Wednesday’s ruling by Victoria’s County Court quashing the conviction of an Uber driver in a test prosecution has been reported as confirming the legality of the Uber X service in Victoria, avoiding the need for drivers and vehicle owners to obtain expensive commercial licenses. A curiosity of this week’s ruling is the role of,a High Court decision on the Uber X of 1929 Victoria (and the first ever High Court judgment of Justice Owen Dixon.)

In Blyth v Hudson [1929] HCA 3, the High Court considered the legality of a transport service from Geelong to Melbourne. The driver, George Hudson, who had been refused a commercial licence to operate a ‘motor omnibus‘ – a service for ‘carrying passengers for reward at separate and distinct fares for each passenger’ – struck a deal with the Geelong Motor Tourist Bureau, which arranged for shopkeepers to sell tickets for his service and then pay him a lump sum to drive anyone who showed up with a ticket. When he was prosecuted by William Blyth (the Country Roads Board’s Chief Inspector,) Victoria’s Supreme Court ruled that the definition of motor omnibus should be read strictly so that it didn’t cover fares paid to intermediaries, but the High Court (including Dixon J) disagreed, prophetically emphasising the need for flexibility to effectively regulate a fast-changing sector of the economy:

The Legislature doubtless supposed that the person who used the vehicle or intended it to be used would in some way be able to direct it, and that the person to whom the fares were paid would somehow be able to procure its use. But in a statute so calculated as this is to provoke the ingenuity of those who desire to avoid its operation, and affecting as it does a class of chattel commonly made the subject of so many curious and involved dealings, it would be natural for the Legislature designedly to refrain from limiting the definition by reference to any class of person by whom the vehicle must be used or intended to be used or to whom the reward or fare must be paid.

This week in the County Court, Chettle J relied on the High Court’s ruling to reject the Uber driver’s argument that his prosecutors had to prove that Uber had paid him for his passenger’s trip. It was enough for them to prove that Uber was paid by a passenger (something that the Taxi Services Commission could readily do using the receipts sent to them by Uber’s own App.)

But Chettle J ruled in favour of the driver on another ground: that he was exempt from Victoria’s scheme because he did not charge ‘separate and distinct’ fares for his passengers (in this case, two Taxi Service Commission officers) but rather a single fare for the trip. Justice Chettle made this ruling even though the limitation of Victoria’s regulatory scheme to vehicles that charge ‘separate and distinct fares’ for each passenger was dropped from Victoria’s statute book 75 years ago. He held that the old limitation still applied because of a drafting oddity: despite the 1941 widening of the scheme, Victoria’s Parliament retained a proof provision that placed the onus on the accused to prove that he or she did not charge separate and distinct fares for each passenger. Stranger still, this provision was re-enacted in successive new versions of the statute to this present day, including recently modernising its terminology. According to Chettle J, this lone provision ‘continues to thrive like a thistle. Parliament chose to amend it rather than slash it. It exists and must be given some meaning.’ He decided that it meant that the requirement discussed by the High Court in 1929 and seemingly abolished in 1941 nevertheless remained part of Victoria’s law when it comes to criminal prosecutions. In a sense, the provision is a continuing legacy of the High Court’s 1929 ruling. It was almost certainly enacted (four years later in 1933) because the High Court had emphasised  that its wide reading of the scope of Victoria’s omnibus laws must be compensated by a requirement of proof of knowledge of the fare structure by owners and operators of vehicles. Following the High Court’s lead, the Victorian Supreme Court read the reverse onus generously for defendants in 1940 to defeat a prosecution of an unlicensed bus whose driver was paid by the mile, rather than passenger. Presumably, that ruling in turn prompted the 1941 dropping of the ‘fare’ limitation. Why the reverse onus was retained and re-enacted in later statutes is a mystery.

The High Court’s 1929 decision is little known today, given the 1941 amendment. However, it was cited repeatedly in the 1930s in Victoria when the courts upheld a series of prosecutions by unlicensed omnibuses that tried to evade the regulation. One of those rulings has particular resonance today. In 1935, agents of the Transport Regulation Board played a similar role to today’s Taxi Services Commission:

Evidence was given on behalf of the informant that on the 31st May 1935 an officer of the Transport Regulation Board was driven by the defendant, in the latter’s motor car, from Camperdown to Melbourne, and paid the defendant a fare of 15s. Two other passengers were at the same time carried in the car, but there was no evidence that either of them paid the defendant any money.

This particular prosecution failed, because of the extra passengers. But a different prosecution was later brought against the same driver, this time where the Board’s officer was the sole passenger. After the prosecution cited the High Court’s 1929 judgment, the Victorian Supreme Court upheld the driver’s conviction:

if one looks at the ultimate aim of the Act, which is to prevent unlicensed people from competing with licensed carriers, common sense would seem to require a penalty for carrying one passenger just as much as for carrying two.

Just as the 1920s statutory provision and 1929 High Court decision seemingly live on in Victoria today, so too does this 1935 decision (which was implicitly endorsed when the reverse onus was re-enacted.) On my reading, the 1935 judgment may be less positive for Uber X, implying that, even if the County Court is correct to say that the ‘separate and distinct fares’ requirement remains in Victoria’s law, the Californian company’s service may still be illegal here for trips that carry only one passenger.