Recent Judgments Fee For Crown After Goods Carried Illegally

Press, Volume C, Issue 29682, 28 November 1961, Page 20

Recent Judgments Fee For Crown After Goods Carried Illegally

Attorney-General v. McKinnie, McKinnie tßv a Legal Correspondent) Before Mr Justice Leicester, at Napier. Where any carrier is convicted of unlawfully carrying on a goods-service by road, he must pay to the Crown a sum equal to the railway freight if the goods had been carried by road only to the extent lawfully permissible. The judgment shows that the amount so payable is equivalent to compensation to the Railways Department for what it has lost in freight, and no more.

The respondents were in partnership in Napier as carriers and were entitled under their licence' to transport their own road-making machinery, spare parts, and company gear in No. 6 Transport District. In July, 1960, they committed a breach of that licence by transporting a loader-dozer belonging to them on a road south of Woodville and were convicted and each were fined the sum of £5 with costs. The Crown then sought to recover the amount to which it was entitled under 5.968 of the Transport Act 1949 (inserted in 1959), which reads as follows: “96t8. Where any person is convicted of an offence of carrying on a goods service within the meaning of section 96 of this act otherwise than pursuant to the authority and in conformity with the terms of a goods-service licence granted under this part of this act, or an offence against any regulations made under this act which provide that goods shall be carried by road only so far as is necessary to permit of their carriage by railway, then, in addition to any penalty imposed ip respect of the offence, there shall be due by the defendant as a debt owing in the Crown a sum equal to the amount that would have been payable to the New Zealand Government Railways Department as freight at the appropriate goods freight rate if the goods had been carried by road only to the extent lawfully permissible. Any amount recovered under this section shall be paid into the Working Railways Account.” The issue between the parties was whether the amount which the Crown was entitled to recover should be the appropriate freight charges by the New Zealand Railways Department for a loader-dozer from Palmerston North to Waipukurau, amounting to £23 5s or the appropriate freight charges from Palmerston North to Woodville, amounting to £7 18s 6d (which the respondents had paid). The Crown had issued a summons for the balance of £l5 6s. In July, 1960, the defendants transported from Palmerston North to Waipukurau a loader-dozer belonging to them by way of a truck of theirs operating under Vehicle Authority 8105994. The southern boundary of the No. 5 Transport District is Woodville. The truck was stopped by a traffic officer a few miles south of Woodville at the time of the transport referred to. In an oral judgment, the learned magistrate found for the respondents. He considered that the amount payable under the section was inteded to be compensation to the Government Railways Department for the loss of earnings, the penal aspect being taken care of under the provision which entitled the Court to impose a fine for the breach. The Crown appealed. Licensed DMM Mr Justice Leicester, in his judgment on the appeal, said it did not seem to him that the length of the journey, based upon any concept as to illegality during part of it, altered the nature of the payment due to the department

under the section. Distance lent no enchantment to the view that, where the journey commenced outside the licensing district and continued in part within that district, the offending carrier was to be penalised under the section not only for the illegal portion of the transport, but also for the whole journey that he had undertaken. The right of the department in the present case under the section arose from breach of the licence not from any contract between the department and the licensees, and the offence was complete when the carriage of the permitted goods ceased to be in an unlicensed district and entered upon the licensed one. His Honour went on to say that the section itself did not declare that, in circumstances such as existed in the present case, the whole of the journey is to be regarded as illegal and the department entiled to recover for the full journey within and without the scope of the licence. The section is a penal one, he continued, and requires to be construed in accordance with s. 5 (j) of the Acts Interpretation Act, 1924, in the light of what will “best ensure the attainment of the

object of the act and of such' provision or enactment according to its true intent, meaning and spirit.” Real Question The real question, his Honour added, was whether the section requires that, in addition to any penalty imposed in respect of the offence, the offending licensee is required to pay for the whole journey and thereby to benefit the Crown both to the extent of the illegal carriage and to the extent of that portion of the journey over which he is entitled to carry in terms of his licence. The learned judge said he would regard any such interpretation of the act as punitive rather than remedial; but he was not satisfied that the interpretation was the expressed or manifest intention of the act, or that it would be so understood by those carriers who, as a condition of their being permitted to carry by road against the Railways Department, have to work within the terms of the licence. The construction sought by the appellant would require the Court virtually to discard the words "only to extent lawfully permissible.” His Honour did not favour any such construction against one that, to his mind, gave a more reasonable meaning to the remedial nature of the section, nor did he think that the appellant’s contention derived any strength by invoking s96a which had been passed to correct an abuse that stemmed from a different situation. The appeal was dismissed with costs of £lO 10s to the respondents. Counsel: For the appellant, Callen; for the respondents, Fabian. Solicitors: For the appellant, Lusk, Willis, Sproule and Woodhouse (Napier); for the respondents, Mason, Dunn and Fabian (Napier).