Roadair Pty Ltd v Williams

[1968] HCA 18

HIGH COURT OF AUSTRALIA

Barwick C.J., McTiernan, Kitto, Menzies and Owen JJ.

ROADAIR PTY. LTD. v. WILLIAMS

(1968) 118 CLR 644

26 April 1968

Constitutional Law (Cth)

Constitutional Law (Cth)—Freedom of inter-State trade, commerce and intercourse—Carriage of goods for reward—Goods consigned from one point in State to another—Vehicle crossed border to depot in another State—Whether journey inter-State when vehicle returned to State of origin to deliver goods at destination—Commercial Goods Vehicles Act 1958 (Vict.), s. 22—The Constitution (63 &64 Vict. c. 12), s. 92.

Decisions

April 26.
The following written judgments were delivered:-
BARWICK C.J., KITTO, MENZIES AND OWEN JJ. For many years the appellant company, which is registered in New South Wales and carries on business as a carrier of goods for reward, has owned a large collecting and distribution depot at Albury. In the depot there are storage sheds, a weighbridge, facilities and the necessary staff for the fuelling and servicing of its vehicles and for the preparation of dockets, invoices and the like for delivery to the various consignees to whom the goods brought to the depot are to be delivered. (at p646)

2. A substantial part of the appellant's business consists of carrying goods from Melbourne to the Albury depot where they are sorted and weighed and the necessary documents relating to their delivery are prepared. Thereafter the various parcels of goods are delivered to those to whom they have been consigned. On the occasion with which this case is concerned one of the appellant's large motor trucks had left Melbourne for the depot carrying a mixed load of goods weighing in all some ten tons. The load included about three tons of concrete posts and members the ultimate destination of which was Wodonga, a township close to Albury and on the Victorian side of the border. These heavy goods were, as one would expect, loaded on the bottom of the truck. On top of them was loaded a quantity of pallets containing fibro sheets also destined for Wodonga, and on top of these was loaded a quantity of smaller and lighter parcels of goods for delivery to various consignees in Albury. After arriving at the depot the truck was refuelled and the lighter parcels of goods were unloaded into the storage sheds for sorting and ultimate despatch to the persons to whom they were consigned. The truck containing the pallets of fibro sheets and the concrete posts and members was then weighed, the freight charges being based on the weight of the goods, the usual documents were prepared and the truck left the depot to carry these heavy goods to Wodonga. (at p647)

3. At Wodonga the pallets were delivered to one consignee and the concrete posts and members to another. Subsequently an information was laid against the appellant charging it with having committed, at Wodonga, an offence against s. 22 (1) of the Commercial Goods Vehicles Act 1958 in that it was the owner of a commercial goods vehicle operated on a public highway, the vehicle not being authorized by licence or permit so to operate. The charge was based upon the use of the vehicle for the carriage of the concrete posts and members and the pallets to their consignees at Wodonga, the carriage of the goods and not the driving of the vehicle being, by virtue of a definition in s. 3, the "operation" of the vehicle. When the information came on to be heard in the court of petty sessions, the appellant set up a defence based upon s. 92 of the Constitution. This was rejected by the learned magistrate who convicted the appellant and from that order of conviction this appeal is brought. (at p647)

4. We think the appeal should be allowed and the conviction set aside. The case is, in our opinion, governed by the decision of this Court in Beach v. Wagner (1959) 101 CLR 604 . It is not what has been described as a "border hopping" case. The fact is that in the ordinary course of its business the appellant had established its depot at Albury for the purposes we have already mentioned and in the case under review the heavy goods destined for Wodonga could not have been stowed on top of the load and dropped off there en route to Albury. It would, no doubt, have been physically possible to have unloaded the whole consignment of goods at Wodonga on the way from Melbourne to Albury, delivered the pallets and the concrete posts and members to their respective consignees, reloaded the lighter goods and taken them on to the depot for sorting and distribution, but that was not a practical proposition. In order to deliver the goods consigned to Wodonga, the practice adopted by the appellant for the general purposes of his business required that the whole load should be carried to the depot, the lighter goods unloaded there and the heavy goods taken back across the border to Wodonga. It is true that the ultimate destination of those heavy goods loaded in Melbourne was another point in Victoria but the carriage of them across the border to Albury and back across the border to Wodonga gave the whole of their carriage, in the circumstances of this case, the character of the carriage of goods inter-State. (at p648)

5. We would allow the appeal. (at p648)

McTIERNAN J. In this appeal the appellant company challenges its conviction by a stipendiary magistrate for an offence committed at Wodonga in Victoria against s. 22 (1) of the Commercial Goods Vehicles Act 1958. Shortly the offence was that a semi-trailer belonging to the company operated on the highway at Wodonga without a licence or permit. By s. 3 of the Act, "operate" means "carry goods for hire" and "operation" has a corresponding interpretation. The vehicle was carrying goods in the course of the appellant's business. They were consigned at Melbourne, and the destination of the goods was Wodonga. The transit of the vehicle was from Melbourne through Albury in New South Wales to Wodonga. There was an interruption of the transit at the appellant's depot at Albury where goods for delivery there were unloaded. They had been placed on top of the Wodonga goods. The vehicle was refuelled and it was weighed at the depot after the Albury goods were discharged. The aggregate weight of the vehicle and the Wodonga goods was ascertained. The unladen weight of the vehicle was seven tons eight cwt. It appears in the certificate of registration of the vehicle. This is a New South Wales registration. The registration is endorsed "The abovementioned motor lorry is registered for use solely for purposes of interstate trade, commerce and intercourse". The weight of one consignment of the Wodonga goods was known before the weighing took place. It is probable on the evidence that the weight of the other consignment was also known. In any case there was a weighbridge at the appellant's depot in Melbourne which was available to the driver. The freight payable was calculated according to weight and was payable by the consignees. The invoices were made out at the office in the depot. However some check of the weights of each consignment of the Wodonga goods was made at the depot. The driver was given delivery dockets applying to each consignment. One of such dockets was to be signed by each consignee at Wodonga. The appellant contends that the conviction is contrary to s. 92 of the Constitution ; also to s. 4 of the abovementioned Act. This section precludes the application of Pt I, in which s. 22 appears, to commercial vehicles while used exclusively in the course of inter-State trade, commerce or intercourse. Neither s. 92 nor s. 4 embraces intra-State trade as such. The point raised under both sections is therefore the same. It is whether the vehicle was on the occasion in respect of which the conviction relates making an intra-State or an inter-State journey. (at p649)

2. I agree with the argument of the Solicitor-General that the journey as far as Albury served concurrently the two kinds of commerce - inter-State and intra-State ; that the inter-Stateness of the journey was complete at Albury and the succeeding part was intra-State : Golden v. Hotchkiss (1959) 101 CLR 568, at p 579 . (at p649)

3. Now s. 92 gives freedom to a carrier to make an incursion into another State even though it is an interruption of an intra-State journey between two points within a State. But as the borderhopping cases show the carrier does not as a matter of course enjoy the constitutional freedom which is accorded by s. 92. Neither would he necessarily exclude himself from the application of s. 22 of the present Act, pursuant to s. 4. I am of opinion that nothing was done at the appellant's depot at Albury to the vehicle or the Wodonga goods which gives ground for saying that the transport of such goods was an inter-State transaction. What was done is stated, in substance, above. These were only matters incidental or ancillary to the carriage of the Wodonga goods, which was a predominantly intra-State operation. They were not effective to give it the quality of inter-State commerce. (at p649)

4. When the vehicle recrossed the border, after leaving Albury for Wodonga, the inter-State elements arising merely from its journey in New South Wales were exhausted and the journeying in Victoria to Wodonga was essentially an intra-State affair. The information was laid in respect of it. (at p649)

5. The evidence, in my opinion, is not sufficient to show that at Albury there was an actual termination of the journey starting at Melbourne. Its expected terminus was always Wodonga. There was not, in fact, an inter-State journey ending at Albury, and a second journey of that kind starting there. The journeying of the vehicle between Melbourne and Albury had a dual purpose ; it served both intra-State and inter-State commerce. The incursion to Albury was a prolongation of the transit of the Wodonga goods. It did not give the carriage of those goods an inter-State dimension as far as s. 92 of the Constitution or s. 4 of the present Act is concerned. The question under consideration does not depend upon the ambit of the constitutional power in s. 51 (i.) of the Constitution. The incursion was merely territorial or spatial in character. There is no reason in law why the journey back to Wodonga should after the border is crossed enjoy the constitutional immunity or be excluded by s. 4 of the present Act from the application of s. 22. (at p650)

6. According to the evidence the appellant channelled through the depot at Albury all its traffic between places within Victoria and this was the reason why the vehicle called first at the depot. It is plain from admissions in cross-examination at the trial that this system of business is an attempt to shelter from s. 22 of the Act under s. 92 of the Constitution. It would be serious for the States and the Commonwealth if their respective legislative powers could be eroded by business practices designed to get under the protection of s. 92, which of course is a restriction not a grant, of legislative power. I think that the proper approach is to consider whether the "operation" which is in issue here was in its essential purposes an intra-State or an inter-State transaction. I refer of course to the transport of the Wodonga goods. I think that it was, as predicated by the Transport Regulation Board, predominantly and essentially an intra-State transaction. (at p650)

7. The circumstances of the case of Beach v. Wagner (1959) 101 CLR 604 , in my opinion, are markedly different from the circumstances of the present case. (at p650)

8. The appellant did not have a licence or permit for its vehicle which was involved in the charge on which it was convicted to "operate" as alleged by the informant. I am of the opinion the conviction now in question is right. The appeal should be dismissed. (at p650)

Orders

Appeal allowed with costs. Order of the Court of Petty Sessions at Wodonga set aside and conviction quashed. Matter remitted to that Court to dismiss the information with such orders as to costs and otherwise as are proper.