Gilbert v Commissioner for Government Transport [1960] HCA 34

High Court of Australia McTiernan, Kitto and Windeyer JJ. Gilbert v Commissioner for Government Transport [1960] HCA 34

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:

June 9 McTiernan J.

This appeal is brought from a decree dismissing a suit for an injunction which was heard by Sugerman J. in the Supreme Court of New South Wales in its equitable jurisdiction.

The appellants, a firm of motor omnibus proprietors, were conducting a motor omnibus service in accordance with a service licence which had been issued to them by the Commissioner for Motor Transport pursuant to the Transport Act (N.S.W.) 1930-1956. The route for which this licence was issued was No. 205. It started at Ryde and had termini at North Ryde, Fuller's Bridge, Gladesville and St. Charles' School, Ryde. The appellants operated their omnibuses between Ryde and those termini respectively, on roads which were mentioned in the licence. The roads between Ryde and North Ryde connected Victoria Road and Epping Road. These two roads were highways from Ryde and North Ryde respectively to the city. Besides providing a connexion between these highways the appellants' omnibuses picked up and set down passengers on journeys between them. While the appellants' service licence was current the respondent established new omnibus services between Ryde and the city and North Ryde and the city. The route of each of these services between Ryde and North Ryde was practically the same as the part of route No. 205 between those places. The longest parts of the routes of the new services were from Ryde via Victoria Road towards the city and from North Ryde via Epping Road to the city, but the journeys made by the omnibuses operating the new services were continuous to the city via Ryde or North Ryde. The respondent's omnibuses not only provided a service connecting Ryde and North Ryde but they also picked up and set down passengers between those places as did the appellants' omnibuses. The timetables were different but to a very large extent the respondent's new services duplicated the service which the appellants were providing by route No. 205 between Ryde and North Ryde. The appellants alleged in the suit that the respondent was "operating" route No. 205. They challenged the right of the respondent to do this on the ground that the Commissioner for Motor Transport had not determined pursuant to s. 158 of the Act that the route should in the public interest be operated by the respondent. The substantial contention made on their behalf was that in the absence of such a determination the respondent could not lawfully operate his omnibuses on the roads between Ryde and North Ryde which they were using in the course of carrying on the new services. Most of the passengers carried by the appellants' omnibuses on route No. 205 were picked up and set down on those roads. In consequence of the duplication of transport services the number of passengers using the appellants' omnibuses operating on route No. 205 decreased and the appellants' service licence for the route became less valuable.