Nilson v South Australia [1955] HCA 31

High Court of Australia Dixon C.J. McTiernan, Williams, Webb, Fullagar, Kitto and Taylor JJ. Nilson v South Australia [1955] HCA 31

ORDER In answer to the questions submitted by the special case declare that so long as the commercial motor vehicles mentioned in the special case are used exclusively in or for the purposes of inter-State trade commerce or intercourse among the States the plaintiff and the persons firms and companies on whose behalf he sues or any of them and the drivers of such vehicles are not within the operation of ss. 7 (1), (2) and (3), 8 (1) and (2) and 9 (4) of the Road Traffic Act 1934-1954 S.A. and that cl. 2 of the regulations under that Act made on 23rd December 1954 is invalid except in so far as it relates to Territories. The costs of the special case to be paid by the defendants.

Cur. adv. vult.

The following written judgments were delivered:—

June 9 Dixon C.J., McTiernan Webb JJ.

This is a special case stated by the parties for the opinion of the Court. The suit in which it is stated was instituted in this Court against the State of South Australia, the Attorney-General, the Minister of Roads and the Registrar of Motor Vehicles of that State. The plaintiff sues on behalf of himself and a number of persons firms and companies whom he names all of whom carry on business as carriers of goods by road. The object of the suit is to obtain declarations of right relieving the plaintiff and the parties whom he represents of the application of certain provisions of the Road Traffic Act 1934-1954 S.A.. The plaintiff says that the provisions cannot apply to them consistently with s. 92 of the Constitution. They own "commercial motor vehicles", as the Act calls motor lorries and the like, and these vehicles are registered under the motor car legislation of other States. The plaintiff and each of the parties whom he represents carries on business as a carrier of goods by road by means of the commercial motor vehicles he owns. They carry goods between Adelaide and Melbourne, Sydney or Brisbane. None of the vehicles is used for the carriage of goods upon an intra-State journey. The Road Traffic Act provides that no person shall drive any motor vehicle on any road unless that vehicle has been registered under Pt. II of the Act: s. 7. An application to register a motor vehicle must be made to the defendant registrar by or on behalf of the owner and at the time of application a fee calculated as provided in the Act must be paid: s. 8 (1). The period of registration is, at the option of the applicant, either six or twelve months and if six months is chosen the fee is fifty-two and a one-half per cent of the fee for twelve months: ss. 8 (2), 9 (6b) and 16 (2). The registration fees are calculated by a formula based on the weight of the vehicle and the horse-power of the engine determined in a manner prescribed by the statute: s. 9 (1). As this "power-weight" increases the rate payable advances according to a graduated table. There is a separate graduated table for commercial motor vehicles: s. 9 (4). The result is to impose a very substantial tax which for large transport vehicles may amount to a heavy annual charge. The Act confers power on the Governor in Council to make regulations providing for the exemption of registration of motor vehicles owned by persons resident outside the State of South Australia and temporarily in the State: s. 61 (1) (xii). Under this power the Road Traffic Act Regulations 1951, as in force up to 31st January 1955, had provided that a motor vehicle owned by a resident of any of the five mainland States or of the Capital Territory, if insured and registered under the laws of the State or Territory, might be driven in South Australia without registration so long as certain conditions were observed: reg. 42. The conditions to be observed are not material nor is the distinction between the mainland States and Tasmania. A separate provision was made as to Tasmania and the other Territories: reg. 41. Had the first-mentioned provision remained in force the plaintiff and those whom he represents would not have been obliged to register their vehicles in South Australia and pay the charges thereon. But by a regulation made on 23rd December 1954 taking effect on 31st January 1955 it was provided that the exemptive provision should not apply to a motor vehicle the unladen weight of which is two and a half tons or more. This, however, brought the commercial motor vehicles in question within the operation of ss. 7, 8 and 9, requiring registration and payment of the fee or charge. The plaintiff's case is that this amounts to a tax upon inter-State transportation which is inconsistent with the freedom of trade commerce and intercourse among the States guaranteed by s. 92.