Benson v Northern Ireland Road Transport Board
| Jurisdiction | England & Wales |
| Judge | The Lord Chancellor,Lord Atkin,Lord wright,Lord Porter |
| Judgment Date | 04 March 1942 |
| Judgment citation (vLex) | [1942] UKHL J0304-1 |
| Date | 04 March 1942 |
| Court | House of Lords |
[1942] UKHL J0304-1
House of Lords
Lord Chancellor
Lord Atkin
Lord Wright
Lord Porter
After hearing Counsel, as well on Tuesday the 13th and Wednesday the 14th, days of January last, as on Monday the 9th day of February last, upon the Petition and Appeal of Albert Benson, of Trummery, Moira, in the County of Down, Northern Ireland, praying that the matter of the Order set forth in the Schedule thereto, namely, an Order of His Majesty's Court of Appeal in Northern Ireland, of the 9th of May 1940, might be reviewed before His Majesty the King, in His Court of Parliament, and that the said Order might be reversed, varied, or altered; or that the Petitioner might have such other relief in the premises as to His Majesty the King, in His Court of Parliament, might seem meet; as also upon the joint printed Case of the Appellant and of the Respondents, the Northern Ireland Road Transport Board, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of His Majesty the King assembled, That the said Order of His Majesty's Court of Appeal in Northern Ireland, of the 9th day of May 1940, complained of in the said Appeal, be, and the same is hereby, Discharged; and that the Judgment of the Resident Magistrate for the City of Belfast, of the 28th day of February 1939, be, and the same is hereby, Restored: And it is further Ordered, That the Respondents do pay, or cause to be paid, to the said Appellant the Costs incurred by him in the Court of Appeal in Northern Ireland and in the Belfast Recorder's Court, and do also repay, or cause to be repaid to the said Appellant the costs paid by him to the said Respondents in the Court of Appeal in Northern Ireland and in the Belfast Recorder's Court: And it is further Ordered, That the Respondents do pay to the said Appellant the Costs incurred by him in respect of the said Appeal to this House, the amount of such last-mentioned Costs to be certified by the Clerk of the Parliaments: And it is also further Ordered, That the Cause be, and the same is hereby, remitted back to the Belfast Recorder's Court, to do therein as shall be just and consistent with this Judgment.
My Lords,
This Appeal is brought to your Lordships' House from an Order of the Court of Appeal in Northern Ireland which by a majority (Andrews L.C.J. and Murphy L.J., Babington L.J. dissenting) arrived at the conclusion that section 15, subsection (1), of the Road and Railway Transport Act (Northern Ireland), 1935, was not ultra vires of the Parliament of Northern Ireland, and that the decision of the Resident Magistrate (Mr. W. F. McCoy, K.C.) dismissing the complaint of the Respondent Board against the Appellant that the Appellant had committed a breach of the section should be reversed.
Subsection (1) of section 15 of the Act of 1935 provides as follows: —
"A person other than the Board shall not use a motor vehicle on any public highway for the conveyance of passengers or their luggage or the carriage of merchandise for hire or reward, except with the consent in writing of the Board and the approval of the Ministry of Home Affairs."
Before the Resident Magistrate, the Appellant admitted that he had disregarded the prohibition contained in this section, for he had, after the Act came into force on July 16th, 1935, used a motor vehicle on a public highway for the carriage of merchandise for hire and reward, and he had not received the consent for so doing which is referred to in the section. But he contended that the section was of no effect, on the ground that this section, read in conjunction with section 5 of the Act, was beyond the legislative power of the Parliament of Northern Ireland to enact, in view of the limitations imposed by the Imperial Statute, the Government of Ireland Act, 1920 (10 & 11 Geo. V. c. 67). The material words of section 5 (1) of the Northern Ireland Act are— "The Board" (i.e. the Respondents) "shall, within a period of six months from the day on which this Act comes into operation … acquire every road motor undertaking operated for hire or reward in Northern Ireland", and "In this subsection the expression 'operated' means operated immediately before the passing of this Act and then providing a road transport service which had been commenced before the first day of June 1934". By section 5 of the Imperial Statute it is (amongst other things) provided that the Parliament of Northern Ireland shall not have power to "make a law so as either directly or indirectly to … take any property without compensation." The Appellant had not begun to operate his road motor undertaking until after June 1st, 1934, and therefore received no compensation from the Respondent Board. Accordingly he contended that the effect of the Act of 1935 was to "take" property of his, to wit, the goodwill of his business, without compensation. For reasons which will appear, I abstain from any comment on these contentions or on this conception of the meaning of "goodwill".
The Resident Magistrate decided in the Appellant's favour and accordingly dismissed the complaint, "on the merits", and ordered that the Respondents should pay him 8 guineas for costs. Thereupon the Respondents gave notice of appeal to the General Sessions of the Peace for the County of the City of Belfast, alleging that they, the complainants in the original proceeding, were "aggrieved by the Order of the Resident Magistrate". When the case came before the Deputy Recorder of Belfast at Quarter Sessions, no one took the objection that, in cases of a criminal nature, where a court of summary jurisdiction has discharged the person summoned and has dismissed the complaint, no appeal lies. The Deputy Recorder heard the appeal out and reached the same conclusion as had the Resident Magistrate on the constitutional point. On a subsequent application, the Deputy Recorder was requested to state a Case under section 26 of the Summary Jurisdiction and Criminal Justice Act (Northern Ireland), 1935. He did so, and the third of the questions of law raised in the Case Stated is whether he was right in holding "that the decision of the Resident Magistrate in dismissing the said summons should be affirmed". The Case Stated came before the Court of Appeal in Northern Ireland, which had the assistance of the Attorney-General as amicus...
To continue reading
Request your trial
- Davern v Messel
-
Fitzpatrick v Farmer Bros
...Norwich Corporation v. Norwich Electric Tramways Co. Ltd.ELR [1906] 2 K.B. 119 and Benson v. Northern Ireland Road Transport BoardDLTR 76 I.L.T.R. 106 approved; 3, that the High Court was the proper forum in which to invoke the provisions of sub-ss. (2) and (5) of s. 20 of the Workmen's Com......
-
Strachan v The Gleaner Company Ltd et Al
...taken in the court below ( Westminister Bank v. Edwards [1942] A.C. 529; [1942] 1 All E.R. 470, Benson v. North Ireland R.I.B. [1942] 1 All E.R. 465, 469.) Therefore, it seems to be quite illogical to argue, and a clear procedural irregularity to require, that leave to appeal is required......
-
Magmoed v Janse van Rensburg and Others
...1925 AD 378; R v H Adams and Others 1959 (3) SA 753 (A) at 764A-F.) As to English law, see Benson v Northern Ireland Road Transport Board 1942 AC 520 (HL) ([1942] 1 All ER 465); and Walker and Walker The English Legal System 5th ed at 506, describing the Criminal Justice Act 1972 which for ......