Shepherd v New South Wales

(2) Section 27 as enacted by s. 2 (1) (b) of Act No. 46 of 1940 is inapplicable to the plaintiff's action.

(3) The plaintiff is not barred by s. 27 from recovering against the defendant in this action if this action is otherwise maintainable.

Costs of the special case to be paid by the defendant.

We have before us a case stated by the parties for the opinion of the Full Court on certain questions of law arising in an action brought in this Court by a resident of Victoria against the State of New South Wales. The purpose of the action is to recover certain moneys paid to the transport authority for the time being in New South Wales as under the State Transport (Co-ordination) Act 1931-1952 or in respect of licences issued in purported pursuance to that Act. The moneys were paid between 22nd November 1952 and 10th September 1954. They were paid in respect of permits to operate commercial goods vehicles within the State of New South Wales in the course of and for the purposes of inter-State trade, namely for the purpose of carrying goods for reward between places in Victoria and places in New South Wales and on return journeys from places in New South Wales to places in Victoria.

As in Barton v. Commissioner for Motor Transport [1] , a case argued together with the present case stated, the questions to be considered arise from the reliance by the defendant upon s. 27 of the Transport (Division of Functions) Act 1932-1956. In my reasons in Barton v. Commissioner for Motor Transport [1] I have discussed s. 27, both in its original form as enacted by s. 2 (1) (b) of Act No. 46 of 1940 and as amended by s. 5 of Act No. 16 of 1956. It is unnecessary to do more in the present case than to refer to this discussion and to add the following.

1. (1957) 97 C.L.R. 633. 2. (1957) 97 C.L.R. 633.

Inasmuch as the moneys sought to be recovered in this action were paid before the enactment of the second part of s. 27 added by s. 5 of Act No. 16 of 1956, that part of s. 27 cannot validly operate to prevent the recovery of the moneys. The defendant in the present case is the State of New South Wales. It is impossible for the first part of s. 27, that is to say the part enacted by s. 2 (b) of Act No. 46 of 1940, to apply to this defendant unless the word "person" is capable of including the State of New South Wales. It appears to me quite obvious on reading that part that it was not intended to cover the State itself. The protection is for authorities of the State and officers.

From the foregoing it follows that the questions for the opinion of the Court must be answered thus:

(1) By reason of s. 92 of the Constitution so much of s. 27 is invalid as is enacted by s. 5 of Act No. 16 of 1956 in so far as it applies to causes of action arising as a result of the operation of s. 92 of the Constitution on the provisions of the State Transport (Co-ordination) Acts, at all events if such causes of action accrued before 13th September 1955.

(2) Section 27 as enacted by s. 2 (1) (b) of Act No. 46 of 1940 is inapplicable to the plaintiff's action.

(3) The plaintiff is not barred by s. 27 from recovering against the defendant in this action if this action is otherwise maintainable.

I agree with the judgment and the reasons of the Chief Justice.

This a special case stated under O. 35, r. 1 of the Rules of the High Court.

The plaintiff was the operator of commercial goods vehicles carrying goods for reward between places in Victoria and places in New South Wales and on return journeys. The plaintiff paid to the Superintendant of Motor Transport sums totalling £12,073 9s. 2d. in respect of permits to operate such vehicles. These permits were issued under the State Transport (Co-ordination) Act 1931-1952 or licences issued under that Act. The first payment was made on 22nd November 1952 and the last on 10th September 1954. The plaintiff contends that s. 27 of the Transport (Division of Functions) Act, with or without the amendment in 1956, is inapplicable to this action or is invalid by reason of s. 92.

The questions for the opinion of the Court are the same as those set out in Barton v. Commissioner for Motor Transport [1] and I would answer them in the same way and for the same reasons, adding that I respectfully share the view of the Chief Justice that the word "person" in s. 27 as enacted in 1940 does not include the State of New South Wales.

This is a special case stated by the parties in pursuance of O. 35, r. 1, of the Rules of the High Court. The questions asked are identical with those asked by the case stated in Barton v. Commissioner for Motor Transport [1] . Whereas, however, the action in Barton's Case [1] was brought in the Supreme Court of New South Wales against the statutory corporation constituted under the Transport (Division of Functions) Act 1932-1956, the action in the present case was brought in this Court against the State of New South Wales. The plaintiff is a resident of Victoria, and the action is a "matter between a State and a resident of another State" within the meaning of s. 75 (iv.) of the Constitution. The right to proceed against the State is given by s. 58 of the Judiciary Act 1903-1955 Cth., which was enacted under the power given to the Parliament by s. 78 of the Constitution.

1. (1957) 97 C.L.R. 633. 2. (1957) 97 C.L.R. 633.

This case may be dealt with very shortly. No constitutional question appears to me to arise, for the reason that, neither in its amended nor in its unamended form, has s. 27 of the Transport (Division of Functions) Amendment Act any application to the State of New South Wales as a defendant in an action. The general question whether the Crown can take advantage of a statute of limitation - as to which see Rustomjee v. The Queen [1] and Fisher v. The Queen [2] - does not arise. The statute here is a special statute applying only in favour of specified persons. The State is not, of course, one of the commissioners appointed under the Act, and, if it is to be brought within the terms of the section at all, it must be because it falls within the expression "any person". It is impossible, in my opinion, to maintain that the State falls within that expression.

1. (1875) 1 Q.B.D. 487. 2. (1901) 26 V.L.R. 460, 781.

It is provided by s. 21 of the Interpretation Act of 1897 N.S.W. that in all Acts, unless the contrary intention appears, the word "person" shall include "bodies politic and corporate". It is unnecessary to consider what meaning (if any) is to be attached to the expression "body politic", because it seems to me obvious on its face that s. 27 is not concerned with the protection of the State from action or suit. It is concerned with the protection of officers and servants of the State and persons, corporate or individual, acting or purporting to act under statutory authority. It need only be added that s. 28, which was introduced into the Act at the same time as s. 27, and which is also "protective" in character, requires notice before action to be delivered or left "at the office of such commissioner or person". This provision is plainly inappropriate to the Crown, and shows conclusively that the Crown was not within the contemplation of the legislature when it enacted ss. 27 and 28.

It is unnecessary to answer question 1 or question 2 in the case stated. Question 3 should be answered: No.

I agree in the judgment of the Chief Justice and have nothing to add.

I agree that the word "person" in s. 27 of the Transport (Division of Functions) Act 1932-1956 does not comprehend the State of New South Wales and, accordingly, that the third question raised by the case stated should be answered in the negative.