Deacon v Mitchell

[1965] HCA 28

HIGH COURT OF AUSTRALIA

Barwick C.J., Taylor, Menzies, Windeyer and Owen JJ.

DEACON v. MITCHELL

(1965) 112 CLR 353

24 June 1965

Constitutional Law (Cth)

Constitutional Law (Cth)—Freedom of inter-State trade commerce and intercourse—Carriage of timber from mill in Tasmania to yard in Tasmania—Later shipment from yard to Victoria—Whether movement from mill to yard in course of inter-State journey—The Constitution (63 &64 Vict. c. 12), s. 92—Traffic Act, 1925 (Tas.), s. 24.

Decisions

June 24.
The following written judgments were delivered: -
BARWICK C.J. These are two appeals by a constable of police against the dismissal by a magistrate of two complaints that the respondent, the owner of a public vehicle within the meaning of the Traffic Act, 1925, of Tasmania, did unlawfully permit its use on each of two successive days, contrary to s. 24 (1) (II) of that Act. (at p354)

2. The vehicle on each day was carrying unseasoned timber in planks 12" X 1 1/2" off saw, from the mill of F. H. Haines Pty. Ltd. (Haines) at Deloraine to Haines' timber yards at Devonport. Section 24 (1) (II) of the Traffic Act in terms prohibited the use of the vehicle for such a journey without a permit, which in fact had not been granted. But by reason of s. 3 of the Acts Interpretation Act, 1931 (Tas.), s. 24 (1) (II) is to be read and construed subject to the limits of the legislative powers of the State. Accordingly, upon its proper construction it does not operate to prohibit any use of the vehicle in the course of inter-State trade and commerce which is protected by s. 92 of the Australian Constitution. The respondent successfully contended before the magistrate that the use of the vehicle carrying timber on the occasions in question was so protected. (at p354)

3. Haines had contracted with Kauri Timber Ltd. of Melbourne (Kauri Timber) to supply at Haines' drying yard at Devonport inter alia certain quantities, stated in superficial feet, per month, of sawn timber 1 1/2" thick, the timber to be racked and held for air drying at the disposal of the purchaser, who paid monthly for the timber as and when racked. (at p355)

4. So far as appears, the contract between these parties did not call for the supply of the timber out of the produce of any particular mill nor even out of timber milled by Haines: but, in fact, though not contractually bound so to do, Haines serviced its contract with Kauri Timber with timber from its Deloraine mill and committed all timber sawn to 1 1/2" thickness at that mill to the contract. It appears that Kauri Timber's demand for timber of this dimension in accordance with its arrangements with Haines could not be fully met by Haines. (at p355)

5. Kauri Timber's intention when contracting to buy timber of this dimension from Haines was to bring it to Melbourne for its trade there. Its course of business over a substantial period of time had effectuated this intention, for all timber of this dimension which Haines had racked for it in its yards at Devonport had in fact, after being seasoned, gone to Melbourne. Haines' intention in moving such timber from Deloraine to Devonport was that it should go to Melbourne when air dried. (at p355)

6. The established practice in dealing with timber of this dimension ex Deloraine was for it to be racked on reaching the Devonport yard - some culling taking place on a minimal scale at the time of racking. A section of the racks was set aside in Haines' yard for Kauri Timber's timber and suitably marked for identification. The drying period for this timber was between twelve and eighteen months. After that period Kauri Timber gave directions to Haines to place upon a vessel for Melbourne stated quantities of the timber ex racks which were specified by Kauri Timber by identification letter and number. Haines, though perhaps not contractually bound to accept and carry out such directions, invariably did so, making a handling charge for its services in arranging for delivery of the timber ex racks to the ship. (at p355)

7. As I have said, the respondent's vehicle on each of the days in question was carrying 1 1/2" timber ex Deloraine to the drying yard at Devonport. The respondent had contracted with Haines for such carriage under general standing arrangements, but was himself unconnected with Haines' contract with Kauri Timber or with any further movement of the timber beyond the drying yard at Devonport. (at p355)

8. On arrival at Devonport the timber carried by the respondent's vehicle was racked according to the practice I have described and all usual entries made to record its identity as timber held for Kauri Timber who paid for it as having been delivered into racks. The property in the timber passed to the purchaser at least by the time it was racked at Devonport, and for the purposes of my decision I assume it did not pass before that time, though quite possibly it did. (at p356)

9. Although the question was not fully investigated at the hearing before the magistrate, it may be that it was implicit in the contractual arrangements between Haines and Kauri Timber that Kauri Timber would take the timber, when seasoned, to Melbourne, or at any rate out of Tasmania. But, again for the purposes of this decision, I assume that Kauri Timber was legally free to dispose of the timber in Tasmania. The contract between Haines and Kauri was thus not itself an "inter-State" contract, one requiring as a matter of obligation the movement of the timber from one State to another. Therefore the character of its journey from Deloraine to Devonport cannot be held to be part of an inter-State journey simply by reason of the terms of the contract of sale. (at p356)

10. At the time of the hearing before the magistrate and of these appeals the timber was still in the racks set aside for timber held for Kauri Timber, its drying period not having elapsed. There was nothing to suggest that it would not in fact be sent to Melbourne in due course in accordance with the course of business which Kauri Timber and Haines had followed for some years with respect to timber of this dimension. (at p356)

11. The magistrate accepted the view, and I think rightly, that the intention of the parties, i.e. Haines and Kauri Timber, was that the timber being carried on each of these days by the respondent's vehicle would be transported by stages to Melbourne. He also concluded that the journey from Deloraine to Devonport was part of a continuous inter-State movement of the timber and that the use of the respondent's vehicle for the purpose of transporting the timber on a stage in that journey was outside the prohibition of s. 24 (1) (II) because it was a use in the course of inter-State trade. (at p356)

12. It has been decided that where there is a contractual obligation to deliver or transport goods or commodities inter-State, no part of the movement of the goods or commodities in the course of the inter-State journey in performance of the obligation may be prohibited or burdened by or under legislation: and that a law prohibiting, either absolutely or subject to permission, whether or not a charge is made therefor, the use of a vehicle in the transport of goods or commodities on any segment of that inter-State movement, even if the segment be wholly confined to one State, is contrary to s. 92: Bell Bros. Pty. Ltd. v. Rathbone (1963) 109 CLR 225; Simms v West (1961) 107 CLR 157 This is so whether the goods are carried by the person under a contractual obligation to deliver or transport them inter-State or by servants or agents on his behalf, or by an independent contractor who has no association with or, for that matter, no knowledge of the contract which requires the inter-State movement or transport or of the fact that his own carriage of them is part of their inter-State transport: Bell Bros. Pty. Ltd. v. Rathbone (1963) 109 CLR 225 (at p357)

13. In these cases the inter-State quality of the movement of the goods or commodities was readily derived from the nature of the contract of which the movement was a performance. But it was not the contract but the movement which these cases decided was the subject of the constitutional protection. The laws in question in them were not laws prohibiting or burdening transactions but laws prohibiting or hindering the commercial movement of goods. (at p357)

14. Moreover, it has also been decided that where goods or commodities are in fact in the course of inter-State movement, every part of their transport for that purpose, even though there is no contractual or other legal obligation to make that part of the journey, is similarly protected. See Russell v. Walters (1957) 96 CLR 177; Britton Bros. Pty. Ltd. v. Atkins (1963) 108 CLR 529. (at p357)

15. In the first of these cases the contract between vendor and purchaser called for no more than delivery of the goods at Melbourne, consigned to a Tasmanian port, but the carriage by the purchaser of the commodities from that port to another place in Tasmania was held to be part of the inter-State movement of the goods because the place in Tasmania to which the purchaser was carrying them from the Tasmanian port had been intended by him at the time of its commencement to be the terminus of the journey which the goods had commenced in Melbourne. (at p357)

16. In the second case a merchant was moving his goods from his premises to a port of shipment to service a contract he had made to ship goods of that description inter-State. This contract did not require the transport of the goods from the merchant's premises to the port; it could have been satisfied by goods procured at the port. Yet, because the merchant had committed the goods to a movement wholly within the State which he intended should continue inter-State, the transport of the goods to the port of shipment was protected. (at p358)

17. That the inter-State journey in these cases included their transport within the State after or before the actual crossing of State boundaries had occurred was determined as a matter of fact, the intention of the owner of the goods in each case being accepted as genuine and, in the light of all the facts, definitive. (at p358)

18. Whatever the explanation of Hughes v. The State of Tasmania (1955) 93 CLR 113, that case does not support the proposition that a State may prohibit or burden the carriage of goods on any stage of their inter-State movement. On the other hand, Russell v. Walters (1957) 96 CLR 177 and the other cases to which I have made reference decide that the transport of goods when in fact in inter-State movement may not be prohibited or burdened. (at p358)

19. In the present case there is no contract which requires the inter-State movement or transport of the timber; and on the view of the matter I am prepared to accept for the purposes of my decision, Kauri Timber did not own the timber at the time of its transport for which immunity is claimed. (at p358)

20. But was the movement of the timber from Deloraine to Devonport none the less in fact part of the inter-State movement of that timber? Having regard to the course of business Kauri Timber had and was then following in relation to timber of this dimension, can it be doubted that in fact it was engaged in inter-State trade in that timber? It was contracting to buy it to bring it to Melbourne and in due course of business would do so. If kauri Timber had happened to own the Tasmanian sawmill and were following the course of bringing timber thence to Melbourne, it seems to me that the movement of its own timber from mill to port would undoubtedly have been a part of that inter-State trade and commerce which s. 92 protects. There would in that case be no contract to give colour or character to the movement. Its quality would be determined as a matter of fact by evidence of the course of business and of the intention of Kauri Timber. In my opinion, it cannot matter in this case that Kauri Timber does not own the timber at the point at which it was, if it was, committed to an inter-State journey. Nor, in my opinion, can it matter that it was Haines, and not Kauri Timber, which in the first instance committed the timber to the journey. To prevent Haines carrying the timber which it had committed to the inter-State trade in which in fact Kauri Timber was engaged is to hinder that trade, and indeed, to prevent it. If it is concluded in fact upon all the evidence available that the movement of the timber is a genuine inter-State movement to be carried out by a continuous journey, then it seems to me that a State law prohibiting that movement or any part of it on any stage of that movement cannot in that respect be valid: and if there be such a section as s. 3 of the Acts Interpretation Act of Tasmania operating in relation to the State law, it must be held not to apply to any part of that movement or to the use of a vehicle to effect any part of that movement. (at p359)

21. In the present case the evidence establishes, in my opinion, that Kauri Timber intended from the moment Haines milled it that the timber carried on the days in question by the respondent's vehicle should go to Melbourne; Haines intended likewise. The standing arrangements and the course of business of the parties, in my opinion, fully justify this conclusion. It seems to me nothing to the point that all of the timber in the two loads would not necessarily reach Melbourne, that some of it might well fall off the lorry en route to Deloraine, or be culled out as unacceptable at the point of racking, or be stolen from the drying racks or be lost at sea in crossing Bass Strait. At the time the State law would seek to prohibit the use of the vehicle transporting it, the timber was committed to inter-State trade by the intention and course of business of Kauri Timber and of Haines. In my opinion, therefore, the timber commenced an inter-State movement when it left the mill at Deloraine in the respondent's vehicle. (at p359)

22. But it is said that that movement was arrested and terminated at the Devonport yards or that, because of the time it would rest in Haines' yards in the drying process, its inter-State movement did not begin at Deloraine but only when it was sent ex rack to ship for conveyance to Melbourne. I cannot accept that analysis of the facts of the matter. The proper conclusion from the facts, in my opinion, is that Kauri Timber was engaged in inter-State trade in timber, not merely in seasoned timber. It contracted to purchase green timber to bring that timber to Melbourne. The commercial realities made it economical and convenient that it should lose its moisture before shipment. The time occupied in this was itself part of the entire inter-State operation of bringing the timber from mill to Melbourne. We are here dealing with broad business concepts. One of the functions of s. 92 is to ensure that impediments of the kind here in question are not placed in the way of what is in commercial substance a continuous inter-State movement of goods or commodities. The force of the expression "continuous journey" in this connexion in the decided cases is that though the journey be segmented in stages, with different carriers and different means of carriage, and though pauses in the movement take place, none the less the ultimate destination is the intended purpose of setting the goods on their initial movement, so that there is in fact one journey, though in stages, and not two or more journeys each having terminal points which conclude that journey as distinct from merely concluding a stage in a journey of more widely placed termini. Of course, an inter-State movement of goods may be preceded by an intra-State movement of the same goods, in which case the goods take, as it were, two journeys. And it may be that because of intended interruptions of the journey initially commenced, the intention ultimately to bring them to an inter-State destination becomes too tenuous or remote to sustain the conclusion that the journey is either inter-State or continuous. Whether a case falls into one category or another depends on the facts. But in this case the matter is, in my opinion, quite clear - there was but one journey, and that an inter-State journey, on which this timber had embarked on the days in question. (at p360)

23. In my opinion the magistrate was right in his findings of fact in this case and in his conclusion that by reason of s. 3 of the Acts Interpretation Act of Tasmania and s. 92 of the Australian Constitution, the carriage of the timber on the days in question by the respondent's truck was not in breach of s. 24 (1) (II) of the Traffic Act, 1925 of Tasmania. (at p360)

24. The appeals should be dismissed. (at p360)

TAYLOR J. The question in each of these appeals is whether the carriage of certain timber on two occasions from a sawmill at Deloraine in Tasmania to a timber-yard at Devonport in the same State was entitled to the protection which s. 92 of the Constitution accords to trade, commerce and intercourse among the States. The respondent had contracted with F. H. Haines Pty. Ltd. (hereinafter referred to as "Haines") to carry the timber and he was the carrier on each occasion. In the result he was charged with offences against s. 24 of the Traffic Act, 1925 (Tas.) in that he unlawfully used a public vehicle in a place or upon which the licence in respect thereof did not authorize the vehicle to be so used. (at p360)

2. Both the sawmill at Deloraine and the timber-yard at Devonport were owned by Haines which company, as was somewhat broadly stated in the evidence, had entered into a contract to supply Kauri Timber Ltd. (a Victorian company and hereinafter referred to as "Kauri") with stated quantities of sawn timber per month. As far as it is possible to see from the evidence Haines' obligation under this contract was to supply the timber at its yard at Devonport where it was racked in what was called the Melbourne yard and held on the purchaser's behalf for drying for periods of fifteen to twenty-four months. At the end of each month accounts were sent by Haines to Kauri for timber racked during that month and these accounts seem to have been paid in due course. Up to this point no obligation rested upon Haines to forward any timber to Kauri in Melbourne and the latter company was free to dispose of its Devonport stock as it pleased. But the general course of business was that from time to time Kauri instructed Haines to withdraw from the stocks held on its behalf specified quantities of timber and forward them to Melbourne. For this latter service Haines was paid a handling fee by Kauri. It was with the evidence of the course of business between these two companies in mind that the magistrate found that "the intended ultimate destination" of the timber which was being carried by the respondent on the occasions in question was Melbourne and it was this circumstance which led him to hold that that activity was entitled to the protection of s. 92. (at p361)

3. To my mind the finding that the intended ultimate destination of the timber was Melbourne did not justify this conclusion. It is not suggested that the respondent was himself engaged in trade, commerce and intercourse among the States and the only problem to be resolved is whether at the material times the timber in question had been embarked upon an inter-State journey and for the purpose of considering whether or not this was so it is, in my view, immaterial whether the property in the timber passed to Kauri at the mill - as the magistrate was inclined to think was the case - or whether it passed only when delivered and racked in the Devonport yard. (at p361)

4. For the purpose of resolving the problem one may, on the first hypothesis, ignore the intervention of the respondent and suppose that Kauri had itself purchased the timber at Deloraine with the intention (a) of transporting it to some other place in Tasmania and depositing it there for a period of fifteen to twenty-four months for drying purposes: and (b) of ultimately taking it to Melbourne. I would, in these circumstances, find it impossible to say that the first act of transportation could be regarded as an act, or, as in the case of Simms v. West (1961) 107 CLR 157, part of an act of inter-State carriage Nor can I see that any different result is produced by the fact that the first act of transportation was performed by the respondent and not by Kauri. No doubt a burden imposed on that act could produce a consequence in relation to inter-State trade. But that is not the point; the question is, in cases where the legislation is not shown to be a discriminatory character, whether it imposes a burden, restriction or prohibition directly upon an activity which is, itself, recognizable as part of the concept of inter-State trade and commerce. (at p362)

5. However, I do not think that the magistrate's finding that the timber in question became the property of Kauri at the mill at Deloraine was justified by the evidence. At the earliest it became the property of Kauri as and when it was racked in the Melbourne yard at Devonport. On this view of the facts the act of transportation was an operation in which Haines, or the respondent on its behalf, engaged for the purpose of enabling it to fulfil its obligation to deliver timber at Devonport to Kauri and it was immaterial, in my view, whether the timber to fulfil its contractual obligation was obtained from its mill at Deloraine or by purchase from some other source in Tasmania, or whether the timber was to be delivered to Haines' yard or some other yard in Tasmania on Kauri's account. In any case, the transportation would be merely for the purpose of enabling Haines to fulfil its contractual obligation to deliver at Devonport and the fact that Kauri intended at some more or less remote point of time to have the timber forwarded to Melbourne could not invest the first act of transportation with the character of inter-State trade. (at p362)

6. Before parting with the case I think it appropriate to refer to a passage in Grannall v. Marrickville Margarine Pty. Ltd. (1955) 93 CLR 55 which fairly comprehends the character of the argument advanced by the respondent in this case: "Two tendencies have grown manifest of late. One is to press the operation of s. 92 beyond the subject matter of trade, commerce and intercourse among the States so that it denies to the legislatures of this country the power to impose any prohibition, restriction or burden if its consequences could be seen in what was done or not done in the course of inter-State commerce. The other is to seek to extend the freedom which s. 92 guarantees to trade, commerce and intercourse among the States to antecedent or subsequent transactions on the plea that they are incidental, ancillary or conducive to inter-State transactions or necessarily consequential upon them. There is in truth nothing to justify such notions which would go far to exclude legislative power the existence of which has never been doubted" (1955) 93 CLR, at p 79 To my mind the act of transportation from Deloraine to Devonport was, in no sense, part of an inter-State journey; it was simply an intra-State journey, undertaken for the purpose mentioned and cannot be regarded as part of an inter-State journey simply because Kauri entertained at that time the intention of having the timber forwarded to Melbourne at some time in the more or less distant future. (at p363)

7. Accordingly, in my view the appeal should be allowed, the order of dismissal set aside and the matter remitted to the magistrate. (at p363)

MENZIES J. The question of law presented by these two appeals from orders of a magistrate dismissing complaints against the respondent for breaches of s. 24 (1) (II) of the Traffic Act, 1925- 1964 (Tas.) is whether the facts proved entitled the respondent to the protection of s. 92 of the Constitution. (at p363)

2. The respondent owned a motor vehicle which was licensed for use as a public vehicle in Area 4 (the area covering Deloraine) but not in Area 5 (the area covering Devonport and Latrobe) of Tasmania. On each of 3rd and 4th days of September 1963 this vehicle, upon the instructions of the respondent, was used to carry a load of timber from Deloraine to Devonport. The offences charged were those of unlawfully permitting the use of the vehicle in Devonport on 3rd September and in Latrobe on 4th September while carrying these loads. Prima facie, these offences were committed. The respondent, however, invoked s. 92 and sought to prove facts entitling him to the immunity which that section of the Constitution confers: cf. Colbert v. Tocumwal Trading Co. Pty. Ltd. (1964) VR 820 He succeeded before the magistrate and the complaints were accordingly dismissed. The facts relied upon by the respondent to attract the protection of s. 92 fall within a narrow compass. (at p363)

3. The timber upon the motor vehicle was being carried for reward for F. H. Haines Pty. Ltd. (hereinafter referred to as "Haines") from its mill at Deloraine to its timber yard at Devonport. Haines had a contract with the Kauri Timber Co. Ltd. (hereinafter referred to as "Kauri") to supply it, monthly, with 35,000 super feet of 1 1/2-inch and 25,000 super feet of 2-inch timber to be racked in Haines' yard at Devonport for drying. The normal period for drying was from fifteen to eighteen months for 1 1/2-inch timber and up to twenty-four months for 2-inch timber. Haines rendered accounts at the end of each month for the timber racked during the month and received payment therefor from Kauri. When Kauri wanted timber from the racks it notified Haines which thereupon removed the timber from the racks, packed it for carriage by ship and transported it to the ship for carriage to Melbourne. For these services Haines received payment from Kauri. It was also proved that the timber which was being carried upon the respondent's vehicle on 3rd and 4th days of September 1963 was 1 1/2-inch and 2-inch timber for Haines to rack in carrying out the contract to supply timber to which I have already referred. All 1 1/2-inch and 2-inch timber carried by the respondent from Deloraine to Devonport for Haines was racked as aforesaid, subject only to the rejection of any defective pieces by the employees of Haines doing the racking. The timber carried on 3rd and 4th days of September 1963 was still in the racks when the informations were heard. The evidence showed further that over a considerable period all the timber taken from that racked by Haines for Kauri was shipped to Melbourne from time to time upon the instructions of Kauri. (at p364)

4. The evidence just referred to, together with the fact that the timber carried on 3rd and 4th September was racked in the Melbourne section of Haines' timber yard at Devonport, warranted the conclusion, which the magistrate reached, that in due course the timber carried on 3rd and 4th days of September 1963 would, as and when required by Kauri, be shipped in lots from Devonport to Melbourne. (at p364)

5. The facts stated do not establish that the respondent, in carrying the timber from Deloraine to Devonport, was himself engaged in inter-State trade. His trade was simply to carry timber from Deloraine to Devonport for Haines. (at p364)

6. The carriage of goods from one place in a State to another place in the same State may nevertheless gain the protection of s. 92 in either of two ways. Firstly, the carriage of goods from one place in a State to another place in the same State is protected by s. 92 if that carriage is part of the inter-State movement of goods. Bell Bros. Pty. Ltd. v. Rathbone (1963) 109 CLR 225 is the last case in a series establishing this. In that case, the journey in Western Australia from Nannup to Fremantle was regarded as part of a continuous journey from Nannup to Melbourne and, as such, protected by s. 92. Secondly, the imposition of a burden upon the carrier of goods from one place in a State to another place in that State infringes s. 92 if the burden interferes with the inter-State trade of the person for whom the goods are being carried: Simms v. West (1961) 107 CLR 157 and Bell Bros Pty Ltd v Rathbone (1963) 109 CLR 225 Thus in Simms v West (1961) 107 CLR 157 Dixon C.J. said: ". . . the question here is not whether the carrier because of his own operations can make out a complete immunity under s. 92. The case depends on the interference with the consignee's inter-State trade. It is one where a Sydney purchaser from an inland source of production in Queensland has bought goods for delivery into New South Wales and is entitled to have his goods delivered by road as well as by ship in the course of his inter-State transaction. If under s. 23 carriage by road is denied to that trader, the inter-State transportation of the commodity is made impossible except by means of the railways" (1961) 107 CLR, at p 162 (at p365)

7. I do not think that, upon the facts as I have stated them, the carrying of the timber from Deloraine to Devonport by the respondent ought to be regarded as part of an inter-State movement of the timber from Deloraine to Melbourne. The timber was being carried for Haines in order that that company could supply it to Kauri at Devonport. It was, of course, in contemplation that when the timber was dried (which would take from fifteen months to two years after racking) it was then, not as a whole but in lots, to be carried from Devonport to Melbourne; but when the timber eventually reached Melbourne it would, so it seems to me, have done so as the result of separate journeys; the ones with which we are concerned ending in Devonport, and others starting there in response to orders for particular lots of timber. In the authorities referred to, reference is to be found to "a continuous journey of an inter-State character": for example, see Bell Bros. Pty. Ltd. v. Rathbone (1963) 109 CLR 225 per Dixon CJ (1963) 109 CLR, at p 228 Such references emphasize that there must be but one journey if the movement of the goods from one place in a State through another place in that State and thence to another State is, as a whole, to be regarded as inter-State movement. They indicate further that a break in the coninuity of the movement could result in there being two journeys rather than one. In Russell v. Walters (1957) 96 CLR 177, at p 184 the Court emphasized the importance of characterizing the journey from premises in Melbourne to premises in Launceston as a single journey, notwithstanding the use of three instruments of transport. Here, there was not a single journey from Deloraine to Melbourne. It is not necessary to attempt to define that kind of break which would bring about the result of there being one journey before the break, and another journey after it. However loosely the requirement of continuity may be regarded, a break, involving (a) the unloading of timber, (b) its being put into racks, (c) its retention in the racks for a period of from fifteen months to two years to convert it from green to dry timber, and (d) its packing in lots for shipment upon the receipt of instructions, must be regarded as demonstrating that any journey from Deloraine finished at Devonport. It could be expected that the timber so carried would, in different lots, be carried from Devonport to Melbourne by new journeys commencing not less than fifteen months after the completion of the carriage of the timber from Deloraine to Devonport. (at p366)

8. There remains for consideration the question whether, while the timber was being carried from Deloraine to Devonport, that carriage was protected by s. 92 because of the inter-State trade of Kauri and Haines. There is, of course, no question but that Kauri is, and has been, engaged in inter-State trade with Haines in carrying on the business of bringing timber from Tasmania to Victoria but my analysis of the relationship between Haines and Kauri is that the obligation of Haines was to supply Kauri with timber on racks in Devonport. Inter-State trade in particular lots of timber did not begin before its racking in Devonport and, assuming it began then, the respondent's carriage of the timber from Deloraine to Devonport for Haines occurred before inter-State trade in that particular timber began. The learned magistrate did say: "Mr. Harris, the Devonport production manager of F. H. Haines Pty. Ltd. whose evidence I accept, said 'The timber in the Haines' racks belongs to Kauri Timber as from its leaving Deloraine'" but, if this was intended to mean that the property in the timber passed from Haines to Kauri at Deloraine I am satisfied that this was mistaken for, upon the evidence, I have no doubt that, as both counsel contended, it was only when the timber was racked in Devonport that the property in it passed from Haines to Kauri. In these circumstances it was not, I think, shown that the burden which the Traffic Act placed upon the respondent was a burden upon the inter-State trade of Kauri and Haines. Any burden was upon the trade of the respondent, and, perhaps, that of Haines before that company committed the timber to its inter-State trade with Kauri. The intention that goods, when produced, should go into the flow of inter-State trade does not, of itself, give to the various steps in their production freedom from prohibition, restriction or burden: Grannall v. Marrickville Margarine Pty. Ltd.(1955) 93 CLR 55, at pp 79, 80 and 82; O'Sullivan v. Noarlunga Meat Ltd. (No. 2) (1956) 94 CLR 367, at p 373 Furthermore, any merely consequential economic effect that the burden the Act imposed upon the respondent might have upon the inter-State trade of Haines and Kauri - for example, by bringing about an increase in cost reflected in price - would not involve the invalidity of the Act: Wragg v. State of New South Wales (1953) 88 CLR 353 In Webb v. Stagg (1965) 112 CLR 374 I have dealt more fully with these matters. (at p366)

9. It is for these reasons that I think the magistrate's finding that, in carrying the timber from Deloraine to Devonport, the respondent was engaged in inter-State trade was wrong and I consider that the appeals from his orders dismissing the complaints should be allowed. (at p367)

WINDEYER J. I think that the decision of the magistrate was correct. I agree generally in what the Chief Justice has said in his judgment. I shall, however, say something for myself to explain my view. (at p367)

2. It is established that a State law requiring a carrier to have a permit to carry goods by road is an infringement of s. 92 if the carriage be in the course of a movement of the goods from one State to another. The question in this case is thus whether the carriage by road of the timber from Haines' mill at Deloraine to its timber yard at Devonport was, in a relevant sense, in the course of the movement of the timber from Tasmania to Victoria. The contractual arrangements between Haines and the Kauri Company have a bearing upon this, as it was because of them that the timber was started on its way from the mill at Deloraine with the intent that it should in due course reach Melbourne. But it is the movement that is the commerce which is to be absolutely free. I therefore think it unnecessary to examine in any detail the precise legal nature of the commercial transactions out of which the movement arose. If it were a movement from one State to another it gets the protection of s. 92. Therefore when the property passed, when the risk passed, how and when the goods were to be paid for, and so on seem to me to be, although not immaterial, very far from the heart of the case. (at p367)

3. When impediments or restrictions upon the carriage of goods within a State are alleged to be in contravention of s. 92, the question is often said to depend upon whether the movement within the State is properly to be considered as a separate journey or as a stage in the movement of the goods from a place in one State to a destination in another State. The word "destination" itself expresses the idea. But it and other terms such as "continuous journey", "integral part" and so forth are, as I have said elsewhere, more useful as descriptions, or justifications, of a conclusion than helpful in arriving at it. This Court has said that "the question of when and where inter-State transit begins and ends is a question to be decided not upon the terms of a contract but as a matter of practical reality depending on the facts of each particular case": Russell v. Walters (1957) 96 CLR 177, at p 184 The way in which Kitto J described the facts in Britton Bros. Pty. Ltd. v. Atkins (1963) 108 CLR 529 seems to me to fit the present facts, substituting Melbourne for Sydney: "The movement of the timber within Tasmania is put in train by the miller as a means of fulfilling a contract which necessitates his selecting timber for the purposes of the contract somewhere in Tasmania, whether close to the side of a suitable ship or remote from it, and to set the timber in motion with Sydney as its fixed, though not necessarily irrevocably fixed, destination" (1963) 108 CLR, at p 536 His Honour thought that in that case the whole journey from the mill to Sydney had "the character of a single coherent piece of inter-State transportation" (1963) 108 CLR, at p 536 Menzies J. said that to hold otherwise "would be to draw artificial lines not in accord with the realities of trade" (1963) 108 CLR, at p 538 That, I consider, states the way in which the question before us is to be approached. I repeat what I said in I.X.L. Timbers Pty. Ltd. v. Attorney-General (Tas.) (1963) 109 CLR 574: "Section 92 is concerned with the practical realities of trade and commerce, not with philosophical divisions of a whole into its parts" (1963) 109 CLR, at pp 577, 578 (at p368)

4. I respectfully adopt, for it exactly expresses the idea on which I found my conclusion, a passage from the judgment of Kitto J. in Golden v. Hotchkiss (1959) 101 CLR 568, at p 597 That his Honour was in a minority in his view of the facts of that case does not, I think, at all diminish the validity of what he said on this aspect: ". . . the freedom which s. 92 gives in respect of an inter-State journey is not only a freedom for the crossing of the border, but is a freedom for the whole affair of sending, taking or attaining from a location in one State to a location in another State. But it must be a unified affair. This involves, as I see it, that there must be a purpose uniting the crossing of the border with any movement for which the protection of s. 92 is invoked, and the purpose must be within the practical conception of trade, commerce, or intercourse. So long as the movement is directed towards a State other than that in which it is taking place, and a purpose of entering that other State exists, it is clear that the protection of s. 92 applies, because any interference with the movement is a burden upon the fulfilment of a purpose of transposing someone or something from the one State to the other" (1959) 101 CLR, at p 597 (at p368)

5. I forbear from quoting from judgments in other cases, not because quotation would be irrelevant, but because it must necessarily be indecisive when the question is to be seen "as a matter of practical reality depending on the facts of each particular case" (1957) 96 CLR, at p 184 Not only is the question one of fact and degree, and not only do the facts of cases vary, but the measure is itself uncertain. The economic ideas embodied in such phrases as "the practical realities of trade", "the practical conception of trade, commerce, or intercourse" are not susceptible of precise analysis or more exact statement. Business methods and the pattern of trade change as new means of communication and of carriage are developed. Aided by s. 92, commerce itself has for its purposes obliterated the boundaries of States from the map of Australia except for those who would use s. 92 spuriously by "border hopping". It seems to me therefore that only in the simplest case can a court, required to bear in mind the practical realities of commerce, say dogmatically that a particular view of the facts of a case in this field is obviously right or wrong. Judgment is unavoidably much a matter of opinion, because based on concepts that are imprecise and not the ordinary concepts of law. Of course, in some cases the transport of goods can readily be said to be essentially of an intra-State character although the goods being transported may have earlier come from or will later go to another State. An example is movement within a State in the performance of a contract of sale between persons in that State. It is then immaterial that the goods may be destined by the buyer to go ultimately to another State, or may have earlier been brought from another State by the seller. But in the present case the movement of the timber from Deloraine to Melbourne was throughout the result of the course of dealing between Haines and the Kauri Company. That fact gave unity to the movement. The argument that there was at Devonport a significant discontinuity in that movement is based partly upon the interval of time, up to two years, in which the timber was there stacked for drying before being sent forward to Melbourne as it was called for. To me, however, this interval does not mean that before it reached Devonport the timber was not, as a matter of the practical realities of trade, on its way to Melbourne pursuant to the arrangement by which Haines in Tasmania supplied its customer, the Kauri Company, in Victoria with timber. But it was urged that not only the lengthy delay but what occurred at Devonport broke the movement in two - a movement from the mill to Devonport, later a movement from Devonport to Melbourne. The matters that, as I understood the argument, were principally relied upon in support of this were: that the timber had to be dried in racks in Haines' yard at Devonport before it was sent to Melbourne; that when put in the racks it became the property of the Kauri Company, Haines holding it thereafter as a bailee with a duty to forward it by ship in lots as called for; that a small part of the timber that left the mill was discarded at Devonport as defective and never became the property of the Kauri Company. The consequence of these matters combined must, it was urged, be considered. I agree that that is so. But that a small quantity of the timber that left Deloraine might never reach Melbourne can I think be disregarded. The question whether the timber that was being carried on the way to Devonport could be said to be on its way to Melbourne is not answered by saying that some of it might fall by the wayside for one reason or another. The character of a march is not altered because some of the marchers may fall out before the destination is reached. The question is not whether each stick of timber on the lorry would reach Melbourne. Nor do I think that it is of much significance that the lots which went to Melbourne by ship did not correspond to the loads that went to Devonport by vehicle. It would, I think, be a mistake to take as a criterion some idea savouring of the "original package" doctrine that at one time dominated the interpretation of the commerce clause in the Constitution of the United States. It was said, however, that the fact that the timber had to be dried before it was shipped was a critical circumstance; that what Haines was to supply was dried timber not green timber; that the movement to the yard at Devonport was thus antecedent to the commencement of the inter-State movement of the thing to be supplied. The decision in Grannall v. Marrickville Margarine Pty. Ltd. (1955) 93 CLR 55 was referred to. The Court there said: "It is of course obvious that without goods there can be no inter-State or any other trade in goods. In that sense manufacture or production within, or importation into, the Commonwealth is an essential preliminary condition to trade and commerce between the States in merchandise. But that does not make manufacture production or importation trade and commerce among the States. It is no reason for extending the freedom which s. 92 confers upon trade and commerce among the States to something which precedes it and is outside the freedom conferred" (1955) 93 CLR, at pp 71, 72 There is a passage in the judgment in O'Sullivan v. Noarlunga Meat Ltd. (No. 2) (1956) 94 CLR 367, at p 373 that points to a similar limitation upon the power of the Parliament to make laws under s. 51 (i.) with respect to trade and commerce. But this ought not to be understood in the same absolute sense: and it is not so stated. The two provisions of the Constitution are not to be measured one against the other. That was emphatically asserted in the judgment in the Margarine Case (1955) 93 CLR, at p 73 But one argument for the appellant seemed to me to overlook this. We were invited to interpret s. 92 by a forecast of what would be the effect of doing so upon the interpretation of s. 51 (i.). We were asked to take counsel of fears. But there need be no fears. The constitutional power of the Commonwealth Parliament under s. 51 is not to be narrowly confined. If it be necessary to decide whether under it activities occurring within a State could in a given case be controlled and regulated by the Parliament, the question involves considering whether, in the circumstances of the assumed case, a law with respect to inter-State trade would, to be effective, have to extend to intra-State activities also. The recent decision in the Airlines Case (1965) 38 ALJR 388 is an example of this approach and the matter is adverted to incidentally in the judgment in the Margarine Case (1955) 93 CLR 55 where there is a reference to the Mandeville Island Farms Case (1948) 334 US 219 (92 Law Ed 1328), in the United States, one of many cases in which the power of Congress over commerce has been extended and expanded by the aid of what has come to be called the Shreveport doctrine: see Houston, East and West Texas Railway Co. v. United States (1914) 234 US 342 (58 Law Ed 1341) (at p371)

6. In 1928 Stone J., addressing the American Bar Association, said: "it will, I believe, be the judgment of history that the commerce clause and the wise interpretation of it, perhaps more than any other contributing element, have united to combine the several States into a nation". And Dean Griswold of Harvard has recently endorsed this. The power of the Commonwealth Parliament to legislate with respect to inter-State commerce has been less often used than has the commerce clause in the Constitution of the United States. And the distinction that our Constitution makes between inter-State and intra-State trade and commerce, notwithstanding their economic interdependence, has been faithfully observed. But the different course of constitutional development and interpretation here has, I think, been partly the result of the presence of s. 92 in our Constitution. To its dictates both Commonwealth and State legislatures must bow, and this confines its operation. Yet at the same time its presence makes it unnecessary for the Commonwealth Parliament to emulate Congress and to seek to bring activities within a State under Federal control in order to maintain the basic unity of the national economy as a main part of the foundation of national unity. It is of course implicit in s. 92 that it does not prevent such regulation of trade and commerce as is necessary for the continuance of the very freedom that it assures. And its operation does not extend to matters that have a merely consequential or remote relationship to trade, commerce or intercourse among the States. I am mindful of that. Yet its prime purpose is to keep the highways, waterways and airways of Australia open and without impediment for traffic moving from State to State. I think this is a case in which it operates to do just that. I would therefore dismiss the appeals. (at p372)

OWEN J. In each of these cases the respondent was charged in a Court of Petty Sessions with a breach of s. 24 (1) (II) of the Traffic Act, 1925 (Tas.). In each case he raised a defence based upon s. 92 of the Constitution and this was upheld by the learned magistrate. (at p372)

2. The facts were to the following effect. F. H. Haines Pty. Ltd. (the vendor) is a sawmiller and timber merchant in Tasmania owning a sawmill at Deloraine and a timber yard at Devonport. For a long time it has had a contract with Kauri Timber Ltd. (the purchaser), a Melbourne company, to supply the latter with 35,000 super feet of 1 1/2" sawn timber and 25,000 super feet of 2" sawn timber per month. The timber is cut at the vendor's Deloraine mill and carried thence by the respondent, a cartage contractor under contract with the vendor, to the latter's yard at Devonport where it is placed in drying racks in a portion of the yard known as the "Melbourne Yard". On arrival of the timber at the yard a "rack completion docket" containing particulars of the timber delivered and the number of the rack in which it is placed is prepared and sent to the purchaser and at the end of each month an account for the price of the timber "racked" during that month is rendered by the vendor. The learned magistrate appears to have found that the property in the timber passed to the purchaser "as from its leaving" the mill, basing that finding on an inadmissible piece of evidence given by the manager of F. H. Haines Pty. Ltd. that "the timber in the Haines' racks belongs to Kauri as from its leaving Deloraine." But the true position, so far as it can be ascertained from the scanty evidence, appears to me to be that the property in the timber passed when it was "racked" at the yard and that thereafter it was held by the vendor as agent for the purchaser to be dealt with in accordance with the latter's instructions. The evidence shows also that after delivery at the yard the 1 1/2" timber remains in the racks for 15 to 18 months and the 2" timber for periods up to 24 months and from time to time the purchaser directs its agent, the vendor, to despatch to Melbourne quantities of timber from specified racks. When this occurs the latter delivers the timber required to a ship at Devonport for carriage to Melbourne, charging the purchaser a handling fee for this service. (at p373)

3. The respondent's claim is that the carriage of the timber from the mill to the yard is the first stage in an inter-State journey carried out pursuant to the contract between vendor and purchaser and that s. 24 (1) (II) of the Traffic Act can have no application to that carriage. There is no doubt, as the learned magistrate said, that the "intended ultimate destination" of the timber when it leaves the mill is Melbourne but that does not, I think, conclude the matter. The carriage of the timber from the mill to its ultimate destination seems to me to fall into two separate and distinct journeys. Not because a substantial period of time elapses between the arrival of the timber at the yard and its later departure for the destination to which it is directed to be sent by its owner but because the first journey is undertaken to enable the vendor to fulfil its contractual obligation to deliver the timber to the purchaser at the yard at Devonport and that journey, as it seems to me, possesses no inter-State character. It is a purely intra-State transaction and its character is not altered, in my opinion, by the fact that when the timber arrives at the yard and is there "racked" the vendor, as agent for the purchaser, is under an obligation to forward it to Melbourne if and when its owner requires it to do so. It is only when that occurs or possibly at the earlier stage when the timber is "racked" at the yard that it enters the stream of inter-State trade. (at p373)

4. For these reasons I am of opinion that s. 92 had no application to the present cases and the respondent should have been convicted. (at p373)

Orders

Appeals allowed with costs.

Order of the Magistrate dismissing the complaints set aside. Matters remitted to Magistrate to be further dealt with.