Hughes v Tasmania [1955] HCA 30; (1955) 93 CLR 113 (9 June 1955)

HIGH COURT OF AUSTRALIA

HUGHES v. THE STATE OF TASMANIA [1955] HCA 30; (1955) 93 CLR 113

Constitutional Law (Cth.)

High Court of Australia
Dixon C.J.(1), McTiernan(1), Williams(1), Webb(1), Fullagar(2), Kitto(3) and Taylor(1) JJ.

CATCHWORDS

Constitutional Law (Cth.) - Freedom of inter-State trade commerce and intercourse - State Statutes - Validity - Public vehicle licensing system - Licences limited to areas - Necessity for permit to travel outside area - Imposition of charges on basis of tareweight of vehicle and mileage - Goods purchased in mainland States by Hobart merchants - Shipment by sellers to Launceston, Burnie or Beauty Point - Application of Acts to carrier transporting goods therefrom to buyers in Hobart - The Constitution (63 & 64 Vict. c. 12), s. 92 - Traffic Act 1925-1954 (No. 38 of 1925 - No. 5 of 1954) (Tas.), ss. 14, 15, 17, 20 (2) 11, 20A (1) (4) - Transport Act 1938-1953 (No. 70 of 1938 - No. 73 of 1953) (Tas.), s. 14.

HEARING

Melbourne, 1955, March 2, 3; June 9. 9:6:1955
CASE STATED.

DECISION

June 9.
The following written judgments were delivered: -
DIXON C.J., McTIERNAN (See addendum (1955) 93 CLR, at p 183) , WILLIAMS, O. 35, r. 1, submitting certain questions for the opinion of the Court. The plaintiff in the action is a shipping agent and carrier whose place of business is in Launceston. He complains that the Transport Commission purporting to act under the combined effect of the Transport Act 1938-1953 and the Traffic Act 1925-1954 of Tasmania has placed upon his business a burden which, as he contends, amounts to a violation of s. 92 of the Constitution. The burden consists in the exaction of fees or charges in respect of five lorries in which he carries fruit to Hobart from the ship's side at Devonport, Burnie or Beauty Point. (at p121)

2. Certain merchants carrying on business in Hobart buy fruit from sellers in South Australia, Victoria, New South Wales and Queensland. It would seem that the course of trade is for the sellers of the fruit to ship it from those States to one of the three ports or places of discharge mentioned, consigning it sometimes to the buyer by his name and sometimes to the plaintiff as consignee. The buyers of the fruit in Hobart employ the services of the plaintiff as their agent both in his capacity of shipping agent and carrier. In his capacity of shipping agent he receives the consignments of fruit and clears them by payment of the shipping freight, wharfage and inspection charges. The fruit is loaded in his lorries and in his capacity of carrier he carries it to the buyers in Hobart. Under certain provisions of the Traffic Act and Transport Act, in order to do this he must obtain a permit from the Transport Commission. The conditions of the permit require him to pay a charge which is calculated according to a formula depending upon the tareweight of the vehicle and the mileage. The plaintiff maintains that he carries the fruit in the course of inter-State trade and that the levy in question cannot be exacted from him consistently with s. 92. (at p122)

3. To explain the nature of the charge levied, some explanation is required of the legislation under which it is imposed. Under the Traffic Act the Governor-in-Council is authorized by regulations to prescribe traffic areas, routes and other local divisions of the State. A purpose of such a regulation is to define the limits within which what are called "public vehicles" may operate: s. 30 (1) xviii. The expression "public vehicle" means, among other things, a vehicle used for the conveyance of goods or merchandise or things for hire or for any consideration and it includes a "cart". The word "cart" has a special definition which makes it mean a vehicle used for the conveyance of goods, merchandise or things for any consideration, with certain exceptions that are not material: s. 3 (1). The plaintiff's lorries are "carts" within this definition. (at p122)

4. It appears that regulations have been made dividing Tasmania into traffic areas. Hobart is situated in area 1, Launceston and Beauty Point are situated in area 3, Devonport is situated in area 5 and Burnie is situated in area 6. A motor vehicle cannot be driven upon a public street without a licence: s. 14. The licence must be issued by the Transport Commission: s. 15 of the Traffic Act and s. 14 of the Transport Act. The licence may be limited to apply only in respect of a specified route, area, city, town or place and licences in respect of carts may be issued only in respect of one traffic area: s. 15 (5) and (6) of the Traffic Act. The licence of a public vehicle expires at the end of three years: s. 15 (11). The commission upon issuing a licence may impose such conditions and restrictions as the commission may think necessary or desirable: s. 17. The commission may grant and issue permits subject to any conditions that may be prescribed to the holder of a licence in respect of a public vehicle authorizing such holder to use the vehicle for any specified service outside the traffic area or route in which the vehicle is licensed: s. 20 (2) ii. The commission may impose in or indorse on a licence or a permit so granted or issued a condition that the holder of the licence or permit shall pay to the commission in addition to any sum fee or charge payable under the provisions of the Act such sum or sums as shall be ascertained as the commission determines: s. 20A (1). If the commission determines that the sum or sums to be paid by a person in respect of a public vehicle (being a goods-carrying vehicle) is or are to be calculated on the basis of the mileage travelled, the sum or sums to be paid shall comprise an amount calculated at such rates as the commission may determine but not exceeding certain limits, the material part of which is a maximum rate of a half-penny per hundredweight of the weight of the vehicle unladen for each mile or part thereof: s. 20A (4). By reg. 47 (3) of the Traffic Regulations made under the Traffic Act the conditions on which a permit may be issued in respect of a public vehicle include a requirement that the vehicle shall be used only for such purposes and for the carriage of such goods as may be specified in the permit. (at p123)

5. Exercising the powers derived from the provisions mentioned, the commission issued to the plaintiff in respect of each of his five lorries a cart licence in respect of traffic area No. 3, in which Launceston is situated where his business is carried on. His journeys to Hobart therefore required a permit called "an out-of-area permit". Upon the issue of the out-of-area permits amounts were calculated in accordance with a determination made by the commission. The determination prescribed 0.4d., multiplied by the hundredweights of his vehicles per mile, less, however, in the case of fruit or vegetables imported from other States, a rebate of fifty per cent. It is of this charge that the plaintiff complains. His case is that he is engaged in carrying fruit imported from other States upon portion of a continuous course of transit by sea and land from the seller to the buyer and that accordingly he is engaged in inter-State commerce upon which no such impost as that in question can be levied. It is, of course, clear enough that his journey to Hobart from Beauty Point, Burnie or Devonport, as the case may be, is an intra-State journey. If he obtains any protection under s. 92 from the charge it must be because his journey is accessory to the principal inter-State transaction consisting in the purchase, consignment and carriage of the fruit from the port of shipment in some other State to Hobart. (at p123)

6. The contracts made by the purchasers in Hobart with their vendors in other States do not appear to impose upon the vendors any duty to deliver the fruit in Hobart. It would seem that the terms of the contracts require the vendors to ship the fruit to one or other of the three Tasmanian ports mentioned, consigning it either in the name of the purchaser as consignee or in the name of the plaintiff as the shipping agent of the purchaser. The "inter-State journey", therefore, for which the contract of sale provides terminates with the discharge of the fruit from the ship. It is open to the purchaser on the arrival of the fruit at the port to which it is consigned to deal with it then as he thinks fit. It is, however, part of the regular course of trade to bring the fruit from the ship's side to Hobart. As it is a customary course of trade it is perhaps not of vital importance that the actual contractual arrangements of the parties to the sale do not require the continuation of the journey to Hobart. Nevertheless, the whole of the duties or functions which the plaintiff performs are confined to Tasmania. It is conceded that on any given journey carrying the fruit from the ship's side to Hobart the plaintiff's lorries do not carry any goods having a different origin. But, if it matters, his lorries are open to other uses and are not necessarily devoted to the exclusive purpose of carrying fruit on the journeys to Hobart. (at p124)

7. It is clear, therefore, that any inter-State character that may be possessed by the plaintiff's activities as a carrier are not obtained from the nature of his functions but from the course of his clients' trade. If he has any immunity from the imposition of the charges upon the out-of-area permit it is not by virtue of anything except his principal's course of business. The question is not whether the charges are burdensome to the principal's inter-State trade. The foundation of the plaintiff's complaint is that the charges constitute a burden upon an inter-State transaction which the plaintiff carries out. That inter-State transaction, however, must consist simply in the loading and discharge of the lorries and the journey. Regarded in this way his claim for the protection of s. 92 is seen to be untenable. He is not prevented from performing the service to the inter-State trader. There is no interference in the performance of a service which is essential to the completion of the inter-State journey. It is simply one of the requirements of the State of Tasmania which regulate the business of carrying in Tasmania. The fact that he is serving the ends of inter-State traders in particular journeys cannot suffice to protect him from one of the incidents of that business under State law. (at p124)

8. The case stated submits two questions the first of which asks whether the plaintiff's vehicles whilst carrying fruit in the circumstances so stated are being operated in the course of and for the purposes of trade commerce or intercourse among the States within the meaning of s. 92. Since the vehicles are performing a service for a person who is engaged in an inter-State transaction it might produce misunderstanding if a simple negative were used to answer this question. It should be answered that the plaintiff is not so operating his vehicles as to obtain any immunity from the application of the Traffic Act and the Transport Act. The second question asks whether the provisions of the Transport Act and the Traffic Act and the regulations and the administrative determination of the commission so far as they affect the plaintiff whilst operating his vehicles contravene s. 92 and are inapplicable to the plaintiff while so operating. This question should be answered - No. Otherwise the cause should be remitted for determination by a single justice in the original jurisdiction. The plaintiff should pay the costs of the special case. (at p125)

FULLAGAR J. The facts of this case and the effect of the relevant Tasmanian legislation have already been stated. That legislation sets up an elaborate licensing system, and it is clear, I think, in the light of the decision in the Hughes & Vale Case (No. 1) (1955) AC 241; (1954) 93 CLR 1 that its main provisions are invalidated by s. 92 in so far (if at all) as they purport to apply to persons or vehicles engaged in inter-State trade or commerce. The immunity given by s. 92, however, applies only to activities which themselves possess the character of inter-State trade or commerce. The activities for which the plaintiff claims immunity do not possess that character. They consist simply in the carriage of goods from one place in Tasmania to another place in Tasmania. It may be true that that carriage represents a service rendered in the course of the carrying out of an inter-State transaction which consists in the sale and delivery of fruit. But to that transaction the plaintiff is a complete stranger. He can claim protection only for what he himself does, and what he himself does begins and ends in Tasmania, and lies outside the scope of s. 92. (at p125)

2. I agree that the questions asked by the case stated should be answered - (a) No: (b) No. (at p125)

KITTO J. I agree that the special case does not disclose the existence of any inter-State trade, commerce or intercourse of the plaintiff. It does disclose, however, a course of inter-State intercourse on the part of the merchants who buy fruit in other States and there have it consigned on a journey the destination of which is Hobart. In engaging the plaintiff to transport the fruit from a port in northern Tasmania to Hobart, the merchants are adopting a means for completing their act of inter-State transportation. The legislation which is attacked in this action affects the merchants in two ways: first, the merchants are deprived of the plaintiff's services for the purposes of their inter-State transportation of fruit except upon payment of a charge; and, secondly, the merchants themselves will be guilty of an offence if they procure the plaintiff to carry their fruit, in the course of their inter-State transportation, in contravention of the legislation. (at p125)

2. Neither of these effects, however, is a detraction from the freedom which s. 92 preserves. The first is merely a practical consequence to the merchants of what the relevant legislation does to the plaintiff. The second, which results from an operation of the general criminal law in conjunction with the relevant legislation, is a direct operation upon the merchants but is not a direct operation upon their inter-State intercourse. It leaves that free, operating as it does in reference only to an event which is not essential to its occurrence: Hospital Provident Fund Pty. Ltd. v. State of Victoria (1953) 87 CLR, at p 17 . (at p126)

3. I agree that the order should be as stated by the Chief Justice. (at p126)

ORDER

Question (a) submitted by par. 11 of the special case answered that the plaintiff is not so operating his vehicles as to obtain any immunity from the application of the Traffic Act 1925-1953 and the Transport Act 1938- 1954 of Tasmania.

Question (b) submitted by par. 11 answered: No. Plaintiff to pay the costs of the special case. Otherwise cause remitted to be dealt with by a justice in the original jurisdiction.