McFARLANE High Court-Jurisdiction-Question as to limits inter se of constitutional powers of
Commonwealth and State-Appeal to Supreme Court of State from inferior Court-Removal to High Court-Exclusion of jurisdiction of Supreme Court- Appeal to Privy Council-Proceedings in High Court-The Constitution (63 &64 May 21.
Vict. C. 12), secs. 51 (XXXIX.), 74, 75, 76, 77 (II.)-Judiciary Act 1903-1920 (No. 6 of 1903-No. 38 of 1920), secs. 30, 38, 38A, 39, 40A, 41. Aug 24.
Constitutional Law-Application of State Act to servant of Commonwealth-Regulation
of traffic-Soldier driving motor-car without licence-Inconsistency between Commonwealth and State laws-Motor Car Act 1915 (Vict.) (No. 2702), secs. 6, 10, 24-The Constitution (63 &64 Vict. c. 12), secs. 51 (VI.), 52, 69, 106, 107, 109-Defence Act 1903-1918 (No. 20 of 1903-No. 47 of 1918), secs. 33, 43, 52, 65, 66, 68, 69, 70, 71, 81, 108-Air Force Act 1923 (No. 33 of 1923), sec. 3-Australian Military Regulations 1916 (Statutory Rules 1916, No. 166), regs. 488, 494-Air Force Regulations 1922 (Statutory Rules 1922, No. 160), reg. 3.
Sec. 40A of the Judiciary Act 1903-1920 is a valid exercise of the power conferred upon the Commonwealth Parliament by secs. 77 (II.) and 51 (XXXIX.)
A question as to the limits inter se of the constitutional powers of the Commonwealth and those of a State arises, within the meaning of sec. 40A of the Judiciary Act 1903-1920, in cases in which a decision upon either of the following questions is required for the determination of the case: (a) whether such a State Act as the Motor Car Act 1915 (Vict.) binds persons who are also officers of the defence force of the Commonwealth; (b) whether the
OF AUSTRALIA. provision of sec. 40A ousting the jurisdiction of the State Courts and removing the cause to the High Court is effective.
Held, by Knox C.J.. Higgins and Starke JJ. (Isaacs and Rich JJ. dissenting), that there is nothing in the Constitution that expressly or impliedly exempts members of the defence force from the State motor-car legislation that McFARLANE. sec. 6 of the Motor Car Act 1915 (Vict.), SO far as it prohibits any person from driving a motor-car on a public highway without being licensed for that purpose, is not, in the absence of any provision in a Commonwealth law giving to members of the defence force immunity from State laws regulating the use of motor-cars, inconsistent with any provision in the Air Force Act 1923 or the Defence Act 1903-1918, and, consequently, is not rendered invalid by sec. 109 of the Constitution: that sec. 6 of the Motor Car Act. on its proper construction, applies to all persons driving a motor-car on a public highway and, therefore, that a member of the Royal Australian Air Force who, not being licensed in accordance with the Motor Car Act, drives a motor-car on public highway pursuant to an order of his superior officer, is guilty of an
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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.
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AGLC
Pirrie v McFarlane [1925] HCA 30
Case
[1925] HCA 30
Decision Date
CaseChat Overview and Summary
The case involved William George Pirrie, who charged Thomas McFarlane with driving a motor vehicle on a public highway without a licence, contrary to the Victorian *Motor Car Act 1915*. McFarlane, a member of the Royal Australian Air Force, argued that he was acting under orders from his superior officer and on Air Force business at the time of the alleged offence. The Police Magistrate dismissed the information, finding that the State Act, if applied to a Commonwealth Defence Department servant, would unduly interfere with executive powers and that the Act did not apply to Commonwealth servants. Pirrie obtained an order nisi to review this decision from the Supreme Court of Victoria, which, considering section 40A of the *Judiciary Act 1903-1920*, declined to proceed further, transmitting the matter to the High Court.
The High Court was required to determine several legal issues. Firstly, it had to consider whether section 40A of the *Judiciary Act* was a valid exercise of Commonwealth legislative power, and if so, whether the application to the Supreme Court constituted a "cause pending" within its meaning. Secondly, and crucially, the Court had to ascertain whether a question arose concerning the limits inter se of the constitutional powers of the Commonwealth and Victoria. This involved determining whether the Victorian *Motor Car Act* applied to members of the Commonwealth Defence Force acting in the course of their duties, and if so, whether such application was inconsistent with Commonwealth law, thereby rendering the State law invalid under section 109 of the Constitution.
A majority of the High Court, comprising Knox C.J., Higgins and Starke JJ., held that section 40A of the *Judiciary Act* was a valid exercise of Commonwealth legislative power, authorising the removal of the cause to the High Court. They found that the Victorian *Motor Car Act*, specifically section 6, did not contain any provision expressly or impliedly exempting members of the Defence Force from its requirements. The Court reasoned that while Commonwealth legislation grants authority to the Defence Force, it does not confer immunity from State laws regulating traffic unless there is a direct inconsistency. The Court distinguished *D'Emden v. Pedder* and applied the principles from *Amalgamated Society of Engineers v. Adelaide Steamship Co.*, concluding that the State Act was not inconsistent with any Commonwealth law and therefore remained valid and binding.
Consequently, the High Court held that the Police Magistrate was wrong in dismissing the charge. The Court made absolute the order nisi to review the decision of the Police Magistrate, meaning that the case would proceed to be heard on its merits, with the finding that the defendant was not exempt from the provisions of the *Motor Car Act*.