Pemberton v Banfield

The High Court of Australia heard an appeal from the Supreme Court of Victoria concerning a charge against a carter, Edward Banfield, for unlawfully carting goods after prohibited hours. The informant, Francis Joseph Pemberton, an inspector of factories and shops, alleged that Banfield breached section 40 of the *Factories and Shops Act 1907* (Vic.), as amended, by carting goods after 7:30 pm in the City of Richmond. Banfield had delivered barrels of beer in Prahran and, before returning to his employer's stables in Richmond, loaded empty barrels and crates onto his lorry to take back to the brewery. He arrived at the stables after 7:30 pm, intending to deliver the empties the following day. The justices dismissed the charge, and the Supreme Court of Victoria, by a majority, upheld that decision.

The legal issues before the High Court were whether the respondent's actions constituted "carting goods" within the meaning of the relevant provisions of the *Factories and Shops Act*, and whether section 12 of the *Factories and Shops Act 1909* (Vic.) provided an exemption. Specifically, the Court had to determine if the empty barrels and crates were considered "goods, wares, merchandise or materials whatsoever" and if the respondent's journey, commencing with the loading of empties after completing a delivery, fell within the prohibition. The Court also considered the scope of the exemption in section 12, which allowed persons carting goods from outside a city to complete their journey into a yard after prohibited hours.

The High Court, by majority, held that the respondent should have been convicted. The Court reasoned that the empty barrels and crates constituted "goods" within the ordinary meaning of the term and that the respondent was engaged in "carting" them from Prahran to Richmond after the prohibited hour. The Court found that the intention to deliver the empties the next day did not alter the character of the act as carting goods. Furthermore, the Court determined that section 12 did not apply as the respondent was carting goods from one city (Prahran) into another (Richmond), and the exemption was intended for journeys commencing outside any city, town, or borough. The Court noted that while the respondent had technically breached the statute, he had done nothing seriously wrong, and special leave to appeal was granted on terms. The appeal was allowed, the Supreme Court's order was discharged, and the respondent was fined one shilling, with the appellant ordered to pay the costs of the appeal.