of Customs and Excise [3] , per Vaisey J. [4] . See per Latham C.J. in Werrin v. The Commonwealth [5] and McTiernan J. [6] .
However this may be, the plaintiffs must I think recover in the circumstances of the present case.
We are dealing with the assumed possession by the officers of government of what turned out to be a void authority. The moneys were paid over by the plaintiffs to avoid the apprehended consequence of a refusal to submit to the authority. It is enough if there be just and reasonable grounds for apprehending that unless payment be made an unlawful and injurious course will be taken by the defendant in violation of the plaintiffs' actual rights. The plaintiffs were not bound to wait until the illegality was committed in the exercise of the void authority. See Valpy v. Manley [7] in arg. per Tindal L.C.J. [8] , per Cresswell J. [9] and as to the compulsion of a void authority see Newdigate v. Davy [10] .
On all the facts including the inferences the propriety of which has been discussed above the case is I think one in which a common count in money had and received would be sustained.
It follows that upon any view the plaintiffs are entitled to succeed. The amount for which they are entitled to judgment is £5,467.
This is an action of assumpsit for money had and received to the use of the plaintiffs. They were carriers of goods by road between Victoria and New South Wales. The sums of money were fees which they paid for permits issued under s. 22 of the State Transport (Co-ordination) Act 1931 as amended. Section 28 of the Act made it an offence to carry goods for any consideration without a permit unless a licence or exemption was held under the Act. The plaintiffs held no such licence or exemption. Under s. 36 a person who committed such an offence was liable to a penalty. Section 47 provided: "(2) An authorized officer may seize any motor vehicle or any books, records, or papers in respect of which he suspects that an offence has been or is being committed by any person against this Act, and may detain the same pending investigation and legal proceedings." The plaintiffs allege that the sums of money were not paid by them voluntarily. Their case consists of two branches: that they paid these sums under protest, and that they paid to save the motor vehicle while it was being driven in New South Wales from being seized under s. 47 (2).
The action is brought in consequence of the decision of the Privy Council in Hughes and Vale Pty. Ltd. v. State of New South Wales [1] . All the sums of money in question were collected by the defendant before that decision was announced. They were, in truth, collected on the faith of the "transport cases" decided in this Court. But the decision of the Privy Council revealed that the defendant had in truth no lawful authority to require any of these sums to be paid because the plaintiffs were inter-State carriers. From the lack of lawful authority to collect these sums no presumption that the plaintiffs did not pay them voluntarily can be made. They must prove affirmatively that they paid under compulsion in order to succeed in the action: see Brisbane v. Dacres [2] and Julian v. Auckland Corporation [3] .
The statement of claim contains an allegation that the amounts claimed were demanded by the defendant colore officii. I can see no support at all for that allegation. Extortion in the discharge of an office occurs where illegal or excessive fees are demanded by an officer for the performance of a duty to which the payer is entitled: see Werrin v. The Commonwealth [4] . The plaintiffs had no right to the issue of a permit under the Act. It was beyond the constitutional power of the defendant to apply the provisions of the Act relating to permits to transportation among the States. Their right to recover back what they paid for the permits which were, in fact, issued to them depends upon whether the evidence proves that they paid under compulsion. The only witness was the plaintiff, Mason. He was the driver of the vehicle in respect of which the permits were issued. His evidence is fully set out in the transcript of proceedings before me and I do not repeat it here. This evidence proves these facts. Before the plaintiffs began carrying goods between Victoria and New South Wales, Mason said he had conversations with other drivers from whom he learned that they objected to paying for permits and his evidence shows that he affected to believe that it was unconstitutional to apply the provisions of the Act to inter-State transport. He knew that inter-State hauliers had adopted a policy of paying under protest. His predecessor in business, Mason said in evidence, drew his attention to the provisions of s. 47 (2) and told him that if the plaintiffs did not obtain permits their motor vehicle could be detained. The plaintiffs arranged with the consignors or consignees, on whose behalf they carried goods, to include in the price they paid for carriage the fees, or a substantial part of them, which would be payable for permits. Mason, on all occasions when he drove into New South Wales or was about to drive back to Victoria, applied for permits covering the journeys to be travelled within the former State. On most occasions he paid under protest for the permits. What he generally said amounted to this: that he should not have to pay at all and that he expected that the pending case about the Transport Act would be successful and the money would be refunded to him. Other details of Mason's evidence were that inspectors asked drivers of motor vehicles carrying goods to show their permits and checked them. Mason gave evidence of a specific occasion when a vehicle was stopped by an inspector because the driver had no permit and of one occasion when the witness, himself, was asked to show his permit. According to Mason's evidence the inspector told him that the consequence of not having a permit would be that he would be prosecuted. This is the only evidence of any express threat. However, Mason did have a permit and the inspector's statement would appear to be gratuitous. The law does not regard money paid under a threat of legal proceedings as received to the use of the payer and hence recoverable by him. There is no evidence that Mason was forced to apply for a permit on any of the occasions in question or even that any officer of the defendant made any express demand for payment before Mason handed over the money. On the contrary, the evidence clearly proves that Mason, on his own initiative, carried out every detail of the procedure involved in obtaining a permit, from weighing the loaded vehicle to paying the cheque for the fees payable on the issue of the permit. The only evidence of opposition on his part was that he paid under protest. Payment under protest is consistent with voluntary payment. "I do not think that the mere fact of a payment under protest would be sufficient to entitle the plaintiff to succeed; but I think that it affords some evidence, when accompanied by other circumstances, that the payment was not voluntarily made to end the matter": see Maskell v. Horner [1] , per Reading L.C.J. [2] . In Union Pacific Railroad Co. v. Dodge County Commissioners [3] , this was said: "There are, no doubt, cases to be found in which the language of the court, if separated from the facts of the particular case under consideration, would seem to imply that a protest alone was sufficient to show that the payment was not voluntary; but on examination it will be found that the protest was used to give effect to the other attending circumstances" [4] . There is no evidence here that any payment made under protest was attended by any circumstances that amounted to constraint or pressure to pay, so that it could be said that payment was made to end a deadlock and the protest was made to show that the payer did not regard the payment as closing the transaction. Therefore, I think that the protests provide no ground on which the plaintiffs can succeed. I think that it is clear from the general tenor of the protests which Mason made that he was merely reserving his right to claim back the money if the pending appeal to the Privy Council should succeed. The appeal was Hughes and Vale Pty. Ltd. v. State of New South Wales [5] .
The evidence that inspectors were on duty on the roads to see if drivers had correct permits shows, of course, that the State was administering the Act. But such evidence no more proves that Mason paid under compulsion than does the evidence of the issuing of permits and the collection of fees for them. Presumably all the carriers knew that the Act was not a dead letter. If it matters that Mason was told by his predecessor in business about s. 47 (2), that he saw inspectors on the roads and had his permit checked, the result might be to put the plaintiffs in a better position to recover back the payments which Mason made for permits, than a carrier who had not had s. 47 (2) brought to his notice, or had never met an inspector on the roads. But would not that be a strange result? All carriers, as I have said, must be taken to have known that the State was administering the Act. If the fact that the State was doing so proves that it was exacting money by duress, then no carrier could be held to have paid voluntarily. Obviously that would be too large an assumption to make. I think that it would be giving a false character to s. 47 (2) or to any other sanctions provided by the Act and to the mere fact that the Act was being administered, to say that these things constituted a threat or an intimidatory announcement. The material question is whether any officer of the defendant threatened to use the powers in s. 47 (2) against Mason if he did not obtain permits. There is no evidence that any officer ever made a threat to Mason to compel him to pay for a permit. Of course, if there were, it would be reasonable to conclude that thereafter Mason did not make any payment for a permit voluntarily. Proof that any other carrier's vehicle was stopped because its owner had no permit and that he thereafter paid involuntarily for a permit (if he did), does not prove that Mason (who had never had his vehicle seized or threatened with seizure) did not always pay voluntarily. Where a person complies with the law you cannot presume that he does so in fear of the possible consequences of disobeying it. Voluntary obedience to a law is compatible with knowledge that it contains drastic means of dealing with disobedience. All Mason's overt acts, except possibly his protests, tend to show that he voluntarily paid the sums of money expended on permits. I have stated my view as to the insufficiency of the protests as proof of compulsion. The protests are evidence of dissatisfaction, no doubt, but that is not enough. The inter-State carriers as a body decided in advance to pay under protest, and Mason was merely following that policy. There is no evidence that any officer constrained Mason by any action or threat of action to pay for any permit, and that in order to secure the use of the motor vehicle Mason obtained a permit and protested in order to show that the transaction was not closed and that he reserved his rights to rip up the transaction and recover back what he paid. Mason knew before he embarked on the business of carrying goods between Victoria and New South Wales that it involved, as the law then stood, paying for permits. If he was not willing to pay for permits it was open to him to sue for an injunction quia timet to restrain the defendant from seizing his motor vehicle in the event of his not obtaining permits: see Cam & Sons Pty. Ltd. v. Chief Secretary of New South Wales [1] . The evidence does not prove that Mason was constrained by any action or threat of action to apply for the permits. The reasonable inference, as I have already said, is that payment was his own free choice. The plaintiffs had profitable orders or contracts for the carriage of goods to execute. They must be taken to have regarded the fees to be paid for permits as a normal expense of the business. Accordingly, they arranged to cover the fees as far as possible by the price they charged. They paid the charges for fees under business necessity to enable them to proceed with their orders and contracts for the carriage of goods inter-State. It is not a reasonable conclusion that having arranged to obtain from their customers money with which to pay for permits they were coerced into applying it to pay for permits. In my opinion, there is no evidence which satisfies me that Mason paid any of these sums of money under duress or compulsion of any kind. There is no evidence that he was subjected to any such constraint or pressure, and that in order to enable the inter-State carrying business to be carried on without interference his only reasonable alternative was to pay and to protest against payment in order to save the plaintiffs' rights. Upon the sum of the evidence the circumstances are comparable with those in Werrin's Case [1] . The plaintiff in that case alleged that he was compelled by pressure and duress to pay an amount of sales tax on second-hand goods. He brought the action in consequence of a decision of this Court that second-hand goods were not within the scope of the Sales Tax Acts as they then stood. The case stated found that the Commissioner of Taxation had written to the plaintiff informing him that the amount of tax in question was payable under the Sales Tax Acts and that it "must be paid". According to that case stated the plaintiff there paid with reluctance. In that case there was an express demand to pay sent with the apparent force of the Acts behind it and the plaintiff paid with reluctance. In the present case, however, there is no evidence of any express demand to pay any amount sued for; on the contrary, payment is shown to have been made on the initiative of Mason, albeit under protest. In Werrin's Case [1] Latham C.J. and I were of the opinion that the facts were not sufficient to prove that the amount of sales tax was not paid voluntarily. In my opinion the reasons for that opinion apply here, for in my view, despite all the detail in Mason's evidence, it proves only that the sums of money in question were collected by the defendant upon the supposed authority of a statute when actually, according to the subsequent decision of the Privy Council, no authority existed. I think it is appropriate to quote here a passage from the judgment of Skerrett C.J. in Julian v. Auckland Corporation [2] : "I decide it upon the simple proposition, which appears to be well established, that where money is paid at a time when the law is in favour of the payee it cannot be recovered by reason of a subsequent judicial decision reversing the former understanding of the law: see Henderson v. Folkestone Waterworks Co. [1] " [2] . A statement of Gibbs J. in Brisbane v. Dacres [3] is important and relevant here: "We must take this payment to have been made under a demand of right, and I think that where a man demands money of another as a matter of right, and that other, with a full knowledge of the facts upon which the demand is founded, has paid a sum, he never can recover back the sum he has so voluntarily paid. It may be, that upon a further view he may form a different opinion of the law, and it may be, his subsequent opinion may be the correct one. If we were to hold otherwise, I think many inconveniences may arise; there are many doubtful questions of law: when they arise, the defendant has an option, either to litigate the question, or to submit to the demand, and pay the money. I think, that by submitting to the demand, he that pays the money gives it to the person to whom he pays it, and makes it his, and closes the transaction between them. He who receives it has a right to consider it as his without dispute: he spends it in confidence that it is his; and it would be most mischievous and unjust, if he who has acquiesced in the right by such voluntary payment, should be at liberty, at any time within the statute of limitations, to rip up the matter, and recover back the money. He who received it is not in the same condition: he has spent it in the confidence it was his, and perhaps has no means of repayment" [4] . There is no satisfactory evidence that any of the sums was paid under any duress, express or implied. It is therefore not established that the defendant received any of these amounts to the use of the plaintiffs. I would dismiss the action.
I do not think that I can usefully add anything substantial to the judgments of my brothers Menzies and Windeyer, which I have had the advantage of reading. The evidence is scanty, but I think it is sufficient to establish that the payments were not voluntary in the relevant sense. The payments were numerous, and it cannot be said to have been proved that each payment was made in response to a threat that the particular vehicle concerned would be seized if a permit were not obtained and paid for. But the statute gave in terms a power of seizure, which the officers of the defendant State had, as was generally known, not hesitated to exercise. The payments were made with expressed unwillingness in response to what purported to be an authoritative demand, and they were made in order to avoid a very real risk that a refusal to pay would be followed by action which could be ruinous to the plaintiffs. That is, in my opinion, sufficient.
Between 1st June 1953 and 4th November 1954, the plaintiffs paid to the State of New South Wales moneys, amounting in the aggregate to £5,467 0s. 7d., which they now sue to recover as money had and received by the State to their use. Their case is that the moneys in question were levied of them by the State without lawful authority and were paid by them involuntarily. The plaintiffs are residents of a State other than New South Wales, and this Court has jurisdiction to entertain the action by virtue of the combined operation of s. 75 (iv.) of the Constitution and s. 58 of the Judiciary Act 1903-1955 Cth: Daly v. State of Victoria [1] .
It is common ground that each of the relevant payments was made by the plaintiffs in order to obtain a permit under s. 22 of the State Transport (Co-ordination) Act 1931-1952 N.S.W.. That section as it stood at all material times purported to make the payment of prescribed fees a condition of the issue of permits permitting the carrying on a motor vehicle of goods in or over specified districts or routes. The plaintiffs were engaged in a business of carrying goods on motor vehicles on inter-State journeys involving the use of New South Wales roads. Section 12 and s. 28 of the Act purported to make it an offence to operate a "public motor vehicle" (the expression being defined by s. 3 to include a motor vehicle used for the conveyance of goods in the course of a trade or business) unless the vehicle was licensed under the Act and the person operating it was the holder of the licence; but this was subject to a proviso which made it inapplicable to a vehicle that was being operated under and in accordance with an exemption from the requirement of being licensed granted under s. 19 or a permit granted under s. 22. The plaintiffs held no exemption granted under s. 19, and there was no way in which they could carry on their inter-State business without committing an offence under ss. 12 and 28 (assuming that those sections validly applied in respect of inter-State journeys), except to obtain, on payment of the prescribed fees, permits under s. 22.
The plaintiffs from time to time during the relevant period asserted to officials concerned in the issue of permits a belief that, because of s. 92 of the Constitution, ss. 12 and 28 could not have an operation which would make it an offence for them to operate their vehicles on inter-State journeys. But nevertheless they applied for permits and paid the prescribed fees, sometimes under protest and sometimes not. Eventually the belief they professed was shown by a decision of the Privy Council to be well-founded. The question now is whether the plaintiffs are entitled to recover back the fees they paid in order to get permits.
This is a question to be resolved according to the same body of law as would govern the case if the parties were subject and subject: Judiciary Act, s. 64. The general principle to be considered is that which Pollock called "the common principle that if a man chooses to give away his money, or to take his chance whether he is giving it away or not, he cannot afterwards change his mind; but it is open to him to show that he really had no choice": Principles of Contract, 13th ed. (1950), p. 481. The defendant says that the plaintiffs had ample choice. They might defy the State of New South Wales, entering its territory and using its roads in their inter-State journeys without regard to its statute, pinning their faith to s. 92 as a guarantee that they would emerge scatheless from the enterprise. But when Pollock referred to a choice he was using the language of practical affairs. He meant a free choice, uninfluenced by compulsion of any sort. Hodges J. expressed the conception in Kelly v. The King [1] : "The expression "voluntary payment" does not mean a payment which the petitioner or any other person wishes to make. In the case of many persons such payments never are voluntary in that sense. A "voluntary payment" means at most a payment made to get rid of a liability (scil. asserted by the payee though not sustainable in law), made with a free exercise of the will, where no advantage is taken of the position of the person or the situation of his property" [2] .
An actual or threatened seizure or detention of the payer's property has often been the feature relied upon as showing that there really was no choice. But other circumstances may show it also. This is brought out very clearly by a consideration of two cases in the Supreme Court of the United States. In the earlier of the two, Maxwell v. Griswold [3] , the Court said: " it can hardly be meant, in this class of cases, that, to make a payment involuntary, it should be by actual violence, or any physical duress. It suffices, if the payment is caused on the one part by an illegal demand, and made on the other part reluctantly and in consequence of that illegality, and without being able to regain possession of his property, except by submitting to the payment" [1] . But in Robertson v. Frank Bros. Co. [2] the Court explained its decision in Maxwell v. Griswold [3] by saying: "The ultimate fact, of which that (the inability to get possession of goods without making payment) was an ingredient in the particular case, was the moral duress not justified by law. When such duress is exerted under circumstances sufficient to influence the apprehensions and conduct of a prudent business man, payment of money wrongfully induced thereby ought not to be regarded as voluntary. But the circumstances of the case are always to be taken into consideration. When the duress has been exerted by one clothed with official authority, or exercising a public employment, less evidence of compulsion or pressure is required, - as where an officer exacts illegal fees, or a common carrier excessive charges. But the principle is applicable in all cases according to the nature and exigency of each" [4] .
These observations, accurately reflecting, as I believe they do, the common law of England, seem to me to have special force in the case of a payment made to a government in order to obviate adverse consequences which a statute invalidly purports to provide as the alternative. The proposition need not be questioned that where an Act purports, invalidly, to require a payment to be made, leaving the liability to be enforced by means of an action in which the invalidity of the statute is an available defence, a person who might have relied upon that defence but has paid without raising it should not be held, just because he was obeying the de facto command of a legislature, to have made the payment involuntarily. But even in the case of such an Act, if there are superadded provisions which attach to non-payment consequences other than a bare liability to be sued, there can be no justification for refusing to have regard to those consequences and to consider whether the existence of the provisions creating them has placed the payer under such pressure that the payments have not in truth been voluntary. Holmes J. observed in Atchison, Topeka & Santa Fé Railway Co. v. O'Connor [5] : " when, as is common, the State has a more summary remedy, such as distress, and the party indicates by protest that he is yielding to what he cannot prevent, courts sometimes perhaps have been a little too slow to recognize the implied duress under which the payment is made" [6] . There is no reason, however, why they should be slow to see compulsion in the statute itself, whether it results from a provision for distraint or from any other provision facing people with a substantial prospect of harm if they do not pay, and whether or not in particular cases the making of a protest has underlined the fact that a payment constitutes a yielding to the pressure of such a prospect. It seems to me of great importance to preserve the distinction which the United States Supreme Court insisted upon when it said in Gaar, Scott & Co. v. Shannon [1] : "Neither a statute imposing a tax, nor the execution thereunder, nor a mere demand for payment, is treated as duress. It does not necessarily follow that there will be a levy on goods. Or, if there is, the citizen, to avoid the consequences of the levy, may pay the money, regain the use of his property and maintain a suit for the recovery of what has been exacted from him. The legal remedy redresses the wrong. But he has the same right to sue if he pays under compulsion of a statute, whose self-executing provisions amount to duress. An act which declares that where the franchise tax is not paid by a given date a penalty of twenty-five per cent shall be incurred, the license of the company shall be cancelled, and the right to sue shall be lost, operates much more as duress, than a levy on a limited amount of property. Payment to avoid such consequences is not voluntary but compulsory, and may be recovered back" [2] .
The statutory provisions which we have here to consider were not provisions purporting to require payments to be made. The moneys which the plaintiffs seek to recover are wrongly described as levies by the State. By providing for a permit to be granted on payment of a fee, the Act simply offered a means of purchasing a limited freedom from the prohibition of ss. 12 and 28. In its application to inter-State operations the prohibition was unconstitutional and void; but it was accompanied by provisions which, void though they were, offered to persons like the plaintiffs threats of such seriousness that money paid to avoid them was money paid under pressure. The Act in its application to inter-State trade had been upheld by this Court in April 1953. Thereafter and until the Privy Council should decide otherwise it was useless for anyone attacked under the Act to rely for protection in any Australian court upon s. 92 of the Constitution. That was how matters stood throughout the period covered by the payments in question here, for the Privy Council's decision in Hughes and Vale Pty. Ltd. v. State of New South Wales [3] was not rendered until 17th November 1954. But even if this Court had not already spoken, the situation would have been compelling enough. This was no mere instance of a difference of opinion as to the construction of an admittedly valid Act and a payment made by way of acquiescence in preference to testing the point in the courts. The State of New South Wales by its legislature had announced that whenever a person should operate a motor vehicle as the plaintiffs in the course of their business wished to operate theirs, and had neither licence, exemption nor permit, he would be guilty of an offence (ss. 12 and 28), and that not only might he be subjected to an obligation to pay moneys not exceeding the sums that could have been made payable for a licence (s. 37) but he would be liable to a penalty not exceeding £500 (s. 36) recoverable summarily (s. 38). That meant that upon conviction such a person might be adjudged not only to pay the penalty and costs but to be imprisoned in default of payment: Justices Act, 1902-1955 N.S.W., s. 82. Moreover the Act provided by s. 47 (2) that any authorized officer might seize any motor vehicle in respect of which he should suspect that an offence had been or was being committed against the Act, and might detain it pending investigation and legal proceedings. The continuance of the plaintiffs' business would necessarily mean repeated breaches of s. 12. The evidence shows that the government of the State had prescribed the fees to be charged for permits, and that it was actively engaged in receiving applications for permits and issuing them upon payment of such fees, and in causing vehicles to be stopped on the roads for inquiry as to whether they were being operated in compliance with the Act.
It is all very well to say in such a case that there was an alternative to payment, namely to carry on as if ss. 12 and 28 had not been passed, resist the resulting prosecutions by pleading the invalidity of the Act, seek protection from the courts by injunction or otherwise in respect of a seizure, and appeal, if necessary to the Privy Council, against any unfavourable decision. But the critical question is not whether there was an alternative. It is whether the choice made between alternatives was made freely or under pressure. Holmes J. summed the matter up in two sentences which follow the passage quoted above from his judgment in Atchison, Topeka & Santa Fé Railway Co. v. O'Connor [1] : "But even if the State is driven to an action, if at the same time the citizen is put at a serious disadvantage in the assertion of his legal, in this case of his constitutional, rights, by defence in the suit, justice may require that he should be at liberty to avoid those disadvantages by paying promptly and bringing suit on his side. He is entitled to assert his supposed right on reasonably equal terms" [1] . This seems to me to go to the core of the matter.
It is true that the plaintiffs in the present case need not have paid their fees. They might have discontinued their business, or, as I have said, they might have ignored the Act, risking the seizure of their vehicles and the detention of them "pending investigations and legal proceedings", with the consequent disruption of their business and probable loss of customers, and risking, in respect of every operation of a vehicle in their business, a prosecution with its inevitable result, a conviction and the imposition of a penalty - the penalty, incidentally, being irrecoverable even if the Privy Council should one day give the decision for which the plaintiff hoped. But the loss to be anticipated from the adoption of either of these courses was so serious that any prudent person in their position must have felt strongly impelled to choose the lesser evil: to save his business and avoid the recurrent sanctions of the criminal law by paying the government to allow him the freedom which was his already by constitutional right. To describe the fees, when paid in these circumstances, as paid voluntarily - to describe the plaintiffs as taking their chance whether they were giving their money away or not - is surely impossible. How absurd it would be to say that they made their choice "on reasonably equal terms". What was their choice but a yielding to the superior power of the State?
I do not myself feel justified in attaching much weight to the tenuous evidence upon which we were invited to find that the plaintiffs made their payments because of apprehensions induced by words or conduct of State officials that vehicles would or might be seized and detained under s. 47. My judgment rests upon the view that the plaintiffs had quite enough compulsion upon them from the terms of the Act itself, apart altogether from anything that may have been said or done by officers of government. Under that compulsion they parted with their money. What happened between them and their customers is irrelevant: it was still their money that they parted with, and there is nothing to account for their parting with it except the pressure they were under. In my opinion they are entitled by law to have it back.
Although the evidence in the case is scanty the conclusion is, in my opinion, inescapable that the moneys which the plaintiffs now seek to recover were paid by them in the well-founded belief that unless they paid the prescribed charges it was at least probable that they would be prevented, by seizure of their vehicles, at some time or other, from operating them in the course of their business on the public roads of the State. I say "well-founded belief" because, in spite of the scantiness of the evidence, it sufficiently appears from the proved facts that the officers engaged in the administration of the Act during the relevant period made it reasonably apparent to the plaintiffs, and indeed, to hauliers in general, that they were in a position not only to demand payment of the prescribed charges but also to make their demands effective by a threatened exercise of the power of seizure which s. 47 of the Act purported to confer upon authorized officers. Nor was the possibility of seizure remote; it was a power which was readily available and the likelihood of its exercise presented a real threat to the plaintiffs' rights. In the circumstances I am of the opinion that it should be held that the payments were not made voluntarily in any legal sense and that upon the principles discussed by my brothers Menzies and Windeyer the plaintiffs should be held entitled to recover.
This action was commenced in the High Court and was argued before the Full Court in accordance with an order made by McTiernan J. pursuant to s. 18 of the Judiciary Act after the taking of evidence. The plaintiffs, between 1st June 1953 and 4th November 1954, operated unlicensed public motor vehicles in New South Wales in the course of trade between places in New South Wales and places in Victoria, and for those parts of their inter-State journeys which were travelled in New South Wales they obtained permits and paid charges under the State Transport (Co-ordination) Act 1931-1952 N.S.W. as if that Act applied to their operations. The charges paid in connexion with their inter-State trade amounted to £5,467 0s. 7d.
The Act set up a State Transport (Co-ordination) Board having the power in its discretion to issue licences and permits to operate public motor vehicles on roads in New South Wales and made it an offence to operate an unlicensed public motor vehicle except, inter alia, under and in accordance with a permit. In Hughes and Vale Pty. Ltd. v. State of New South Wales [1] the High Court by a judgment given on 16th April 1953 had decided that the Act validly applied to the operation of vehicles in inter-State trade but on 17th November 1954 the Privy Council reversed this decision and decided that the Act did not apply to the operation of vehicles in the course of and for the purposes of inter-State trade [2] . The plaintiffs thereupon sued for the charges paid as aforesaid.
The plaintiffs' starting point is that they were not liable to pay the charges in question and this was made good by a concession of the defendant at the hearing of the evidence that the charges were paid by the plaintiff and received by the defendant in connexion with permits for inter-State journeys.
The plaintiffs further allege that the charges were unlawfully demanded by the defendant colore officii and were paid by the plaintiffs involuntarily. This is in issue and it is necessary to decide whether the payments were voluntary or were made under compulsion.
The sections of the Act that are of particular significance are s. 22 relating to permits, ss. 12 and 28 relating to offences, and s. 47 relating to the seizure of vehicles. Section 22 as it stood from 1952 until December 1954 authorized the board to issue permits subject to conditions prescribed or imposed by the board, permitting the carrying on a motor vehicle of persons or goods in or over specified districts or routes. It also enacted that any person committing a breach of any of the conditions of a permit should be guilty of an offence against the Act. The section was amended retrospectively by Act No. 48 of 1954 which commenced on 16th December 1954 and which by s. 2 (i) and (ii) (which was expressed to operate from 31st August 1931) added a new sub-section, sub-s. (4), which expressly gave the board power to require the payment of specified charges as a condition of a permit.
What was done under the section before its amendment was for the board upon an application for a permit to impose as a condition of the permit the payment to the Commissioner of certain charges set out but mis-described in the form of permit issued as "Charges under section 18 or 37 of the State Transport (Co-ordination) Act 1931 as amended" and to require payment of these charges before the issue of the permit. That practice was followed in this case. It seems to me doubtful whether as it stood before amendment in 1954 the section authorized this practice but nothing turns upon this because whatever was the power to impose conditions, the inference is irresistible that had the plaintiffs not paid the charges demanded they could not have got the permits which were issued to them upon their applications. Payment of charges was insisted upon as a prerequisite to the issue to the plaintiffs of any permit.
Sections 12 and 28, inter alia, made it an offence to operate an unlicensed vehicle except under and in accordance with a permit granted under s. 22.
Section 47 empowered any authorized officer to seize any motor vehicle in respect of which he suspects an offence has been or is being committed by any person against the Act.
I should add that ss. 38A and 39 provided for the recovery of amounts due to the Commissioner but I doubt whether these sections could apply to unpaid charges for permits because the operation of each section is confined to amounts due under s. 18 (4) or (5) or s. 37 which seem to me to have no application to such a case.
The evidence in the case was given by one of the plaintiffs, Howard James Mason, and from it and from the surrounding circumstances I am satisfied as follows: -
(1) That the plaintiffs believed that the Act was either invalid or had no application to their operations which they believed they were entitled to carry on without obtaining permits or paying charges.
(2) That the plaintiffs believed that nevertheless the Act would be enforced against them and that if they attempted to carry on their business but did not obtain permits and pay the charges demanded, not only would they be prosecuted but their vehicles would be seized under s. 47 and their business stopped.
(3) That the plaintiffs made many protests about having to get permits and pay charges. The verbal protests amounted to assertions that the Act was unconstitutional and the moneys being paid as charges would eventually be recovered; these were made principally to officers receiving payment of the charges or issuing permits. The written protests were endorsed upon some of the cheques given to pay the charges. There were about one hundred cheques altogether and of the forty-five paid between 11th April 1954 and 4th November 1954, twenty-seven had written on the back the words "This cheque is paid under protest" followed by the signature of the first-named plaintiff "H. Mason".
(4) That on a number of occasions the plaintiffs' vehicles were stopped by inspectors to check whether permits had been obtained. Of the permits issued forty-eight showed by notation that they had been checked by Transport Board inspectors.
(5) That the defendant was during the relevant time enforcing the Act against transport operators including those whose vehicles were being operated in the course of inter-State trade.
The evidence in support of the second conclusion is weak and it is this which has given me the greatest concern in this case. Nowhere does the plaintiff witness say in terms that he believed their vehicles would be seized if they disregarded the Act but on the whole and having regard to the evidence showing the plaintiffs' knowledge of and concern about s. 47 of the Act and the further evidence indicating the plaintiffs' appreciation of the practical necessity for having permits if their business was to continue, I do consider that the conclusion is warranted.
It was argued that the evidence went further than the fifth of the foregoing conclusions and showed threats on the part of the defendant to employ s. 47 against those disregarding the Act, including the plaintiffs. I do not think this was established. There is no admissible evidence of any seizure under s. 47 and no evidence of any actual assertion that s. 47 would be employed. The evidence does not go beyond showing a determination on the part of the defendant to enforce compliance with the Act.
From the conclusions which I regard the evidence as justifying I think it proper to infer that the payments by the plaintiffs to the defendant were not made voluntarily. They were necessarily paid in order to obtain permits without which the plaintiffs, with cause, believed that their vehicles would be forced off the roads and that they could not carry on their business. That business they were entitled to carry on without obtaining permits or paying charges. Payments of this sort cannot be called voluntary. Furthermore, I am satisfied that the defendant was aware that the payments were made not because the plaintiffs grudgingly accepted liability nor because they preferred to pay rather than to litigate but substantially because they felt they had to pay in order to carry on the business which they were asserting that they were entitled to carry on without payment. They paid knowing that litigation was proceeding to determine whether the Act applied to inter-State trade and asserting the intention to recover the money if and when the Privy Council decided Hughes and Vale Pty. Ltd. v. State of New South Wales [1] as it did. In short, the money which the plaintiffs paid as charges was illegally demanded under colour of the Act and unwillingly paid in order that the plaintiffs might carry on a business which they rightly asserted was lawful and the defendant wrongly asserted was unlawful without permits for which the payments were prerequisite.
On these facts it seems to me that the case presents no legal difficulty. The payments were not voluntary and the compulsion under which they were made was something other than legal compulsion. To put it bluntly, the charges were unlawfully exacted. Cases such as Morgan v. Palmer [2] ; Steele v. Williams [3] ; Hooper v. Exeter Corporation [4] and Great Western Railway Co. v. Sutton [5] show that money paid in such circumstances is recoverable. In Sutton's Case [5] Lord Chelmsford said: "Now if the defendants were bound to charge the plaintiff for the carriage of his goods a less sum, and they refused to carry them except upon payment of a greater sum, as he was compelled to pay the amount demanded, and could not otherwise have his goods carried, the case falls within the principle of several decided cases, in which it has been held that money which a party has been wrongfully compelled to pay under circumstances in which he was unable to resist the imposition, may be recovered back in an action for money had and received" [1] . Again, in Lancashire & Yorkshire Railway Co. v. Gidlow [2] Lord Chelmsford said: "My Lords, there was a question raised here and argued, but, as my noble and learned friend said of another point, only faintly argued, that is, that the money for these terminal charges having been paid without objection, the plaintiff had no right to bring an action to recover it back. Now there can be no doubt that where a person pays money which he is not bound to pay, with a full knowledge of the facts, he cannot recover it back in an action for money had and received. But there has always been an exception made in cases where a party has paid money under compulsion. It has been decided that where a carrier refused to deliver goods until a payment was made by the person to whom the goods belonged, amounting to more than the carrier had a right to charge, the customer might in an action for money had and received recover back the money so paid. There can be no doubt whatever that the plaintiff here paid this money under duresse; he was compelled to do it, or his coals would not have been carried by the company; and, therefore, that is the answer to that argument" [3] . The same principle has been applied to support the recovery of moneys paid pursuant to a demand colore officii. Thus in Sargood Bros. v. The Commonwealth [4] O'Connor J. said: "Where an officer of Government in the exercise of his office obtains payment of moneys as and for a charge which the law enables him to demand and enforce, such moneys may be recovered back from him if it should afterwards turn out that they were not legally payable even though no protest was made or question raised at the time of payment. Payments thus demanded colore officii are regarded by the law as being made under duress. The principle laid down in Morgan v. Palmer [5] , Steele v. Williams [6] , and adopted in Hooper v. Exeter Corporation [7] clearly establish that proposition" [8] . This was said in a case where there was a well-recognized power of seizure to enforce the demand which was made.
I do not regard the present case as one where the money was demanded under colour of an office; it would be more correctly described as demanded under colour of Act of Parliament but the same principle is applicable in each case and the ultimate question is whether payment was made voluntarily or under compulsion. It is because this is so that cases such as Morgan v. Palmer [1] (demand colore officii as mayor) and Hooper v. Exeter Corporation [2] (demand under colour of private Act) can properly be cited for the same general proposition.
There were three cases relied upon by Mr. Wallace to which I should refer. They are Slater v. Burnley Corporation [3] ; William Whiteley Ltd. v. The King [4] and Twyford v. Manchester Corporation [5] . Slater's Case [3] was a case where it was decided that an excessive payment to a water company on demand was not recoverable notwithstanding that the company had power to cut off water, because there was no threat to do so. The payment was held to have been made voluntarily and not under compulsion. The distinction between that case and the present is that in the present case the payments were, as I have found, compulsory and not voluntary. It may be that had nothing been proved beyond the mere existence of s. 47 in the Act this would not have been enough to prove that the payments were involuntary but the findings I have made go a long way further. In William Whiteley Ltd. v. The King [4] it was decided that duties wrongly demanded under the Revenue Act and paid were not recoverable because they were paid voluntarily and not under duress. The duress relied upon was that a revenue officer had told the taxpayer that if duties were not paid proceedings would be taken for penalties. As to this Walton J. said that to the knowledge of the suppliant the Commissioners of Inland Revenue "could take no action if the duties were not paid except by legal proceedings. They could not distrain." [6] This decision, which in Werrin v. The Commonwealth [7] was held to be indistinguishable, is clearly distinguishable here. The distinction is the simple one that in that case there was no compulsion beyond the threat of legal proceedings; in this case on my findings there is. Finally, in Twyford v. Manchester Corporation [5] the plaintiff failed in an attempt to recover moneys which the corporation had wrongly charged as fees for recutting monumental inscriptions in a cemetery but the basis of the decision was that there was no duress in the sense that the plaintiff was led to apprehend exclusion from the cemetery unless the payments were made.
As Lowe J. said in Deacon v. Transport Regulation Board [8] - a case like the present which arose under the Victorian legislation corresponding with the Act but without a section corresponding with s. 47 - the question whether any particular payment was made voluntarily or under compulsion is a question of fact and in this case my findings are, as were those of Lowe J. in Deacon's Case [1] , that the payments in question were made under compulsion.
It appears that in some of the freights which the plaintiffs charged they had passed on to their customers part of the charge that they are now seeking to recover. The only legal significance that could be given to this is any bearing it may have upon the question whether the charges were paid voluntarily or under compulsion. It may be that in some cases if both the opportunity and intention to pass on charges demanded without legal justification were established this might help to show that the person who paid the charges in the first instance did so voluntarily because he would not be out of pocket by doing so. What was here proved, however, was very much short of this and if taken with the rest of the evidence does not shake the conclusion that the payments were not made voluntarily.
The other contention was that the action must fail because whatever the circumstances any implied promise to repay would be subject to the condition that payment should be made only out of moneys made available under parliamentary appropriation: New South Wales v. Bardolph [2] . This objection, if it is open on the pleadings, is answered by the Judiciary Act, ss. 64-66. The satisfaction of any judgment for the plaintiffs in this action must be out of moneys legally available.
For these reasons the plaintiffs are entitled to judgment.
The plaintiffs, who are husband and wife, were, at the relevant times, partners in a business of carrying goods by road between Melbourne and places in New South Wales. They claim to recover from the State of New South Wales £5,560. This is the total of amounts paid by them as charges levied under the New South Wales State Transport (Co-ordination) Act 1931, as amended to 1952, for the issue of permits authorizing them to use their motor vehicle within New South Wales for carrying goods for hire. The provisions of the Act requiring permits to be obtained were, in so far as they related to inter-State trade, later held by the Privy Council to be invalid as in conflict with s. 92 of the Constitution. But when - on various dates from December 1953 to November 1954 - the plaintiffs sought permits and paid the moneys they now seek to recover back, the legislation had not been held to be invalid. Indeed in April 1953 this Court had, by majority, held that the charges were validly imposed. The decision of the Privy Council was not announced until 17th November 1954. In the interval the State authorities, naturally and properly, took steps to require compliance with a law which had been upheld by this Court. It was, however, generally known that an appeal to the Privy Council was pending; and its probable outcome and the validity of charges for permits for vehicles travelling across the State border were topics of lively speculation and interest among persons concerned in the road carriage of goods. The plaintiffs, along with others similarly interested, for the time being accepted the position that permits were in practice required and that the prescribed fees had to be paid. Under the Act it was an offence to operate a motor vehicle without a permit. And any authorized officer might seize any motor vehicle in respect of which he suspected an offence had been or was being committed; and might detain it pending investigation and legal proceedings. The plaintiffs were aware of all this. The male plaintiff, who was himself the driver of their vehicle, used to attend at the Transport Office at Albury to obtain permits for his journeys. On many occasions he was stopped on the road at various places in New South Wales and production of his permit demanded by inspectors. Like other persons who sought permits, he was accustomed to make some sort of protest whenever he paid the charges required. To the clerks who took the money and issued the permits he made such remarks as: "I should not be paying these moneys at all because I do not think the law is right, and I hope one day to get it back"; and "Permits should not be charged for goods travelling inter-State"; and "I protest against paying this money because in my opinion section 92 of the Constitution says that it is not law"; and "It's all right for me to be paying this money but I expect to get it back later on because I have been told the law is a bad one". These remarks sometimes elicited no response, sometimes statements by the issuing officers that the plaintiff was wasting his own time and theirs. Sometimes there were replies such as: "I do not think you will get it back. We have to take it"; and "I have heard that from a lot of others" and "Well we are taking it. Good luck to you if you do get it back". The effect of these conversations was debated; but it is not disputed that such somewhat informal protests became more or less a formality whenever the plaintiff paid the charges for permits. From April 1954 onwards the oral protests were supplemented by endorsements indicating that payment was made under protest, which the male plaintiff wrote on many, but not all, of the cheques he gave in payment for permits. He admits that he was throughout aware that if he had driven his vehicle without obtaining a permit he could, in any proceedings taken against him for a contravention of the Act, have raised the question of its validity. But he knew too that to adopt this course would cause him to lose customers and involve expense which he considered it unnecessary to incur. The plaintiffs wished to be carriers, not litigants. They had no wish at that stage to give their name to a leading case. They were content that Messrs. Hughes and Vale should do that; and they hoped they would pull the chestnuts from the fire for them. This attitude was quite reasonable; and the male plaintiff's statement, that he expected that, in the event of the Privy Council's deciding the charges were invalid, the State of New South Wales would readily refund them without the necessity for proceedings, seems probable and understandable. Yet the plaintiffs could have had, and in fact had, nothing more than a hope that the appellants before the Privy Council would be successful. They, therefore, charged their customers, for carrying their goods, amounts which would be sufficient to recoup them in part for the sums they had paid out to obtain permits. In that sense, the permit charges were "passed on". But they were not passed on nominatim. None of the plaintiffs' customers was required to pay expressly any amount for the plaintiffs' permits. Charges paid for permits were simply an expense of the plaintiffs' business which, in a greater or less degree in different cases, was reflected by the charges they made for carrying goods.
When the decision of the Privy Council in Hughes and Vale Pty. Ltd. v. State of New South Wales [1] was announced, the plaintiffs found that their expectation of an immediate refund of the moneys they had paid was not realized. So, encouraged no doubt by the decision in Antill Ranger's Case [2] that the attempt of the New South Wales Parliament to prevent the recovery of moneys paid under the void provisions of the State Transport (Co-ordination) Act was ineffectual, they bring this action against the State of New South Wales. The statement of claim describes their cause of action as being for money had and received by the defendant for the use of the plaintiff, being moneys levied by the defendant in connexion with the issue of permits "which moneys were unlawfully demanded by the defendant colore officii and paid by the plaintiffs involuntarily". In support of their claim the plaintiffs proved the matters above set out; and they proved little more.
In the course of the argument reference was made to a great number of decisions. It is not necessary to go through them all. The law concerning the circumstances in which money paid, which was not lawfully due, can be recovered is now a well-established branch of the law of quasi-contract, developed empirically through the action of indebitatus assumpsit. The only difficulty is applying the established principles to the facts of particular cases. The solution of the question in a particular case of this kind is only slightly aided by the examination of multitudinous illustrations: and it can be impeded by the too fluent use of phrases such as " colore officii " and "involuntary" unrelated to particular facts.
A plaintiff's right to recover in an action for money had and received such as this depends upon proof that the moneys were paid by him involuntarily, that is, as the result of some extortion, coercion or compulsion in the legal sense. Exactions colore officii are a form of extortion.
The phrase "colour of office" is an old one, carrying a stale odour of mediaeval complaints of corruption and abuse of power by officials. A fairly early example of its use is in the Statute 9 Hen. VI, c. 7, An Act for Restraining Extortion by the Sheriff of Herefordshire (1431). Extortion was a common law misdemeanour, defined by Coke as "the taking of money by any officer, by colour of his office, either where none at all is due, or not so much is due, or where it is not yet due" (Co. Lit. 368, 10 Rep. 102). The indictment alleged that the prisoner had acted " colore officii sui false, corrupte, & extorsive " (R. v. Eyres [1] and R. v. Clerk of the Peace of Cumberland [2] ) or as in Wentworth on Pleading (1797) BkIV, p. 147 " by colour of his said office, unlawfully, unjustly and extorsively did exact, extort and receive ".
The words colore officii thus came into the law in association with misdemeanour. In Les Termes de la Ley, Rastall says "colour of office is always taken in the worst part"; and he contrasts the expression with ratione officii and virtute officii which he says are "taken always in the best part". He got his description of colour of office from Plowden's report of Dive v. Maningham [3] where Montague C.J. in 1550 said: " this Word colore officii sui is always taken in mala partes, and signifies an Act badly done under the Countenance of an Office, and it bears a dissembling Visage of Duty, and is properly called Extortion. As if an Officer will take more for his Fees than he ought, this is done colore officii sui, but yet it is not Part of his Office, and it is called Extortion, which is no other than Robbery, but it is more odious than Robbery, for Robbery is apparent, and always hath the Countenance of Vice, but Extortion, being equally as great a Vice as Robbery, carries the Mask of Virtue, and is more difficult to be tried or discerned, and consequently more odious than Robbery" [1] .
Among early examples of extortion to be found in the reports are cases of sheriffs and coroners demanding fees for performing duties which they ought to have performed without payment (e.g. Empson v. Bathurst [2] ), a ferryman and a miller taking more by way of toll than custom allowed, and the farmer of a market making an unlawful demand for stallage (R. v. Roberts [3] and R. v. Burdett [4] ). Extortion by officials colore officii had thus been long known as a criminal offence when Lord Mansfield was giving generous scope to the action for money had and received, which in Moses v. Macfarlan [5] he said would lie "for money got through imposition, (express, or implied;) or extortion; or oppression". Examples of such actions soon multiplied. An early instance, interesting in the present context, is Irving v. Wilson [6] where the plaintiff's carts laden with goods on a journey from Scotland to Carlisle were stopped by a revenue collector, who demanded the plaintiff's permit, which not being with the first cart and immediately forthcoming, he seized all the carts with their cargoes and demanded money for their release. This the plaintiff paid and later recovered.
Yet, although all forms of extortion will ground an action for money had and received, all forms of extortion by officials are not properly described as being by colour of office. Extortion by colour of office occurs when a public officer demands and is paid money he is not entitled to, or more than he is entitled to, for the performance of his public duty. Examples of such exactions are overtolls paid to the keepers of toll-bridges and turnpikes, excessive fees demanded by sheriffs, pound-keepers, &c. The parties were not on an equal footing; and generally the payer paid the sum demanded in ignorance that it was not due. In Steele v. Williams [7] , the most frequently cited case on this topic, the defendant was a parish clerk who had demanded and received from the plaintiff's servant more than the statutory fee for permission to search the parish register. The amount asked for had been unprotestingly paid; and it was paid after the search was complete, so that there had been no withholding of the right of search until payment was made. Baron Parke said that "The defendant obtained the money by an improper exercise of his power as parish clerk; that is an illegal act, and therefore he must refund" [1] . After saying also that "in effect, the defendant told the plaintiff's clerk, that if he did not pay he should not be permitted to search", he added "I by no means pledge myself to say that the defendant would not have been guilty of extortion without that species of duress, viz. the refusal to allow the party to exercise his legal right, but colore officii. Dew v. Parsons [2] certainly goes to that extent" [3] . In Dew v. Parsons [2] a sheriff had been paid more than he was entitled to have, the party paying being ignorant that it was not due. Similarly in Hooper v. Exeter Corporation [4] , the plaintiff paid in ignorance that he was not liable for harbour dues. Morgan v. Palmer [5] is commonly cited along with Steele v. Williams [6] as an instance of money demanded colore officii being recoverable; and properly so, although, in relation to a technical requirement of notice of action, Bayley J. said that the money was not there taken colore officii. In both cases the payment was made after the event had occurred for which it was paid. Neither was a case of duress by the actual withholding of a right until payment. The payment was made simply because it was demanded under colour of office. In Morgan v. Palmer [5] money was paid to the mayor of Yarmouth when the renewal of the plaintiff's publican's licence was announced. Similar fees had been regularly paid to the mayor for sixty-five years; and the defendant took the money in good faith, believing himself entitled to it by custom. This decision, and a statement of Collins J. in Shoppee v. Nathan & Co. [7] show that in an action for money had and received colore officii it is not necessary to show that the defendant acted in bad faith, as it is in criminal proceedings for similar extortions. Nevertheless the phrase bears an imputation of imposition by a person in authority upon another person ignorant of his rights.
In Sargood's Case [8] O'Connor J. said: "Where an officer of Government in the exercise of his office obtains payment of moneys as and for a charge which the law enables him to demand and enforce, such moneys may be recovered back from him if it should afterwards turn out that they were not legally payable even though no protest was made or question raised at the time of payment. Payments thus demanded colore officii are regarded by the law as being made under duress" [1] .
The present case is not one in which the plaintiffs seek to recover from an official. But no doubt an action could be brought against the State of New South Wales for the recovery of money which had been exacted under colour of his office by a servant of the Crown and paid into the State revenue, for petition of right was available in such circumstances: see Brocklebank Ltd. v. The King [2] . And, in my view, the State of New South Wales was properly made the defendant in this action, for money paid for permits was paid to persons who took it merely as the agents of the Crown to receive it and pay it into the Treasury. In these circumstances the servants of the Crown who were concerned could not, I think, properly be sued. (Barton v. Commissioner for Motor Transport [3] per Kitto J. [4] ; Atlee v. Backhouse [5] ; Ochberg v. Commissioner of Stamp Duties [6] ; cf. Marshal Shipping Co. v. Board of Trade [7] ).
It cannot be said that here any official extorted or even demanded money by colour of his office. The charges imposed by a statute, which this Court had declared to be valid but which it later transpired was unconstitutional, were simply collected by servants of the Crown in the course of their duty. The plaintiffs when they paid were not ignorant of the position. They knew their rights so far as they could be known before the Privy Council had spoken. They were not deluded or imposed on. They protested throughout that the charges were unlawful. All this is, I think, foreign to the concept of a payment exacted colore officii.
The plaintiffs are not to fail on their action, however, because the pleader has used inappropriate words to formulate their claim. But it is not just a matter of a wrong Latin label. The importance of the matter is that the plaintiffs cannot succeed simply because of the superior position of the defendant. They must go further and establish that there was, in a legal sense, compulsion by something actually done or threatened, something beyond the implication of duress arising from a demand by persons in authority, which suffices in a true colore officii case. Further the plaintiffs must establish that they actually paid because of this compulsion, and not voluntarily despite it. "Voluntary payment" has a special meaning here. Clearly it does not import a payment by way of gift. And equally clearly it means more than payment willingly, in the sense of without reluctance. One writer has said that, in this context, "it is merely a shorthand way of saying that there is no approved ground on which restitution of benefits can be awarded" (Dawson, Unjust Enrichment). In most jurisdictions in the United States the difficulties of the question whether a payment is compulsory or voluntary have led to its being decided by the judge and not left to the jury (see Field, The Effect of an Unconstitutional Statute - chap. x, The Recovery of Unconstitutional Taxes reproducing an article in Harvard Law Review 45501). And in Steele v. Williams [1] the parties had agreed at the trial that this question was one for the judge. Yet it is, I think, ultimately a question of fact, as Lowe J. said in Deacon v. Transport Regulation Board [2] . Coleridge J. in Traherne v. Gardner [3] said, "we are in the character of jurymen" [4] . Nevertheless it is a question for the resolution of which much citation of authority can be employed, as this and other cases have shown. In my view, a payment may be said to be voluntary, in this context and for present purposes, when the payer makes it deliberately with a knowledge of all relevant facts, and either being indifferent to whether or not he be liable in law, or knowing, or having reason to think, himself not liable, yet intending finally to close the transaction. And I respectfully agree with the criticism by Lowe J. in Deacon's Case [5] of the statement attributed to Platt and Martin BB., in the headnote to Steele v. Williams [1] . It seems plain that a man compelled by pressure colore officii or any other form of duress may yet say "well I have really no option but to pay, nevertheless I will not dispute the matter further. I will pay to put an end to the question".
Much was said in this case about the plaintiff's protests. A protest at the time of payment may of course "afford some evidence, when accompanied by other circumstances, that the payment was not voluntarily made to end the matter" (Maskell v. Horner [6] ). But there is no magic in a protest; for a protest may accompany a voluntary payment or be absent from one compelled. (See Deacon v. Transport Regulation Board [2] ). Moreover the word "protest" is itself equivocal. It may mean the serious assertion of a right or it may mean no more than a statement that payment is grudgingly made. In some early cases a protest accompanying payment had more than an evidentiary importance. It was, and in some parts of the United States still is, a notice to the collector of a challenged levy that if he pays it over to the state he does so at his own risk. In these cases the payer, by protesting before payment over, may preserve a right to sue the collecting officer personally - a matter of importance wherever a civil action cannot be brought against a state. (Elliott v. Swartwout [1] ; Restatement of the Law of Restitution s 72 p. 293)). The plaintiffs' protests do provide some evidence that their payments were not voluntary; but they do not prove that they were compelled by duress or coercion (cf. Twyford v. Manchester Corporation [2] ).
The plaintiffs pointed to the penal provisions of the Act. But the mere fact that the Act provided penalties for using the roads without a permit and made vehicles liable to seizure does not mean that anyone can recover from the Crown moneys he paid under the Act. The Crown is not to be assumed to have extorted money merely because the Parliament of New South Wales armed it with a power to do so. No doubt it is the duty of the Crown to enforce the will of Parliament; and, moreover, a statute may be well-known to reflect the policy of the government; but the mere appearance on the statute book of a measure providing for penalties and forfeitures does not mean that all moneys collected pursuant to the statute are extorted by the Crown. It is, in my view, necessary for the plaintiffs to do more than point to the provisions of the statute. They must show that the Crown by its servants was exercising, or threatening to exercise, powers under the statute in such a way as to constitute compulsion in law. A threat of proceedings for a pecuniary penalty does not make a payment made thereafter involuntary; for the payer might have defended the proceedings and relied upon the unlawfulness of the demand (William Whiteley Ltd. v. The King [3] and Werrin v. The Commonwealth [4] ). But a payment made under pressing necessity to avoid a seizure of goods, or to obtain the release of goods unlawfully detained, or to prevent some interference with or withholding of a legal right, is compelled and not voluntary and is recoverable in an action for money had and received. Shaw v. Woodcock [5] ; Hills v. Street [6] ; Great Western Railway Co. v. Sutton [7] ; Maskell v. Horner [8] ; Nixon v. Furphy [9] ; White Rose Flour Milling Co. Pty. Ltd. v. Australian Wheat Board [10] and In re Hooper & Grass' Contract [11] per Fullagar J., are examples of the application in different circumstances of the same general principle. There need be no actual interference with a legal right. Money paid under the constraint of threats to interfere with a legal right is recoverable, Valpy v. Manley [1] .
Payments made as the result of constraint are none the less involuntary because the law might have ultimately provided the payer with a remedy if he were prepared to suffer in the meantime. In Astley v. Reynolds [2] the Court said, "We think this is a payment by compulsion; the plaintiff might have such an immediate want of his goods, that an action of trover would not do his business" [3] . And so generally in an action at law for the recovery of money illegally exacted by duress of property, a payment will be considered as made under compulsion notwithstanding that the plaintiff might have avoided having to make it by resorting to equity for an injunction, Close v. Phipps [4] ; Kanhaya Lal v. National Bank of India [5] . In Attorney-General v. Wilts United Dairies Ltd. [6] , where Atkin J., as he then was, said that if the defendants had actually paid they could have recovered the money in an action for money had and received, the illegal impost was, in effect, exacted as the price of a licence to buy milk which the defendants had a common law right to buy without a licence. And similarly in Brocklebank Ltd. v. The King [7] a payment was illegally exacted as the condition of a licence to the plaintiffs to deal with their own property, which licence the plaintiffs ought to have been granted, if at all, without such payment.
In the American Restatement of the Law of Restitution there is a section (s 75) in the chapter headed "Coercion" on "Void Taxes and Assessments". A necessary condition for recovery is there stated to be that: "the payor reasonably believed that if the payment was not made the means taken to enforce collection of the tax or assessment would subject him to serious risk of imprisonment or of the loss of possession of his things or of other substantial loss" (p. 318). That I consider states the law applicable here.
The direct evidence adduced by the present plaintiffs to bring themselves within the above principles is somewhat scanty, and some matters are left to inference. There is not much direct evidence of any measures being taken by the authorities in New South Wales to enforce the statute and to compel road users to procure permits. The only actual threat to the plaintiffs which was proved may have amounted only to a threat of prosecution not of a seizure of the vehicle. Nevertheless, the proper inference from the admissible evidence as a whole is, I think, that the penal provisions of the Act, including the provisions for the seizure of vehicles travelling without permits, were far from a dead letter. The Act, it appears, was being vigorously policed, and this was known to the plaintiffs. The proper conclusion in all the circumstances is that the plaintiffs paid the charges levied under the Act to ensure that they would not be denied the use of the roads, and that they paid under a reasonable apprehension, created by the defendant's servants, that, if they did not, by paying, obtain permits, the use of the roads would be denied them by seizure of their vehicle. There is present in this case much more than the circumstances which led Williams J. in McClintock v. The Commonwealth [1] to his forceful statement that in that case there was compulsion. I think the plaintiffs are entitled to judgment for the amount they claim.
It was argued that, even if they were otherwise entitled, the plaintiffs were in some way estopped from recovering because they had "passed on" to their customers the amounts paid for permits and are thus, it was said, not themselves at a loss. I can see no basis for this contention. Provided it be recognized that the action for money had and received is not only the origin of but, as developed, still determines the scope of the English law of quasi-contract, it seems to me not inapt to describe it as a law of "unjust enrichment." But accepting this, and I certainly see no need to-day to look for the implication of a contract or to speak of the fiction of a contract when in reality there was no contract, still how does it avail the defendant? If the defendant be improperly enriched on what legal principle can it claim to retain its ill-gotten gains merely because the plaintiffs have not, it is said, been correspondingly impoverished? The concept of impoverishment as a correlative of enrichment may have some place in some fields of continental law. It is foreign to our law. Even if there were any equity in favour of third parties attaching to the fruits of any judgment the plaintiffs might recover - and there is nothing proved at all remotely suggesting that there is - this circumstance would be quite irrelevant to the present proceedings. Certainly it would not enable the defendant to refuse to return moneys which it was not in law entitled to collect and which ex hypothesi it got by extortion.
Mason
New South Wales