Shepherd v New South Wales

In an action before the High Court of Australia, George William Shepherd (the plaintiff) sought to recover moneys paid to the Superintendent of Motor Transport in New South Wales for permits to operate commercial goods vehicles in inter-State trade. The State of New South Wales (the defendant) relied on section 27 of the Transport (Division of Functions) Act 1932-1956, which imposes a one-year limitation period for actions against certain officials and persons acting under the Act. The plaintiff contended that this limitation period was either invalid or inapplicable to his claim, particularly in light of section 92 of the Constitution, which guarantees freedom of inter-State trade.

The central legal issue before the Full Court was whether section 27 of the Transport (Division of Functions) Act, in its original or amended form, barred the plaintiff's action. This involved determining whether the State of New South Wales could be considered a "person" within the meaning of section 27, and whether the section, or its 1956 amendment, was invalid or inapplicable due to constitutional provisions, specifically section 92. The Court was asked to consider the validity and applicability of section 27 in relation to both the original 1940 enactment and the 1956 amendment, and whether these provisions ultimately barred the plaintiff's recovery.

The Court reasoned that the word "person" in section 27 of the Transport (Division of Functions) Act, even when interpreted in light of section 21 of the Interpretation Act 1897 (N.S.W.) which includes "bodies politic and corporate," did not extend to the State of New South Wales itself. The protective nature of section 27, aimed at shielding officers and those acting under statutory authority, and the inappropriateness of related provisions like section 28 (requiring notice of action at an office) to the Crown, demonstrated that the legislature did not intend to include the State within its scope. Consequently, the Court found that section 27, in either its unamended or amended form, did not apply to the State as a defendant.

The Court ordered that so much of section 27 as was enacted by section 5 of Act No. 16 of 1956 was invalid in its application to causes of action arising from the operation of section 92 of the Constitution, specifically for causes of action accruing before 13th September 1955. Furthermore, section 27 as enacted in 1940 was found to be inapplicable to the plaintiff's action. Accordingly, the plaintiff was not barred by section 27 from recovering against the defendant, provided the action was otherwise maintainable. The costs of the special case were ordered to be paid by the defendant.