Commissioner for Motor Transport v Terry [1968] HCA 5

High Court of Australia Barwick C.J. McTiernan, Kitto, Menzies and Windeyer JJ. Commissioner for Motor Transport v Terry [1968] HCA 5

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

1968, March 8 Barwick C.J.

During the months of February and March 1963, according to the particulars of claim filed by the appellant in the Small Debts Court at Redfern, New South Wales, the first-named respondent to this appeal was the licensee under the provisions of the State Transport (Co-ordination) Act, 1931-1956 N.S.W. (the Act) of a public motor vehicle which he operated from Brookvale to Muswellbrook in that State carrying goods for more than fifty miles of the journey in competition with the government railways. A condition of his licence to operate such vehicle was claimed to be that he should pay to the appellant the sum of threepence per ton, or part thereof, of the aggregate of the weight of the vehicle unladen, and of the weight of loading the vehicle is capable of carrying for each and every mile, or part thereof, travelled by the vehicle along a public street on a journey wholly or partly competitive with the railways.

The appellant issued out of the said Small Debts Court a default summons claiming that the respondent was indebted to him in the sum of sixty-five pounds and threepence (£65 0s. 3d.) in accordance with the said condition of the licence, being an amount calculated at the said rate per ton mile in respect of journeys by the said vehicle during the said months of February and March.

The respondent challenged the jurisdiction of the Small Debts Court to entertain an action for recovery of the amounts payable to the Commissioner under the terms of the licence, upon the ground that the exaction of such amounts under the licence constituted the taking of a duty to the Crown within the meaning of s. 11 (1) of the Small Debts Recovery Act, 1912-1961 N.S.W., and that therefore the action commenced by the default summons related to such taking. The magistrate decided that he had jurisdiction to hear the action, whereupon the respondent sought of the Supreme Court of New South Wales a writ of prohibition to restrain the magistrate from proceeding upon the default summons. The Supreme Court, Court of Appeal Division, by majority granted the writ of prohibition. The Supreme Court were unanimous in the view that the amounts payable under the condition of the licence were duties due to the Crown within the meaning of the Small Debts Recovery Act. A majority of that Court further held that the provision of s. 39 (1) of the Act neither superseded the provisions of s. 11 (1) of the Small Debts Recovery Act in respect of the sums payable under the licence, nor increased the jurisdiction of the Small Debts Court to enable it to entertain an action to recover such sums. The appellant by this Court's special leave now appeals against the order of the Supreme Court for the issue of the writ of prohibition.