Blyth v. Hudson - [1929] HCA 3

41 CLR 465

RESPONDENT. DEFENDANT,

ON APPEAL FROM THE SUPREME COURT OF Motor OmnibusLicensing-Definition of " motor omnibus "_" Carrying passengers

for reward at separate and distinct fares "`-Offence-Owner of vehicle operating on road-Vehicle not licensed as motor omnibus-Owner employed for lump sum for journey- - Fares collected by employers-Motor Omnibus (Urban and Country) Act 1927 (Vict.) (No. 3570), secs. 3, 31, 40.

The definition of motor omnibus" in sec. 3 of the Motor Omnibus (Urban and Country) Act 1927 (Vict.) may be satisfied although the reward at separate and distinct fares for each passenger is not paid to a person who is an 'owner" of the vehicle.

The defendant, who was the owner of a motor vehicle which was not licensed under the Motor Omnibus (Urban and Country) Act 1927 (Vict.), was charged

41 CLR 466

under sec. 40 with being the driver on a certain day of a motor omnibus which operated on a road between Geelong and Melbourne without the same being licensed as a motor omnibus" in accordance with that Act. A firm of shop- keepers sold at separate and distinct fares tickets for a journey from Geelong to Melbourne, and the defendant, for a lump sum paid by them to him, carried in his motor vehicle the passengers who had bought the tickets. Before beginning each journey he and the shopkeepers signed a written agreement whereby in consideration of the lump sum paid by them to him he agreed to convey one load of passengers upon the specified journey and return.

Held, upon these facts, that the motor vehicle was used or intended to be used for carrying passengers for reward at separate and distinct fares for each passenger," notwithstanding the fact that the defendant was remunerated at a lump sum, and that the vehicle in question, as it otherwise fell within the definition, was a " motor omnibus as defined in sec. 3 of the Motor Omnibus (Urban and Country) Act 1927.

Decision of the Supreme Court of Victoria (Lowe J.): Blyth v. Hudson, (1928) V.L.R. 587, reversed.

APPEAL from the Supreme Court of Victoria.

On the information of William Frederick Blyth it was alleged that on 12th August 1928 the defendant, George Hudson, was the driver of a motor omnibus which operated on a road between Geelong and Melbourne without the said motor omnibus being licensed in accordance with the provisions of the Motor Omnibus (Urban and Country) Act 1927 (Vict.).

The information was heard at the Court of Petty Sessions at Geelong on 4th September 1928, when evidence was given for the informant that on the afternoon of 12th August 1928 Albert Harry Johnson, an inspector of the Country Roads Board, booked a seat at 136 Moorabool Street, Geelong, which was a fruit shop kept by persons named Sangiolo and Virgona, who were registered as a firm carrying on business under the name of Geelong Motor Tourist Bureau at that address and at 166 Flinders Street, Melbourne: that on the date in…

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 Blyth v. Hudson

Details

AGLC: Blyth v. Hudson [1929] HCA 3
Case: [1929] HCA 3
Decision Date: 21 February 1929

CaseChat Overview and Summary

The appellant, the informant, appealed to the High Court of Australia from a decision of the Supreme Court of Victoria. The dispute concerned whether the respondent, the owner and driver of a motor vehicle, had operated an unlicensed "motor omnibus" contrary to the *Motor Omnibus (Urban and Country) Act 1927* (Vic.). The respondent had been engaged by a firm of shopkeepers for a lump sum to transport passengers between Geelong and Melbourne. The shopkeepers sold individual tickets to passengers for this journey, and the respondent collected the lump sum from the shopkeepers, not separate fares from the passengers.

The legal issue before the High Court was the interpretation of the definition of "motor omnibus" in section 3 of the *Motor Omnibus (Urban and Country) Act 1927*. Specifically, the court had to determine whether the definition, which required a vehicle to be "used or intended to be used for carrying passengers for reward at separate and distinct fares for each passenger," necessitated that the reward at separate and distinct fares be paid directly to the owner of the vehicle. The Supreme Court had held that this was a requirement, and therefore the respondent's vehicle did not fall within the definition.

The High Court, in allowing the appeal, reasoned that the Act's primary concern was to regulate the operation of motor vehicles carrying passengers for reward, irrespective of who ultimately received the fares. The definition of "motor omnibus" described the vehicle's use, not the specific contractual arrangements for payment. The court found that the legislative intent was to control such passenger transport operations broadly, and that an intermediary receiving fares and paying the vehicle owner a lump sum did not remove the vehicle from the Act's purview. The penal provisions of the Act were framed to apply to the operation of unlicensed vehicles, and the owner and driver were identified as those responsible for ensuring compliance. Therefore, the respondent's vehicle was considered a "motor omnibus" as defined by the Act, even though he was remunerated by a lump sum rather than directly collecting individual fares.

The High Court reversed the decision of the Supreme Court of Victoria, reinstating the magistrate's conviction of the respondent. The appeal was allowed, with the appellant to pay the respondent's taxed costs of the appeal pursuant to his undertaking.

Orders