Banks v Transport Regulations Board (Victoria)

119 CLR 222
1968 - 0510B - HCA

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(Judgment by: Barwick CJ)

Between: Banks
And: Transport Regulations Board (Victoria)

Court:

Judges:
Barwick CJMcTiernan J
Kitto J
Taylor J
Owen J

Subject References:
Transport
Taxi licence revoked
Statutes
Regulation-making power
Erroneous grounds
Certiorari
Validity of regulation

Legislative References:
Transport Regulation Act 1958 (Vic) - s 23; s 31; s 32; s 44
Judiciary Act 1903 (Cth) - s 35
Transport Regulation Act 1958 (Vic) - s 44
Transport Consolidated Regulations 1960 (Vic) - r 11

Hearing date: 21 February 1968; 27 February 1968; 28 February 1968
Judgment date: 10 May 1968

MELBOURNE

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Judgment by:
Barwick CJ

The appellant, the holder of a metropolitan taxi-cab licence issued on 6th February 1967, under Pt II of the Transport Regulation Act 1958 of the State of Victoria (the Act), was served in April last with a notice that the Transport Regulation Board constituted by s. 4 of the Act (the Board) proposed to consider the revocation or suspension of his licence on the grounds that:

"(a)

You failed to notify the Board of your change of address, pursuant to reg. 19 (e), Pt II, of the Transport Consolidated Regulations 1960.

(b)

Between 1st April 1966 and 15th March 1967 you committed wilful and continued breaches of the condition of the said licence in that:

(i)

without the written authority of the Board you transferred the control, use and management of the vehicle to which the above licence relates, to another person, contrary to the provisions of reg. 16, Pt II of the Transport Consolidated Regulations 1960,

(ii)

you have not yourself driven the vehicle to which the above licence relates."

The notice set a time in June 1967 for the appellant's attendance before the Board if he desired to object to such revocation or suspension.  The appellant did attend, assisted by a transport consultant.  Evidence was taken before the Board including that of the appellant.  But, as we were informed by counsel for the respondent, no grounds or particulars of grounds for revocation or suspension of the licence were put forward or suggested at this hearing other than those specified in the notice which I have already quoted.  The Board reserved its decision.  On 14th June it notified the appellant through the transport consultant as follows:

"Further to the appearance of your client Mr. I. G. W. Banks at proceedings on 5th June 1967 towards revocation or suspension of his metropolitan taxi cab licence MT.2765.  I am to advise that the Board has recorded a decision that the said licence be revoked.

Pursuant to the provisions of the Transport Regulation Act the Board's decision will now be forwarded for approval by Governor in Council and you will be advised of the Governor in Council's decision upon review."

On 19th June the Board's decision to revoke the appellant's licence was transmitted to the Governor in Council with a covering memorandum by the Acting Minister of Transport.  The memorandum simply recited the Board's decision and recommended its approval and that the appellant's licence be revoked on 19th June, the date on the memorandum.  As far as appears, no other material was placed before the Council.  On 20th June the Governor in Council apparently accepted the Minister's recommendation and approved the decision of the Board, the approval being indicated by a stamp to that effect placed on the Minister's memorandum.  On 23rd June the Board conveyed to the appellant the approval by the Governor in Council of the Board's decision.  The Board wrote:

"This will serve as formal notice that on 20th June 1967, the Governor in Council approved of the Board's decision revoking licence No. MT.2765 on vehicle Reg. No. T.1858 on grounds as per notice to show cause dated 28th April 1967.

In view of the above decision any operation of the vehicle is now illegal and will render you liable for penalty under the Transport Regulation Act."

On 29th June the appellant, as he was entitled to do under s. 32 (3) of the Act, required the Board to give him in writing the reasons for its decision to revoke his licence.  On 30th June the Board informed the appellant as follows:

"In reply to your letter of 29th June I am to advise that the Board revoked licence MT.2765 issued in the name of Ian G. W. Banks because after hearing Mr. H. J. Lawrence who appeared on his behalf, and after hearing Mr. Banks who gave evidence on oath, the Board was satisfied that the matters alleged against Ian G. W. Banks in show cause notice dated 28th April 1967 had been sustained."

The "show cause notice" referred to in this letter is the notice of April the substance of which I have already recited.  An attempt by the appellant to obtain some elucidation of these brief "reasons" failed, the Board saying that it could not usefully add to the advice already forwarded, i.e., its letter of 30th June.

On 17th July the appellant obtained from the Supreme Court of Victoria an order that the Board show cause before it why a writ of certiorari should not be issued to remove the order and decision of the Board into that Court for the purpose of quashing them.  The order specified a number of grounds which included the following:

(1)

That the notice of April did not specify any grounds capable of constituting grounds on which the Board was entitled under s. 32 of the Act to revoke the appellant's licence.

(2)

That there was not any lawful condition of or attached to the licence with which the appellant had not complied.

(3)

That there was no finding that any such breach had been committed with frequency.

(4)

That any such breach had not been wilfully committed by the appellant.

(5)

That the Board did not consider all the matters required by s. 32 to be considered by it.

The matter thus instituted was ultimately heard by a Full Court.  Terms were worked out between the parties to cover the operation of the appellant's taxi-cab meanwhile.

The Full Court discharged the order to show cause upon a preliminary point taken by the Board, the now respondent.  Its primary submission was that certiorari would not in any case issue to the Board.  But failing acceptance of that claim, the Board submitted that the writ should not be issued after the Governor in Council had approved the Board's decision.  The Full Court came to the conclusion that it was the Order in Council which was effective to revoke the appellant's licence and that the Governor in Council had power to make the order it had made.  The Court further concluded that the Order in Council could not be the subject of certiorari and, without expressing any view as to the validity of the Board's decision, decided that in the circumstances nothing would be achieved by quashing it.

From this decision of the Full Court, the appellant appealed to this Court claiming to be able to do so as of right.  The respondent lodged a notice of objection to the competency of the appellant's appeal.  The appellant thereupon sought special leave to appeal in the event that the Court decided that the appeal he had lodged as of right was incompetent.  The respondent's objection to competency having been set down, the matter was listed for hearing, along with the appellant's motion for special leave.  As the necessary papers had been lodged, the parties were prepared to proceed with the appellant's appeal in the event of special leave being granted.  Thus, the Court has now heard all that the parties would wish to say in support of or in opposition to the appellant's appeal.

The first question therefore is as to the competence of that appeal.  The appellant's submission is that the judgment of the Supreme Court involved directly or indirectly a question to or respecting property or a civil right of a value in excess of $3,000 (s. 35 (1) (a) (2), Judiciary Act 1903-1965 (Cth)).  It is necessary to examine all the elements of this proposition.  The property or civil right to which the appellant points is the licence he held to operate a taxi-cab, which is a commercial passenger vehicle within Pt II of the Act, in the metropolis of Melbourne.  Such a vehicle may not operate, i.e., carry passengers for hire or reward on any public highway unless licensed under that part (s. 19).  Such a licence may be granted by the Board for a period of years, not less than four nor more than seven (ss. 22 and 26).  It may be renewed and shall be renewed to the holder unless for some sufficient reason to be stated by it in writing the Board is of opinion that such a licence should not be granted at all or that its renewal should not be granted to the existing holder (s. 27).  The licence is transferable with the approval of the Board to a suitable person.  The Board is to be paid a fee on such transfer rated to the value of the licence and the length of time it has been operative (s. 27A and Second Schedule).  Assuming the fees payable thereunder are duly paid, and that the requisite standard of service is maintained with vehicles fit and suitable for the purpose, such a licence, not having been obtained by fraud, may only be revoked or suspended in the hands of a fit and proper person for breach of a condition of or attached to it (ss. 28 (4), 29, 30B, 32 and 32A).  The appellant, whose competence in this regard was not challenged, swore in these proceedings that the market value of his licence at the time the Board decided to revoke it was not less than $9,000 and that had it not been revoked it would still be worth at least that sum in the market.  This statement was not contradicted by the respondent.  I take it to mean that at relevant times a person fit and proper to hold such a licence would have paid at least the sum of $9,000 for its transfer to him.  There is no suggestion by the respondent of any circumstance upon which it would have claimed the right to refuse its transfer to any such person nor so far as appears could there have been any.  In my opinion, it is fully established that the licence held by the appellant was of a value in excess of $3,000.

The matter before the Supreme Court was the appellant's motion for the issue of a writ of certiorari to quash the Board's decision to revoke his licence.  Involved in the motion was the question whether or not that licence had lawfully been revoked.  The judgment of the Court no less involved that question because it refused to issue the writ of certiorari.  I do not think it matters that the Court's reasons do not deal with the validity of the Board's decision, or that they do deal with the validity and operation of the Order in Council.  The existence of the licence was at least indirectly involved in the Court's judgment.  It seems to me inescapable that the judgment of the Full Court did, as I think directly, but certainly indirectly, involve a question as to the existence or continued existence of the appellant's licence.

The remaining question is whether that licence was property or a civil right.

"A dispensation or licence",

said Vaughan C.J. in Thomas v  Sorrell ^[F1]

"properly passeth no interest, nor alters or transfers property in any thing, but only makes an action lawful, which without it had been unlawful.  As a licence to go beyond the seas, to hunt in a man's park, to come into his house, are only actions, which without licence, had been unlawful.

But a licence to hunt in a man's park, and carry away the deer kill'd to his own use; to cut down a tree in a man's ground, and to carry it away the next day after to his own use, are licences as to the acts of hunting and cutting down the tree; but as to the carrying away of the deer kill'd, and tree cut down, they are grants.

So to licence a man to eat my meat, or to fire the wood in my chimney to warm him by, as to the actions of eating, fireing my wood and warming him, they are licences; but it is consequent necessarily to those actions that my property be destroyed in the meat eaten, and in the wood burnt, so as in some cases by consequent and not directly, and as its effect, a dispensation or licence may destroy and alter property."

From this passage has stemmed the repeated notion that a mere licence does not create any estate or interest in the property to which it relates: it only makes an act lawful which without it would be unlawful, Halsbury's Laws of England, 3rd ed., vol. 23, p. 430.  This distinction thus drawn and the nature of such a licence as that to which the citation refers have been applied at times to the case of a statutory licence as if it were no more than the mere grant of permission by an owner of property to another to do something with or in relation to that property.  Thus, in Reg. v  Metropolitan Police Commissioner; Ex parte Parker, ^[F2] Lord Goddard C.J. speaking of a London cab driver's licence issued under the London Cab Order 1934, said:

"The present position with regard to the revocation of a licence is to be found in par. 30 of the London Cab Order, 1934, and the regulations issued under the order that I have just cited clearly show that a licence may be revoked or suspended.  Indeed, leaving out of account such very exceptional things as irrevocable licences granted under seal and possibly licences coupled with an interest, the very fact that a licence is granted to a person would seem to imply that the person granting the licence can also revoke it.  The licence is nothing but a permission, and if one gives a man permission to do something it is natural that the person who gives the permission will be able to withdraw the permission.  As a rule, where a licence is granted, the licensor does not have to state why he withdraws his permission.  Unless he has given a licence for a definite period, thereby giving some contractual right, he can withdraw it."

Paragraph 30 of that order provided:

"A cab-driver's licence shall be liable to revocation or suspension by the Commissioner of Police if he is satisfied, by reason of any circumstances arising or coming to his knowledge after the licence was granted, that the licensee is not a fit person to hold such a licence."

I would find it difficult in any case to reconcile the decision of the Court of Appeal in this case with the decision of the House of Lords in Ridge v  Baldwin ^[F3] to which I shall later refer.  In particular, I do not find the description of the licence which found favour with the Lord Chief Justice appropriate to a statutory licence to which a fit and proper person has a right and which relates to such an occupation as that of a cab driver.  I do not think such a licence can be equated to the mere grant of a permission by a private person in respect of his own property.  But even if Lord Goddard's explanation of the nature of the cab driver's licence in that case should be accepted as correct for the purposes of that case, it does not, in my opinion, touch the question whether the licence itself was or was not property within the meaning of a statute defining the cases in which an appeal may be brought.

Pollock B. in Smelting Co  of Australia v  Commissioners of Inland Revenue ^[F4] evidently regarded the definitions in Thomas v  Sorrell ^[F5] and in cases which relied upon them as depending "upon technical rules of law which in no way assist one in coming to a conclusion as to the meaning of the word `property' " in a statute.  In the case before his Lordship, the question was whether the sale of a sole licence to exercise a patent was an agreement for the sale of any interest in property within the meaning of a Stamp Act.  His Lordship, observing upon the width of the words of the statute, said that they included "property of whatsoever kind".  He said "that looking at the object and scope of this statute the word `property' does include this licence".  That decision was affirmed on appeal: see same case. ^[F6]   So it seems to me that even if it be right (though I think it is not) to extend Vaughan C.J.'s statements in Thomas v  Sorrell ^[F7] to the case of a licence granted under statute to ply a trade or to operate a vehicle upon a public highway, they cannot be definitive when the question is whether or no such a licence is property within the meaning of a section such as s. 35 (1) (a) (2) of the Judiciary Act.  Whilst that provision is on the one hand designed to limit by reason of the relatively small value of the property or right involved the cases in which appeals may be brought to this Court, it does on the other hand exhibit an intention to widen quite generously the range of decision or judgment which, if the stated value be present, will found a right of appeal: for it extends to judgments which indirectly involve any claim, demand or question to or respecting any property or civil right.  I find in the terms of such a provision no warrant for giving to the word "property" any narrow or technical meaning.  In my opinion, it includes, to use Pollock B.'s expression, "property of whatsoever kind".  In my opinion, the licence granted under Pt II, revocable only in the stated circumstances and transferable to a fit and proper person, is property within the meaning of s. 35 (1) (a) (2) of the Judiciary Act.  

In my opinion, therefore, the appellant has an appeal as of right against the decision of the Full Court refusing a writ of certiorari.

I turn now to the merits of that appeal.  The Board is given by the statute power to revoke a licence granted under Pt II.  It may only do so upon the ground that a condition of or attached to the licence has been broken with frequence, or with wilfulness, or with danger to the public so that the Board becomes satisfied that because of one of these qualities or attributes of the breach the licence should be revoked: s. 32.

The Board was thus empowered to revoke the appellant's licence upon being thus satisfied.  To this end it had to decide three matters: first, that the appellant had broken a condition of or attached to the licence, and second, if so, that he had done so with frequency, or wilfully, or to the danger of the public and, thirdly, that it was satisfied that the nature of the breach in one of these respects was such as to warrant the revocation of the licence.  I have already indicated my view that the licence was property within the meaning of s. 35 of the Judiciary Act.  It was also property within the meaning of the principles to which I am about to refer.  The Board was thus empowered to decide questions affecting the appellant's property: and it might be added, property which provided a means and perhaps the sole means of the livelihood of the holder of the licence (see the condition set out in the form of the licence to which I later refer).

The principles upon which to decide whether a body such as the Board is bound to act judicially are widely discussed in Ridge v  Baldwin ^[F8] and need no elaboration here.  I would express with the utmost respect my entire agreement with the speech of Lord Reid in that case.  However, having regard to the somewhat different relationship of this Court to the Judicial Committee to that which obtains between the House of Lords and that body, in sharing Lord Reid's views I need to state my own position in relation to the decision of the Privy Council in Nakkuda Ali v  Jayaratne, ^[F9] with which his Lordship dealt at p. 77 of the report.  I regard that case as no more than a decision as to the true meaning of the Defence (Control of Textiles) Regulations 1945 of Ceylon.  As I read the reasons of their Lordships they were not willing to regard the nature of the power given by such regulations in wartime as itself sufficient to require the Controller of Textiles to act judicially and to make him amenable to supervision by the prerogative writs made available to the Supreme Court of Ceylon by s. 42 of the Courts Ordinance.  Their Lordships rather thought, as it seems to me, that the stipulation in the Regulations that the Controller should have reasonable ground for belief of the facts, the existence of which conditioned the exercise of his power, militated against rather than assisted the conclusion that the exercise of the power should be judicial.  In my opinion, at most, this decision would bind this Court in the case of a statutory provision made in wartime in like terms and with respect to a comparable subject matter.  The Court is not bound by the process of reasoning followed by their Lordships and in this respect is entitled to observe that its basis in a radical respect was erroneous: see Ridge v  Baldwin. ^[F10]   Consequently, I do not feel constrained by Nakkuda Ali v  Jayaratne ^[F11] to hold either that certiorari is not available in this case or that the licence is a mere privilege and not property.  

The nature of the power given to the Board and the consequences of its exercise combine, in my mind, to make it certain that the Board is bound to act judicially and that its proceedings are subject to the prerogative writs.  Not merely has the Parliament not given any positive indication in the statute that the Board in deciding to revoke the licence, shall not be required to act judicially and be immune from supervision in the exercise of an absolute and unfettered administrative discretion but it has specified with some precision the specific matters of which the Board should be satisfied before exercising the granted power and has imposed upon the Board the obligation to give written reasons to the licensee for its decision to revoke his licence.  These are important aspects of s. 32 and reinforce the conclusion I would draw from the nature of the power itself.  There is therefore no need for me to consider what effect, if any, the removal by the Act No. 4198 of 1935 of the words "final and without appeal" in relation to the decisions of the Board as they appeared in s. 37 of the Transport Regulation Act 1933 may have had upon the drawing of such a conclusion if the matter were otherwise in doubt.

In this case, the Board, as, in my opinion, it was bound to do, gave notice to the appellant purporting to inform him of the conditions in or attached to the licence which it claimed that he had broken with frequency or wilfully.  Whether or not the Board, upon the proper construction of s. 32, can erroneously decide for itself that a condition has been broken-a matter which does not presently arise and need not be now decided-at least what it finds to have been breached must be in law and in fact a condition of or addition to the licence.  It cannot, in my opinion, upon any reasonable construction of s. 32, be said that the Board has been given power to decide for itself unexaminably what are the conditions of or attached to the licence.  That, in my opinion, is a matter for decision by the courts.  It is therefore necessary to examine the contents of the notice to ascertain whether it does specify a breach of such a condition.  This is not undertaken in order to determine the validity of the notice: that matter was not raised in this case.  But as the Board has based its decision upon its findings against the appellant on the matters set out in the notice and upon no other matters, it must follow that the contents of the notice indicate the basis of the Board's decision.

The Parliament by s. 23 has determined what are to be conditions of every licence under Pt II of the Act.  It has also by the same section given the Board power to attach to any licence any or all of a number of stated conditions.  Section 44 (1) gives the Governor in Council a power to

"make regulations for or with respect to ...

(e)

the form and conditions of and any particulars to be set out in licences permits or certificates ...

(l)

generally, all such matters and things as ... are necessary or expedient to be prescribed for carrying this Act into effect."

In my opinion, the first of these paragraphs of s. 44 does not authorize the importation or attachment of a condition into or to a licence issued under Pt II of the Act.  Though not clearly expressed, in my opinion, it merely authorizes a regulation to be made prescribing the form of such a licence and the manner of expression in it of the conditions to which it is subject and of any other particulars of it.  Section 32 (1) in speaking of the conditions of or attached to the licence is referring, in my opinion, to the conditions which s. 23 imposes or authorizes the Board to attach to the licence.  Any regulations made under s. 44 (1) (e) must, in my opinion, be limited, so far as they refer to conditions, to prescribing which of such conditions shall be, and in what form it or they shall be, set out in the licence issued pursuant to Pt II.  Conditions of the licence cannot be created by regulations made under this paragraph.

Paragraph (l) of s. 44 (1) clearly will not authorize an addition to, or variation of or in, the conditions which the Act by s. 23 imposes or authorizes.  Such a course is plainly not necessary or expedient for carrying the Act into effect.  The legislature has itself set the limit of the conditions to which the licence may be subject.  To impose further conditions is, in my opinion, not to implement the Act, but rather to add to or vary or depart from its express provisions: cf. Morton v  Union Steamship Co  of New Zealand Ltd. ^[F12]

An examination of the Transport Consolidated Regulations 1960 shows that no regulation has been made in purported pursuance of s. 44 (1) (e) or (l) except reg. 11 and perhaps reg. 1 of Pt VIII of the Regulations.  The latter would not seem to my mind to be authorized by s. 44: but this may be of no consequence if forms are authorized from time to time by specific regulations.  In my opinion, reg. 11 in so far as it attempts to import additional conditions into a licence issued under Pt II is not authorized by s. 44 and is ineffective to make the observance of the Act, or the Regulations or of any other Act a condition of the appellant's licence.

I now turn to the notice of April to ascertain whether the grounds it specifies involve a breach or breaches of a condition of or attached to the licence.  The only condition of the licence which is expressed as such in the form of the appellant's licence is that

"the licensee shall himself drive and retain at all times control use and management of the licensed vehicle or any similar classified vehicles licensed in his name by the Board as his sole means of employment".

It was not submitted that this curiously worded condition was outside the power given to the Board by s. 23 (2) (f), namely, to "attach" to the licence "such other conditions appropriate to the service to be provided as the Board thinks proper to impose in the public interest".  I shall therefore assume, without deciding, that the condition thus expressed in the form of licence is a condition appropriate to the service to be provided by a metropolitan taxi-cab, and that, whatever it means, which remains a question, it is a condition of the appellant's licence.

The form of licence bears an indorsement under the caption "Warning":

"This assessment does not authorize the operation of the vehicle until the payment of fees has been acknowledged by the imprint of cash register receipt hereon.  This form must be returned immediately with the full amount of fees payable to the Secretary, Transport Regulation Board.

It must also be returned for endorsement immediately upon any change of address of the owner or upon disposal of the vehicle."

In my opinion, this indorsement does not constitute a condition of the licence to operate the taxi-cab.  It is no more, in my opinion, than a direction as to what is to be done with the form, firstly before the fees for the issue of the licence have been paid, and, secondly, after there has been a change of address by the owner or upon disposal of the vehicle.  I might mention in passing that presumably the address of the owner to which this indorsement refers is that which is shown in the form of the licence: cf. reg. 19 (e).  In the appellant's case this was a post office box number at Melbourne General Post Office.

In the body of the licence document it is said that the appellant is authorized to operate the described vehicle "... in accordance with conditions set out in any document which purports to contain conditions of this licence".  We were referred to no such document: nor to any regulation authorizing the use of this form of licence.  But perhaps most importantly whilst s. 23 (2) does authorize the attachment of conditions, they must be conditions within the confines of s. 23 (2).  A document "which purports to contain conditions" does not, in my opinion, satisfy that limitation.

Clause (a) of the notice of April treats a failure to notify a change of address as a breach of condition.  But, even if the indorsement on the form of licence to which I have referred were a condition, it does not require notification of a change of address.  It merely requires the form to be subsequently produced for a notation to be made of the change of address.  The notice relates the failure of which it complains to reg. 19 (e) of the Transport Consolidated Regulations.  But, as I have already indicated, the observance of these regulations cannot, in my opinion, be made a condition of the licence.  Section 23 (1) (b) stipulates the extent to which the observance of the regulations is such a condition.  And, in any case, that regulation merely provides that

"the holder of a licence ... shall return such document ... to the Secretary to the Board ...

(e)

within three days after change of ... address as shown in such licence ...".

As I observed earlier, the address set out in the appellant's licence was a post office box number which so far as appears remained unchanged throughout.

For all these reasons, it is, to my mind, abundantly clear that what was claimed to be a breach of a condition of the licence in par. (a) of the notice was incapable in law of being such a breach because the licence to operate the taxi-cab was not subject to the "conditions" said by this paragraph of the notice to have been breached.  In addition, no allegation was made of frequency or wilfulness of the breach or of any danger to the public involved in the breach.

Paragraph (b) of the notice treats the transfer of the control, use and management of the vehicle to another person without the Board's written authority as a breach of a condition.  The submission of counsel for the respondent was that reg. 16 of Pt II of the Transport Consolidated Regulations had been imported as a condition into the licence by reg. 11 of that Part of those Regulations so as to support this paragraph of the notice.  I have already dealt with this submission and expressed my opinion that the Act does not authorize such a course.  That is sufficient to dispose of this paragraph as affording notice of the breach of a condition.  It is noticeable, however, that in this paragraph the alleged breaches of condition are said to be wilful and continued.  I do not know upon what material the Board relied to justify the assertion of wilfulness but I observe that there was evidence placed before this Court that the Board had resolved to approve the transfer of the control use and management of a metropolitan taxi-cab to a driver holding a driver's certificate issued by the Board authorizing him to drive a metropolitan taxi-cab, if it were effected by an agreement in one of the forms of agreement approved by the Board and notified to licensees.  In the event of the execution by a licensee of such an agreement, the Board's resolution was "to be deemed to be the written authority of the Board" for the purposes of reg. 16 of Pt II of the Regulations.  There was also evidence that the appellant had executed an agreement in the terms approved by the Board to a person holding the appropriate certificate.  I find no need to rely upon this evidence for the purpose of this judgment.  But I cannot but observe that it was not disputed by any contrary evidence and that it naturally excites wonder at the course pursued by the Board and, if he had all the material before him as one might expect, by the Minister in this case.

The third paragraph of the notice claims that the appellant wilfully and continually breached a condition of the licence in that he had not himself driven the vehicle to which the licence related.  This is a direct reference to the condition expressly set out in the form of the licence, and which I have assumed falls within the Board's powers under s. 23 (2) of the Act.  There is nothing in the Act itself which suggests to my mind that it was intended to limit a person to one licence in respect of a single vehicle with which to operate a metropolitan taxi-cab service.  The condition expressed in the form of licence itself recognizes that a licensee may have licenses for more than one metropolitan taxi-cab.  I suppose one is entitled judicially to know that such cabs are operated by limited liability companies who use a fleet of cabs driven by persons who may or may not be their employees.  The resolution of the Board which is in evidence and to portion of which I referred earlier quite clearly recognizes and is built upon that situation.

It seems to me that the conditions expressed in the licence should be construed against that background.  In my opinion, doing the best one can with its awkward and inapt language, the clause requires a licensee to make the operation of the licensed cab or cabs his sole means of employment and to drive one of the cabs covered by his licences.  How such a construction fits in with the practice of issuing licences to limited liability companies is not a matter I have any present need to pursue.

It seems to me that so construing the condition, par. (b) (ii) of the notice does embrace an act which could be held to be a breach of a condition of the licence.  As it is alleged to have been done wilfully and continuously-in the sense of repeatedly-it would have been possible for the Board in respect of it to make a decision conformably to the requirements of s. 32.

But the Board has merely stated that it was satisfied that the "matters" alleged in the notice had been sustained.  As a statement of reasons purporting to satisfy the duty imposed by s. 32 (3), the Board's letters of 30th June and 6th July are quite inadequate.  The only safe conclusion to draw from the Board's statement is that the Board treated the matters alleged in all the paragraphs of the notice of April as in totality the ground of revocation.  Clearly, the Board was not entitled to do so because, as I have said, the matters in pars. (a) and (b) (i) could not have been held to be breaches of a condition or conditions of the licence.  Thus, though a decision based solely upon par. (b) (ii) might have been sustainable, a decision not so confined cannot.

The Board's power under s. 32 to decide to revoke depends, in my opinion, at least upon a decision that an act which in law could amount to a breach of what is in law a condition of the licence has been committed by the licensee wilfully, or repeatedly, or with danger to the public.  Here, upon my view of what the Board has purported to do, the Board merely decided that acts, all of which could not in law be held to be in breach of conditions of the licence, were committed by the appellant.  That does not satisfy the condition of the exercise of the Board's power of revocation.

In my opinion, therefore, the decision of the Board to revoke the appellant's licence was void: as is any revocation of the licence in pursuance of the decision.  Although I agree, as I have said, with Lord Reid's speech in its entirety, I have no need in this respect to rely upon the proposition that a decision reached in violation of natural justice by a body bound to act judicially is void and not merely voidable.  Here, upon my analysis, the condition of the exercise by the Board of its power of revocation is lacking: it is not a case depending upon a denial of natural justice.  Upon its face, the Board did not make its decision solely upon its satisfaction that a frequent, or wilful, or publicly dangerous breach of a condition or conditions in or attached to the licence had occurred. Consequently, it lacked power to revoke the licence and putting on one side the effect of the order in council, a purported revocation by the Board would be void.

Section 31 of the Transport Regulation Act provides as follows:

"31(1)

No decision of the Board granting or refusing to grant any application for a commercial passenger vehicle licence or revoking or suspending for a period exceeding thirty days any such licence shall have any force or effect until such decision is reviewed by the Governor in Council:

Provided that nothing in this sub-section shall apply to any decision of the Board granting a licence temporarily for a period not exceeding three months for any particular purpose of limited duration.

(2)

In reviewing any decision as aforesaid the Governor in Council may by Order within six months of the Board giving a decision-

(a)

approve the decision of the Board;

(b)

disapprove the decision of the Board; or

(c)

make any determination in the matter which the Board might have made-

and every such Order shall be given effect to as soon as may be by the Board.

(3)

Notwithstanding anything in the foregoing provisions of this section where-

(a)

the Board refuses to grant a new licence to the existing holder of a licence; and

(b)

the decision refusing to grant such licence is approved by the Governor in Council-

such decision shall not have any force or effect until the expiration of a period of six months after such approval, and the period of the licence shall be deemed to be extended until the expiration of such period of six months."

As I have indicated, the Board's decision was transmitted to the Governor in Council under cover of a memorandum by the Minister by which he recommended the approval of the Board's decision.

It is quite clear that the Act by s. 31 contemplated that there should be an effective review by the Governor in Council of the Board's decision. This review was substituted for a right of appeal to the Supreme Court (see s. 379 of the Transport Regulations Act 1933 (No. 4198)) and was intended as a real protection to the citizen against unwarranted action on the part of the Board. The statute therefore placed upon the Governor in Council an obligation to consider the matter for himself and to reach a conclusion, upon all the material available to the Board, whether or no the Board's decision should be approved, or disapproved, or whether the circumstances called for some other action on the part of the Council within s. 32 (2) (c). The statute did not create, in my opinion, a situation where the Governor in Council could act merely on the recommendation of a Minister: nor was the situation comparable to the conversion of a ministerial or Cabinet decision in point of policy into a decision of the Executive Council. That Council was by the statute given both the power and the duty to consider the matter for itself. In so saying, I fully realize the inconvenience in which a proper consideration of such matters must involve the Governor in Council. But Parliament has taken the course of creating that situation. It cannot be avoided, in my respectful opinion, by mere indorsement of a Minister's recommendation. Of course, certiorari will not go to the Governor in Council but that does not deny that the proceedings of the Governor in Council in performance of a statutory function may be void and in an appropriate case be so declared.

However, in connection with this statute the question which arises is as to the effect of the approval by the Governor in Council of a decision of the Board. Sub-section (1) of s. 31 clearly contemplates that when so approved the decision of the Board shall have force and effect. It is only until it is so approved that it does not have force or effect. If, of course, it is disapproved or superseded by a determination made by the Governor in Council under s. 32 (2) (c), no question of its operation as a decision will arise. But it is said, and with the submission the Supreme Court agreed, that once the Governor in Council has approved the decision, it is the order of the Governor in Council which is relevantly effective. Presumably on this view the decision of the Board is thus rendered ineffective. This proposition is sought to be derived from the final words of s. 31 (2) which provide-"and every such order (i.e., of the Governor in Council) shall be given effect to as soon as may be by the Board".

I think it is important to observe that the decision of the Board to which sub-s. (1) refers is a decision that the licence be revoked. The decision itself does not effect a revocation but calls for a further administrative step in carrying out the Board's decision. That step will not have been taken at the time of the commencement of the review of the Board's decision by the Governor in Council. Consequently, when the Governor in Council approves the Board's decision, it is necessary for the Board's decision to be carried out by some administrative step, including a notification to the licensee. Also, if the Governor in Council approves the Board's decision, it is necessary to ensure that the Board should not alter its decision. Therefore the final sentence of sub-s. (2) of s. 31 provides that the Board shall give effect to the order of the Governor in Council, that is, to an order approving the Board's decision. To give effect to the Council's approval of the Board's decision requires, in my opinion, that the decision of the Board itself be put into effect. This does not mean, in my opinion, that an order of the Governor in Council in the terms of the Board's order has been made and that it is that order which has to be put into effect. Sub-section (3) of s. 31 to my mind indicates that the function of the approval of the Governor in Council is to allow the decision of the Board which is approved itself to have force or effect. Upon such approval, there is authority derived from the Board's decision to revoke the licence to which it relates. The date as or from which the revocation is to be operative is set out in the Minister's memorandum and presumably is covered by the approval of the Governor in Council. But that only means, in my opinion, that the Order of the Council is that the Board's decision shall be carried out by the revocation of the licence on and from the specified date. It does not, in my opinion, supplant the decision of the Board by an independent decision of the Council to revoke the licence.

It follows, in my opinion, that the approval of the Governor in Council of a void decision of the Board cannot be regarded as the making of an order by the Council in like terms to those expressed in the purported decision of the Board. To allow such a consequence would be to treat the Act as having given to the Governor in Council greater powers than the Act gives to the Board-a result which perusal of the Act does not justify. It is, in my opinion, quite plain from the terms of sub-s. (2) of s. 31 that the Act does not purport to give to the Governor in Council any greater power relevantly than it gives to the Board: see in this connection par. (c) of sub-s. (2).

If the decision of the Board be void, as I think it is, its approval by the Governor in Council does not, in my opinion, prevent the Court quashing it. So to do does not directly impinge upon the ineffective action of the Governor in Council in having approved it. Consequently, in my opinion, this appeal should be allowed, and a writ of certiorari granted to quash the decision of the Board which has been approved and which, if it were valid, would now have force or effect as an order of the Board's authorizing the revocation of the appellant's licence to operate a metropolitan taxi-cab and to quash the revocation of the appellant's licence effected in pursuance of that decision.