M and J Mitchell Pty Ltd v The Director General of the Department of Transport
[2011] WASC 66
•18 MARCH 2011
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: M & J MITCHELL PTY LTD -v- THE DIRECTOR GENERAL OF THE DEPARTMENT OF TRANSPORT [2011] WASC 66
CORAM: McKECHNIE J
HEARD: ON THE PAPERS
DELIVERED : 18 MARCH 2011
FILE NO/S: CIV 1080 of 2011
BETWEEN: M & J MITCHELL PTY LTD
Plaintiff
AND
THE DIRECTOR GENERAL OF THE DEPARTMENT OF TRANSPORT
Defendant
Catchwords:
Courts and judges - Regulation investing Magistrates Court with review powers - Whether valid - Road Traffic - Whether Director General's decision on vehicle standards reviewable - Words and phrases 'necessary or convenient'
Legislation:
Interpretation Act 1984 (WA)
Magistrates Court Act 2004 (WA)
Road Traffic Act 1974 (WA)
Result:
Declaration that the Road Traffic (Vehicles Standards) Regulations reg 60 is a valid exercise of the Governor's power
Category: A
Representation:
Counsel:
Plaintiff: No appearance
Defendant: No appearance
Solicitors:
Plaintiff: Solomon Brothers
Defendant: State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Abson v Fenton (1823) 1 Barnes Cress 195; 107 ER 73
Esmonds Motors Pty Ltd v The Commonwealth (1970) 120 CLR 463
Ex parte McGuigan (1923) 40 WN(NSW) 129
Gibson v Mitchell (1928) 41 CLR 275
Minister of Agriculture and Fisheries v Price (1941) 2 KB 116
Morton v Union Steamship Co of NZ Ltd (1951) 83 CLR 402
R v Comptroller‑General of Patents Ex parte Bayer Products Ltd (1941) 2 KB 306
Retirement Benefits Board Fund Board v Hingston [1997] TasR 134
Shanahan v Scott (1957) 96 CLR 245
Willocks v Anderson (1971) 124 CLR 293
McKECHNIE J:
How this matter comes to court
The Governor in Council is the constitutional head of the Executive.
The Director General of Transport is the Chief Executive Officer of the Department of Transport, one of the executive ministries.
He submits the Governor acted beyond power in proclaiming a regulation that gives a citizen a right to have judicially reviewed, a decision made by the Director General.
The parties filed comprehensive submissions and were content for a decision to be made without oral argument.
The factual background
The plaintiff has a trucking business transporting livestock. Before November 2002 the plaintiff operated a number of B‑double trailers with a total deck length exceeding 18.8 metres.
On 1 November 2002 the Road Traffic (Vehicle Standards) Regulations 2002 (WA) and rules provided that a B‑double trailers built to carry cattle, sheep, pigs or horses, the two semi trailers must not have over 18.8 metres of their combined length available for the carriage of animals: r 63(2).
For some years thereafter the plaintiff was able to continue operating the trailers but in 2008 the Department of Transport decided that the rule should apply to the plaintiff's trailers. The plaintiff was granted a ministerial exemption from the rule until 30 June 2010. The Director General gave a further exemption until 31 December 2010. After reconsideration, the Director General declined to further extend the exemption and the plaintiff applied to the Magistrates Court for review of the Director General's decision. The plaintiff thought this was a legitimate step because the Road Traffic (Vehicle Standards) Regulations reg 60 says:
Review of Decision
Application may be made to the Magistrates Court for review of a decision that has been reconsidered by the Director General under regulation 59.
However, the Director General finessed the plaintiff by asserting that the Governor acted beyond power in making reg 60. So the plaintiff seeks a declaration that the Magistrates Court has jurisdiction to hear the application for review.
The issue
Is reg 60 a valid regulation? Answer: Yes.
Does it give the Magistrates Court jurisdiction? Answer: Yes.
To explain why, it is necessary to consider a number of statutes and apply principles from a series of cases.
Road Traffic Act 1974 (WA) and regulations
A general regulation making power is in pt IX entitled 'Regulations etc'. Section 111(1):
The Governor may make regulations for any purpose for which regulations are contemplated or required by this Act and may make all such other regulations as may, in his opinion, be necessary or convenient for giving full effect to the provisions of, and for the due administration of, this Act, for the licensing, equipment and use of vehicles and for the regulation of traffic, generally.
Regulatory power for the Director General to grant exemptions from regulations was inserted into the Road Traffic Act in 2006: s 111(2)(d). Part 6 (entitled 'Director General's exemptions under section 111AB(2)') was added to the Road Traffic (Vehicle Standards) Regulations 2002 (WA) on 10 June 2008. Division 4 deals with 'Reconsideration and review', and sets out a process for reconsideration and gives a person affected certain rights, including written reasons, and provides for review of a reconsidered decision under reg 60.
Some years prior to the proclamation of reg 60, the State Administrative Tribunal (SAT) was established. Jurisdiction was conferred by the State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA). Division 115 expressly referred to the Road Traffic Act 1974 (WA) and amongst other things expressly moved appeals from the court of petty sessions to SAT.
The Director General's powers for vehicle licensing are set out partly in the Road Traffic Act and partly in the regulations. Review in any case where an application for the grant, renewal, transfer or variation of a vehicle licence had been refused or cancelled or suspended by the Director General was transferred to SAT (RTA s 25).
The powers of the Director General to review an authority to drive are set out mainly in the regulations. Road Traffic Act s 48 was amended to provide for a review to SAT from the Director General's decision about a person's authority to drive.
The Director General's powers over vehicle standards at issue here, are entirely set out in the regulations.
The general legislative intent to be inferred is that Parliament intended the exercise of administrative powers would be subject to review. In two areas the review is by SAT. The question is whether Parliament intended that the Governor could regulate for review in the third case.
Parliament thought it was important to provide a review of the Director General's decision in administrative decisions affecting citizens' rights. This would support the exercise of a necessary and convenient regulation power to provide for a review. However, Parliament also has expressed a clear preference to take review powers from the Magistrates Court and place them in SAT at least where the Act rather than the regulations is the principle source of the Director General's power.
SAT's jurisdiction can only be conferred by an enabling Act not by written law: State Administrative Tribunal Act 2004 pt 3. The President is a Supreme Court Judge and Deputy Presidents are District Court Judges. An attempt to invest SAT with jurisdiction through subsidiary legislation may be met by the argument that found favour in Willocks v Anderson (1971) 124 CLR 293 and Retirement Benefits Board Fund Board v Hingston [1997] TasR 134. The vesting of jurisdiction in a superior court has a number of consequences so it is proper that Parliament should expressly do so.
The same may not necessarily be said about the Magistrates Court, the predecessor of which did in times gone past exercise judicial review of administrative decisions under a range of statutes and regulations.
The authorities
The overarching principle is that regulations cannot widen the purposes of the Act and are ancillary. Regulations cannot vary the Parliamentary plan or scheme: Shanahan v Scott (1957) 96 CLR 245, 250.
In Willocks v Anderson (298) the majority held that a regulation purporting to grant jurisdiction to the High Court concerning elections was invalid both for constitutional reasons: (Constitution s 76) and because the regulations were not confined to the same field of operations as that marked out by the Act itself but attempted to widen the purpose and add a means of carrying them into effect which the Act did not contemplate.
Willocks v Anderson was followed by Underwood J in Retirement Benefits Fund Board v Hingston (144).
In Ex parte McGuigan (1923) 40 WN(NSW) 129 Ferguson J (Campbell J and Ralston AJ concurring) in respect of regulations made under a necessary and convenient power held that the regulation was beyond power because it conferred on a court a jurisdiction which hitherto it did not possess. There was nothing in the Act which authorised jurisdiction to be conferred by regulation. As shown later, Ex parte McGuigan is distinguishable because of different legislation in Western Australia.
Two English decisions on a similar expression 'necessary or expedient' may perhaps be explained by the exigencies of war. In R v Comptroller‑General of Patents Ex parte Bayer Products Ltd (1941) 2 KB 306 the court held that it had no jurisdiction to investigate the reasons which impelled the King to reach the conclusion that it was necessary or expedient to make the regulation or to enquire whether the making of the regulation was in fact necessary or expedient to effect any of the specified purposes.
In Minister of Agriculture and Fisheries v Price (1941) 2 KB 116 it was held that the reasonableness of a direction made under the Defence (General) Regulations 1939 was immaterial in determining whether it was necessary or expedient.
These cases stand outside the general run of decisions commencing with Abson v Fenton (1823) 1 Barnes Cress 195; 107 ER 73 where Abbott CJ imported a test of reasonableness to a necessary and convenient power. So also did Barwick CJ in Esmonds Motors Pty Ltd v The Commonwealth (1970) 120 CLR 463 at 466, 467.
Even so, the question whether a regulation is necessary or convenient must be answered by what the Governor may regard as necessary or convenient unless the regulation is so unreasonable as to be beyond power: Gibson v Mitchell (1928) 41 CLR 275, 279. The ambit of the power must be ascertained by the character of the statute and its provisions. If an act lays down only main outlines of policy and gives the Governor power to work out the policy by specific regulation, the power may have a wide ambit: Morton v Union Steamship Co of NZ Ltd (1951) 83 CLR 402, 410.
A regulation giving a right of review from an administrative decision is clearly reasonable. Moreover, it is something Parliament expressly allowed in other sections of the Road Traffic Act. All that is different is that jurisdiction is vested in the Magistrates Court, not SAT. Vehicle standards is a topic where Parliament was content for the field to be entirely covered by regulation, even to the extent of adopting national standards (Road Traffic Act s 111A). The Director General's power over vehicle standards comes entirely from regulation and the Governor has no regulatory power to invest SAT with jurisdiction. An alternative review, permissible under statute, is necessary, convenient and reasonable.
Although the cases provide valuable guidance, the statutory context is also important. I have set out some relevant statutes. I now add two more.
The Magistrates Court Act s 9:
The Court has the jurisdiction conferred on it by this Act and by other written laws.
Magistrates' functions are similarly defined.
A written law includes a regulation: Interpretation Act 1984 (WA) s 5.
Regulations are subject to parliamentary scrutiny and, if necessary, disapproval (Interpretation Act s 42) so the Governor's power is not unlimited.
Parliament has expressly contemplated the conferral of jurisdiction on the Magistrates Court by regulation. There is no constitutional prohibition against a regulation investing jurisdiction in the Magistrates Court such as there might be with a constitutional court, such as the High Court or even a Supreme Court.
Conclusion
I hold that the conferral of jurisdiction by regulation is contemplated by Parliament. The Road Traffic Act deals only very generally with vehicle standards allowing the Governor full scope to regulate such standards and the exercise of power by the Director General in exempting compliance. It is a necessary and convenient exercise of such power to provide for an independent review. The Governor has no power to invest SAT with jurisdiction by regulation. But, as contemplated by the Magistrates Court Act s 9, he has power to invest the Magistrates Court with review jurisdiction.
The plaintiff is entitled to a declaration that reg 60 of the Road Traffic (Vehicle Standards) Regulations is valid.
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