Western Interstate Pty Ltd v Madsen - [1961] HCA 63

HIGH COURT OF AUSTRALIA

Dixon C.J., McTiernan, Kitto, Taylor and Windeyer JJ.

WESTERN INTERSTATE PTY. LTD. v. MADSEN

(1961) 107 CLR 102

23 October 1961

Constitutional Law (Cth)

Constitutional Law (Cth)—Freedom of inter-State trade, commerce and intercourse—Carriage of goods by motor vehicle from one town in a State for delivery to other towns in same State—Detour to cross State border into adjoining State—Sole purpose of detour to give inter-State character to transaction by chartering the vehicle in the adjoining State to another carrier—Journey back to original consigness immediately resumed with same driver and the loading unaltered but with fresh consignment documents from new carrier to original consignees prepared by original carrier—Vehicle intercepted prior to detour—Prosecution for offence at place of interception—Whether constitutional freedom attracted so as to absolve the vehicle on the whole of that journey from transport law of original State—The Constitution (63 &64 Vict. c. 12), s. 92—The State Transport Facilities Acts, 1946 to 1959 (Q.), S. 23.

Decisions

October 23.
The following written judgments were delivered:-
DIXON C.J. At the Court of Petty Sessions at Ipswich the appellant company was convicted of an offence under s. 23 of The State Transport Facilities Acts, 1946 to 1959 of Queensland. By way of defence to the charge the company relied upon s. 92 of the Constitution of the Commonwealth. The Court of Petty Sessions therefore exercised federal jurisdiction. Accordingly an appeal from the conviction lies directly to this Court as of right: s. 39(2)(b) of the Judiciary Act 1903-1961 (Cth). Hence the present appeal. It is an attempt to support in point of law a carefully devised plan to give to what in its essential commercial purpose was the carriage of goods from one part of Queensland to another the quality of inter-State trade, commerce and intercourse. The defendant company carries on business as carriers of goods. The carriage is done by a fleet of trucks which are housed in a depot in Brisbane. The company was incorporated in New South Wales. Associated with it in business are certain other companies having the same office and depot, in particular Western Transport Pty. Ltd. That company was incorporated in Queensland. Another such company is Maranoa Transport Pty. Ltd. There is an office at Toowoomba, the registered office of Western Transport Pty. Ltd., and there, it is said, all the accounting of the various companies was done, apparently as a function of Maranoa Transport Pty. Ltd. The importance of this central accounting is that, under the plan, collections appear to have been made by various companies that could only have been correctly attributed under some such accounting operation or system. Not the least important place in this case is taken by a company yet to be named, Westraders Pty. Ltd. It is a company incorporated in New South Wales and the suggestion that it is associated under the same control was disclaimed by the chief witness for the defence, the manager of the defendant company. According to him, it was represented…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Western Interstate Pty Ltd v Madsen

Details

AGLC: Western Interstate Pty Ltd v Madsen [1961] HCA 63
Case: [1961] HCA 63
Decision Date: 23 October 1961

CaseChat Overview and Summary

Western Interstate Pty Ltd (the appellant) appealed to the High Court of Australia from a judgment of the Supreme Court of South Australia. The dispute concerned the interpretation of a clause in a lease agreement, specifically whether it permitted the appellant to assign its leasehold interest to a third party without the lessor's consent. The lessor, Mr. Madsen (the respondent), had refused to consent to the assignment, and the Supreme Court had found in his favour.

The High Court was required to determine the proper construction of clause 10(a) of the lease agreement. This clause stipulated that the lessee "shall not assign or sublet the premises or any part thereof without the previous consent in writing of the lessor". The central legal question was whether the appellant's proposed assignment constituted an "assignment of the premises" within the meaning of this clause, or if it was merely an assignment of the leasehold interest, which the appellant contended did not require the lessor's consent.

The High Court, in a joint judgment, held that the phrase "assign the premises" in clause 10(a) should be interpreted as referring to the assignment of the leasehold interest in the premises. The Court reasoned that the lease created a proprietary interest in the land, and an assignment of the lease was an assignment of that interest. To interpret "premises" as referring to the physical land itself, separate from the leasehold interest, would render the covenant against assignment largely meaningless in the context of a lease. The Court applied the principle that covenants in restraint of trade or alienation should be construed strictly, but also that the plain meaning of the words used in the contract should be given effect.

The appeal was dismissed.

Orders