O'Sullivan v Dejneko

O'Sullivan v Dejneko - [1964] HCA 13 - HCA 1964 case summary — Zoe

[4]

The substantive powers of a magistrate upon a person's being thus brought before him are conferred by sub-ss. (3) and (6) of s. 18. Sub-section (3) is expressed to be subject to the section and is therefore subject to sub-s. (6). With that qualification it confers powers which are stated in the alternative. The first, in brief, is by warrant to order the person to be "returned" to the State in which the original warrant was issued - in this case, New South Wales - and for that purpose to be delivered into the custody of the person bringing the warrant or of a constable or other person to whom the warrant was originally directed. The second, also stated briefly, is to admit the person to bail on condition that he appears at such time, and at such place in the State in which the warrant was issued, as the magistrate specifies "to answer the charge or complaint or to be dealt with according to law". In the present case the magistrate exercised the first of these powers. I may say at once, since during the argument I was inclined to think that he ought rather to have exercised the second power, that I think that power is inappropriate to a case where the original warrant is not only for the person's apprehension but for his imprisonment for a specified period under a sentence imposed after a conviction. In such a case there is no question of his "appearing" at a specified place to answer a charge or complaint or to be dealt with according to law. The respondent has at all stages contended that the first power was not available to be exercised against him, because he has never been in New South Wales and therefore cannot be "returned" to that State. The magistrate overruled the contention, and in my opinion rightly. Unless sub-s. (3) is to be inoperative in a class of cases to which common sense suggests that it must have been intended to apply, the expression "to be returned" must have a wider meaning than that of being taken back to a State from which he has come and must refer rather to his being taken back with the original warrant to the State from which that warrant has been brought.

[7]

The conviction of the respondent in New South Wales was under s. 10 (1) (d) of the Road Maintenance (Contribution) Act, 1958 N.S.W.. The offence charged was failing to deliver to the Commissioner of Motor Transport a record, as required by s. 7 (2) of the same Act, of all journeys along public streets in New South Wales during the month of January 1959 of a certain commercial goods vehicle of which the respondent was the "owner". The requirement of s. 7 (2) is enacted in aid of s. 5, by which the "owner" of a commercial goods vehicle is made liable to pay to the Commissioner a charge towards compensation for wear and tear caused thereby to public streets in New South Wales. It appears that there was no evidence before the New South Wales court that on any journey along public streets of that State in January 1959 the vehicle had been driven by the respondent personally or by any servant or agent of his. Nor was there any evidence that the vehicle was in fact his. He was convicted as having been the "owner" of the vehicle in the artificially extended sense given to the word "owner" by par. (c) of the definition in s. 3 (1) of the Act: he was a person in whose name the vehicle was registered under South Australian legislation corresponding with the Motor Traffic Act, 1909 N.S.W., namely the Road Traffic Act, 1934 S.A. as amended. If it had not been proved in the South Australian proceedings that at the material times the vehicle belonged to the respondent, and that its use on the relevant journeys was within the scope of a general permission given by the respondent to his son, Hogarth J. might well have concluded that it would be unjust and oppressive to send him to New South Wales to be imprisoned for failing to send in a record of journeys with which he had had nothing to do and about which there was no reason to believe that he possessed or could have obtained the necessary information. But there was evidence before the South Australian magistrate and again before Hogarth J., of admissions by the respondent that the vehicle was his and that his son had done all the driving. Moreover, the respondent himself gave evidence of an antecedent arrangement between himself and his son and from that evidence an obvious inference arose that he had lent the vehicle to his son, giving him a licence to use it sufficiently general in scope to embrace the relevant journeys of the vehicle along the public streets of New South Wales. In these circumstances, even though the journeys were not made on the respondent's behalf, there was nothing inherently unjust or oppressive in enforcing an obligation imposed upon him to deliver to the Commissioner a record of the vehicle's journeys in New South Wales in order that the road charge might be assessed as a charge payable by him. For in virtue of his ownership he might have limited his permission to use the vehicle by terms ensuring that he would receive the information necessary for the record, and (if he so desired) ensuring that his son should pay or provide for the road charges. I should add that he could not have made a case of injustice or oppressiveness out of the facts that the conviction was three years old and the fine was of small amount; for there was evidence of twenty-eight warrants outstanding for his apprehension in respect of offences under s. 7 (2), the total amount payable being £1,143. In these circumstances the only ground open to him was that s. 7 (2) was a provision which the New South Wales Parliament had no power to enact so as to apply in such a case as his.

[10]

It may be that an argument along these lines should have succeeded if it had been raised by the respondent in the proceedings against him in New South Wales, because if the evidence of the registration in his name in South Australia be put aside there was no evidence in those proceedings connecting him with the wear and tear caused to the roads of New South Wales by the relevant journeys of the vehicle. I am prepared to assume this in the respondent's favour, without considering its correctness. In particular I reserve my opinion on the questions whether proof of the South Australian registration raised a prima facie presumption of ownership in the ordinary sense of the word, and whether there was not a further prima facie presumption that the son's use of the vehicle was lawful and was therefore a use either by or on behalf of, or at least with the leave and licence of, the respondent. But if the evidence which was ultimately adduced in the South Australian proceedings had been before the court in New South Wales there would have been no foothold for an argument that an application of ss. 5 and 7 to the respondent in respect of the relevant journeys was not supported by a sufficient connexion between him and the journeys to satisfy the test of legislative competence. The necessary connexion lay in the facts that the vehicle was his and that it was driven on the the journeys with his permission under a standing arrangement between his son and himself. Having the legal right to forbid and prevent the journeys, he gave his son such a general licence to use the vehicle that in every practical sense he sanctioned the journeys as surely as if he had given a specific consent to each of them. His relation to the journeys was in my opinion real enough and close enough to make it natural for New South Wales to look to him to contribute to the making good of the resulting wear and tear of the New South Wales roads; and in that consideration lies the constitutional justification for the application of ss. 5 and 7 to him. Having regard to the severability provision in s. 3 (2) it is irrelevant, even if true, that there may be cases in which those provisions could not validly apply to a person in whose name a vehicle is registered in another State.

[17]

Hogarth J. dealt first with that part of the definition of owner found in s. 3 (1) (c). He pointed out that, under s. 19 of the Road Traffic Act of South Australia, "whenever the owner of the vehicle registered under the South Australian Act transferred ownership to some other person (whether by sale or other transaction) he was allowed twenty-one days from the transfer within which to notify the Registrar of Motor Vehicles", and that it followed "that on almost every occasion when the ownership of a vehicle registered under the South Australian Act passed from one person to another, there would be some period which might legally be as long as twenty-one days when the vehicle would be registered in the name of a person other than the owner". This, his Honour said, would mean that under the New South Wales Road Maintenance (Contribution) Act "the obligations imposed by ss. 5, 6 and 7 were capable of applying to a South Australian resident in whose name a vehicle was registered under the South Australian Act but who, owing to some transaction, was no longer the owner of it and had no interest in it or right to control its movements". For this reason his Honour considered that it was "beyond the legislative competence of a State Parliament to impose duties upon a person who is neither resident nor present within that State, based merely on the registration in his name under the laws of this State, of a vehicle which is used on public streets within the State in question". He went on then to consider the case of a commercial goods vehicle in fact owned by a resident of South Australia and used upon the public streets of New South Wales but used by someone other than the owner or his servant or agent and not being used for the owner's benefit. In such case his Honour was of opinion that there was no sufficient connexion between "mere ownership" of a vehicle by a person residing outside New South Wales and the user of the vehicle upon a public street in New South Wales to enable the New South Wales Parliament to impose obligations upon the owner.

[18]

With respect we are unable to agree with either of these views. There is no doubt that the use of a motor vehicle upon a public street in New South Wales is a matter with which the Legislature of New South Wales may validly deal, subject to such limitations as may exist under the Commonwealth Constitution. The purpose of the Road Maintenance (Contribution) Act is to impose upon those whose vehicles use those streets an obligation to contribute towards their upkeep. But such an obligation cannot be imposed upon the vehicle. It can only be imposed upon someone who can contribute and the obvious person to select is the owner of the vehicle. He is the person in whom is vested the right either to use the vehicle himself or by his servant or agent or to permit or refuse to permit it to be used by others. In Broken Hill South Ltd. v. Commissioner of Taxation (N.S.W.) [1] , Starke J. said, "If the State can tax property located within its territory, then the constitutional authority of the State is not transcended because it taxes the owners, legal or equitable, of that property, whether domiciled or resident within the State or not. The situs of the property attracts the constitutional authority of the State to tax it, and thus enables it to cast the burden upon the owners of the property" [1] . Here it is the presence in New South Wales of the vehicle and the use of it upon the public streets of New South Wales that attracts the constitutional authority of the State and enables its Legislature to impose the obligation of contributing to the upkeep of its streets upon the person who owns it, no matter where he is domiciled or resides or carries on business. It may perhaps be asked what would be the position of such an owner if his vehicle is used by another upon a public street in New South Wales without his consent, as for example where it is being used in New South Wales by a thief. The answer may well be that, as a matter of construction, the Act has no application to such a case but it will be time enough to consider that question when it arises.

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Judgment (25 paragraphs)

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