Bishop v MacFarlane

This case concerned an appeal from an order of the Supreme Court of New South Wales, which had refused a rule nisi for prohibition against an order made by a magistrate. The information was laid by a cab driver against the appellant, alleging that the appellant, as a hirer of a cab, had failed to pay the prescribed fare upon demand at the termination of the hiring. The magistrate ordered the appellant to pay the fare, costs, and compensation for loss of time, with a default term of imprisonment.

The legal issues before the court were whether the magistrate had the jurisdiction to award costs and compensation, and to order imprisonment. Further, the court had to determine if Regulation 50 of the Metropolitan Traffic Act 1900 was *ultra vires* the Act, and if the information disclosed a valid offence. The court also considered whether the proceedings constituted a civil or criminal matter, and the necessity of proving a demand for the fare.

The court reasoned that the Metropolitan Traffic Act 1900 provided for two distinct procedures: a prosecution for an offence under the Act or regulations, and a summary proceeding for the recovery of money owed, such as fares. The magistrate's order, which included payment of the fare, costs, and compensation, was not a conviction for an offence but rather an order for payment of money. The court found that Regulation 50, insofar as it purported to allow for compensation for loss of time, was *ultra vires* the Act, as the Act did not grant the Governor-in-Council the power to make regulations for such compensation. The court also noted that there was insufficient evidence of a demand for the fare, which was a statutory prerequisite for recovery under Regulation 48. Consequently, the order for compensation and costs was invalid.

The appeal was allowed, and the magistrate's order was varied by striking out all provisions except for the order requiring the appellant to pay the 10s. cab fare. The court noted that the payment of this fare had been made a condition of granting special leave to appeal.