Holloway v Pilkington

[1972] HCA 8

HIGH COURT OF AUSTRALIA

Barwick C.J., Menzies, Windeyer, Walsh and Gibbs JJ.

HOLLOWAY v. PILKINGTON

(1972) 127 CLR 391

11 February 1972

Constitutional Law (Cth)

Constitutional Law (Cth)—Freedom of inter-State trade, commerce and intercourse—Carriage of goods from Melbourne to town in Tasmania—Whether inter-State character of journey broken by sorting and repacking of goods at agent's depot in Tasmania before delivery to consignee—The Constitution (63 &64 Vict. c. 12), s. 92—Traffic Act 1925 (Tas.), s. 24 (i) (b).

Decision

February 11.
THE COURT delivered the following judgment : -
THE appellant was convicted, on 3rd November 1971, by a stipendiary magistrate sitting as a Court of Petty Sessions at Burnie, of using, as a public vehicle, a motor vehicle, which was licensed as a cart for Area 6 in which Burnie is situated, in a place in or upon which the licence in respect thereof did not authorize the vehicle to be so used contrary to s. 24 (1) (b) of the Traffic Act 1925 (Tas.). The appellant defended the charge against him on the ground that because the said vehicle was being used by him at the time and place detailed in the charge in the course of inter-State trade and commerce, the said section of the Traffic Act did not apply to that use. (at p393)

2. The appellant established that he was the appointed agent for T.N.T. - an abbreviation for T.N.T. Vic.-Tas. Pty. Ltd. of 654 Footscray Road, West Melbourne - for transport and storage of goods mainly to and from Burnie wharf and to and from Devonport wharf : that T.N.T. was engaged in transport of goods to and from the Australian mainland from and to various parts of Tasmania : that T.N.T. had instructed him to uplift two shipments of refrigeration plant and equipment from ships arriving from Melbourne at Burnie and to deliver that plant and equipment to its destination, i.e. Stanley Cool Stores at Stanley. This instruction was contained in what is termed in the evidence "a manifest", prepared in Melbourne by T.N.T. and transmitted to the appellant in Burnie. (at p393)

3. The appellant did uplift each of these shipments, part of which arrived in a container. The arrival of the two ships was separated by a couple of days. The appellant was instructed to deliver the whole of the shipment at Stanley by midday on a specified date as men to install the plant and equipment were to arrive from Melbourne that day from the suppliers of the plant and equipment. The appellant carried out these instructions, several vehicles of the appellant being used to do so. (at p393)

4. Part of the plant and equipment consisted of a storage cylinder and two parts of refrigeration equipment. Apparently it arrived in a container which was taken by the appellant's vehicle from the wharf at Burnie to his depot at Wivenhoe where the container was unloaded and its contents sorted. It was said that goods delivered in Melbourne for transport by T.N.T. where appropriate were put into containers "in most convenient form to make best use of available space and then shipped in container when full". On arrival at Burnie, the contents of the container must be sorted to allow for delivery of its several contents to the appropriate consignees according to the instructions which we have said are contained in the "manifest" despatched from Melbourne. The storage cylinder and the two parts of refrigeration equipment were placed on a vehicle of the appellant and carried to Stanley. Whilst that vehicle was so engaged, it was intercepted by a transport officer. It was then on the Bass Highway at Detention in Traffic Area 8. The vehicle was thus being used outside the area for which it was licensed and had no out of area permit. The driver of the vehicle produced to the transport officer "inter-State shipping papers" for the goods, carrying the name of T.N.T., and indicating that Wildridge &Sinclair of Preston, Victoria were the senders of the goods and Stanley Cool Stores the receiver. (at p394)

5. The magistrate held that there was not the continuous journey of the goods "necessary of an inter-State character". He pointed out that there had been a break in the journey of the goods coming from Melbourne to Burnie, where they were "sorted out with other goods from the container" and delayed in the depot at Wivenhoe until the other goods destined for Stanley Cool Stores had arrived by the second ship. He held that "from that stage . . . there was a second journey from Wivenhoe to Stanley". This he regarded apparently as an intra-State journey outside the protection of s. 92 and accordingly convicted the appellant. (at p394)

6. In our opinion this case is indistinguishable in principle from Russell v. Walters(1957) 96 CLR 177, Simms v West (1961) 107 CLR 157 and Bell Bros Pty Ltd v Rathbone (1963) 109 CLR 225 It was established that TNT had been engaged to transport the plant and equipment from Victoria to Stanley. It carried out this enterprise by carriage in a series of vehicles, part by road, part by sea. The appellant's vehicle was being used at the relevant time to complete the journey of the goods which began in Victoria and ended in Stanley. The goods were none the less at all relevant times on that journey, though for commercial reasons they had to be unpacked and to await the arrival of other goods before being despatched on the final stage of the journey. To adopt the language of Menzies J. in Bell Bros. Pty. Ltd. v. Rathbone(1963) 109 CLR, at p 236 the movement of the plant and equipment from Melbourne, through Burnie and Wivenhoe, to Stanley was an inter-State operation and to prevent the appellant from carrying out part of that inter-State movement unless it had obtained a licence under the Traffic Act authorizing the use of the vehicle for that purpose would amount to an unconstitutional interference with the freedom of inter-State trade and commerce. (at p394)

7. The terms and operation of the Traffic Act are set out and explained in Hughes v. Tasmania (1955) 93 CLR 113 There is no doubt, and counsel for the respondent conceded, that there is no right under the Act to the grant of an out of area permit. Its grant rests in the discretion of an official of the State. If it be granted, it may be granted on condition that money be paid to the State. The Act if applicable would forbid the carriage of the goods in question from Burnie to Stanley except in pursuance of such a permit. It is in our opinion incontestable, as the authorities now stand, that such a law infringes the freedom of inter-State trade. (at p395)

8. However, we were pressed by counsel for the respondent with the decision of this Court in Hughes v. Tasmania (1955) 93 CLR 113 The plaintiff in that case, unlike the appellant in this case was not the agent of a carrier who had an obligation of through carriage of the goods. He was the agent of a purchaser who, having purchased fruit to be brought from the mainland to the Tasmanian coast, was bringing his goods to his place of business in Hobart. Whether or not that difference in the facts is sufficient to distinguish that case from this need not be decided in order to dispose of this case. It is sufficient to say that this case is indistinguishable from Simms v. West(1961) 107 CLR 157 and Bell Bros Pty Ltd v Rathbone (1963) 109 CLR 225 In the light of those decisions, we are of opinion that Hughes v. Tasmania )1955) 93 C.L.R. 113. cannot be used in support of the respondent's contention in this case. (at p395)

9. In our opinion the conviction of the appellant should be set aside for the reason that his vehicle to which the charge relates was at the relevant time participating in the movement of the goods from Victoria to Stanley. (at p395)

10. Accordingly, the Traffic Act could not validly operate to prevent that use by him of his vehicle except upon and in pursuance of the terms of an out of area permit. (at p395)

Orders

Appeal allowed with costs. Conviction set aside and complaint dismissed.