Clarke v Elias - [2008] VSC 427

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 7946 of 2006

DOUGLAS ELLIOT CLARKE	Plaintiff
v
DEREK EDWARD ELIAS and COUNTY COURT OF VICTORIA	Defendants

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JUDGE:	Hollingworth J
WHERE HELD:	Melbourne
DATE OF HEARING:	6 May 2008
DATE OF JUDGMENT:	22 October 2008
CASE MAY BE CITED AS:	Clarke v Elias & anor
MEDIUM NEUTRAL CITATION:	[2008] VSC 427

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Judicial review – Taxi driver convicted for failure to wear prescribed uniform – Governor in Council empowered to make regulations prescribing taxi drivers’ uniforms – Regulations authorised Secretary to approve uniforms – Whether improper delegation of legislative power – Transport Act 1983 s 162 – Transport (Taxi-Cabs) Regulations 1994 reg. 25

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S Moglia	Robert Stary & Associates
For the First Defendant	Mr T Gyorffy	Office of Public Prosecutions
For the Second Defendant	No appearance at trial	Victorian Government Solicitor’s Office

HER HONOUR:

Introduction

Douglas Clarke is a taxi driver. On 17 May 2005, Mr Clarke was intercepted by the first defendant, then a senior constable with the Melbourne Traffic Management Unit, about a parking infringement. The police officer noted that Mr Clarke was wearing denim jeans, and charged him on summons with not wearing the prescribed taxi driver’s uniform whilst on duty, contrary to reg. 25 of the Transport (Taxi-Cabs) Regulations 1994 (Vic) (“the 1994 regulations”).

In November 2005, Mr Clarke was convicted of that offence in the Magistrates’ Court. He was fined $100 and ordered to pay costs of $36.80.

Mr Clarke appealed to the County Court. He raised a large number of grounds of appeal, including that there had been an invalid delegation of the power to regulate the dress and appearance of taxi drivers, to a person other than the one who had been authorised to do so.

On 6 June 2006, the learned County Court judge set aside the orders of the magistrate, found the charge was proven, re-imposed the conviction and ordered the same fine and statutory costs as ordered by the magistrate.[1] Regrettably, the learned judge gave no oral or written reasons for decision, notwithstanding the large number of grounds of appeal, and despite being specifically requested to do so.
[1]The authenticated copy of the County Court order produced to the court in this proceeding says that the original fine was $200. However, both parties agree that the original fine was in fact $100, and that the County Court judge re-imposed the original fine. Accordingly, I assume the reference in the County Court order to $200 is simply a typographical error.

On 4 August 2006, Mr Clarke filed an originating motion seeking judicial review of the County Court decision. The originating motion was first amended in May 2007. Both the original and amended originating motions sought judicial review on a number of grounds which are no longer pressed, including grounds arising out of the judge’s failure to give reasons. The affidavits filed in this proceeding primarily addressed…

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 Clarke v Elias

Details

AGLC: Clarke v Elias [2008] VSC 427
Case: [2008] VSC 427
Decision Date: 22 October 2008

CaseChat Overview and Summary

The case of Clarke v Elias involved a taxi driver, Mr Clarke, who was convicted for failing to wear a prescribed uniform. The dispute centred on the validity of regulations made under the Transport Act 1983, which prescribed uniforms for taxi drivers. The Governor in Council had the authority to make regulations under the Transport Act, and these regulations authorised the Secretary to approve uniforms. The central legal question was whether the delegation of power to the Secretary to approve uniforms was an improper delegation of legislative power.

The court had to determine whether the Transport (Taxi-Cabs) Regulations 1994, particularly regulation 25, were valid. The issue was whether the power to approve uniforms by the Secretary constituted an improper delegation of legislative power, which would render the regulation invalid. The Transport Act 1983 provided for the making of regulations by the Governor in Council, and it was essential to examine whether the delegation to the Secretary was within the scope of the legislative authority granted.

The court concluded that the Transport (Taxi-Cabs) Regulations 1994, including regulation 25, were valid. The court found that the delegation of power to the Secretary to approve uniforms was not an improper delegation of legislative power. The court reasoned that the Transport Act 1983 authorised the making of regulations by the Governor in Council, and the delegation to the Secretary was within the scope of the legislative authority granted. Therefore, the regulations were valid and the conviction of Mr Clarke for failing to wear a prescribed uniform was upheld. The court's decision confirmed the validity of the regulatory framework governing taxi drivers' uniforms in New South Wales.

Orders