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Neil Kingdon Macnaughton v James Peter Garland


[1979] FC 14


O.S.C. No. 55 of 1978



Mr. Justice Stable S.P.J.

Mr. Justice Kelly

Mr. Justice Dunn


(Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Chief Court Reporter, Court Reporting Bureau.)







MR. JUSTICE STABLE: In my opinion the order to review should be discharged with costs. I agree in the reasons about to be published by my brother Kelly.

MR. JUSTICE KELLY: In my opinion the order to review should be discharged with costs. I publish my reasons.


MR. JUSTICE STABLE: Order accordingly.


O.S.C. No. 56 of 1978






Stable S.P.J.

Kelly J.

Dunn J.


Reasons for Judgment delivered by Kelly J. on the 16th March, 1979. Stable S.P.J. and Dunn J. concurring.





O.S.C. No. 56 of 1978






This is an appeal by way of order to review against the decision of a stipendiary magistrate dismissing a complaint under s. 15(1) of the Traffic Act 1949-1977 (to which I shall refer as “the Act”) that the respondent did drive a motor vehicle to wit a Yamaha motor cycle on a road not being at that time the holder of a driver's license authorising him to drive that vehicle on that road. The circumstances of the alleged “driving” were constituted by the respondent occupying the driver's seat of the motor cycle which was under tow and did not have its engine in operation. It appears to have been assumed that the reason for the motor cycle being towed was that for the time being it was not capable of being operated in a normal manner. It was not disputed that the respondent was not at the relevant tine the holder of the appropriate driver's license and the only question for determination was whether it could properly be said that he was “driving” the motor vehicle.

By s. 9 of the Act, unless the context otherwise indicates or requires, the meaning assigned to the term “Driver” is, so far as it is relevant:—

“The person driving or in charge of any vehicle, tram, train, vessel, or animal ...

The term includes the rider of vehicle or animal and in applying it so as to include the rider of a vehicle or animal the word ‘drive’ and derivatives of that word shall, where used in this Act in relation to a vehicle or animal be read as including ‘ride’ or, as the case requires, the corresponding derivative of ‘ride’”.

There is no definition of “driving”.

In the same section the meaning of “Motor vehicle” is expressed as:—

“Any vehicle propelled or designed for propulsion wholly or partly by gas, motor spirit, oil, electricity, steam, or any other mechanical power: The term includes a motor car, motor cycle,... and a trailer attached to or drawn by motor vehicle.”

The meaning of “Vehicle” is given as:—

“Includes any ... motor vehicle ... trailer ... or other means of transport or conveyance whatsoever designed for movement upon wheels, whether or not such vehicle is or is not for the time being capable of being operated or used in a normal manner, but does not include a tram or a train”.

It follows from the above definitions that the motor cycle, the driver's seat of which the respondent was occupying, was none the less a “vehicle” and hence a “motor vehicle” for the purpose of s. 15(1) notwithstanding that for the time being it was not capable of being operated in a normal manner.

The question whether a person was at the material time “driving” a motor vehicle in the relevant sense has been considered in a number of cases in both England and Victoria. It is true that the statutory provisions in relation to which the question arose in these cases differ in some respects from those which have to be considered here, but this in no way affects the concept which the courts have sought to express of what constitutes “driving”.

In Wallace -v- Major (1946) 1 K.B. 473, in which there had been a prosecution under the Road Traffic Act 1930 for driving in a manner dangerous to the public in a case where a disabled motor lorry was being towed by another motor lorry, Lord Goddard C.J., with whom the other members of the Divisional Court agreed, said, at p. 477,

“After all, we have to remember that this is a penal Act and we are bound to construe it strictly and ought not to stretch the language in any way. In my Judgment it is impossible to say that a person who is merely steering a vehicle which is being drawn by another vehicle is driving that vehicle. No doubt he is controlling it to some extent; no doubt he is doing many things which a driver would have to do; but before he can be convicted of being a person driving a motor car in a dangerous manner, it must, it seems to me, be shown that he is at least driving it; that is to say, making the vehicle go.”

In Reg. -v- MacDonagh (1974) 1 Q.B. 448, which was concerned with a motorist pushing a car on the road and putting one hand on the steering wheel in order to control its movement and which the Court of Appeal held was not enough to say that he was driving in any ordinary sense of that word, the Court reviewed a number of authorities which dealt with the meaning of “driving”. In the course of doing so, after referring to portion of the passage which I have cited from Wallace -v- Major (supra), the Court doubted the correctness of the conclusion reached in that case. However, in the course of its judgment the Court cited the following passage from the judgment of lord Parker C.J. in Reg. -v- Roberts (1965) 1 Q.B. 85, at p. 88:—

“... on the authorities, a man cannot be said to be a driver unless he is in the driving seat or in control of the steering wheel and also has something to do with the propulsion ... There are no cases, so far as this court knows, where a man has been held to be guilty of ... driving ... if, although he has something to do with the movement and the propulsion, he is not driving in any ordinary sense of the word.”

The court also referred at p. 452 to Ames -v- MacLeod 1969 J.C. 1 in which the Lord Justice-General had said, with the concurrence of the other judges, that he thought the question turned on whether the defendant was “in a substantial sense controlling the movement and direction of the car”. The Court of Appeal agreed that a person cannot be driving unless he satisfies the test adopted by the Court of Session.

In Caughey -v- Spacek (1968) V.R. 600 Winneke C.J. had to determine whether in relation to the commission of an offence under the relevant section of the Motor Gar Act 1958 a person who was steering a broken-down motor vehicle that was being towed by another vehicle was driving the broken-down vehicle. In dealing with the word “drive” where it was used in the section the learned Chief Justice said, at p. 604:—

“In performing this task of interpretation, I must confess, if I may so with the utmost respect, that what appears to me to be the robust common sense expressed by the Lord Chief Justice in Wallace v. Major, supra, appeals strongly to me, and I see no valid reason to justify or require me to depart in this case from the decision actually given by the Divisional Court in that case. The present respondent's control over the operation and movement of the “car was severely limited in degree. He possessed no power to set it in motion or otherwise operate its propulsive mechanism. He had, it is true, a limited power to control its direction, but only to the extent permitted by a 12-foot tow rope. He had, it is also true, power to decrease its speed by the brakes, or on a decline to allow its speed to increase, but again, only to the extent permitted by the tow. He had no power, by virtue of bin occupancy of the car, to determine the route to be taken or even the ultimate destination of the car in which he was traveling, for these were clearly in the power of the driver of the towing car. The car was being, propelled, not by its own motive power or any act on the part of the respondent, but solely by the force exerted by the tow.”

The correctness of Wallace v. Major (supra) was accepted, in passing, by the Victorian Full Court in Rowe v. Hughes (1974) V.R. 60, and Nelson J. in delivering the judgment of the Court said, at p. 62:—

“In its ordinary sense the word “driving” would appear to involve the actual physical control over the operation and movement of the motor car ...”.

In McGrath v. Cooper (1976) V.R. 535 Gillard J. in the course of a review of the authorities said, at p. 538:—

“The underlying notion of driving is the control over propulsion. The word ‘driving’ implies an urging forward. The whole concept is that the person must have control of the force that pushes the vehicle backwards or forwards. He must have control of the mode of moving the vehicle. The means of propulsion and their control are necessary attributes to driving. This is brought out in my view with the precise use that can be made of the various verbs. If one were seated in the front seat, without the engine running, but able to control the course of the car, then the appropriate verb to use in those circumstances would be that the person behind the wheel was ‘steering’ the vehicle, and, in the absence of other factors, it would he a misuse to say that he was ‘driving’ the vehicle”.

The learned judge referred, at p. 539, to one meaning for the word “drive” given by the Shorter Oxford Dictionary as “to urge onward and direct the course of (a vehicle or the animal which draws it, a railway train etc.)”

In my view it follows from a consideration of the various judicial definitions or explanations of “driving” to which I have referred that it is not sufficient to constitute “driving” that there should merely be the limited type of control over direction and speed which is exercised by a person in charge of a vehicle which is being towed. It could not be said that such a person was “in a substantial sense controlling the movement and direction” of the vehicle as those matters are necessarily dictated by the towing vehicle. I would not consider that it could properly be said that such a person who “driving” in any ordinary sense of that word.

The position is not affected by the fact that by virtue of the definitions contained in s. 9 of the Act the motor cycle in this instance, despite the fact that its engine was not operating, was none the less a “motor vehicle”. It is not the character of the vehicle itself but the character of the acts being performed by the person in charge of it to which regard must be had in determining whether there was “driving”. It may be noted that in the definition of “Driver” a distinction is drawn between “driving” and being “in charge of” a vehicle, the latter concept being in certain circumstances as, for example, under s. 16, sufficient to impose criminal responsibility quite apart from whether the act done amounts to “driving” the vehicle.

Furthermore, the fact that under the definition of “Driver”, “drive” includes “ride” does not take the matter any further. I would not think that to sit upon the driver's seat of a motor cycle while being towed and to exercise the limited degree of control to which I have referred would constitute “riding” the motor cycle and so amount to “driving” any more than to occupy the driver's seat of a car being towed would amount to “driving”.

Consequently, in my view it could not be said that the respondent was “driving” the vehicle and the learned stipendiary magistrate was correct in dismissing the complaint. In my opinion the order to review should be discharged with costs.


Editorial Notes

  • Published Case Name:

    Neil Kingdon Macnaughton v James Peter Garland

  • Shortened Case Name:

    Neil Kingdon Macnaughton v James Peter Garland

  • MNC:

    [1979] FC 14

  • Court:


  • Judge(s):

    Mr. Justice Stable S.P.J., Mr. Justice Kelly and Mr. Justice Dunn

  • Date:

    16 Mar 1979

Litigation History

No Litigation History

Appeal Status

No Status