• Any

CATCHWORDS

HEARING

DECISION

2.Section 92 provides that, on the imposition of uniform duties of customs,trade, commerce and intercourse among the States whether by meansof internalcarriage or ocean navigation shall be absolutely free. (at p178)

3. In Hughes & Vale Pty. Ltd. v. State of New South Wales[1954] UKPCHCA 5;(1955) AC 241;(1954) 93 CLR 1 their Lordships decidedthat the provisionsof the StateTransport (Co-ordination) Act 1931-1952 (N.S.W.) (sometimes called "theprincipal Act") which requiredapplication tobe made for a licence and allprovisions consequential thereon, in so far as they purportedto apply to, andto theoperators of,public motor vehicles operated in the course of and forthe purposes of inter-State trade wereinvalid as contravenings. 92. Theeffect of that decision was that charges which under the Act had been imposedupon and collectedfrom the respondentshad been unlawfullyimposed andcollected. The respondents accordingly commenced proceedings for the recoveryof the sums so paidby them and for thepurpose of these appeals it is to beassumed for the reasons elaborated in the judgment ofthe High Court thattheywould have hada good cause of action but for the Act to which reference isnext made. It is not materialto the result butmay be observed thattherespondents in the first of the consolidated appeals commenced proceedingsbefore thatAct was passed. (atp178)

4. The State Transport Co-ordination (Barring of Claims and Remedies) Act1954 (which will be referred to as "the Barring Act"),upon which theappellants rely, enacted so far as material as follows : "3. Any and everycause of action, claim and demand whatsoeverby any person whomsoever againstHer Majesty or the State of New South Wales or any Minister or theSuperintendent of Motor Transportor against any authority, officer or personacting or purporting to act in the execution of the Principal Act - (a) forthe recoveryof any sums collected, received or recovered in relation to theoperation of any public motor vehicle in the course of or for thepurposes ofinter-State trade before the commencement of this Act - (i) which were orpurported to have been collected, receivedor recovered pursuant to theprovisions of sub-s. (4) or sub-s. (5) of s. 18 or s. 37 of the Principal Act; or (ii) which were orpurported to have been collected, received orrecovered on, or pursuant to any condition imposed on, the issue of a licenseunderthe Principal Act or of a permit under the Principal Act or of anydocument purporting to be a license or a permit under the PrincipalAct, or(b) for or in respect of any act, matter or thing done or purporting to havebeen done before the commencement of this Actby any Minister or theSuperintendent of Motor Transport or any authority, officer or person actingor purporting to act in the executionof the Principal Act in relation to theoperation of any public motor vehicle in the course of or for the purposes ofinter-Statetrade, shall be and the same are hereby extinguished. 4. Noaction, suit, claim or demand whatsoever shall lie or be brought ormade orallowed or continued by or on behalf of any person whomsoever against HerMajesty or the State of New South Wales or anyMinister or the Superintendentof Motor Transport or against any authority, officer or person for therecovery of any of the sumsreferred to in par. (a) of s. 3 of this Act or foror in respect of any act, matter or thing done or purporting to have been doneas aforesaid. 5. The provisions of this Act shall apply to proceedingspending at the commencement of this Act as well as to proceedingsbroughtafter the commencement of this Act." (at p179)

5. There can be no doubt that this Act, if it is valid, is a complete answerto the respondents' claims. It is invalid only if itis struck bys. 92 of theConstitution. This is the issue, and their Lordships concur in the unanimousopinion of the High Court thats. 92 precludes the appellants from relying onit. (at p179)

6. It was conceded by the appellants that the validity of the relevantprovisions of the Barring Act would have been no greaterand no less if theyhad been contained in the Principal Act itself. Neither prospectively norretrospectively (to use the words ofFullagar J.[1955] HCA 25;(1955) 93 CLR 83, at p 108 )can a State law make lawful that which theConstitution says is unlawful. Asimple test thus appears to be afforded. For if a statute enacted that chargesin respect of inter-State tradeshould be imposed and that, if they were heldto be illegally imposed and collected, they should nevertheless be retained,such anenactment could not be challenged if the illegality of the chargerested only on the then existing State law. As their Lordshipswere oftenreminded in the course of the argument, the State is sovereign within its ownterritory. But it is otherwise if the illegalityarises out of a provision oftheConstitution itself. Then the question is whether the statutory immunityaccorded to illegal acts is not as offensive to theConstitution as theillegal acts themselves, and, applied to the present circumstances, thatquestion is whether, if the imposition of chargesin respect of inter-Statetrade is invalid as an offence againsts. 92, it is not equally an offence todeny the right to recover them after they have been unlawfully exacted. (atp180)

7. It appears to their Lordships that to this question there can be only oneanswer. It cannot be too strongly emphasized or toooften repeated that in thewords of the High Court the immunity given bys. 92 to trade, commerce andintercourse cannot be transient or illusory. Yet how fugitive would thatprotection be if effect were givento the argument of the appellants in thiscase. A trader desiring to engage in inter-State trade and confronted with theprovisionsof an Act which appear to him to deprive him of the freedomguaranteed by theConstitution may well be content to conform to itsrequirements, to accept the necessity of applying for licences and to submit,though it maybe under protest, to pecuniary exactions in order that he may beable to carry on his business. But he may do so in the firm convictionthat hecan test the legality of the statutory requirements in a court of law andrecover sums of money unlawfully exacted. And letit be supposed that he isright and that those sums were unlawfully exacted and that he can availhimself of the constitutional freedomafforded bys. 92. What is his situationif he then finds himself by a later provision of the same Act or by asubsequent Act once more subject to thesame exactions? The burden of histrade remains just what it was: the freedom of his trade has been in the samedegree impaired.In letter and in spirit s. 92 is in the same measuredefeated. (at p180)

8. The appellants called in aid the well-known passage from the judgment ofDixon J. (as he then was) in James v. The Commonwealth[1939] HCA 9;(1938) 62 CLR 339, at p361 , which was echoed in the judgment of the Board in The Commonwealth v.Bank of New SouthWales(1950)AC 235, at p 305;(1949) 79 CLR 497, at p 635to the effect that juristically s. 92 does not conferprivate rights uponindividuals.But it is a transparent misuse ofthis proposition to proceed tothe further proposition that atrader, who but for the Barring Actwould havea right enforceableat common law, cannot plead that a defence raised underthat Actis precluded by the section. In sucha case the trader does preciselywhat this Board has said he may do. He invokes the judicialpower to help himresist legislativeaction which offends against thesection. He assumedly hasa common law right to recover moneyunlawfully exacted and he demurs toa pleafounded on a statute whichoffends against s. 92. The demurrer must prevail.(at p181)

9. The same argument was advanced in a somewhat different form by counsel whourged that the effect of the Barring Act was not toimpose a burden on tradebut only (as their Lordships understood the argument) to interfere with aright of property, viz., the rightto sue for money had and received whichaccrued after the trading operation was concluded. In this form the argumenthas no greatervalidity. It has become a truism that s. 92 protects thesubject only from legislation which takes as its criterion of operationan actof trade or commerce or an essential attribute of trade or commerce. This is aproposition couched in necessarily vague andgeneral terms. To exclude fromits scope an enactment whose only object is to validate an exaction which thesection renders unlawfulwould in their Lordships' opinion be a mockery of thespirit of theConstitution. (at p181)

10. Their Lordships do not think it desirable to deal at greater length withthese appeals, important as are the issues they raise,because they agree sofully with the judgments immediately under review and with that of Fullagar J.in Deacon v. Grimshaw[1955]HCA 25;(1955)93 CLR 83, at pp 104 et seq (at p181)

11. Their Lordships will accordingly humbly advise Her Majesty that theseappeals should be dismissed. The appellants will pay therespondents' costs ofthe appeals. (at p181)

ORDER