Winton Transport Pty Ltd v Horne

[1966] HCA 51

HIGH COURT OF AUSTRALIA

McTiernan A.C.J., Taylor, Menzies, Windeyer and Owen JJ.

WINTON TRANSPORT PTY. LTD. v. HORNE

(1966) 115 CLR 322

26 August 1966

Constitutional Law (Cth)—Criminal Law

Constitutional Law (Cth)—Freedom of inter-State trade, commerce and intercourse—Inter-State character of transaction—Carriage of same goods by two different carriers under separate agreements—First agreement to carry from town in first State over border to town in adjoining State—Second agreement to carry from that town in adjoining State to another town in first State—First carrier agent of second carrier—Second carrier intercepted—Whether second carrier protected—The Constitution (63 &64 Vict. c. 12), s. 92—The State Transport Act of 1960 (Q.), s. 49.* Criminal Law—Principal offenders—Offence to use on a road in Queensland a vehicle for the carriage of goods not under permit—Vehicle owned by company and driven by its employee under instructions from its managing director—Whether company "used" on a road the vehicle—The State Transport Act of 1960 (Q.), s. 49*—The Criminal Code (Q.), s. 7.**

Decisions

August 26.
The following written judgments were delivered: -
McTIERNAN A.C.J. The appellant appeals from a conviction recorded against it in a Court of Petty Sessions at Brisbane for a breach of s. 49 of The State Transport Act of 1960 (Q.). It was alleged in the complaint that on 10th August 1963 on the Lockyer-Darling Downs Highway at Gailes in Queensland the appellant used a vehicle for the carriage of goods in respect of which no permit had been issued pursuant to the above-mentioned section. (at p326)

2. The registered office of the appellant is situated at Winton in Queensland. It conducts a carrying business with a fleet of four trucks. On the date alleged one of these trucks was intercepted by a police constable attached to the Queensland Department of Transport. The truck was carrying a load of groceries to be delivered to a store in Winton owned by one Johnston. The groceries were purchased from a Brisbane wholesaler, Thomas Brown &Sons Ltd., and had been transported by another carrying company, J. N. Nicholson's Transport Company Pty. Ltd. (Nicholson) from Brisbane to a place at Tweed Heads in New South Wales. The groceries were off-loaded there and shortly afterwards and at the same place were loaded on to the appellant's truck which was to take them to Winton. The driver of the truck was an employee of the appellant and was acting under instructions from its managing director. (at p326)

3. The order for the groceries was posted by Johnston on 7th August 1963 and the consignment instructions which he gave to Thomas Brown &Sons Ltd. were: "To Nicholson's for Winton Transport". After Thomas Brown &Sons Ltd. had received the order they delivered the groceries to Nicholson at that carrier's Brisbane depot and charged Johnston three-quarters per cent of the total invoice costs for delivery. Nicholson charged 2 pounds 12s. 6d. per ton for transporting the groceries from Brisbane to Tweed Heads and looked to the appellant for payment. The appellant then charged Johnston, the consignee, 12 pounds per ton for the cartage from Brisbane to Winton. In stating the reasons for his decision, the learned magistrate said: "I find that the J. N. Nicholson's Transport Company Pty. Ltd. was the agent of the defendant company and that the carriage of goods from Brisbane to Tweed Heads cannot be regarded as separate but as part of an operation for the conveyance of goods from Brisbane where the goods originated to Winton where the goods were to be delivered, and that the defendant company paid J. N. Nicholson's Transport for the carriage of goods from Brisbane to Tweed Heads and that such payment was made therefor by the defendant company and not on behalf of the consignee, Mr. Johnston". (at p327)

4. The groceries had been transported from Brisbane to Winton in accordance with a standing arrangement between Johnston and the appellant. He stated in evidence: "I had an arrangement with the defendant company Winton Transport Pty. Ltd. to carry goods to Winton for me. Those goods would have come from Brisbane. This arrangement was in effect in July and August 1963. I had asked the defendant company to carry goods for me. The charge during July and August 1963 was 12 pounds per ton. I had a previous figure we had arranged at 20 pounds, this figure was subsequently changed to 12 pounds. I cannot remember when it was changed. I arranged originally for a load of sugar to be brought to Winton. After that load was brought back I channelled my goods through Winton Transport". (at p327)

5. Nicholson's manager, one Theo Messer, said in examination-in-chief: "In approximately 1959 arrangements were made between our company and Winton Transport for the carriage of goods from Brisbane to Tweed Heads, and from Tweed Heads to Brisbane on behalf of Winton Transport. That agreement related to goods delivered to my company's depot in South Brisbane. The agreed rate for cartage in the first instance was 2 pounds 10s. per ton which was increased later to 2 pounds 12s. 6d. per ton. This freight would be a payment to my company by the defendant company. . . . The consignee and consignor of the goods carried by my company from Brisbane to Tweed Heads were not known by me. The destination of the goods which were carried from Brisbane was Tweed Heads as far as we were concerned". (at p327)

6. The appellant contended that its business was so organized that the carriage of goods undertaken by it was concerned with a journey which commenced at Tweed Heads and ended at Winton. It was argued that this was an inter-State journey which was within the protection of s. 92 of the Commonwealth Constitution. In my opinion, however, there was ample evidence to support the learned magistrate's finding that the journey from Tweed Heads to Winton could not be regarded separately but must be considered as part of an essentially intra-State transaction. It is clear that Johnston contracted with the appellant for the carriage of the goods between Brisbane and Winton and that the appellant contracted with Nicholson for their carriage between Brisbane and Tweed Heads. Once this connexion between the appellant and Nicholson is established the case is obviously within the principle of the decision of this Court in Harris v. Wagner (1959) 103 CLR 452 The defence based on s. 92 must, therefore, fail. (at p328)

7. The commission of the offence as alleged in the complaint was proved by the evidence and I think that the statement in argument before the learned magistrate regarding an "election" under s. 7 of The Criminal Code (Q.) was irrelevant. It cannot be successfully relied upon as a ground of appeal. (at p328)

8. In my opinion the appeal should be dismissed. (at p328)

TAYLOR J. The complaint in this case alleged that the appellant contravened the provisions of s. 49 of The State Transport Act of 1960 (Q.) in that it used on a road in Queensland a vehicle for the carriage of goods, such goods not being at that time carried upon the vehicle under and in accordance with a permit under the said Act issued in respect of the vehicle and in the name of the appellant. The difficulty in the appeal, if indeed there be one, arises concerning the facts relating to the commission of the alleged offence. (at p328)

2. The evidence shows that the goods, which were in the course of carriage from Brisbane to Winton, were first of all carried from the former place to Tweed Heads upon a vehicle belonging to J. N. Nicholson's Transport Company Pty. Ltd., that within a short time they were loaded on to a vehicle belonging to the appellant company and transported by an employee of that company from Tweed Heads to Winton. It is implicit in the reasons of the magistrate, who convicted the defendant, that he found that the appellant had entered into a contract with one Johnston, a storekeeper in Winton, to carry the goods in question for Johnston from Brisbane to Winton, that the appellant had contracted with J. N. Nicholson's Transport Company Pty. Ltd. to carry the goods for reward from Brisbane to Tweed Heads and that the appellant had by its own servant carried the goods from Tweed Heads to Winton. It was on this view of the facts that the magistrate found that J. N. Nicholson's Transport Company Pty. Ltd. "was the agent of the defendant company" in the sense, as I understand the finding, that that company was engaged by the defendant company to perform part of its obligations under its contract of carriage with Johnston. Such findings, in my view, brought the case clearly within the decisions of this Court in Harris v. Wagner (1959) 103 CLR 452 and Western Interstate Pty Ltd v Madsen (1961) 107 CLR 102 and justified the conviction (at p329)

3. These findings were challenged by the appellant and it is not contended that if they truly reflect the facts of the case the appeal should succeed. In my view the findings were fully justified and I hope I do no injustice to the appellant's argument if I observe that, having considered the evidence, there was not only ample evidence upon which the magistrate could so find, but that the findings are such as I would unhesitatingly make upon the evidence. (at p329)

4. The additional point in the case is mentioned by my brother Owen who has also referred to the circumstances in which it is said to arise. In my view there is no substance in the point; the case was not one in which the complainant was bound to make an election of the character suggested by the appellant on the hearing of the complaint nor did the so-called election operate in any way to preclude the complainant from succeeding upon the facts proved. (at p329)

5. In my opinion the appeal should be dismissed. (at p329)

MENZIES J. In my opinion, this appeal should be dismissed upon the authority of Harris v. Wagner (1959) 103 CLR 452 (at p329)

2. To distinguish that decision and support the contention that the present conviction was contrary to s. 92 of the Constitution, it was argued for the appellant that the use of its vehicle to carry goods upon a Queensland road without a permit was but a use for the carriage of goods from Tweed Heads in New South Wales to Winton in Queensland and was not part of a carriage of goods by the appellant from Brisbane to Winton with a deviation to Tweed Heads. Counsel for the appellant challenged the magistrate's finding that the vehicle in question was being used in the performance of an obligation undertaken by the appellant to transport goods from Brisbane to Winton for one Johnston, but I consider that the evidence justified that finding and that it was a correct conclusion that, in carrying the goods from Brisbane to Tweed Heads, J. N. Nicholson's Transport Company Pty. Ltd. was acting for the appellant itself and not for Johnston, the consignee of the goods. (at p329)

3. It does seem to me that at the hearing before the magistrate an error was made by counsel for the informant, the present respondent, in resting his case upon s. 7 of The Criminal Code (Q.) upon the footing that it was the driver of the vehicle, and not the appellant itself, that used the vehicle upon the occasion in question. I have, however, reached the conclusion that, as facts sufficient to constitute an offence were proved, the conviction should be upheld upon the basis that an offence against s. 49 of The State Transport Act of 1960 (Q.) was established by proof of the appellant's own use of its vehicle through a driver employed by it. (at p330)

WINDEYER J. Tweed Heads and "depots" there seem to have a fascination for Queensland carriers. But a contract to get goods from one place in Queensland to another place in Queensland does not become a transaction of trade and commerce between the States because in performing it a detour is made to Tweed Heads so that the State border may be there crossed and re-crossed. (at p330)

2. The appellant undertook to Johnston to get Johnston's goods from Brisbane to Winton. When the vehicle was upon a Queensland road the driver was driving it for the appellant in order that it, the appellant, might accomplish its contract to get the goods from Brisbane to Winton. I cannot see that on any view of the evidence the appellant gets any protection from s. 92 of the Constitution. It was not engaged in inter-State trade or Commerce. There seems to have been some misapprehension of the effect of the decision of this Court in Jackson v. Horne (1965) 114 CLR 82 That perhaps was what led to the seemingly unnecessary talk before the magistrate of an "election" and to a technical argument before us as to the effect of s. 7 of The Criminal Code (Q.). I do not think it necessary that in this case we should go into all the questions that it was said could arise under that provision. I agree with what my brother Owen has written in the judgment that he will deliver. The charge was that the appellant used a vehicle on a road in Queensland for the carriage of goods, such goods not being carried upon that vehicle under and in accordance with a permit under the Act issued in respect of such vehicle and in the name of the appellant. Of the offence so charged the appellant was convicted. The facts proved clearly supported the charge. The most that I can see that the imprecise exchange of words about an election can be taken to mean was that the prosecutor alleged that the defendant, being a company, necessarily acted by some person; and that the driver whom it employed to drive its vehicle was at the relevant time doing an act which amounted to a use of the vehicle by the company, as indeed it did. (at p331)

3. I would dismiss the appeal. (at p331)

OWEN J. The appellant company was convicted upon a complaint that it had contravened s. 49 of The State Transport Act of 1960 (Q.). The substance of the charge against it was that on a specified date it had used upon a named Queensland highway a vehicle for the carriage of goods, such goods not being at that time carried upon the vehicle under a permit issued under the Act. (at p331)

2. Evidence was given for the prosecution that on the day in question a vehicle owned by the appellant and driven by one of its employees on its business was being used on the highway to carry goods to Winton, a Queensland township, and that no permit to use the vehicle to carry the goods had been issued. At no time were these facts denied. The evidence showed also that a Mr. Johnston, who conducted grocery stores in Winton, had ordered the goods from a merchant in Brisbane; that they had been carried from Brisbane to Tweed Heads in New South Wales by a carrier, J. N. Nicholson's Transport Company Pty. Ltd.; that a Tweed Heads the goods had been transhipped from the Nicholson company's vehicle to that of the appellant and that at the time of the alleged offence they were being carried on that vehicle to Winton. The appellant claimed the protection of s. 92 of the Constitution, but this defence was rejected by the learned magistrate who heard the case. From his decision this appeal is brought and two submissions have been put forward in support of it. The first of these is based upon s. 92 and depends upon a contention that certain findings of fact made by the magistrate should be reversed. These findings were to the effect that the appellant had contracted with Johnston to carry the goods from Brisbane to Winton and that the Nicholson company was employed by the appellant to carry the goods on its behalf from Brisbane to Tweed Heads in New South Wales there to be loaded on the appellant's vehicle for carriage to Winton. It was conceded that there was evidence which would support these findings but, this being a full appeal, it was argued that the proper conclusions were that the Nicholson company had been employed by Johnston and not by the appellant to take the goods from Brisbane to Tweed Heads and that the appellant's contract with Johnston was for the carriage of the goods from Tweed Heads to Winton. I think it sufficient to say that, in my opinion, no good reason has been shown for differing from the view of the facts adopted by the magistrate. That being so, I am of opinion that at the time when and place where the offence was alleged to have been committed the appellant was engaged in what was in reality an intra-State transaction of trade and commerce. It was not suggested that the expedition across the border into New South Wales and back again into Queensland was a necessary or reasonably appropriate means of carrying goods from Brisbane to Winton. It was made in the hope that the deviation would have the result of gaining the protection of s. 92 for the whole journey. The journey across the border and back again into Queensland was, to use the words of Dixon C.J. in Harris v. Wagner (1959) 103 CLR 452, at p 459, "nothing but an interruption of an essentially intra-State transaction of trade, commerce or intercourse", and the fact that the interruption consisted of "an incursion into another State" did not give to that essentially intra-State transaction in which the appellant was engaged the protection of s. 92. (at p332)

3. In my opinion, the learned magistrate rightly held that the defence based upon s. 92 failed. (at p332)

4. The remaining matter for consideration arose in this way. At the close of the evidence for the prosecution, counsel for the appellant said: "I ask the prosecutor to elect whether the prosecution is alleging an original use of the road by the defendant company or whether it is alleging that the defendant company is guilty because some other person used the road and the company then procured such use". To this, counsel for the prosecutor replied: "The complainant is relying on s. 7 (d) of The Criminal Code together with the extended meaning given at the last paragraph of s. 7 and that the defendant company procured the driver to then use the road". In passing it may be pointed out that s. 49 does not make it an offence to use a road for the carriage of goods without the requisite permit. It is the use of a vehicle on a road to which the provision is directed but no doubt what was said by both counsel was understood to refer to the use of the vehicle. (at p332)

5. Section 7 (d) of The Criminal Code provides that "When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say -

(a) . . . (b) . . . (c) . . . (d) Any person who counsels or procures any other person to commit the offence.

In the fourth case he may be charged either with himself committing the offence or with counselling or procuring its commission". (at p333)

6. The final paragraph of s. 7 is in these terms: "Any person who procures another to do or omit to do any act of such a nature that, if he had himself done the act or made the omission, the act or omission would have constituted an offence on his part, is guilty of an offence of the same kind, and is liable to the same punishment, as if he had himself done the act or made the omission; and he may be charged with himself doing the act or making the omission". This so-called "election" having been made, counsel for the appellant, after evidence for the defence had been given directed to showing that the appellant was entitled to rely upon s. 92, contended that his client could not be convicted of procuring the driver of the vehicle to commit an offence because no offence was proved to have been committed by the latter. The driver was, he submitted, entitled to the protection of s. 92 and, in any event, since he was authorized by the appellant, as the owner of the vehicle, to drive it and he was in fact driving it on the owner's business he could not be said to have "used" the vehicle within the meaning of s. 49 of The State Transport Act. For this last proposition reliance was placed on what was said by Barwick C.J. in Jackson v. Horne (1965) 114 CLR 82, at pp 89, 90 but I have not found it necessary to consider it because when regard is had to all the facts of the present case there seems to me to be no substance in the point taken. During the course of the argument before us I found some difficulty in understanding why counsel for the prosecutor, when asked to "elect", replied as he did. The circumstances were not such as to have required him to make any election and what he was really being asked to do was to give particulars of the alleged offence and these had already been disclosed by the evidence for the prosecution. Apart from the defence that s. 92 protected the appellant, that evidence established all the facts necessary to support the complaint. A company cannot itself drive or use a vehicle. It can act only by the hands of its servants or agents and this, no doubt, explains the statement made by counsel for the prosecutor. As I have said earlier, it was not disputed at any stage that the vehicle in question belonged to the appellant and that it was at the relevant time being used on its business by its employee to carry goods on a Queensland road. Nor was it questioned that no permit under The State Transport Act had been issued. Whatever meaning the appellant's counsel may have attached to the statement made by counsel for the prosecutor, it made and could make no difference to the course which the evidence for the defence took and which was directed to bringing s. 92 into play. Once it was held that that defence failed, the undisputed facts established beyond all doubt that the offence charged in the complaint was established. To decide that in these circumstances we should uphold the appeal and substitute for the order convicting the appellant an order dismissing the complaint would, in my opinion, be to disregard completely the realities of the case. (at p334)

7. I would dismiss the appeal. (at p334)

Orders

Appeal dismissed with costs.