Schubert v Lee

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.