TAGNI AND OTHERS V. THE STATE OF VICTORIA AND OTHERS

IN THE HIGH COURT OF AUSTPALIA

OTHERS

THS..STATE..OF. VICTORIA. AND. OTHES

ORAL

REASONS FOR JUDGMENT

Judgment delivered at_MSLRBOURNE on THURSDAY, 8TH OCTOBER, 1959.

W.-M. Houston, Gort, Print., Melb,

"Gat

NI

O!

CT OR:

RS.

aA OF _ THE COURT DELIVERED BY DIXON C.J.

TAG! S

v.

THE STATE OF VICTORIA AND OTHERS

This is an appeal and a cross appeal from an order made in Chambers by Mr. Justice Menzies, striking out certain paragraphs of a statement of claim. The action was commenced on 11th March 1958, There are four plaintiffs. Three of them are ordinary carriers, the fourth is a company, Motor Transport Company Limited, which undertakes to do carrying business but performs its obligations by contractors. The defendants are the State of Victoria, the Country Roads Board, the Chief Commissioner of Police and a Senior Constable.

The purpose of the action is to relieve the plaintiffs of the operation of sec. 33(1)(b) of what now is the Motor Car Act 1958, It is convenient to use the numbering of that Act, although it was not the Act actually in operation at the time when the events happened on which the action is founded. Section 33(1)(b) provides that: "A motor car shall not, except under and in accordance with a special permit granted under this Division, be used on any highway in any of the following cases:- . .. (b) If the height of the motor car together with the load (if any) carried thereon exceeds twelve feet six inches".

The plaintiff company, according to the statement of claim, engages with a manufacturer of motor cars to carry motor bodies, and the journeys involve journeys from South Australia into Victoria and into other States. Some of the actual work of carrying the bodies appears to be done by contract with the other three plaintiffs or one or other of them.

The attack made upon sec. 33(1)(b) is that it violates sec. 92 of the Constitution in so far as it applies,