Barclay v Linnane - [1956] HCA 17

RESPONDENT. DEFENDANT,

ON APPLICATION FOR LEAVE TO APPEAL FROM THE

SUPREME COURT OF NEW SOUTH WALES. Railways-Offence-" Person employed upon the railway "-Under influence of

intoxicating liquor-Officer in charge of lost property section-Found on railway siding-Whether "employed upon the railway "--Government Railways Act SYDNEY,

1912-1955 (N.S.W.) (No. 30 of 1912-No. 27 of 1955), 8. 133 (1) (a). April 9, 18.

Section 133 (1) of the Government Railways Act 1912-1955 (N.S.W.) provides: " If any person employed upon the railway or in repairing or maintaining the works of the said railway-(a) is found drunk or under the influence of intox- icating liquor or any drug whilst so employed upon the said railway then he may be apprehended by the persons and in the manner therein men-

Held, that the words person employed upon the railway or in repairing or maintaining the works of the said railway" are not restricted in meaning to persons actually employed in working on the lines or tracks and on those services ancillary and auxiliary to the actual running of the trains but include every employee whose work takes an immediate part in the working of the whole operating portion of the railway system.

Decision of the Supreme Court of New South Wales (Clancy J.), reversed.

APPLICATION for leave to appeal from the Supreme Court of New South Wales.

James Henry Linnane was charged pursuant to S. 133 (1) (a) of the Government Railways Act 1912-1955 (N.S.W.) that he was at Sydney in the State of New South Wales on 17th May 1955, being then a person employed upon the railway, to wit a station assistant,

95 CLR 159

found under the influence of intoxicating liquor whilst SO employed upon the said railway. He pleaded not guilty' " and at the close of the informant's case the presiding magistrate upheld a sub- mission by his counsel that at the time of the alleged offence he was not employed upon the railway" within the meaning of the section under which he was charged. He was accordingly discharged.

Upon the informant's application the learned magistrate stated and signed a case pursuant to S. 101 of the Justices Act 1902-1955 (N.S.W.) in which the facts as found by him were as follows 1. That on 17th May 1955, Linnane was an officer employed by the Railway Commissioner for New South Wales in accordance with the Government Railways Act 1912-1955. 2. That on the said date he was an officer employed at Lucas siding within the Darling Harbour railway yards as a station assistant by the Commissioner for Rail- ways. 3. That Lucas siding is vested in the said Railway Commis- sioner. 4. That the Lucas siding installation, inter alia, consists of a railway platform adjacent to railway lines and offices. 5. That on the said date he was an officer in charge of the lost property section at Lucas siding. 6. That the function of the lost property section is to salvage goods damaged in transit and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Barclay v Linnane

Details

AGLC: Barclay v Linnane [1956] HCA 17
Case: [1956] HCA 17
Decision Date: 18 April 1956

CaseChat Overview and Summary

This matter concerned an application for special leave to appeal from a decision of the Supreme Court of New South Wales, which had dismissed an appeal by way of case stated. The original prosecution charged the respondent, James Henry Linnane, a station assistant employed by the Railway Commissioner, with being found under the influence of intoxicating liquor whilst employed upon the railway, contrary to section 133 (1) (a) of the *Government Railways Act 1912-1955* (N.S.W.). A magistrate had discharged the respondent, finding that he was not "employed upon the railway" within the meaning of the section, a decision upheld by Clancy J. in the Supreme Court.

The central legal issue before the High Court was the interpretation of the phrase "person employed upon the railway or in repairing or maintaining the works of the said railway" as used in section 133 (1) (a) of the *Government Railways Act*. Specifically, the Court had to determine whether this phrase was restricted to individuals directly involved in the operation of trains and ancillary services, or if it encompassed a broader range of railway employees whose work formed an immediate part of the overall operating system.

The High Court held that the phrase "employed upon the railway" was not limited to those performing duties directly related to the running of trains or the maintenance of the permanent way. Instead, the Court determined that it extended to all employees whose work contributed to the "whole operating portion of the railway system." The Court reasoned that the legislative intent was to capture conduct that could impact the functioning of the railway system, and that an employee in charge of a lost property section within the railway yards, even if not directly involved with train operations, was still considered to be employed upon the railway in this broader sense. Consequently, the High Court granted special leave to appeal, treated the application as the appeal, allowed the appeal, and remitted the matter to the magistrate with the opinion that the decision dismissing the information was erroneous.

Orders