Pirrie v McFarlane

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*.