Williams v City of Melbourne [1933] HCA 56;

Williams v City of Melbourne [1933] HCA 56; - HCA 1933 case summary — Zoe

[6]

Traffic includes the passing to and fro of persons or of vehicles or animals along a street or road or route. But it is said that a power to regulate traffic cannot warrant a prohibition of traffic (Municipal Corporation of City of Toronto v. Virgo[2]; Attorney-General for Ontario v. Attorney-General for the Dominion[3]; Melbourne Corporation v. Barry[4]). And, while "every regulation implies restraint, prohibition in some degree," the limit is reached, as I understand the argument, if the by-law goes beyond rules of conduct for the behaviour of persons in traffic, that is, for their behaviour when passing to and fro along any street or road or route, with or without vehicles or animals. The argument was based upon a passage in the judgment of Higgins J. in Barry's Case[5]: "Every regulation implies restraint, and prohibition of any act contrary to the regulation; but the point is that sec. 197 (22)" - now sec. 197 (1) (xix) - "does not sanction any by-law prohibiting a procession because of its nature or purpose." Isaacs J., in the same case, at p. 199, however, said: - "What the council has to define or to enumerate is not processions but conduct and necessary matters to be observed by processions so that such order and propriety and peace and freedom of traffic and other matters within the ambit of the council's jurisdiction may be observed and secured. For this purpose it has practically a free hand ... I see no difficulty in the council stating the routes which it thinks are suitable or unsuitable for the processions or the days or hours." In this latter statement I entirely agree. A power to regulate traffic does not warrant an absolute prohibition of all traffic, but it does involve more than restrictions upon the conduct of persons in traffic, and extends in my opinion to the regulation of the times when, and the streets, roads or routes in which, traffic may proceed. Slattery v. Naylor[6] aids this conclusion, and Melbourne Corporation v. Barry[7] is not to the contrary: indeed, Barry's Case, in my opinion, depends upon the particular form of by-law adopted in that case; the point is put plainly enough by Isaacs J., at pp. 199, 200: - "For the regulation of traffic generally the council has not said that there shall be no traffic except such as it may consent to. That would be so obviously bad that no one would ever dream of so prescribing. But why should it not also be bad if adopted with respect to processions which are in the same sub-section, and are a species of traffic and, being especially named for regulation, are a species not to be prohibited as a purpose? The real truth is that the council's by-law is framed exactly as if the word prohibiting were used in the sub-section instead of the word regulating; and that is, of course, a fundamental error and cannot be justified."

[11]

By-law no. 204 of the City of Melbourne, made in September 1930, is intituled a by-law to amend and consolidate the by-laws with reference to street traffic and for appointing in streets and roads standing places for motor cars. Its preamble recites that numerous by-laws have from time to time been made by the Council of the City of Melbourne dealing with and regulating the traffic of the city and that it is desirable to add to, amend and consolidate such by-laws. Sec. 197 (1) (xix) of the Local Government Act 1928 empowers the making of by-laws for any municipality for the purpose of regulating traffic and processions. The greater part of the by-law is referable to this power. But its thirty-seventh clause provided that cattle intended for sale, slaughter or shipment or passing from one part of the country to another should not be driven through any part of the city, except that formerly included within Flemington and Kensington, outside the hours between midnight and eight in the morning, and, unless the cattle were sheep or goats, they should not be driven through that part of the city outside the hours between ten o'clock at night and eight in the morning. "Cattle" is an expression which includes sheep, swine, and goats as well as horses and oxen. The thirty-seventh clause of the by-law was evidently based upon par. 44 of Part I. of the Thirteenth Schedule. In March 1931, the Council of the City of Melbourne made by-law no. 205, intituled a by-law to regulate the driving of cattle in or along certain streets within the city. Clause 1 required that it should be read and construed as one with by-law no. 204. Clause 2 repealed clause 37 of by-law no. 204 and substituted the following: - "37. No person shall drive or cause to be driven into or through any portion of the city any cattle intended for sale, slaughter or shipment or passing from one part of the country to another save and except as hereinafter is mentioned, that is to say: - (a) The streets set forth in the first schedule hereto may be used for such purposes at any time. (b) The streets set forth in the second schedule hereto may be used for such purposes only between the hours of twelve o'clock midnight and eight o'clock in the morning. ... First Schedule - Streets which may be used as stock routes at any hour." (Here nine streets were specified by name). "Second Schedule. - Streets which may be used as stock routes during the hours from twelve midnight to 8 a.m." (Here some forty-four streets were specified by name).

[13]

In the result, the validity of the new clause 37 must, like the greater part of the by-law, rest upon the power to make by-laws for the purpose of regulating traffic and processions, which is conferred by par. xix of sec. 197 (1). In dealing with the question whether it is justified by that power, we should, I think, take into account the situation of the Newmarket saleyards and the other topographical considerations which determine the real operation of the by-law. So considered, the effect of the by-law is to establish a prima facie rule that no cattle shall pass through streets in the City of Melbourne, but, by way of exception to this rule, to allow cattle to be driven at any hours along a very few streets near or connecting with the area where the yards are situated and between midnight and 8 a.m. along a greater, but a very limited, number of streets which either do, or may be supposed to, lead to some place or in some direction, the character of which demands or suggests the need of a relaxation of the prima facie rule. The by-law does not operate to impede the movement of cattle into the municipal saleyards at Newmarket after their discharge from trucks in the adjacent railway yards or their movement from those saleyards after purchase to the City of Melbourne abattoirs for slaughter. But there is much carcase butchering done elsewhere in the metropolis, both for export and for domestic consumption. In Newport and Braybrook are freezing works, and in Richmond, South Melbourne and Preston are abattoirs. In the ordinary course, stock goes by road from the Newmarket saleyards to the suburban abattoirs. Of the stock arriving by rail at the live stock siding at Newmarket, about ten per cent is consigned, not for sale at the municipal saleyards, but for delivery to specific persons. These cattle must go by road. It appears also that stock comes by road to the freezing works from holding paddocks in, or in the vicinity of, Melbourne, and to do so must travel by road within the boundaries of the municipality. The restriction of hours and routes imposed by the present clause 37 of the by-law makes it very difficult, if not impossible, to move cattle in this way without infringing its provisions. It is true that the railway yards at the Newmarket live stock siding are open for the receipt and delivery of stock at all times throughout the week, except between the hours of 11 a.m. on Sunday and 7 a.m. next morning, and that stock may be taken from the saleyards from 6 p.m. onwards every night. But neither Railways Commissioners nor consignees can allow stock delivered from trucks to remain long in the yards. The Commissioners need the space, and the consignees are under the practical necessity of feeding, watering and caring for stock which have undergone transportation in railway trucks. Cattle and sheep trains appear to arrive for the most part between 8 p.m. and 7 a.m., except on Mondays, when they arrive from 11 a.m. onwards. If stock are held in paddocks in or in the neighbourhood of Melbourne, they are mustered and counted before delivery out of the paddocks, and this must be done in daylight. Sheep and lambs for slaughter are not driven more than a mile and a half an hour, and cannot be slaughtered while heated. A special stock route, which is not a public highway, but, in fact, may be used at any time, has been made by the municipality from the saleyards to an outlet by way of Lynch's bridge into Newport. Otherwise cattle and sheep must go by the public thoroughfares. It is said that compliance with the by-law has been found impossible and that in general no attempt is made to enforce it. On the part of the municipality, any general failure to enforce the by-law is denied, but it is stated that an endeavour is made to administer it "reasonably and sympathetically," to consider the facts of each case carefully before prosecuting, and to proceed against those only who disregard a warning or show no consideration for the comfort or rights of the public. It is admitted that the practice exists of driving sheep from the saleyards from 6 p.m.

[27]

The word "traffic" in sec. 197 (1) (xix) of the Local Government Act 1928 of Victoria includes, in my opinion, cattle driven in or through the streets. Clause 37 of the by-law which the appellant assails relates to subject matter within the power contained in the above-mentioned section. The main question which arises is whether clause 37 is, adopting the words of the section, a by-law which is made for the municipality for the purpose of regulating traffic. The appellant's submission is that the by-law is in effect made for a different purpose because it prohibits the form of traffic to which the by-law is addressed in certain streets at any time. Clause 37 does not, in my opinion, offend against the doctrine invoked in support of the submission. The doctrine is that the power to regulate does not include the power to prohibit (see Melbourne Corporation v. Barry[24]). The prohibition contained in clause 37 against driving beasts through certain streets in the municipality and through other streets except in specified hours, serves the order and convenience of traffic as a whole. Clause 37 is therefore a regulation of traffic in the city. This clause of the by-law was also attacked on the ground that it is unreasonable. I agree with my brother Dixon that this ground of attack does not raise a question which is separate from the question whether the clause is within the power conferred by sec. 197 (1) (xix) of the Act. The material question raised by the submission that the by-law is unreasonable is whether, notwithstanding that on its face it relates to traffic, the operation of the by-law is such that it can have no reasonable relation to the purpose for which the power to make by-laws was granted, namely, the order and convenience of the traffic of the city. The effect of the by-law is to restrict the traffic with which it deals to certain streets. But it does not appear that the streets and hours allowed by the by-law to this traffic, though somewhat severely restricted, are so inadequate as virtually to close the entire city against this form of traffic altogether. In restricting the driving of beasts through the city in the manner mentioned in the by-law it regulates the traffic of the city as a whole. But it does not prohibit this kind of traffic within the boundaries of the city.

At a glance

Court

Decision date

Before

Source

Judgment (44 paragraphs)

Williams v City of Melbourne [1933] HCA 56; (1933) 49 CLR 142 (17 November 1933)

Parties

Legislation Cited (1)

Cases Cited (1)