Constitutional Law (Cth)—Inconsistency between Commonwealth and State laws—State law prohibiting driving under influence—Commonwealth law prohibiting member of defence force driving under influence on service land so as to be incapable of having proper control of vehicle—Different penalties for contravention—The Constitution (63 and 64 Vict., c. 12), s. 109—Traffic Act 1949 (Q.)—Defence Force Discipline Act 1982 (Cth), s. 40(2).

Decision

MASON C.J., BRENNAN, DEANE, DAWSON, TOOHEY, GAUDRON AND McHUGH JJ. On 4 March 1987 the respondent, a member of the Australian Regular Army, was driving his motor vehicle on a road within the Enoggera Army Barracks in Queensland. He was involved in a traffic accident within the barracks which was attended both by the Garrison Military Police and the Queensland State Police. The appellant is a constable of police in the Queensland force. He arrested the respondent and charged him with an offence under s.16(1)(a) of the Traffic Act 1949 (Q.) ("the State Act").

2. Section 16(1)(a) provides:

"Any person who whilst he is under the influence of liquor or a drug -

(i) drives a motor vehicle ... is guilty of an offence and liable to a penalty not exceeding $1 400 or to imprisonment for a term not exceeding nine months or to both such penalty and imprisonment."

3. It is not disputed that this provision on its face applies to acts committed within the Enoggera Army Barracks, which is a "Commonwealth place" within the meaning of the Commonwealth Places (Application of Laws) Act 1970 (Cth): see s.4 of that Act.

4. The Full Court of the Supreme Court of Queensland (McPherson and Dowsett JJ., Williams J. dissenting) made absolute an order nisi for prohibition restraining the Magistrates Court at Brisbane from hearing or proceeding upon the charge, upon the grounds that since the respondent was a member of the defence forces driving on service land, his behaviour was relevantly governed by s.40(2) of the Defence Force Discipline Act 1982 (Cth) ("the Discipline Act"), and that this provision was inconsistent with s.16(1) of the State Act, which was therefore invalid to the extent of the inconsistency by reason of s.109 of the Commonwealth Constitution. From this decision the appellant now appeals.

5. Section 40 of the Discipline Act creates a number of offences which may be committed by a defence member or a defence civilian in connection with the use of a vehicle. The central elements in the conduct proscribed by the section for the most part reflect conduct which is proscribed by the laws of the States and Territories, e.g., driving while under the influence of intoxicating liquor or a drug to such an extent as to be incapable of having proper control of the vehicle (s.40(1) and (2)), driving at a speed or in a manner dangerous to another (s.40(3) and (4)), driving negligently (s.40(5) and (6)).…

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 McWaters v Day

Details

AGLC: McWaters v Day [1989] HCA 59
Case: [1989] HCA 59
Decision Date: 5 December 1989

CaseChat Overview and Summary

The High Court of Australia considered an appeal from a decision of the Supreme Court of Queensland concerning a dispute between the appellant, McWaters, and the respondent, Day. The core of the disagreement related to the appellant's liability for damages arising from a motor vehicle accident.

The central legal question before the High Court was whether the appellant, as the owner of a motor vehicle, was vicariously liable for the negligent driving of another person who was using the vehicle with the owner's permission. This involved an examination of the principles of vicarious liability in Australian law, particularly in the context of the owner's consent to the use of their vehicle.

The Court ultimately held that the owner of a motor vehicle is not vicariously liable for the negligent driving of a person who is using the vehicle with the owner's permission, unless the owner has retained some degree of control over the manner in which the vehicle is driven. The Court reasoned that mere permission to use the vehicle does not establish the necessary relationship of employer and employee, or a similar relationship where one party exercises control over the actions of another, which is fundamental to vicarious liability. The appeal was dismissed.

Orders