Banks v Transport Regulations Board (Victoria)
119 CLR 2221968 - 0510B - HCA
(Judgment by: Kitto J)
Between: Banks
And: Transport Regulations Board (Victoria)
Judges:
Barwick CJ
McTiernan J
Kitto JTaylor 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
Judgment date: 10 May 1968
MELBOURNE
Judgment by:
Kitto J
In this case I think it is clear that the appeal lies as of right by virtue of s. 35 (1) (a) (2) of the Judiciary Act 1903-1965 (Cth). I think, too, that beyond doubt the Board, in considering whether to revoke the appellant's licence, was under a legal obligation to act judicially, that is to say in a judicial spirit and manner, and that the proceedings which led to the revocation of the licence are therefore subject to supervision by the Supreme Court under its jurisdiction in certiorari. In Testro Bros. Pty Ltd v Tait [F13] I discussed the authorities that bear on this aspect of the matter, and need not repeat the discussion here. Although the majority of the Court took a different view from mine as to the position under the legislation which was in question in that case there was no relevant difference of opinion, I think, upon any question of general principle.
As to the more particular points in the case, I need only say that I have had an opportunity of reading the judgments prepared by Taylor and Owen JJ., and that, subject to the observation that I do not feel the same doubt as Taylor J. concerning the allegation in par. (a) of the notice to show cause, I agree in their Honours' reasons and conclusions.
I hope it will not be thought unhelpful if I add that an overhaul by competent legal advisers of the Board's regulations, forms and procedures in relation to licences seems to be called for in the interests both of the Board itself and of those whose livelihoods depend so much on the due and fair performance of the Board's functions.
I would overrule the objection to the competency of the appeal, and allow the appeal.