Banks v Transport Regulations Board (Victoria)

119 CLR 222
1968 - 0510B - HCA

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(Judgment by: Owen J)

Between: Banks
And: Transport Regulations Board (Victoria)

Court:

Judges: Barwick CJ
McTiernan 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:
Owen J

The appellant sought from the Supreme Court a writ of certiorari directed to the respondent Board to quash a decision made by the Board purporting to revoke a metropolitan taxicab licence which had earlier been issued by it to the appellant.  The application was refused and the appellant thereupon appealed to this Court.  An objection to the competency of the appeal was made and during the hearing of that objection the appellant, while submitting that an appeal lay as of right, sought special leave to appeal should that submission fail.

In the light of the evidence before us as to the value of the licence to the appellant I am disposed to think that an appeal lies as of right but I do not think it necessary to determine that matter finally since I am of opinion that the case is one in which, if there is no appeal as of right, special leave to appeal should be granted.

The history of what seem to me to be the relevant events is as follows:

In 1956 a taxi-cab licence was issued to the appellant by the Board and thereafter was renewed from year to year.  The licence, as renewed in February 1967, bore on its face under the heading "Warning" the statement that

"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."

The licence contained the following statements:

"The owner of the Commercial Passenger Vehicle described on the back hereof is hereby authorized to operate such vehicle during the currency period shown hereon as a Metropolitan Taxi-Cab as defined in Regulations applicable to vehicles so classified also in accordance with conditions set out in any document which purports to contain conditions of this licence.  When so operated the vehicle shall 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.

This licence is non transferable and is also subject to the condition 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."

On 28th April 1957 the Board issued a notice to the appellant in the following form:

"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 10.15 a.m."

 

It is convenient at this stage to refer to certain provisions of the Transport Regulation Act under which the Board is constituted as, inter alia, the licensing authority of metropolitan taxi-cabs, and to a number of regulations made or purporting to be made under that Act.  Section 23 (1) provides that it shall be a condition of every licence that the vehicle is maintained in a fit and serviceable condition; that the provisions of any Act or regulation with respect to speed limits applicable to such vehicle are obeyed; and that the provisions of any Act or regulation relating to the limitation of hours of driving are observed.  By s. 23 (2) the Board is given a discretion to attach to any licence all or any of certain other conditions.  They relate to the routes or areas in which the taxi-cab may operate, the number of passengers that may be carried, the timetables to be observed, the fares that may be charged, the records to be kept and "such other conditions appropriate to the service to be provided as the Board thinks proper to impose in the public interest".  Section 44 (1), which contains the regulation-making power, empowers the Governor in Council by par. (e) to make regulations and includes a power to make regulations with respect to "the form and conditions of and any particulars to be set out in licences ...".  Regulation 11 purports to make every licence issued by the Board subject

"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 such licence."

I pause here to say that, having regard to the provisions of s. 23, I feel considerable doubt whether reg. 11 is within the regulation-making power contained in s. 44 (1) (e) but, for reasons which will appear later, it is unnecessary to decide whether this is so or not.

Section 31 is in the following terms:

"(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.

(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."

And, by s. 32 (1) and (3),

"(1)

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."

"(3)

Where the Board under this section revokes or suspends any licence or permit it shall if so required by the owner of the vehicle in respect of which such licence or permit was granted give in writing its reasons for such revocation or suspension."

Following upon the Board's notice of 28th April 1957 the appellant appeared before it on 5th June 1967 and objected to the proposed revocation of his licence.  Evidence was given-to what effect does not appear-and the Board reserved its decision.  By a letter dated 14th June 1967 the Board informed the appellant that it had "recorded a decision that the licence be revoked" and that that decision would be forwarded for approval by the Governor in Council.  On 23rd June 1967 it wrote a further letter to the appellant stating, as was the fact, that on 20th June 1967 the Governor in Council had approved of the respondent's decision "revoking the licence ... as per notice to show cause dated 28th April 1967".  On 29th June 1967 the appellant's solicitors asked the Board to supply its reasons for revoking the licence and to this it replied on 30th June 1967 that it had revoked the licence because it was "satisfied that the matters alleged ... in show cause notice dated 28th April 1967" had been sustained.  Shortly afterwards the appellant obtained from the Supreme Court an order nisi for a writ of certiorari to quash the Board's decision.

The matter came before the Full Supreme Court upon an application to make the order absolute and the Court refused the application.  Their Honours were disposed to take the view that in an appropriate case a decision of the Board under s. 32 to revoke a licence would be reviewable on certiorari.  They pointed out, however, that before the application for the writ had been made the Board's decision had been reviewed and approved by the Governor in Council under s. 31.  In these circumstances they were of opinion that it was the Order of the Governor in Council and not the decision of the Board which operated to revoke the licence.  Certiorari would not lie to quash the Order of the Governor in Council and accordingly they considered that no good purpose would be served by quashing the Board's decision since there would still remain a valid Order of the Governor in Council revoking the appellant's licence.  I have no doubt that their Honours were right in thinking that in determining whether or not a licence should be revoked under s. 32 of the Act the Board is a body which is amendable to the supervisory jurisdiction of the Supreme Court exercisable by means of the writ of certiorari.  It is bound to act in a judicial fashion and has authority to determine questions affecting the rights of the subject notwithstanding the fact that its determinations are subject to review by the Governor in Council: R. v  Boycott; Ex parte Keasley; ^[F16] Reg. v  Criminal Injuries Compensation Board; Ex parte Lain. ^[F17]

With all respect, however, I cannot agree with their Honours that when a decision of the Board to revoke a licence is approved by the Governor in Council under s. 31 it is the Order of the Governor in Council that effects the revocation of the licence and that when such an Order is made the decision of the Board ceases to have any operative effect.  Whether this is so or not depends, of course, upon the construction of the section but I do not read it as did the learned judges of the Supreme Court. Sub-section (1) directs that no decision of the Board revoking a licence shall have any force or effect until such decision is reviewed by the Governor in Council.  This plainly points to the conclusion that the Board's decision-if and when it is approved by the Governor in Council-is to take effect.  The approval puts an end to what might be called the stay of proceedings for which the sub-section provides.  Sub-section (3), which deals with a decision of the Board to refuse to grant a new licence to the existing holder of a licence and an approval by the Governor in Council of that decision, points in the same direction.

The difficulty in construing the section arises from the wording of sub-s. (2) which directs the Board to give effect to an Order of the Governor in Council approving or disapproving of the decision of the Board or making any determination which the Board might have made. The statutory direction that effect shall be given by the Board to the Order of the Governor in Council is a necessary provision in a case in which the Board's decision is disapproved or in a case in which a determination is made by the Governor in Council which the Board might have made but did not in fact make.  In such cases there is no decision of the Board capable of being put into force and the Order of the Governor in Council is the effective determination.  Where, however, the Governor in Council approves of the Board's decision, the Order of the Governor in Council is not an Order revoking the licence but one which does no more than approve the decision of the Board which, as from the date of the Order of approval, becomes effective and which is then to be put into force and effect by the Board.  It is that decision which then operates to revoke the licence.  Accordingly I am of opinion that the fact that prior to the date of the application for the writ the Governor in Council had approved the Board's decision did not justify the refusal of the writ.

It remains to consider whether, in this case, the Board had jurisdiction to decide that the appellant's licence should be revoked and this involves an examination of s. 32 (1).  The power of revocation conferred by that section may be exercised only if there has been a failure by the licensee to comply with a condition of or attached to the licence and is not to be exercised unless owing to the frequency of the breaches of those conditions or to the breach having been committed wilfully or to the danger of the public involved in the breach, the Board is satisfied that the licence should be revoked.

The grounds upon which the Board based its decision to revoke the licence are those set out in its notice to the appellant of 28th April 1967, ground (a) of which alleged that he had failed to notify the Board that he had changed his address "pursuant to reg. 19 (e)".  Assuming, although as I have already said I think it a doubtful assumption, that reg. 11 is valid and that as a result reg. 19 (e) is to be treated as a condition of the licence, what reg. 19 (e) requires is that the holder of a licence shall return it to the Board within three days after a change of the address shown on the licence.  The matter charged in ground (a) cannot therefore be regarded as a breach of a condition of the licence.  Ground (b) (i) alleged that between 1st April 1966 and 15th March 1967 the appellant had committed wilful and continuous breaches of a condition of the licence in that he had without the written authority of the Board transferred the control, use and management of the taxi-cab to another person contrary to the provisions of reg. 16. But reg. 16 cannot, in my opinion, be regarded as a condition of the licence for a breach of which it may be revoked since it provides that in case of a breach of its provisions the licence shall become void.  Section 32, however, presupposes that the licensee holds a valid licence which, in certain circumstances, the Board may revoke and ground (b) (i) does not therefore disclose a ground upon which a decision to revoke the licence could be based.

Ground (b) (ii) alleged that the appellant had committed wilful and continuous breaches of a condition of the licence in that between 1st April 1966 and 15th March 1967 he had not himself driven the taxi-cab.  This is, I suppose, a reference to the condition printed on the face of the licence that the licensee shall himself drive and retain at all times the control, use and management of the licensed vehicle "as his sole means of employment".  But ground (b) (ii) disregards these final words and cannot be regarded as charging a breach of this condition and, as in the case of the two preceding charges, a decision to revoke the licence could not be based upon it.

I would add that the Board's decision was, as it said, based upon findings that each of the charges made was sustained and if one only of them is incapable of being regarded as charging a breach of a condition of the licence the Board's decision cannot be supported as being one made within its jurisdiction.  If-as I think-no one of them is capable of being read as alleging non-compliance with a condition of or attached to the licence, the fact that the Board exceeded its jurisdiction becomes even more apparent.

I would allow the appeal.