Ward (J and J) Pty Ltd v Williams

[1969] HCA 65

HIGH COURT OF AUSTRALIA

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

WARD (J. &J.) PTY. LTD. v. WILLIAMS

(1969) 119 CLR 318

12 December 1969

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

December 12.
The following written judgments were delivered:-
BARWICK C.J. I have had the advantage of reading the reasons for judgment prepared in this appeal by my brother Walsh. I agree entirely with the conclusion he has reached and with the reasons he has expressed for that conclusion. I do not desire to add anything to what my brother has said. (at p321)

2. I agree that the appeal should be allowed and the conviction of the appellant quashed. (at p321)

McTIERNAN J. The evidence proves that the vehicle in question in this case carried on the highway at Hamilton eleven tons of twine which had been loaded on to the vehicle at Geelong and delivered those goods in Hamilton, both of which towns are in Victoria. It is said that the carriage of these goods on the road at Hamilton had the quality of inter-State trade, commerce and intercourse. The facts upon which the defendant relies to give the carriage of these goods this quality are that the goods were part of a load of fifteen tons of twine which the appellant loaded on to the vehicle at Geelong and had contracted to carry to Hamilton, that it carried the goods by this vehicle to a depot which it conducted at Mt. Gambier for the purpose of its business as a carrier, and there unloaded four tons of the consignment of twine and loaded other goods which it had contracted to carry to the same consignee in Hamilton. When the vehicle arrived at Hamilton first it unloaded the eleven tons of twine and then unloaded the balance of the load which of course were the goods loaded on it at Mt. Gambier. It seems that the four tons of twine which were taken off the vehicle at Mt. Gambier were put on another of the appellant's vehicles and carried by that vehicle to Hamilton. The appellant was not authorized under the law of Victoria to "operate" the vehicle used to carry the load of eleven tons of twine between Geelong and Hamilton. The two factors in the company's claim to invoke s. 92 were this transfer of four tons of the original load to the other vehicle and the taking on of other goods, and the fact that the vehicle had crossed the border in going from Mt. Gambier to Hamilton. (at p321)

2. There is no doubt that s. 92 enabled the appellant to operate the vehicle across the border in order to return to the depot at Mt. Gambier and then to recross the border into Victoria in order to reach Hamilton: Harris v. Wagner (1959) 103 CLR 452, at p 458 . But the return of the vehicle into Victoria had, in my view of the facts, a predominantly intra-State purpose, namely to carry out an intra-State transaction, that is the carriage of the eleven tons of twine from Geelong to Hamilton. (at p321)

3. In my opinion, when the border had been crossed on the road back to Hamilton, any inter-State element which it might be thought the course of the carriage across the border gave to the operation of the vehicle was "exhausted" : Western Interstate Pty. Ltd. v. Madsen (1961) 107 CLR 102, at p 110 . The provisions of s. 22 (1) of the Commercial Goods Vehicles Act 1958 (Vict.) applied to the operation of the vehicle in respect of the carriage of the eleven tons of twine when it was on the highway at Hamilton, after having come across the border. (at p322)

4. As I have shown, the essential facts lie within a small compass. Nothing, in my opinion, that happened to the vehicle and its load on the way between Geelong and Hamilton converted any part of the carriage, which took place on the roads of Victoria, into inter-State trade, commerce and intercourse. The journey of the vehicle from Geelong to Hamilton was a continuous journey. The appellant was free to cause the vehicle to make a detour into South Australia but the evidence as to what happened at the depot does not afford any reason which would qualify the operation of the vehicle when it returned to the road between the border and Hamilton for exemption, either under s. 92 of the Constitution, or s. 4 of the Commercial Goods Vehicles Act (Vict.), from the operation of s. 22 (1) of the latter Act. (at p322)

5. From the time the vehicle entered Victoria again, after leaving South Australia, that Act applied to the vehicle the subject of the prosecution because it was being operated by the appellant to carry goods, the eleven tons of twine, in the course of trade, commerce and intercourse between two towns in Victoria, Geelong and Hamilton. If the other goods on this vehicle were being carried in the course of inter-State trade, commerce and intercourse, because in truth and fact they were consigned from Mt. Gambier to Hamilton, not just through Mt. Gambier to Hamilton from somewhere in Victoria, this circumstance could not attract the protection of s. 92 in respect of the carriage of the eleven tons of twine and justify the disregard of the Act in the case of those goods, their carriage being an intra-State transaction: cf. Pioneer Express Pty. Ltd. v. Hotchkiss (1958) 101 CLR 536 . (at p322)

6. I believe that if I held that the appellant had a tenable claim to the protection of s. 92 in the circumstances of this case I would be giving to that section a wider operation than I think the Constitution intends. I think it is not correct to regard the facts in Beach v. Wagner (1959) 101 CLR 604 , and Roadair Pty. Ltd. v. Williams (1968) 118 CLR 644 as so similar to the facts of the present case that I should decide it in favour of the appellant. (at p322)

7. I am of opinion that the conviction of the appellant was right and the appeal should be dismissed. (at p323)

KITTO J. I have had an opportunity of reading the judgment prepared by my brother Walsh and I agree in it. The little I shall add is intended only to deal with one or two particular aspects of the argument presented for the respondent. (at p323)

2. The appellant, a carrying company, being charged with operating a vehicle on a public highway in breach of a statutory prohibition, claims the protection of s. 92 upon the ground that its operation of the vehicle at the time and place charged was part of an inter-State movement which it was itself then and there carrying out. The case is to be distinguished from that class of cases in which a carrier similarly charged has based his claim to the protection of s. 92 upon an assertion that, although at the material time and place he was not engaged in any inter-State movement of his own, a prohibition of his performing the operation charged would, if valid, deny freedom of inter-State trade to a person for whom he was then and there conveying goods. In cases of the latter description the question is whether the carriage of the goods by the carrier was part of that other person's inter-State transmission of the goods. To that question the purpose of the other person in having the goods conveyed by the carrier is relevant; but the purpose, object or intention of the carrier, or his knowledge, if he has any, of the other person's purposes cannot be material, since he is not asserting any constitutional freedom of his own: cf. Simms v. West (1961) 107 CLR 157 ; Britton Bros. Pty. Ltd. v. Atkins (1963) 108 CLR 529 ; Bell Bros. Pty. Ltd. v. Rathbone (1963) 109 CLR 225 . In a case such as the present, however, the carrier's claim to the protection of s. 92 is for his own inter-State trade and rests upon the constitutional truism that "a restriction, applied not at the border but at a prior or subsequent stage of inter-State trade, commerce or intercourse, may offend against s. 92": The Commonwealth v. Bank of New South Wales (1949) 79 CLR 497, at p 638 . In order to show that in his case the restriction does offend s. 92 he must establish that a prohibition of his operating his vehicle at the time and place charged would be a burden upon his crossing of the border. That involves his showing that the operation of the vehicle at that time and place was part and parcel of the movement by which he had passed or intended to pass from one State to another, as distinguished from an operation prior or subsequent to that movement. He may be able to do this by establishing that he was in the course of a simple journey from a point in one State to a point in another, e.g. from Mt. Gambier to Hamilton. He is then protected by s. 92 for the whole of the journey, and none the less so because, if it be the fact, he was carrying goods for a person who he knew had engaged him to perform the journey as part of a means for giving an inter-State colour to a transportation between points both of which were in the State from which he started: Barry v. Stewart (1965) 114 CLR 341 . If his journey was not of this simple kind but included both a crossing and a re-crossing of the border, there is no denying that his inter-State trade included so much of his travelling to and away from the border as was integral with the crossings, even if his only object in moving inter-State was to make a case for the application of s. 92; but the fact, if it was a fact, that that was his only object, considered together with the physical features of the route he followed or planned to follow, may enable a part of his travelling to be distinguished from the rest of it as having been an inter-State deviation from an intra-State journey, the deviation being the only part of the travelling that was in truth integral with the crossings of the border. If so, the freedom accorded by s. 92 cannot be held to apply to an operation of his vehicle at some point before the inter-State deviation began or after it had been completed. (at p324)

3. Cases such as Harris v. Wagner (1959) 103 CLR 452 and Western Interstate Pty. Ltd. v. Madsen (1961) 107 CLR 102, esp at pp 109-111 make this clear, but the argument in the present case seemed to suggest a misunderstanding of the reason why in some of the decided cases particular circumstances have been selected for mention as leading to a conclusion that the border-crossing has or has not imparted an inter-State character to the particular portion of the travelling for which the protection of s. 92 has been claimed. In Beach v. Wagner (1959) 101 CLR 604 , for example, a carrier who had been engaged to carry goods from Bungunya in Queensland to Brisbane in the same State carried them from Bungunya across the border to a trans-shipment and storage depot that he maintained at Boggabilla in New South Wales. He stored them there overnight, loaded them next day on to a different vehicle, and proceeded to Brisbane. The journey from Bungunya to Boggabilla was held to be, as a whole, an inter-State journey. The Court spoke of the carrier's having been engaged upon an inter-State journey "for the perfectly legitimate purposes of his business" (1959) 101 CLR, at p 610 . It said in the judgment that there was "no reason why he should not form a depot at Boggabilla in New South Wales"; that there was "no reason why he should not carry goods to it from Queensland and carry goods from it back into Queensland"; and that "it was in the course of (his) business to use a place in New South Wales as a depot for the trans-shipment and handling of goods as well as for a garage and petrol dump" (1959) 101 CLR, at p 610 . But the significance of these statements is not that they were thought to furnish a test for the application of s. 92. They were made in order to negative a suggestion that the journey from Bungunya to Boggabilla was recognizably divisible into two parts, one part governed only by the general purpose of carrying the goods to Brisbane and the other part governed by the purpose of inter-State movement. In other words, the statements were made in order to demonstrate the unity of the Bungunya Boggabilla journey, as a journey which was governed throughout by the purpose of reaching Boggabilla. Similarly in Roadair Pty. Ltd. v. Williams (1968) 118 CLR 644 , the facts were treated as decisive that "in the ordinary course of its business" the appellant had established its depot at Albury, and that it had not been practicable to drop, on the way through Wodonga, the heavy goods destined for that town and loaded underneath the light goods destined for Albury. These facts were decisive, not because some gloss to be placed upon the language of s. 92 limits its application to cases where "a genuine commercial purpose", or "the ordinary course of business", has characterized the movement across the border, but because they showed that there had been a single, indivisible transportation of the heavy goods inter-State, namely from Melbourne to Wodonga via Albury, as distinguished from an intra-State transportation from Melbourne to Wodonga with an irrelevant inter-State excursion from Wodonga to Albury and back. (at p325)

4. In the present case there is no ground for regarding the appellant's operation of its vehicle in Hamilton as other than an integral part of an inter-State movement. I should myself prefer the view that that movement was from the appellant's headquarters in Mt. Gambier to the premises of Permewan Wright Ltd. in Hamilton, because the journey between those points was a new assignment for the vehicle, decided upon after the journey from Geelong to Mt. Gambier had been completed; but if the break at Mt. Gambier should be ignored the evidence explaining why the vehicle was driven to Mt. Gambier before being driven to Hamilton would seem to make it clear beyond doubt that the crossing into South Australia and the crossing back into Victoria were integral with the whole operation of the vehicle from Geelong to Hamilton, and that therefore the character of inter-State trade should be conceded to every part of that operation notwithstanding that Hamilton might have been reached from Geelong by a purely intra-State journey. (at p326)

5. I agree that the appeal should be allowed. (at p326)

MENZIES J. I have had the opportunity of reading the judgments of Kitto J. and Walsh J. and I agree in them. (at p326)

WINDEYER J. I have read the judgment to be delivered by my brother Walsh. I agree in it and have nothing to add. (at p326)

OWEN J. I agree with the judgment of my brother Walsh. (at p326)

WALSH J. On 30th August 1967 an information was laid by the respondent charging that on 22nd November 1966 at Hamilton in the State of Victoria the appellant company was guilty of an offence against the Commercial Goods Vehicles Act 1958 (Vict.) in that the company was the owner of a commercial goods vehicle which contrary to s. 22 (1) of the said Act operated on a public highway the said vehicle not being authorized by licence or permit so to operate. (at p326)

2. The appellant was convicted of that offence by the Court of Petty Sessions at Hamilton and was fined. The appeal has been brought to this Court pursuant to s. 39 (2) (b) of the Judiciary Act 1903-1969 (Cth). (at p326)

3. Section 4 of the Act, under which the charge was brought, provides that Pt 1 (in which s. 22 is included) shall not apply to or in respect of any commercial goods vehicle while being used exclusively in the course of inter-State trade, commerce or intercourse. (at p326)

4. In s. 3 the word "operate" is defined as meaning (in the case of any vehicle) carry goods for hire or reward or for any consideration or in the course of any trade or business whatsoever. (at p326)

5. There was evidence that an inspector of the Transport Regulation Board saw a vehicle, owned by the appellant, stationary at the kerb in a street in Hamilton. It appeared to be fully loaded. The vehicle was then about to drive into premises of Permewan Wright Ltd. The vehicle then moved into those premises and twine was there unloaded from it. Then the vehicle moved across the road to another store and other materials were unloaded from it. It was intercepted after it had moved back into the street. The charge must relate, of course, to the operating of the vehicle while it was still carrying goods. (at p327)

6. Evidence given in answer to the charge included evidence that the vehicle had been driven on 22nd November 1966 by an employee of the appellant named Thomas, from Mt. Gambier in South Australia to Hamilton, carrying a load of goods. Most, if not all, of this load was to be delivered to Permewan Wright Ltd. It included eleven tons of twine which, on the preceding day, had been loaded on the vehicle at Geelong. (at p327)

7. The appellant carried on the business of carriers and had the headquarters of its business at Mt. Gambier. Its registered office was there and it had there a large depot. (at p327)

8. The appellant claims that in carrying the load of goods, at the time of the operating of its vehicle on a road in Hamilton to which the charge relates, it was engaged exclusively in inter-State trade or commerce and that the vehicle carrying the load was throughout its journey from Mt. Gambier to Hamilton being used exclusively in the course of inter-State trade, commerce or intercourse. Accordingly it is contended that s. 22 (1) of the Commercial Goods Vehicles Act 1958 had no application to the operation of the vehicle at the relevant time. Section 4 of the Act made s. 22 (1) inapplicable. In any event, it is claimed that the appellant was protected by s. 92 of the Constitution from the burden which, if applicable, s. 22 would seek to impose upon it. (at p327)

9. The following further facts should be stated. The eleven tons of twine which was the bulk of the load which the vehicle was carrying when observed in Hamilton formed part of fifteen tons of twine which had been placed on the vehicle in Geelong on 21st November and which had made up a full load upon it. The whole load was destined for delivery in Hamilton. It was taken to Mt. Gambier. There, after four tons of the twine had been unloaded, the rest of the load of twine was later taken to its destination in Hamilton, on the same vehicle on which it had remained during the period when the vehicle was at Mt. Gambier. (at p327)

10. In the regular course of the appellant's business it carried loads of timber from Mt. Gambier to Melbourne by semi-trailer. It carried to Mt. Gambier what were described as back loads of goods of various kinds. At its Mt. Gambier depot it unloaded and sorted the goods and used smaller vehicles called tray tops to deliver them to towns in South Australia and in Victoria. The road used on the journeys of the semi-trailers from Melbourne to Mt. Gambier was the Princes Highway, which does not pass through Hamilton. Reasons were given in evidence for using this route rather than others which were shorter and also for taking to Mt. Gambier goods consigned to various western Victorian towns rather than unloading them at those towns on the way back to Mt. Gambier. These reasons need not be set out. It is sufficient to say that it is not suggested on behalf of the respondent that these practices followed by the appellant were without practical advantage to it in the conduct of its business of carrying goods. (at p328)

11. In relation to the carriage of the twine to Hamilton there was a departure from the usual practice, as well as from what had been intended at the times when it was being conveyed to Mt. Gambier and when it arrived there. What had been intended was that at Mt. Gambier the whole load would be taken from the semi-trailer which would then be driven by Thomas to Adelaide with a load of timber. What occurred, in fact, was that four tons of the twine were unloaded and reloaded on to another vehicle, called unit No. 1, which was to carry also to Permewan Wright's premises at Coleraine three tons of bailer twine which had been at the depot for two or three days and was to carry certain other goods. It was found that the goods waiting to be delivered exceeded in volume the capacity of unit No. 1. The managing director of the appellant decided that the semi-trailer driven by Thomas should proceed to Hamilton with the eleven tons of twine which had been left on it and also with some quantities of iron and 116 packages of goods. When the driver, Thomas, who had arrived at Mt. Gambier in the early hours of the morning and had left the semi-trailer at the depot, expecting that after a rest period he would be taking the semi-trailer with a load of timber, returned after lunch, he was instructed to proceed to Hamilton and this he did. (at p328)

12. Although the magistrate did not make express findings of all the facts which I have set out it is not in dispute that this Court may regard them as having been established by the evidence. (at p328)

13. On these facts the appellant contends that the case is governed by the decisions in Beach v. Wagner (1959) 101 CLR 604 and Roadair Pty. Ltd. v. Williams (1968) 118 CLR 644 . On behalf of the respondent it has been submitted that the transaction in which the appellant was engaged was basically and essentially an operation of intra-State trade, being the carriage of goods from Geelong to Hamilton and that this was not converted into an inter-State operation by the fact that the goods had been taken to Mt. Gambier and brought back from there to Hamilton. It was said that the fact that a carrier is ordinarily and genuinely engaged in inter-State trade does not enable him when electing to engage in a transaction of intra-State trade to characterize that transaction as being one of inter-State trade and that circumstances relating to the carrier's convenience, business organization and ordinary practices cannot convert into an operation of inter-State trade what is basically an intra-State operation. It was contended that the question whether a vehicle is operating in the course of inter-State trade is to be determined by reference to the dominant purpose and ultimate object of the operation in question, and that the proper conclusion in the present case was that in carrying the twine, of which the origin was Geelong and the destination was Hamilton, the appellant's vehicle was not operating in the course of inter-State trade. (at p329)

14. In my opinion the facts in this case are such that the Court could not deny to the appellant the protection of s. 92 of the Constitution without departing from the decisions in the two cases I have mentioned. (at p329)

15. We are not concerned in this case with the character of the trading in the goods by the supplier in Geelong or by the consignee in Hamilton. Protection is not claimed by the appellant on the footing that a burden placed on it as carrier of the goods would interfere with inter-State trade of the person for whom they were carried: cf. Simms v. West (1961) 107 CLR 157, at p 161 and Deacon v. Mitchell (1965) 112 CLR 353, at p 364 . (at p329)

16. In carrying goods in the course of its own business the appellant was itself engaged in trade or commerce. Of course, it does not follow from the fact that the appellant was frequently engaged in inter-State trade or commerce and its vehicles were frequently being operated in the course of its inter-State trade or commerce that it was so engaged or its vehicle was being so operated at the time and place and in the circumstances to which the charge related. It is necessary to examine the relevant circumstances and to decide whether or not the operation upon which the appellant was then engaged and the carriage of goods then being performed by the use of its vehicle had an inter-State character. In making that decision on the facts, one of the facts to which regard must be had is that the original starting point and the ultimate destination of the transport of the twine were both in the same State, but that fact cannot be decisive. See Golden v. Hotchkiss (1959) 101 CLR 568, at p 589 . (at p329)

17. What the appellant did on 21st November 1966 was to carry the goods from Geelong to Mt. Gambier. What it did on 22nd November was to carry them from Mt. Gambier to Hamilton. If it ought to be regarded as having made two journeys, the second journey from Mt. Gambier to Hamilton on which the vehicle was carrying the goods, and which was not completed at the time in which the charge relates, was a journey from a place in one State across the border to a place in another State. It happens that this was true also of the first journey. If as a matter of practical reality it ought to be considered that there was but one continuous journey from Geelong to Hamilton, this also was prima facie an inter-State journey, notwithstanding that its points of departure and destination were in the same State. The journey which in fact was made required the crossing and the recrossing of the border. (at p330)

18. The facts of this case do not support a view that the crossing and recrossing of the border were, in the words of Taylor J. in Harris v. Wagner (1959) 103 CLR 452, at p 472 , a "diversionary incident" which was merely "a superficial excrescence on the journey". On the facts there seems to be no reason to deny to either of the journeys, if there were two, or to the single journey if but a single journey was made, the character of a journey made in the course of inter-State trade or commerce. Whether the appellant's vehicle was engaged in the completion of a single journey or in the completion of a second journey which began at Mt. Gambier, the facts indicate that it was being operated in the course of inter-State trade or commerce in which the appellant was then engaged. (at p330)

19. The view of the matter which I have stated is compelled, in my opinion, by the decision in Beach v. Wagner (1959) 101 CLR 604 and Roadair Pty. Ltd. v. Williams (1968) 118 CLR 644 . In every case of this type a decision as to the character of the operation must depend upon a consideration of all the relevant facts. There are, in my opinion, no facts in this case upon which could be based a distinction leading to a conclusion different from that reached in each of those cases and reconcilable with the reasons given in them. In Roadair Pty. Ltd. v. Williams (3) where there was a carriage of goods, loaded in Melbourne, across the border to Albury to the depot of the carrier and a carriage of some of the goods, which were destined for Wodonga, back across the border to that town, it was held that the carriage of the goods across the border and back to Wodonga gave to the whole of their carriage, in the circumstances of the case, the character of the carriage of goods inter-State. In my opinion the circumstances were not different in any material way from those of the present case. It is true that the goods destined for Wodonga were heavy goods loaded beneath lighter goods which were destined for delivery in New South Wales and this would have caused a difficulty in the way of unloading the former goods at Wodonga on the way from Melbourne to Albury. In the present case this feature was absent and the whole load taken on at Geelong had Hamilton as its ultimate destination. But the fact which I have mentioned did not constitute the real ground of the decision in Roadair Pty. Ltd. v. Williams (1968) 118 CLR 644 and thus make it inapplicable to this case. In his submissions on behalf of the respondent the Solicitor-General submitted that in Roadair Pty. Ltd. v. Williams (1968) 118 CLR 644 the view was taken that for the purpose of delivering the heavy goods at Wodonga it was a matter of practical necessity to go first to Albury to unload the other goods. He described this as the essential fact upon which the Court fastened in that case. But in my opinion this is not borne out by the reasons given by the majority of the Court and it cannot be reconciled with their statement that the case was governed by Beach v. Wagner (1959) 101 CLR 604 . (at p331)

20. In that case, in the joint judgment of the Court, the facts were recited and then followed (1959) 101 CLR, at p 610 the following passage:

"On the foregoing facts it seems quite plain that he was engaged upon an inter-State journey for the perfectly legitimate purposes of his business. There is no reason why he should not form a depot at Boggabilla in New South Wales. There is no reason why he should not carry goods to it from Queensland and carry goods from it back into Queensland. It does not seem to be material that the wool was carried to Boggabilla in the course of fulfilling a contract of carriage requiring it to be picked up at Bungunya in Queensland and delivered in Brisbane. It was in the course of the appellant's business to use a place in New South Wales as a depot for the trans-shipment and handling of goods as well as for a garage and petrol dump. To carry on business thus between Bungunya and Boggabilla is to engage in trade, commerce and intercourse between the States and none the less so because the next stage in the course of business was to carry the wool on another and larger vehicle from Boggabilla to Brisbane."

This statement applies to the circumstances of the present case. The fact that instead of transferring the eleven tons of twine to another vehicle, as was intended, the appellant carried them to Hamilton in the same vehicle, in order to carry out more efficiently the immediate requirements of its business, does not in my opinion provide a valid ground of distinction between the two cases. Nor is it of any consequence, in the circumstances of the present case, that the charge related to the use of a road at a time when the carriage of the goods to their destination had almost been completed, whereas in Beach v. Wagner (1959) 101 CLR 604 the charge related to an early stage of the carriage of the goods. (at p331)

21. In his argument the Solicitor-General sought to show that Beach v. Wagner (1959) 101 CLR 604 ought to be regarded as an instance of what he described as the "two-contract cases" or the "two-journey cases" and, therefore, as not applicable to the present case. It was submitted that otherwise the statement in the judgment that the case was in a sense complementary to that of Naracoorte Transport Co. Pty. Ltd. v. Butler (1956) 95 CLR 455 could not be understood. From this starting point an argument was developed that Beach v. Wagner (1959) 101 CLR 604 had been mistakenly given an interpretation different from that which it should receive, namely an interpretation by which it was taken to have decided that if you have in relation to the way you conduct your business some commercial purpose for crossing the border (this being a real and not a pretended commercial purpose), then because of that purpose you are able to assert that an operation which is essentially an intra-State one has the character of inter-State trade. It was submitted that the question raised by such a case as the present one ought not to be answered by the application of what was described in the argument as "the commercial purpose test" which, it was said, has been erroneously believed to have been adopted in Beach v. Wagner (1). It should be answered by looking at the actual operation the carrier was performing, which was the carriage of twine from Geelong to Hamilton, to which operation the going inter-State by the carrier for some purpose connected with the arrangement of the appellant's business was irrelevant. (at p332)

22. In my opinion these arguments are not acceptable. The proposition that the case of Beach v. Wagner (1959) 101 CLR 604 was considered and decided as being a "two-journey" case or a "two-contract" case, was advanced in an attempt to show that it was in the same category as the cases of Naracoorte Transport Co. Pty. Ltd. v. Butler (1956) 95 CLR 455 ; Jackson v. Horne (1965) 114 CLR 82 ; and Barry v. Stewart (1965) 114 CLR 341 , and, therefore, was essentially different from the present case. But in my opinion this is not supported by the facts and the reasons given in Beach v. Wagner (1959) 101 CLR 604 . My next comment on the argument is that it appears to treat the facts that the goods came from Geelong and their destination was Hamilton (when they were being carried throughout by one carrier in one truck) as being decisive in favour of a conclusion that the operation of carrying them was an intra-State one and to treat any facts relating to the nature and conduct of the carrier's business as irrelevant. But if this is what the argument means it is opposed not only to Beach v. Wagner (1) but to many other authorities. Finally the argument included the proposition that under the influence of a mistaken interpretation of the decision in Beach v. Wagner (1959) 101 CLR 604 , what was described in the argument as the "commercial purpose test" has been set up in subsequent cases as the sole criterion or test for the characterization of a journey as an intra-State or an inter-State one. But, in my opinion, this is not a correct statement of the course which the decisions have taken. When the question to be decided has been whether or not the use for the carriage of goods of a road in one State, before an intended detour across the border into another State has begun, or after such a detour has been completed, was an activity to which the character of inter-State trade or commerce should be assigned, the purpose for which the goods were going to be carried or had been carried across the border into the other State has been treated as an important consideration. This is illustrated by such cases as Harris v. Wagner (1959) 103 CLR 452 , and Western Interstate Pty. Ltd. v. Madsen (1961) 107 CLR 102 . But to say this is not the same as to say that a single and decisive test has been established by which the character of inter-State trade or commerce has been ascribed to all journeys in which there has been or there is about to be a crossing of the border which had a "real commercial purpose" and denied to all journeys in which the border crossing, already made or to be made, had no such purpose. (at p333)

23. As I have indicated I am of opinion that, in harmony with the decisions in Beach v. Wagner (1959) 101 CLR 604 and in Roadair Pty. Ltd. v. Williams (1968) 118 CLR 644 and upon a consideration of the facts, this appeal should be decided in favour of the appellant. (at p333)

24. In my opinion the appeal should be allowed. (at p333)

Orders

Appeal allowed with costs. Conviction quashed and order of the magistrate set aside. Matter remitted to the magistrate to dismiss the information with such orders as to costs and otherwise as are proper.