Mason v New South Wales [1959] HCA 5

High Court of Australia Dixon C.J. McTiernan, Fullagar, Kitto, Taylor, Menzies and Windeyer JJ. Mason v New South Wales [1959] HCA 5

ORDER Order that judgment be entered in the action for the plaintiffs in the sum of £5,467 with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Feb. 27, 1959 Dixon C.J.

This action is brought by husband and wife, both residents of Victoria, against the State of New South Wales for the recovery of moneys obtained from them in purported pursuance of the State Transport (Co-ordination) Act 1931-1954.

The plaintiffs say that the moneys are recoverable because the provisions of the State Transport (Co-ordination) Act under which they were obtained were incapable, consistently with s. 92 of the Constitution, of applying to inter-State transportation and yet it was in respect of inter-State journeys of the plaintiffs' vehicle that the State obtained the moneys from the plaintiffs. The action is brought in the original jurisdiction of the Court under s. 75 (iv.) of the Constitution. A trial took place before McTiernan J. who after the closing of evidence directed, at the request of the parties, that the cause should be argued before the Full Court. To the order his Honour caused a memorandum to be annexed to the effect that he would be prepared to accept the only oral evidence given as truthful. Section 22 of the State Transport (Co-ordination) Act 1931 N.S.W. as amended by No. 24 of 1952, as from 27th October 1952, provided for the issue of permits subject to any conditions that might be prescribed or imposed by the State transport authority for amongst other things the carrying of goods by motor vehicle in specified districts over specified routes. By Act No. 48 of 1954, s. 2 (1) (a), the section was amended again and sub-sections were added by way of amplification. The provision as it thus emerged was made retrospective to the commencement of the original Act viz. 31st August 1931. In the middle of 1953 the plaintiffs began regularly to carry goods between Melbourne or some other city in Victoria and Sydney or some other city in New South Wales. The decision of this Court in Hughes and Vale Pty. Ltd. v. State of New South Wales [1] was delivered on 16th April 1953. Special leave to appeal from the decision was granted by the Queen in Council on 17th June 1953.