Riverina Transport Pty Ltd v Victoria [1937] HCA 33 - HCA 1937 case summary — Zoe

CTHHCA

Riverina Transport Pty Ltd v Victoria [1937] HCA 33

[1937] HCA 33

High Court of Australia|1937-07-01|Before: Mefiernan JJ, By Rich J, McTiernan JJ, Per Enait J

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At a glance

Source facts

Court

High Court of Australia

Decision date

1937-07-01

Before

Mefiernan JJ, By Rich J, McTiernan JJ, Per Enait J

Source

Original judgment source is linked above.

Judgment (230 paragraphs)

[1]

RIVERINA TRANSPORT PROPRIETARY) ; Liu. 10) 3 ae lial la . a PLAINTIFF ;

[2]

Constitutional Law - Freedom of trade, commerce and intercourse among the States - Validity of State Act - Regulation of facilities for transport - Licensing of motor vehicles - Refusal of all licences for carrying goods inter-State - Discrimination between intra-State and inter-State trade - The Constitution (63 & 64 Vict. c. 12), sec. 92 - Transport Regulation Act 1933 (Vict.) (No. 4198), Part I. - Transport Regulation Act 1935 (Vict.) (No. 4298).

[3]

Part II. of the Transport Regulation Act 1933 (as amended by the Transport Regulation Act 1935) (Viet.) provided that a commercial goods vehicle should not operate on any public highway unless licensed in accordance with the Act. 'The Transport Regulation Board was empowered to grant such licences, and it was provided that in granting or refusing licences the board should have regard to the interests of the public generally and should take into considera- tion the advantages of the service proposed to be provided and its convenience to the public, the adequacy of the existing transportation service and the effect on it of the service proposed to be provided, and the character, qualifica- tions and financial stability of the applicant. It was further provided that no decision of the board granting or refusing a licence should have any force or effect until reviewed by the Governor in Council, and that the Governor in Council might approve or disapprove the decision of the board or make any determination in the matter which the board might have made.

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Board of that State. By the statement of claim the plaintiff alleged that at all material times, including the period of thirty days immediately before 29th August 1933, the plaintiff had been operating regular services solely for the carriage of goods inter- State in commercial goods vehicles within the meaning of the Transport Regulation Acts (Vict.) between Melbourne and_ places in New South Wales and between Geelong and places in New South Wales, and had also been operating a regular service for the carriage of milk intra-State in Victoria. The plaintiff held licences under the State Transport (Co-ordination) Act 1931 (N.S.W.). After 29th January 1936 the board prosecuted the plaintiff and its drivers in respect of alleged contraventions of Part II. of the Transport Regulation Act 1933 or regulations thereunder. The plaintiff alleged that Part II. of the Transport Regulation Act 1933 was contrary to the Commonwealth Constitution and void. The plaintiff applied to the board for licences under Part II. of the Act, but the board refused to grant licences in respect of any of its vehicles which operated in the carriage of goods inter-State, and the plaintiff alleged that Part II. of the Act was thus made to operate in contravention of the Federal Constitution. The plaintiff further alleged that the board had discriminated against the plaintiff and all other operators of commercial goods vehicles carrying goods inter-State by refusing to grant licences for vehicles carrying goods inter-State while granting licences for vehicles operating solely within Victoria, and by refusing to apply to applications for licences for vehicles carrying goods inter-State the same principles which it applied in the consideration of applications for licences for vehicles carrying goods solely within Victoria, and by refusing applications for licences for vehicles carrying goods inter-State on that ground alone. The plaintiff further alleged that the board acted under instructions from the Governor in Council of Victoria or the Minister for Transport, and that the Governor in Council approved of the discrimination against vehicles operating inter-State, and that the effect of the administration of the Transport Regulation Acts was to restrict and diminish the free flow of goods between Victoria and New South Wales and other States. The plaintiff claimed a declara- tion that Part II. of the Transport Regulation Acts was contrary to

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the Federal Constitution and void ; alternatively, that Part II., , far as it operated to prohibit the plaintiff from operating its inte State services, was contrary to the Constitution and void ; alte; tively, that the acts of the Transport Regulation Board and Governor in Council of Victoria were contrary to the Constit and unlawful and that the Transport Regulation Act 1933 did operate so as to prohibit the plaintiff's inter-State operations. plaintiff also claimed consequential injunctions. By its defence the defendant denied the invalidity of the Transport Regulation Act, denied that the board acted under instructions from the Governor in Council and denied that the effect of the administration of Act was to restrict the flow of goods inter-State. i The applications for licences made by the plaintiff related twenty-seven commercial goods vehicles which it had been using for the purpose of carrying goods between Melbourne and dist1 in the Riverina in New South Wales. The board refused applications on 13th June 1935. The T'ransport Regulation Act I! 5 came into operation on 2nd October of that year, and, by see. ' provided that "no decision of the board granting or refusing to any application for . . . a commercial goods vehicle shall have any force or effect until such decision is revie' by the Governor in Council." On 4th December 1935 the plai again made application to the board with respect to twenty-four vehicles which were operated inter-State and the applications we again refused. The chairman of the board was called as a witt in the action and gave evidence that the board in reaching decisions applied the same principles as had been applied applicants for services within Victoria. The board was of opil that, applying these principles, it was proper to refuse all the pla applications. On 24th January 1936 the Governor in Co approved the refusal of the board to grant the applications. Cabinet considered the policy to be applied in relation to the tion of motor transport and an announcement was made by Premier on 4th March 1936 which included the following statement

- Riverina Cases : The decision of the Transport Board in Rive cases to stand. Road Hauliers: Operators who were running August 1933 and who provided reliable, efficient and regular serv 3

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with the principles acted on by the board and declared by it in a previous decision on an intra-State application. After 2nd October 1935, the date of the proclamation of the 1935 Act, the board refused a renewed application by the plaintiff on 4th December 1935 for the same reasons. The board's decision became operative on 24th January 1936 on the approval of the Governor in Council. These refusals of licences to the plaintiff were all before the policy of the Government, communicated on 4th March 1936, was considered or communicated. Subsequently, in order to give effect to the Premier's communication of 4th March 1936 the board proceeded to apply the policy therein set forth, and continued, in all cases which did not fall within the concession contained in the communica- tion, to apply the principle of refusing applications for services competitive with railway services. Thereafter, the board, prior to 27th July 1936, refused the plaintiff's application for a licence for twenty vehicles for the route between Melbourne and/or Geelong and Bombala and Delegate and between Melbourne and Geelong and between Melbourne and Trafalgar. On 27th July 1936 the Governor in Council approved the board's decision. The Victorian railways at all times have maintained a service sufficient to deal with the whole of the inter-State trade into and from Victoria. Free and unfettered access to the Victorian railways and the Victorian. toad services have been throughout available to all inter-State trade by road and rail from other States. The board had licensed local tadius carriers at all the border towns with authority to carry goods from adjoining States into Victoria to the Victorian towns which are the terminals of both the rail and road services in Victoria. In the case of border railways extending from the Victorian system into New South Wales, no limitations on the road carriage to the tailhead of such railways exists for a distance of at least fifty miles. As regards all goods carried by rail from the railheads in Victoria or carried from terminal towns on the border by road carriers, all goods other than those in the terminal town have to be transferred from the radius carrier to the railways or the road hauliers. The Recessity of transferring inter-State goods therefore puts them on exactly the same footing as intra-State goods in this respect. There has not been any discrimination against the free flow of inter-State

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On 24th January 1936 the Governor in Council approved the refusal of the board to grant the applications. The Cabinet considered the policy to be applied in relation to the regulation of motor transport and an announcement was made by the Premier on 4th March 1936 which included the following state- ments : - Riverina Cases: The decision of the Transport Board in Riverina cases to stand. Road Hauliers: Operators who were running in August 1933 and who provided reliable, efficient and regular services will be granted licences to continue operating on the route or routes upon which they were then operating." The board, in accordance with the directions contained in this statement, has applied and proposes to continue to apply the policy adopted by the Cabinet. The plaintiff complains that applications such as those of the plaintiff for commercial goods vehicle licences in respect of inter- State services have been uniformly refused by the board, while applications for licences for routes comparable in Jength and other relevant characteristics have been granted in respect of services confined to Victoria. It is said that the policy of the Government and the decisions of the board in conformity therewith mean in practice that no inter-State licences will be granted at all. It is further complained that the concession in favour of services operating before August 1933 has been limited to services operating within Victoria and that therefore applications in respect of inter-State services are dealt with upon a footing different from, and less favour- able than, that upon which applications relating to services within Victoria are dealt with. It is argued that there is accordingly a practice of discrimination in the administration of the Act by the board which entitles the plaintiff to a remedy because such _ discrimination is forbidden by sec. 92 of the Constitution of the Commonwealth, which provides that " trade, commerce, and inter- course among the States, whether by means of internal carriage or "ocean, navigation, shall be absolutely free." The plaintiff claims

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not be rendered invalid by sec. 92 by reason of any such diseri tory provision. This may seem to be a surprising stater particularly because in cases dealing with sec. 92 many refe have been made to discrimination as constituting a possible infrin ment of sec. 92. But there has been no decision which neces depends upon such a proposition so far as State laws are conce Fox v. Robbins (1) is, I think, the only decision of the court agait the validity of a State statute under sec. 92 which can be said based upon discrimination as a principle. But the Privy Council: James v. The Commonwealth (2) has now expressly explained th what the State statute did in Fox v. Robbins (1) " was clea inconsistent with the absolute freedom of the border," and hi approved the decision upon that ground. A similar view has taken of Fox v. Robbins (1) by Evatt J. in R. v. Vizzard ; Ex pa Hill (3). Discrimination is not the test. The test is to be found' the answer to the question whether the freedom of inter-State is restricted. The latest authoritative statement is to be found the decision of the Privy Council in James v. The Commonwealth (4 where it is said : - ' Nor does 'free' necessarily connote absence ¢ discrimination between inter-State and intra-State trade. No dou! conditions restrictive of freedom of trade among the States frequently involve a discrimination; but that is not essenti decisive." The rule is clear - restriction of freedom of trade al commerce "as at the frontier" (5) is the invalidating cireumstane under sec. 92 - not discrimination, though discrimination may involved in such a restriction, just as discrimination may from a preference which is contrary to sec. 99. But it is the re tion or the preference, as the case may be, and not the discriminatio which is the invalidating feature. (To avoid misunderstandi may be mentioned that sec. 99 forbids trade preference in relat to States or parts of States, and not in relation to the inti or inter-State character of trade.)

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precisely what I mean. Differential freight rates on railw a very obvious and common method of discriminating in practice against certain trade or commerce. Such rates are generally to be

found as items in intricate and comprehensive schedules. They are generally prescribed in Australia by departmental by-laws or by orders made by railway commissioners. The only way to deal
with unfair discrimination against districts or States is to bring about a revision of the rates so as to establish a new schedule. It is, I think, plain that but little contribution would be made to the practical solution of such a problem as this if a court were to declare all the ates invalid because they or some of them were based upon a dis- -criminatory principle, or if a court were to declare invalid the rates which were regarded as unfair to certain trade, for example, inter- State trade. The only result of such a declaration by a court would be that there would be no rates applying to any goods or any routes in the one case, or, in the other case, no rates provided for the trade 'of the injured party. The result would certainly not be that either all persons in the one case, or the injured persons in the other case, could get their goods carried for nothing. The problem presented by discriminatory legislative provisions or discriminatory adminis- trative practices in relation to railway rates cannot be dealt with by a court unless the court has the power to vary the rates as it thinks proper and to prescribe a new schedule of rates. But this kind of work cannot be done by any court acting upon legal principles. 'The problem is not one which can be solved otherwise than by the adoption of some economic, commercial, financial or other policy. 'This is the sort of work which the Inter-State Commerce Commission does in the United States of America and it is almost a necessary 'incident of a fully developed Federal system. I have taken railway freight rates as an illustration. Similar observations apply to a 'transport licensing system. A consideration of the carefully 'thought out and reasoned decisions of the Transport Regulation Board which have been placed before the court will demonstrate 'the nature of the functions of such a tribunal. Such a tribunal must

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regulation, the Commonwealth Parliament can legislate with respect to inter-State transport. Such legislation would be legislation with respect to inter-State trade and commerce (James v. The Common- wealth (1) ), but would not necessarily be restrictive of the freedom of inter-State trade and commerce (2). Indeed, the Commonwealth Parliament could pass a statute, limited to inter-State transport, on the general lines of the Victorian Transport Regulation Acts. The Inter-State Commission or some other body could be empowered to grant licences in respect of inter-State transport. These licences could authorize inter-State carrying notwithstanding any State statute or any action of a transport regulation board or other authority under a State statute. Appropriate legislation would be effective by virtue of the Commonwealth Constitution, secs. 51 (i.), 101 and 109. It is by such means that, when the Commonwealth Parliament is satisfied that the necessity arises, the freedom of _ inter-State trade and commerce can be protected against interference

under valid State legislation such as the Transport Regulation Acts. The practical difficulty in securing the freedom of inter-State trade does not arise mainly from the risk of invalid legislation. Such legislation, when detected, is of no effect. The real difficulty is to be found in all kinds of differentiating treatment in the course of the administration of perfectly valid State statutes. The statutes are valid, but they may be used, as is alleged to be the case here, for the purpose of making many varieties of discrimination against, and creating disadvantages affecting, traders associated with other States. Administrative authorities and officers need not, generally speaking, give any reasons for what they do, and a court cannot possibly deal with an administrative policy which just happens to lead to the position that "no one from another State need apply." A court can give a remedy for a legal wrong such as trespass. A court can declare that an act is not authorized by a statute. It may suspect that a mere refusal to issue a licence is inspired by the

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june 1935 it announced its determinations in respect of all applica- tions for licences for carrying goods from Melbourne over Victorian

routes to places in the Riverina. Speaking generally, it decided that none should be granted. Licences for some eighty-three vehicles, including the plaintiff's twenty-seven, accordingly were refused. In the course of dealing with applications by carriers whose routes were confined to Victoria, the board had declared the principles upon which it would act in granting or refusing licences. The basal principle that it had laid down for its own guidance was that freight should not be diverted from the railways of the Victorian commis- sioners by allowing motor vehicles to compete, unless it appeared that some substantial advantage would be gained by the public or some section of the public if organized motor transport between two places were continued or established. The refusal of all licences for carrying into and from the Riverina upon through journeys with Melbourne as a terminus seems to have been the consequence of applying this principle to the conditions affecting the Riverina. The chief consideration was the existence in that district of the railways of the Victorian commissioners which run respectively from Yarrawonga to Oaklands, Echuca to Deniliquin, Echuca to Balranald, and Murrabit to Stony Crossing. Under a special provision of the board's Act a licence must be granted for a vehicle carrying goods solely within a radius of twenty miles from the place of business of its owner. In virtue of licences of this kind, vehicles could ply into New South Wales from the many Victorian border towns. Moreover, the board took the view that it ought to grant such or similar licences to vehicles coming from New South Wales into Victoria for a distance of twenty miles or less. Thus goods might be carried from New South Wales to Victorian railheads or indeed to the terminals, within twenty miles of the New South Wales -Dorder, of routes in respect of which the board might see fit to grant icences for goods vehicles. But beyond this the board considered it ought not to go, and it would not sanction the carriage of freight motor vehicle on a through journey from the Riverina to ume. Before the board's decision was given it had made le progress in the work of determining how far the motor carrying

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business should be allowed in other parts of Victoria, work whi the board performed according to geographical divisions of # State. At this point, however, the Government intimated intention of bringing down an amendment of the statute ; requested the board to stay its hand. The result was that it held any further determination of controversial applications extended all temporary licences. At length, on 2nd October 19 Act No. 4298 came into operation. It contained a provision that n decision of the board granting, refusing, suspending or revoking licence should have any force or effect until the decision had be reviewed by the Governor in Council. Within six months of tl board's decision the Governor in Council was empowered to app to disapprove or to make any determination that the board have made. The Act also provided that, if approval were giv the board's refusal of a licence toa man holding a temporary li in succession to a previous licence for a vehicle in use before 2 August 1933, then the decision should not take effect for six after the refusal, and the temporary licence should be deemed e for that period. In order to give applicants with whom it had dealt the benefit of these amendments, the board took steps to obtain further applications from them. The plaintiff, amor h applied again, and, on 4th December 1935, its applications in com with other Riverina applications were again refused by the bo This time, of course, the board's refusal had no effect until th Governor in Council had dealt with it. But, on 24th January his approval was given to the refusal of all Riverina licences. meant, substantially, that after 29th July 1936 the plaintiff » be without the protection of a licence. The writ was issued on 3rd August 1936. The claim is that enforce the decision of the Victorian Government would inyol restriction of the freedom of trade, commerce and intercourse al the States. The claim is not based solely upon the matters I hi briefly stated. Much reliance is placed by the plaintiff very different steps taken or authorized in reference to goods by motor vehicle upon routes confined to Victoria. steps are further contrasted with the treatment of carriers p South Australia.