Kerr v Pelly

The appellant, Kerr, was convicted in a Court of Petty Sessions in New South Wales for failing to comply with a direction from an authorised officer of the Commissioner for Main Roads to proceed to a weighbridge. Kerr was driving a motor vehicle carrying wire from Newcastle, New South Wales, to Brisbane, Queensland, at the time of the alleged offence. He appealed this conviction to the High Court of Australia.

The High Court was required to determine two primary legal issues. Firstly, whether the provisions of Ordinance 30c, specifically clause 11, which required drivers to proceed to a weighbridge or other weighing device when directed by an authorised officer, were within the scope of the power granted by section 51(1)(f) of the Main Roads Act 1924-1954 (N.S.W.). Secondly, the Court considered whether any of the regulations, particularly those connected with clause 11(1), were void under section 92 of the Australian Constitution, which guarantees freedom of inter-State trade, commerce, and intercourse.

A majority of the High Court, comprising Dixon C.J., Webb, Fullagar, Kitto, and Taylor JJ., held that clause 11 of Ordinance 30c exceeded the power conferred by section 51(1)(f) of the Main Roads Act. This was because the Act specifically authorised ordinances requiring vehicles to be taken to a "public weighbridge," whereas clause 11 permitted directions to proceed to a "weighbridge or other weighing device." The Court found that this discrepancy meant that the relevant part of the ordinance could not be supported under State law. While the Court acknowledged that the appellant's argument regarding section 92 of the Constitution did not warrant a conclusion that the regulations were void, the appeal was allowed and the conviction quashed on the grounds of the ordinance exceeding the statutory power. McTiernan J. dissented, finding that the power granted by section 51(1)(f) extended to requiring vehicles to be weighed at any weighbridge or weighing device, whether public or private, and that section 51(4) of the Act provided legislative ratification for such provisions.