Barton v Commissioner for Motor Transport [1957] HCA 50

High Court of Australia Dixon C.J. McTiernan, Webb, Fullagar, Kitto and Taylor JJ. Barton v Commissioner for Motor Transport [1957] HCA 50

ORDER Questions in the special case answered as follows:—(1) By reason of s. 92 so much of s. 27 is invalid as is enacted by s. 5 of Act No. 16 of 1956 in so far as it applies to causes of action arising as a result of the operation of s. 92 of the Constitution on the provisions of the State Transport (Co-ordination) Acts, and is inapplicable to the plaintiff's action. The foregoing answer is confined to causes of action accruing as in this case before 13th September 1955. (2) Section 27 as enacted by s. 2 (1) (b) of Act No. 46 of 1940 is inapplicable to the plaintiff's action. (3) The plaintiff is not barred by s. 27 from recovery in this action if the action is otherwise maintainable. Costs of the special case to be paid by the defendant.

Cur. adv. vult.

The following written judgments were delivered:—

July 11 Dixon C.J.

This special case was removed from the Supreme Court into this Court under s. 40 of the Judiciary Act 1903-1955. It was stated by the parties to an action. The purpose was to obtain the opinion of the Court upon certain questions concerning the operation of s. 27 of the Transport (Division of Functions) Acts 1932-1956, particularly having regard to s. 92 of the Constitution of the Commonwealth. Great economy in the statement of the facts has been practised but at least we know that the action was commenced on 26th September 1956 claiming sums of money paid on specified dates "to the predecessors of the defendant" for permits to operate a public motor vehicle "within the State of New South Wales exclusively" in the course and for the purpose of inter-State trade. The inter-State trade consisted in carrying goods by the motor vehicle from places in New South Wales to places in other States. The permits are stated to have been issued by the predecessors of the defendant in purported pursuance of the State Transport (Co-ordination) Act 1931, as amended, or of licences issued to the plaintiff under that Act. Although the case does not say so, it is safe to assume that the permits were of the description discussed in Hughes & Vale Pty. Ltd. v. State of New South Wales [6] . Of the moneys claimed, seventeen amounts were paid for permits on various dates between 4th October 1951 and 10th May 1952, both inclusive, and in the same way fourteen between 16th June 1952 and 15th October 1952 and nine between 26th January 1953 and 12th June 1954. It is or may be necessary to distinguish between these three periods because of the commencing dates of two statutes that affect the matter, as will afterwards appear. The first part of s. 27 of the Transport (Division of Functions) Act 1932, as amended, was placed in that Act by s. 2 (1) (b) of the Transport (Division of Functions) Amendment Act 1940 (No. 46 of 1940). It is as follows:—"All actions against any of the Commissioners appointed under this Act or against any person for anything done or omitted or purporting to have been done or omitted under this Act or under any other Act (whether passed before or after the commencement of this Act) which confers or imposes any power, authority, duty or function on any such Commissioner, or in the exercise or performance of any power, authority, duty or function conferred or imposed by any such Act, shall be commenced within one year after the act or omission complained of was committed or made."