Road Traffic (W.A.)-Obstruction of road or footpath- Road Lane not dedicated
to public as highway-Open to and used by public-Necessity to prove actual interference with other persons-Traffic Act 1919-1941 (W.A.) (No. 60 of 1919- No. 16 of 1941), S. 4-Interpretation Act 1918-1938 (W.A.) (No. 30 of 1918- No. 28 of 1938), S. 39-Traffic Regulations, reg. 327.
The Road Traffic Act 1919-1941 (W.A.), S. 4, provides that, subject to the context, Road means and includes any street, road, lane, thoroughfare, footpath or place open to or used by the public." The Interpretation Act 1918-1938 (W.A.), S. 39, makes the definition applicable to regulations made
Regulation 327 of the Traffic Regulations provides "No person shall either alone or with another behave, act or stand on any road or footpath SO as to obstruct the free passage of traffic along, through or upon the same, nor loiter nor act in any way to the annoyance of other pedestrians."
Held, (1) that a lane falls within the definition of "road" in S. 4 of the Traffic Act if it is in fact "open to or used by the public," whether or not there is a public highway over it; (2) that the definition of "road" in the Act applies to reg. 327.
Held, also, that in order to establish that a highway has been obstructed within the meaning of reg. 327 it is not necessary to prove that any person has actually been impeded in his use of the street. If there is a lessening in a substantial degree of the commodiousness of the use of the highway for
legitimate purposes by using it for purposes other than a highway it is unimportant that upon a particular occasion no member of the public was in fact impeded.
APPLICATIONS for special leave to appeal from the Supreme Court of Western Australia.
Albert Schubert and Thomas Morris applied for special leave to appeal from a judgment of the Supreme Court of Western Australia upholding convictions by a police magistrate of offences against reg. 327 made under the Traffic Act 1919-1941 (W.A.).
The charge against Schubert was that he stood with others in a lane off Fifth Avenue in such a manner as to obstruct the free passage of traffic along the same contrary to reg. 327. There was evidence that he was accepting bets with members of the public in a T-shaped passage which ran alongside and between separately occupied allotments of land. It was not established positively that the lane had ever been dedicated to the public as a highway. There was evidence that it was in fact regularly used by the public. It was shown that some twenty persons had collected in the lane, apparently for the purpose of betting with Schubert. He was convicted and sentenced to seven days' imprisonment.
Schubert appealed to the Supreme Court on the grounds, inter alia, that the magistrate was wrong in deciding that the lane was a road within…
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
Schubert v Lee [1946] HCA 28
Case
[1946] HCA 28
Decision Date
CaseChat Overview and Summary
This case involved applications for special leave to appeal from the Supreme Court of Western Australia, which had upheld convictions against Albert Schubert and Thomas Morris for offences under regulation 327 of the Traffic Regulations. The regulation prohibited obstructing the free passage of traffic on any road or footpath. Schubert was charged with obstructing a lane by accepting bets, and Morris was charged with obstructing a road in a similar manner. Both argued that the lane was not a "road" as defined by the Traffic Act, that the definition did not apply to the regulation, and that there was no actual obstruction.
The High Court was required to determine whether a lane used by the public, but not formally dedicated as a highway, constituted a "road" within the meaning of section 4 of the Traffic Act and if this definition applied to regulation 327. Furthermore, the Court had to consider whether proof of actual impedance of traffic was necessary to establish an obstruction under regulation 327, or if a substantial lessening of the commodiousness of the highway for legitimate purposes was sufficient.
The Court reasoned that the definition of "road" in section 4 of the Traffic Act, which includes any "street, road, lane, thoroughfare, footpath or place open to or used by the public," applied to regulation 327. It held that a lane falls within this definition if it is in fact "open to or used by the public," irrespective of whether a public highway exists over it. The Court also determined that proving actual impediment of traffic was not necessary to establish an obstruction. Instead, a substantial reduction in the usability of the highway for its intended purposes, due to its use for other activities, constitutes an obstruction, even if no one was actually impeded on a particular occasion. The Court found that the activities of betting in the lane and on the road, which led to congregations of people, constituted a use foreign to the purpose of a highway and therefore amounted to an obstruction.
The applications for special leave to appeal were dismissed.