Banks v Transport Regulations Board (Victoria)

119 CLR 222
1968 - 0510B - HCA

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(Judgment by: Taylor J)

Between: Banks
And: Transport Regulations Board (Victoria)

Court:

Judges: Barwick CJ
McTiernan J
Kitto J

Taylor JOwen 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:
Taylor J

This is an appeal from an order of the Supreme Court by which an order nisi for a writ of certiorari addressed to the respondent Board was discharged.

The evidence shows that the appellant was the holder of a metropolitan taxi-cab licence issued pursuant to the provisions of the Transport Regulation Act 1958 (Vict.). The licence was current until 25th September 1967 and was expressed to be "subject to all of the provisions of the Transport Regulation Act and any Regulation made thereunder or of any other Act, Regulation, or By-Law relating to Commercial Passenger Vehicles". The licence was further expressed to be "subject to the condition that the licensee shall himself drive and retain at all times control, use and management of the licensed vehicle, ... as his sole means of employment". Thereupon, the respondent on 28th April 1967 caused to be forwarded to the appellant a notice in the following terms:

"TAKE NOTICE that the Board proposes to consider the revocation or suspension of licence numbered MT-2765 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.

AND FURTHER TAKE NOTICE that if you desire to object to the revocation or suspension of the said licence, you should attend before the Board at the Board's Offices at the corner of Lygon and Princes Streets, Carlton on Monday 5th June 1967, at 10.45 a.m."

The matter came before the Board on 5th June 1967 when the appellant appeared and on 13th June 1967 the Board determined that the appellant's licence should be revoked. The ground of the determination was that "the matters alleged in the show cause notice dated 28th April 1967 had been sustained". The appellant was informed by letter of 14th June 1967 of the Board's determination and he was advised that pursuant to the provisions of the Act "the Board's decision will now be forwarded for approval by Governor in Council". The matter came before the Governor in Council on 20th June 1967 with a recommendation "that the decision of the Board ... be approved and that the licence ... be revoked upon the date hereon". Approval was duly given by the Governor in Council on the same day but it was not until 17th July 1967 that the appellant obtained his order nisi for certiorari.

Section 32 (1) of the Act provides that:

"A licence or permit may be revoked or suspended by the Board on the ground that any of the conditions of or attached to the licence or permit have not been complied with, but the Board shall not revoke or suspend a licence unless owing to the frequency of the breach of the conditions of or attached to the licence, or to the breach having been committed wilfully, or to the danger to the public involved in the breach, the Board is satisfied that the licence should be revoked or suspended."

It is, I think, not open to question that in exercising its functions under this section the Board is bound to act judicially and that, in the absence of special considerations to which the provisions of s. 31 may give rise, it is subject to the control of the Supreme Court by certiorari. It is, however, the Board's contention that the provisions of the latter section so operate that in the circumstances of the present case certiorari does not lie. Whether this contention should be upheld depends, in my view, upon the effect which that section, upon its true interpretation, had in this case.

It may be observed in passing that the decision of the Board was simply that the appellant's licence be revoked and the date from which the revocation was to be effective depended, not on the specification of a date by the Governor in Council, but simply upon the operation of s. 31 (1) of the Act. This sub-section provides that:

"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."But it is contended that the later sub-sections of s. 31 make it clear that it was by force of what I shall for the moment call the decision of the Governor in Council that the appellant's licence was revoked and, that being so, that it must be held that certiorari does not lie. Those sub-sections are as follows:

"(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."

 

I do not find any support for the Board's contention in sub-s. (3). On the contrary that sub-section makes it clear that where the Board refuses to grant a new licence to the existing holder of a licence and the decision refusing to grant such licence is approved by the Governor in Council it is the Board's decision which is to become effective at the expiration of a period of six months after such approval. The difficulty, if there be one, in the way of the appellant is to be found in the somewhat confused wording of sub-s. (2). The word "Order" where it first appears in the sub-section refers naturally enough to the instrument by which the approval, disapproval or other determination of the Governor in Council is expressed. But the sub-section proceeds to provide that "every such Order shall be given effect to as soon as may be by the Board". But if the decision of the Board is simply approved it is that decision which comes into operation by force of sub-s. (1); in other words, the condition for the operation of the Board's decision is fulfilled. However where the Governor in Council disapproves of a decision of the Board or makes any determination in a matter which the Board might have made, but has not, it may be that it will be necessary for the Board to act in such a way as to give effect to the disapproval or other determination. The position is that in some cases it may be that the rights of a licensee or an applicant for a licence depend upon the Order in Council (cf. Reg. v  Hastings Board of Health) ^[F14] but in others their rights will continue to depend upon the decision of the Board notwithstanding the fact that it does not become effective until the approval of the Governor in Council has been given. In these circumstances and because I take the view that we should not hold that subjects have been deprived of the protection  of the prerogative writs except by clear words, I do not think that the fact that the Governor in Council has simply approved of the Board's decision is fatal to the appellant's application. Nor, with the greatest respect to the Supreme Court, do I think that the changes made in the legislation in 1935 provide any safe ground for thinking otherwise. I, therefore, proceed to consider the grounds upon which the appellant's claim to relief was founded.  

The first matter alleged in the notice to show cause (par. (a)) was that the appellant had failed to notify the Board of his change of address, pursuant to reg. 19 (e), Pt II, of the Transport Consolidated Regulations 1960. But what that sub-regulation provides is that the holder of a licence

"shall return such document ... to the Secretary to the Board ... (e) within three days after change of abode or address as shown in such licence, permit or certificate".

Paragraph (a), therefore, does not in terms allege a contravention of reg. 19 (e) and an information couched in the terms of that paragraph would be bad. But this does not necessarily mean that, in this respect, the proceedings before the Board were defective, for initiating proceedings in inquiries of this nature are not subject to the pleading rules observed in courts stricto sensu. It was, in my view, sufficient if the notice fairly indicated to the appellant that the matter alleged against him was a contravention of reg. 19 (e) so that he had "a fair opportunity ... to correct or contradict any relevant statement" (per Viscount Haldane in Local Government Board v  Arlidge). ^[F15] We have not before us a transcript of the proceedings before the Board so that it is impossible for us to say whether he had such an opportunity or not, or, whether the question which the Board considered under par. (a) was an alleged contravention of reg. 19 (e). In the circumstances I would not be disposed to think that the appellant had made out a case for certiorari simply because of the informality of the allegation in par. (a).

There is, however, a more substantial matter for consideration in relation to this paragraph. As already appears the Board's power to revoke the appellant's licence was dependent upon it reaching the conclusion that a condition or conditions of or attached to the licence had not been complied with. But if the requirement of reg. 19 (e) was a condition of the licence it was solely because the provisions of reg. 11 made it so. That Regulation provides:

"Every licence, permit, or certificate granted and issued by the Board shall be subject to the terms and conditions printed or written thereon, and to the observance of the provisions of the Act and these Regulations, or of any other Act relating to the vehicle or any Regulation or By-law made thereunder, which shall be deemed to be conditions of every licence, permit, or certificate (as the case may be). Failure to comply with such terms, conditions and provisions as aforesaid by the person directed to comply with same shall be deemed to be a breach of these Regulations."

It is, however, the appellant's contention that this Regulation is in excess of of the regulation-making power conferred by the Act. There is, I think, much force in this contention. Section 23 (1) of the Act provides that:

"It shall be a condition of every licence-

(a)

that the vehicle is maintained in a fit and serviceable condition;

(b)

that the provisions of any Act or regulation thereunder with respect to limits of speed which are applicable to such vehicle are complied with in relation to such vehicle; and

(c)

that in relation to such vehicle the provisions of any Act or regulation thereunder relating to the limitation of hours of driving are observed."

 

Additionally sub-s. (2) provides that:

"The Board may in its discretion attach to any licence all or any of the following conditions, namely-

(a)

that the vehicle shall operate only upon specified routes or in a specified area;

(b)

that not more than a specified number of passengers shall be carried at any one time on the vehicle;

(c)

that specified time-tables shall be observed;

(d)

that reasonable specified fares or hiring rates shall be charged;

(e)

that prescribed records shall be kept; and

(f)

such other conditions appropriate to the service to be provided as the Board thinks proper to impose in the public interest."

 

But notwithstanding these provisions the Board maintains that reg. 11 is justifiable under the provisions of s. 44 (1) (b) (v), or s. 44(1)(e), or, ultimately, under the general provisions of s. 44(1)(l).

The first of these provisions is to the effect that

"The Governor in Council may make regulations for or with respect to ... prescribing and regulating in respect of vehicles ... conditions relating to the operation and use of such vehicles."

In terms the provision does not authorize regulations prescribing what shall be the conditions of the various forms of licences which may be issued under the Act.  But even if it should be held to extend so far reg. 11 cannot by any stretch of imagination be regarded as a prescription of conditions relating to the operation and use of licensed vehicles; that Regulation is, according to its tenor, so sweeping that it deems to be conditions of a licence statutory and regulatory provisions whether or not such provisions relate to conduct in no way concerned with the operation and use of licensed motor vehicles.

The Board also relies upon the provisions of par. (e).  The effect of this provision is to authorize the making of regulations for or with respect to "the form and conditions of and any particulars to be set out in licences permits or certificates".  The language is difficult but it seems to me to be concerned more with the form of and the authorities conferred by the various licences permits and certificates issued under the Regulations (cf. reg. 4) than with the prescription or formulation of conditions which are to be conditions of such licences permits or certificates for the purposes of s. 31.  This view, I think, finds some support in the fact that the Act, by s. 23, expressly declares what shall be the conditions of every licence and, further, vests in the Board a discretion to attach to any licence other conditions of the nature specified including such conditions, appropriate to the service to be provided as the Board thinks proper to impose in the public interest.  But however this may be I do not see reg. 11 as a regulation which prescribes or formulates the conditions of or attached to licences issued under the provisions of the Act and Regulations; it simply purports to pick up every provision of the Act and Regulations or of every other Act "relating to the vehicle" (whatever that expression may mean) and of every regulation or by-law made thereunder and deems those provisions, as they may happen to exist from time to time, to be conditions of every licence or permit or certificate.  In my view this cannot, on any view, be said to be a valid exercise of a power to make regulations for or with respect to "the form and conditions of ... licences permits or certificates".  Nor do I think that par. (l) of s. 41 (1) carries the Board's case any further.  This paragraph is in a common enough form and, having regard to the earlier provisions of the Act, it does not authorize the making of a regulation in the form of reg. 11.

This conclusion means also that par. (b) (i) of the notice to show cause, which informally alleges a breach of reg. 16 of Pt II, also failed to disclose a ground upon which the appellant's licence might have been revoked for it is only by virtue of reg. 11 that a contravention of that regulation qualifies as a non-compliance with a condition of his licence.  It is true that there was expressed in the licence a condition relating to conduct of the licensee in some respects similar to the conduct alleged in par. (b) (i) but the point is that that paragraph, in effect, alleged a breach of reg. 16 and the Board apparently found that there had been such a breach and took this into account in reaching its decision to revoke the licence.  Additionally it seems to me that a breach of reg. 16 could never be a ground for revoking a licence.  Upon a breach of reg. 16 the holder's licence becomes, ipso facto, void and should, pursuant to reg. 19 (a), be returned to the Board.  But it is not rendered void merely if the Board is of the opinion that there has been a breach of the regulation; the operation of the section is dependent upon a breach actually having occurred.  Accordingly, in cases where there is a dispute as to whether there has been a breach of this regulation the licensee's rights fall to be determined by the resolution of this question according to law in the ordinary way.

In my view it is apparent that there were substantial errors of law on the face of the proceedings and that they were of such a character as to entitle the appellant to certiorari.