Tungamah Shire v Merrett - [1912] HCA 63

PRESIDENT &. OF THE SHIRE OF

APPELLANTS; TUNGAMAH

MERRETT AND ANOTHER

RESPONDENTS.

ON APPEAL FROM THE SUPREME COURT OF Local Government - By-law - Validity - Traction Engine - "Vehicle - Local H. C. OF

Government Act 1903 (Vict.) (No. 1893) secs. 197 (23), (29), (34), 495, 594.

By sec. 197 of the Local Government Act 1903 (Vict.) it is provided that a municipality may make by-laws for the following purposes (inter alia) :-

" (23) Regulating the hours during which and conditions on which loco- motive engines or rollers impelled by steam or electricity may proceed over any road."

" (29) Prohibiting or regulating the use on any road of any vehicle not having the nails on its wheels countersunk in such manner as may be specified

15 CLR 408

in such by-law or having on its wheels any bars spikes or other projections forbidden by such by-law."

(34) Generally for maintaining the good rule and government of the municipality."

By sec. 594 it is provided that "it shall be lawful for any municipality to make by-laws not inconsistent with the provisions of this Part for regu- lating the hours during which and conditions on which traction engines may proceed over any street or road."

Held (Isaacs J. doubting), that a traction engine is a "vehicle?" within the meaning of sec. 197 (29).

Ahern v. Cathcart, (1909) V.L.R., 132; 30 A.L.T., 156, overruled.

A municipality made a by-law prohibiting the use on a public highway of any traction engine having on its wheels any bars, spikes, grips, or other projections, but providing that this prohibition should not apply to (a) any traction engine used only for hauling agricultural machinery if the projections on the driving wheels conformed to certain specified conditions; (b) any trac. tion engine the driving wheels of which were cylindrical and smooth soled and had no other projections than those specified, provided that in the last- mentioned case the owner of the traction engine had previously obtained the written permission of an officer of the Council to use it on specified roads and that it was used on those roads, and that the owner had agreed in writing to pay the cost of any damage that might be done to any road, bridge or culvert by the engine or any vehicle drawn by it. The by-law further provided that no person should use in any public highway any traction engine unless there were carried on the engine, or on some vehicle drawn by it, four wooden planks of specified dimensions upon which the engine should cross over any bridge or culvert.

Held, that the by-law was within the power conferred by secs, 197 and 594, Decision of the Supreme Court of Victoria: Merrett v. President &. of the Shire of Tungamah, (1912) V.I.P., 248 34 A.L.T., 35, reversed.

APPEAL from the Supreme Court of Victoria.

The President, Councillors and Ratepayers of the Shire of Tungamah, purporting to act under secs. 197 (29) and…

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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Details

Case: [1912] HCA 63
Decision Date: 14 October 1912

CaseChat Overview and Summary

The High Court of Australia heard an appeal from the Supreme Court of Victoria concerning the validity of a by-law enacted by the Shire of Tungamah. The dispute arose when the Shire made a by-law prohibiting the use of traction engines with certain wheel projections, while providing exceptions and conditions for their use, and also mandating the carrying of wooden planks for crossing bridges and culverts. The respondents sought to have the by-law quashed, arguing it was beyond the Shire's statutory powers and unreasonable.

The legal issues before the High Court were whether a traction engine constituted a "vehicle" within the meaning of section 197(29) of the *Local Government Act 1903* (Vic.), and whether the by-law's provisions, including those regulating wheel projections and requiring the carriage of planks, were within the powers conferred by sections 197 and 594 of the Act. Specifically, the Court had to determine if the Shire had the authority to prohibit or regulate traction engines with specific wheel configurations and to impose conditions such as requiring permits, agreements to pay for damages, and the carrying of planks for bridge crossings.

The High Court, by majority, held that a traction engine is a "vehicle" for the purposes of section 197(29), overturning the previous decision of the Supreme Court in *Ahern v. Cathcart*. The Court reasoned that the term "vehicle" in the context of the Act, particularly when considering its evolution and the types of machinery in use, should be interpreted broadly to include self-propelled engines that travel on wheels. Furthermore, the Court found that section 594, which specifically grants power to regulate the conditions on which traction engines may proceed over roads, also supported the validity of the by-law. The Court concluded that the provisions of the by-law, including the regulation of wheel projections, the requirement for permits, the agreement to pay for damages, and the mandate to carry planks, were all reasonable conditions and fell within the powers granted to the Shire under the Act.

Consequently, the High Court allowed the appeal, reversing the decision of the Supreme Court and upholding the validity of the by-law. The order to quash clauses 1 and 8 of the by-law was set aside.

Orders