Bessell v Dayman - [1935] HCA 5

RESPONDENT. PLAINTIFF,

ON APPEAL FROM A COURT OF SUMMARY JURISDICTION OF Constitutional Law-Freedom of trade, commerce, and intercourse among the States

Regulation of facilities for transport-Licensing of public motor vehicles-Motor car engaged on inter-State journey-Validity of State Act-The Constitution (63 &64 Vict. c. 12), sec. 92-Road and Railway Transport Acts 1930-1931 (S.A.) MELBOURNE, (No. 1967-No. 2020).

The Road and Railway Transport Acts 1930-1931 (S.A.) are not an infringe- ment of sec. 92 of the Constitution as interfering with the freedom of trade, commerce and intercourse among the States.

So held by Gavan Duffy C.J., Rich, Evatt and McTiernan JJ. (Starke and Dixon JJ. dissenting).

R. v. Vizzard; Ex parte Hill, (1933) 50 C.L.R. 30, and O. Gilpin Ltd. V. Commissioner for Road Transport and Tramways (N.S.W.), ante, p. 189, applied.

APPEAL from a Court of Summary Jurisdiction of South Australia.

Irvine Dayman of Adelaide, police prosecutor, laid a complaint in the Court of Summary Jurisdiction, Port Adelaide, against Robert George Bessell of Semaphore, South Australia, alleging that on 8th April 1934, between Adelaide and Gawler in such State, the defendant, not being the holder of a licence under the Road and Railway Trans- port Acts 1930-1931 or a person employed by the holder of such licence, unlawfully drove a vehicle, to wit, a motor lorry for the

52 CLR 216

purpose of carrying goods for hire on the road between Gepps Cross and Tarlee, via Gawler, Roseworthy and Linwood, which road was on 8th April 1934 a controlled route within the meaning of those Acts, having been on 12th December 1931 declared by order of the Transport Control Board constituted by such Acts to be a controlled route for the purposes of such Acts, and in relation to which controlled route the Board did on 13th December 1931 by order fix 19th December 1931 as the "appointed day' within the meaning of sec. 14 of the Act of 1930.

Sec. 14 of the Road and Railway Transport Act 1930 (S.A.) provides (1) The Board may by order, in relation to any controlled route or routes, fix a day after which it shall not be lawful for any unlicensed person to operate any vehicle on that route or those routes for the carriage of passengers or goods or both for hire. The term appointed day in this section means the day fixed under this sub-section as regards the particular controlled route on which any vehicle is driven at the material time." The section then prohibits any person driving any vehicle for the purpose of carrying passengers or goods for hire after the appointed day unless he is licensed or employed by the holder of a licence.

Evidence was called for the complainant which was in substance that on the day in question a constable stopped a lorry driven by the defendant along the road from Gawler in South Australia, that the defendant said that he was the driver and owner of the lorry and came from New South…

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: [1935] HCA 5
Decision Date: 11 March 1935

CaseChat Overview and Summary

Robert George Bessell (the appellant) was convicted in a South Australian Court of Summary Jurisdiction for unlawfully driving a motor lorry for the purpose of carrying goods for hire on a controlled route within the state, without holding the required licence under the Road and Railway Transport Acts 1930-1931. The appellant, who was engaged in carrying goods from New South Wales to South Australia, contended that these Acts infringed section 92 of the Australian Constitution, which guarantees freedom of trade, commerce, and intercourse among the States. The appeal was brought before the High Court of Australia.

The central legal issue before the High Court was whether the South Australian Road and Railway Transport Acts 1930-1931, by requiring licences for the carriage of goods for hire on controlled routes, constituted an impermissible interference with the freedom of inter-State trade and commerce guaranteed by section 92 of the Constitution. The appellant argued that the legislation, by its nature and effect, restricted inter-State transport, rendering it invalid in its application to his activities.

A majority of the High Court, comprising Gavan Duffy C.J., Rich, Evatt, and McTiernan JJ., dismissed the appeal. They held that the South Australian Acts were not an infringement of section 92 of the Constitution. Their reasoning relied on previous decisions of the Court, specifically *R. v. Vizzard; Ex parte Hill* and *O. Gilpin Ltd. v. Commissioner for Road Transport and Tramways (N.S.W.)*, which had upheld similar legislation in New South Wales. The majority found no material distinction between the South Australian legislation and the New South Wales Act previously considered, concluding that the control exercised by the South Australian Acts over transport facilities did not violate the constitutional guarantee of freedom of inter-State trade. Starke and Dixon JJ. dissented, maintaining their view that such legislation contravened section 92 of the Constitution in its application to inter-State trade.

Orders