[Home] [Databases] [WorldLII] [Search] [Feedback] High Court of Australia

Barry v Stewart [1965] HCA 69; (1965) 114 CLR 341 (17 December 1965)

CATCHWORDS

HEARING

DECISION

3. It was proved at the hearing before the Court of Summary Jurisdiction that on 12th December 1962 the defendant drove a truck belonging to R. S. Jennings on "a controlled route" between Mount Gambier and Adelaide; the truck carried packs of timber consigned by Penola Milling Co. Ltd. from its mill at Penola, a town in South Australia, north of Mount Gambier; the consignees of the timber were in Adelaide; the defendant was employed by Jennings to drive the truck; neither Jennings nor the defendant held a licence satisfying the provisions of s. 14. The Court of Summary Jurisdiction also found that the transportation was not a stage of a journey which was really inter-State commerce. The contested issue was whether the defendant was driving the vehicle in the course and for the purpose of inter-State commerce which commenced at Dartmoor, a town in Victoria, to which the timber had been carried by a carrier named Schleter by his own truck. Schleter gave evidence that on 11th December 1962 he received a message from T. W. Hedditch, the manager of Hedditch & Son Pty. Ltd., which conducted a transport agency, to go to the mill at Penola. The message was, "to pick up a load to take over the border". Schleter said he travelled to the mill by his truck when he received the message. On arrival Schleter loaded the truck with timber. The timber was the same load as that transported by the vehicle which the defendant drove from Mount Gambier to Adelaide on 12th December 1962. The loading of the truck at the mill took three hours. The timber was in packs when put on Schleter's truck. These packs were consigned by the mill to consignees in Adelaide. Consignment notes were prepared at the mill and these were handed to Schleter. When Schleter was about to drive the vehicle away to his destination which Hedditch called a "depot" Schleter sent a message to Jennings at Mount Gambier. Schleter said that the words of the message were "to go over the border to pick it up". This meant that the timber would be unloaded from Schleter's truck to Jennings' truck by a crane which Hedditch kept at his "depot" at Dartmoor and Jennings was to drive his own truck when loaded with the timber to Adelaide. Jennings, in fact, drove it as far as Mount Gambier. He directed the defendant to take over the truck on its arrival at Mount Gambier and drive it to Adelaide and upon arrival there to deliver the packs of timber to their respective consignees. The journey to Adelaide ended on the next day. The defendant did as he was directed. He brought back with him consignment notes which had been taken by Schleter or Jennings from a book of forms of consignment notes prepared by Hedditch and given by him to them to use when either took timber back over the border to Adelaide which the other had taken from the mill at Penola. A sample of Hedditch's consignment note used in connexion with the transportation of the timber in the present case was as follows:

"Dartmoor Depot Date 11.12.62
N.S.F. Hedditch & Son Pty. Ltd.
85 Percy Street, Portland,
Vic.
To Harris Scarfe Ltd., Pt. Adelaide.
Per Jennings.
Please receive in good order and condition the following
goods:
8645
8644 7 Packs KD00
(sgd.) K. M. Schleter
No. 1751 Received by (sgd.) R. G. Clark."

4. At the mill, as has been said above, the timber was divided into packs for the purpose of delivery on reaching Adelaide. These packs were lifted from Schleter's to Jennings' truck at Hedditch's "depot". The load arrived in Adelaide in the same form as it was when the truck was driven from the mill by Schleter. The gantry and some drums on which to put timber, if necessary, in the course of transferring it from vehicle to vehicle were the only things at the "depot" at Dartmoor. Neither Hedditch nor any employee of his company attended at the "depot" to take any part in transferring timber from one truck to another. This operation was carried out by Jennings and Schleter. According to the evidence of Jennings, whether it would be Schleter's turn to go to the mill and Jennings' turn to go to the "depot" or vice versa was decided by Hedditch. His communications with the mill or with each of these carriers who were called sub-contractors were by telephone. The explanation of this division of the transportation of timber consigned by the mill to Adelaide buyers between Jennings and Hedditch is explained by an arrangement negotiated by J. H. Hennessy who was employed in the office of the Penola Company and T. W. Hedditch. The arrangement provided for using the trucks owned by Jennings and Schleter respectively to transport timber from the mill to Adelaide and that each of them was assigned a role as of "sub-contractor" of Hedditch & Son Pty. Ltd. The evidence of J. H. Hennessy was as follows:

"I am an office manager employed by Penola Milling Co.
As office manager I have some knowledge of arrangements
made for the transport of timber to Adelaide. I know an
arrangement exists between us and Hedditch & Son Pty. Ltd.
That is a verbal arrangement. The arrangement is that he
transport timber as we require it. The condition is that he
takes it over the border and transfer it to another truck and
then for it to go to Adelaide. He has a depot at Dartmoor
for this purpose. If we have a load we get in touch with
Hedditch. He undertakes the transport of timber to Sydney.
We are in constant communication with each other with regard
to these matters. I know that he used sub-contractors by
the names of Jennings and Schleter. I have no contact with
the names of Jennings and Schleter. I have no contact with
them with regard to the transport. We pay Hedditch." (at p345)

5. In cross-examination this witness said:

"When the timber is sent from Penola Timber Mills to Adelaide
via Dartmoor it depends on who it is going to how it packed
up. If it was going to three different places it would be done
in three different packs." (at p345)

6. It should be mentioned that nothing is done at Hedditch's depot except the transfer of timber from the truck that comes from Penola to the truck that comes from Mount Gambier to the depot to meet it there in order to take the timber over the border again which, of course, was necessary to finish the transportation to Adelaide. From the time the timber was packed at the mill, Adelaide was its intended destination. A. D. Tarrant, an accountant was called as a witness. His evidence was as follows:

"I am employed in the office of D. C. Walker chartered
accountant. Part of my duties are to keep records for Hedditch
and Son Pty. Ltd. I recognise Exhibit "A" and "B". I
see quite a few of them in the office. There are two books
in use. One month we keep a book in the office and at the
end of the month one book is returned and the other is handed
out. The one that is out is in the possession mostly of Mr.
Jennings but Schleter has access to it. At the end of each
month I am handed by Jennings or Schleter a bundle of the
consignment notes and I compile records of the activities of
the month on behalf of Mr. Hedditch. I am also given notes
from the Penola Milling Co. Their invoices should be reconciled
with the notes from Jennings. As a result of perusing those
records I render an account to Penola. We do not render an
account. They pay us. The cheque is drawn in favour of
Hedditch & Son. They paid in Hedditch's account in Mt.
Gambier in the A.N.Z. Bank. From those I calculate the amount
owing to Jennings and Schleter. We draw cheques signed
by someone at the Portland office and then they are sent to
Jennings and Schleter. The amount paid to them is less
than the amount paid by Penola Milling."

"Why did you come to that arrangement?"

"Simply because the transaction cannot be completed
according to the laws of the S. A. Transport Act under the
control of roads so we must take it to Victoria to trans-ship it.
It is to comply with s. 92 of the Act. It could be done by
myself or by staff at the office the contacting of the
sub-contractor. I tell one to take the timber to Dartmoor and
then I ring the other and tell him to take the timber to
Adelaide. I always ring the two of them. I do not ring one
and ask him to tell the other one. I don't do that because
it is unconstitutional. It is to make it square with the law.
There are other reasons for conversation with the
sub-contractors besides telling him of a contract. They have been
instructed. I know what is going to happen when one gets
the message. Whoever takes the timber shall complete the
consignment (note). There is only one book. That is handed
back and forth to whoever is doing the trip. The average
price varies so much. I could not say an average cost. It
depends on the load. I cannot say what I paid on the particular
consignment."

7. The facts of the present case are different from the facts in Naracoorte Transport Co. Pty. Ltd. v. Butler [1956] HCA 72; (1956) 95 CLR 455 It was said in the judgement in that case that the appellant company "conducted a carrying business from a depot in Naracoorte". In my view, these words are not fairly applicable to Hedditchhs "depot". It would seem that both the appellant and the other firm of carriers in that case were engaged by the consignors or if not Brown and Mitchell engaged the appellant or vice versa. It does not appear who paid either of them. In my view the case of Jackson v. Horne [1965] HCA 44; [1965] HCA 44; (1965) 114 CLR 82 has not a complete resemblance to the present case. The decision in that case, in my opinion, cannot automatically determine that the transportation from Penola to Dartmoor and the transportation from there to Adelaide were two segments of inter-State commerce. It is necessary to consider the commercial significance of the arrangement between Penola Milling Company and Hedditch Ltd. and the participation of Jennings and Schleter in it and their relations with one another in such participation. In my view, the transit of the timber from Penola to Adelaide was, in fact, a continuous flow of commerce, despite its erratic course. The transfer of the timber from vehicle to vehicle at Dartmoor was only an incident of the transit from Penola to Adelaide; it did not cut the transit into two complete segments; one from the mill to Dartmoor and the other from Dartmoor to Adelaide. I think, having regard to the whole of the evidence, that, from a practical business point of view, Jennings, Schleter and Hedditch were working together in transporting timber from Penola to Adelaide via Dartmoor. Hedditch was the dominant member of the combination. I agree with the analysis which Mr. Wells made in argument. He argued that the substantial elements of the business undertaking in which these three men were engaged to transport timber from Penola to Adelaide were:

(a) The practice by which Hedditch used Jennings and Schleter
as his regular carriers and required them to follow a
particular course of action.
(b) A standing arrangement between Jennings and Schleter
known to Hedditch as to the way in which they would
execute Hedditch's plan.
(c) Liaison between Jennings and Schleter (in the actual
execution of the plan).
(d) Co-ordinated movement (in consequence of the liaison). (at p348)

8. The only commercial or business significance of such movement was that it became the final stage of the transportation of the timber from Penola to Adelaide. Its transit between these places was designed so as to involve a detour through territory in the State of Victoria. The movement of the vehicles of Schleter and Jennings respectively was inter-State or across State lines but the movement of either vehicle had not the quality of inter-State commerce under s. 92. The sole purpose of this crossing and recrossing of the border was admittedly to exploit s. 92 of the Constitution. It seems to me that it is more realistic to say that its purpose was to evade s. 14 of the Road and Railway Transport Act, 1930-1957 in a case of transportation which might naturally and reasonably fall within its operation. (at p348)

9. I think that the arrangement under discussion and the manner of its execution exhibited little respect for the Constitution and that to regard the movement of Jennings' vehicle after it recrossed the border as commerce among the States would be contrary to principle and against the decisions which set little store on crossing and recrossing the border when it is a mere pretext designed to attract the protection of s. 92. (at p348)

10. I would not interfere with the conviction. (at p348)

KITTO J. I agree in the judgment of Owen J. which I have had an opportunity of reading. (at p348)

MENZIES J. In my opinion the decisions of this Court in Naracoorte Transport Co. Pty. Ltd. v. Butler [1956] HCA 72; (1956) 95 CLR 455 and Jackson v. Horne [1965] HCA 44; (1965) 114 CLR 82 cannot be distinguished and require us to conclude that, at the time and place of the alleged offence, the appellant was driving the vehicle in question upon what was part of an inter-State journey from Dartmoor in Victoria to Adelaide in South Australia and so was entitled to the protection of s. 92 of the Constitution. (at p349)

2. Mr. Wells said all that could be said in favour of treating the appellant's driving as part of an intra-State journey from Mt. Gambier to Adelaide by way of Dartmoor in Victoria. It seems to me, however, that upon the evidence the relevant journey of the truck driven by Barry began at Dartmoor and not at Mt. Gambier and that the timber which was being carried upon that truck was carried upon vehicles performing two separate inter-State journeys, the first from Mt. Gambier to Dartmoor when it was being carried on Schleter's truck in performance of a contract between Schleter and Hedditch & Son Pty. Ltd., and the second from Dartmoor to Adelaide when it was being carried on Jennings' truck driven by Barry in performance of a contract between Jennings and Hedditch & Son Pty. Ltd. (at p349)

3. I consider, therefore, that this appeal should be allowed. (at p349)

WINDEYER J. For as long as the laws of a State require that permits must be had for the use of the public highways, for so long will persons seek to circumvent those laws by using circuitous routes with a view to gaining the protection of s. 92 of the Constitution which ensures that persons engaged in lawful commerce between the States may use the highways in Australia without impediment. Every case that thus arises must depend less upon a detailed matching of its facts with the facts of other cases than upon the application of now well-established doctrine to particular facts. The facts in the present case, which are very like those in Jackson v. Horne [1965] HCA 44; (1965) 114 CLR 82, are fully related by my brother Owen in his judgment which I have had the advantage of reading. I agree in his conclusion and need not add anything to his reasoning. I wish, however, to add a few words on some remarks by Hogarth J. because of the careful consideration that he gave to the whole matter. The main principles that govern cases of this kind are set out in the judgment of Dixon C.J. in Harris v. Wagner [1959] HCA 60; (1959) 103 CLR 452, at pp 457 459 To quote only one sentence: "It may be repeated that s. 92 gives a complete freedom to go from a point in Queensland to a point in New South Wales for any purpose whatever; it does not matter that the formation of the purpose was influenced by the existence of the freedom" (1959) 103 CLR, at p 459 It is of course always essential to bear in mind that the carriage of goods by road is not merely an incident of commerce. It is itself commerce. A person engaged in carrying goods from a place in one State to a destination in another State is thus within the protection of s. 92. To say that does not contradict the proposition that a person who is carrying goods from a place in one State to a destination in the same State cannot, while in that State and en route to his destination there, escape from the requirements of its laws by making in the course of his journey a needless incursion into another State. But it is no answer to the charge against Barry that the contract that Hedditch made with the milling company to move its timber from the mill to Adelaide was not itself a contract of inter-State trade. It is true that Hedditch engaged Jennings to carry the timber from Dartmoor to Adelaide so that he, Hedditch, might perform his contract to deliver it in Adelaide. But that Jennings was in that sense Hedditch's agent does not mean that Jennings was not employed to carry the goods from Dartmoor to Adelaide and was not so carrying them. He was in fact employed to do, and was doing, just that. To say, as Hogarth J. did, that he was "helping the head contractor to carry out an illegal purpose" (1964) SASR 102, at p 106; (1964) 6 FLR 192, at p 196 is, I feel with respect to his Honour, a somewhat unhappy statement. Nothing that Hedditch did was illegal. The learned judge also observed that, in this case (1964) SASR, at p 106; (1964) 6 FLR, at p 196, "the problem is the converse of that which faced the Court in cases such as Britton Bros. Pty. Ltd. v. Atkins [1963] HCA 8; (1963) 108 CLR 529 and Bell Bros. Pty. Ltd. v. Rathbone" [1963] HCA 7; (1963) 109 CLR 225 He pointed out that in those cases a carrier carrying timber within a State was held to have the protection of s. 92 because its carriage by him was in the course of its transport to a destination in another State. But it does not follow that Jennings is deprived of the protection of s. 92 because he was taking timber back to the State whence as he knew it had earlier come. It makes no difference, it seems to me, that the reason why he was engaged by Hedditch to do so was that in so doing he would be engaged in inter-State commerce. (at p350)

2. I would allow the appeal. (at p350)

OWEN J. The appellant Barry was charged before a Court of Summary Jurisdiction with an offence against s. 14 of the Road and Railway Transport Act of South Australia in that he, not being the holder of a licence issued under the Act, had driven a vehicle on which goods were being carried for hire on a "controlled route". It was not disputed that on the day in question he had driven a motor lorry on a "controlled route" and that he was not the holder of a licence but he claimed to be entitled to the protection of s. 92 of the Constitution. He was convicted and appealed to the Supreme Court. The appeal was heard by Hogarth J. who dismissed it and affirmed the conviction and from his Honour's decision this appeal is brought by special leave. (at p351)

2. The facts are that at the relevant time the appellant was employed as a lorry driver by one Jennings, a cartage contractor of Mt. Gambier. There was in Mt. Gambier a timber mill conducted by Penola Timber Ltd. (Penola) which marketed its timber in Adelaide. Penola made a contract with Hedditch & Son Pty. Ltd. (Hedditch) of Portland, Victoria, under which Hedditch undertook the transport of timber from the mill at Mt. Gambier to Dartmoor, five or six miles on the Victorian side of the South Australian border, and thence back across the border to Adelaide, passing through Mt. Gambier on the way. At Dartmoor, Hedditch had a loading and unloading depot. In order to carry out its contract with Penola, Hedditch entered into two contracts for the carriage of the timber, one with Jennings, the other with a carrier named Schleter. When timber was to be taken from the mill to its ultimate destination in Adelaide, either Jennings or Schleter was required by Hedditch to carry the timber from the mill to the depot at Dartmoor where it was unloaded from the carrier's lorry and loaded on a lorry owned by the other carrier who, under his contract with Hedditch, would carry it from the depot to Adelaide, passing through Mt. Gambier en route. On some occasions Jennings would be required by Hedditch to cart the timber from the mill to the depot where Schleter would pick it up and carry it to Adelaide. On others, Schleter would take the load from the mill to the depot and Jennings would there load it on to his lorry and take it to Adelaide. (at p351)

3. On the occasion with which this case is concerned, Schleter, pursuant to his contract with Hedditch, had carried a load of timber from the mill to Dartmoor and Jennings, under his contract, was called upon to take it from Dartmoor to Adelaide. Jennings accordingly drove his lorry from Mt. Gambier to Dartmoor, where he loaded it with the timber and drove it to Mt. Gambier handing the lorry over to his employee, Barry, at Mt. Gambier so that the latter might complete the journey to Adelaide. On the way to Adelaide, Barry was stopped and questioned by a transport inspector with the result that a prosecution followed. Neither Schleter nor Jennings was a party to the contract between Hedditch and Penola and neither of them was a party to the contract which the other had with Hedditch, but each knew of the manner in which Hedditch performed its contract with Penola by employing one carrier under contract to carry the timber from the mill to Dartmoor and employing the other carrier to transport it from Dartmoor to Adelaide. Each of them also knew that Penola's and Hedditch's purpose was to reduce cartage costs by avoiding the necessity of obtaining the licence under the Road and Railway Transport Act which would have been required by a carrier had the timber been transported directly from Mt. Gambier to Adelaide. (at p352)

4. It may well be that if Penola or Hedditch had been the carrier of the timber from the mill to Adelaide via Dartmoor and had been prosecuted for a breach of s. 14 of the Act, it would not have availed to set up a defence based upon s. 92. There would be ample room for the argument that in such case the carrier was engaged in an intra-State and not an inter-State commercial operation. But this case is concerned with the carriage of timber by a carrier from Dartmoor to Adelaide. Jennings was, in the course of his business as a carrier for reward, transporting goods from a point in one State to a destination in another State and, on the face of it, he and his employee Barry were entitled to invoke the aid of s. 92. It was contended, however, that regard must be had to what were described as the realities of the case. The ultimate object of the mill owner was to have its timber transported from Mt. Gambier to Adelaide. In carrying out this purpose Penola was not engaged in inter-State trade nor was Hedditch and, since Jennings knew that the timber carried by him had earlier been taken from the mill to Dartmoor on its way to Adelaide for the purpose of avoiding the necessity to obtain a licence under the Road and Railway Transport Act, the carriage by him of the timber from Dartmoor to Adelaide must be regarded as merely a segment of the longer journey from Mt. Gambier to Adelaide via Dartmoor and, when so regarded, it could not properly be said that he was engaged in inter-State trade. This was the view adopted by Hogarth J. who said, in the course of his judgment: "It seems to me that a man cannot claim an inter-State character for his journey, even though it involves the crossing of a State border, if he knows that it is part of a longer journey which is not of inter-State character. In such a case what the carrier is really doing is helping the head contractor to carry out an illegal purpose; he is engaging in what he knows to be a sham, and not in a transaction of genuine inter-State character at all" (1964) SASR, at p 106; (1964) 6 FLR, at p 196 With all respect to the learned judge, I do not agree. The question here is as to the character of the operation which Jennings was carrying out in performance of his contract with Hedditch. He was not pretending to be engaged in the carriage of goods from one State to another. He was in fact performing a contract which obliged him to carry goods from a starting point in Victoria to a destination in South Australia, and it is, to my mind, not to the point to say that he knew that those goods had earlier been carried from South Australia to Dartmoor or that he knew the reason why Penola and Hedditch had adopted the circuitous route from the mill to Adelaide by way of Dartmoor. In considering what commercial operation Jennings was in fact conducting these considerations seem to me to be irrelevant. The facts in the present case are not distinguishable from those in Naracoorte Transport Co. Pty. Ltd. v. Butler [1956] HCA 72; (1956) 95 CLR 455 and in the recent case of Jackson v. Horne [1965] HCA 44; [1965] HCA 44; (1965) 114 CLR 82 and for this reason I am of opinion that the appeal should be allowed and the conviction set aside. (at p353)

ORDER