Beach v Wagner [1959] HCA 24; (1959) 101 CLR 604 (8 May 1959)

HIGH COURT OF AUSTRALIA

BEACH v. WAGNER [1959] HCA 24; (1959) 101 CLR 604

Constitutional Law (Cth)

High Court of Australia
Dixon C.J.(1), McTiernan(1), Fullagar(1), Kitto(1), Taylor(1), Menzies(1) and
Windeyer(1) JJ.

CATCHWORDS

Constitutional Law (Cth) - Inter-State trade, commerce and intercourse - Freedom - Journey - Inter-State character - The State Transport Facilities Act 1946 to 1955 (Q.), s. 23 (1) - The State Transport Facilities Act Amendment Act of 1954 (Q.) - The Constitution (63 & 64 Vict., c. 12), s. 92.

HEARING

Sydney, 1959, April 20; May 8. 8:5:1959
APPEAL from the Court of Petty Sessions, Goondiwindi, Queensland.

DECISION

May 8.
THE COURT delivered the following written judgment:-
Section 23 (1) of the State Transport Facilities Acts 1946 to 1955 (Q.) time a vehicle for the carriage of goods unless, at that time, the goods are being carried upon the vehicle under and in accordance with a provision of Pt. III of the Act. (at p608)

2. The State Transport Facilities Act Amendment Act of 1954 (No. 53) inserted in the Act Pt. IVA. Part IVA is headed "Carriage Inter-State of Passengers and Goods upon Vehicles". The first provision it contains is s. 48A, a section which says that the provisions of the Act extend to the use on roads of vehicles for the carriage of passengers or goods or both passengers and goods in the course of inter-State trade subject to the modifications enacted in Pt. IVA. The "modifications" thus made were described and discussed in Hughes and Vale Pty. Ltd. v. State of Queensland [1955] HCA 29; (1955) 93 CLR 247 , a case in which the Court held that even as modified the provisions could not consistently with s. 92 of the Constitution operate to impose upon vehicles carrying goods upon an inter-State journey and not otherwise the necessity of obtaining an inter-State licence or permit under Pt. IVA or a licence or permit under Pt. III. (at p608)

3. The appellant was on 11th December 1958 convicted before the Court of Petty Sessions at Goondiwindi in Queensland under s. 23. The charge upon which he was convicted was that on 17th February 1958 on the Bungunya-Goondiwindi road near Bungunya in Queensland he the appellant did contravene s. 23 in that he did use on that road an International motor truck for the carriage of goods, such goods not being at that time carried upon the vehicle in accordance with a provision of Pt. III. In fact the vehicle was carrying wool, the appellant had obtained no licence under Pt. IV or Pt. IVA and the use made of the vehicle was not made lawful under any of the paragraphs of s. 24 or under any other provision of the Act. (at p608)

4. The appellant's defence rested simply upon s. 92 of the Constitution. His case was that the journey in respect of which he was convicted was made in the course of inter-State trade, commerce and intercourse. It appears that he is a general carrier who lives at Bungunya in the State of Queensland. Apparently he owns only two vehicles. One is a flat-top described as a snub-nosed International; it is the vehicle to which the charge refers. The other is a semi-trailer and diesel prime-mover. The first vehicle is registered in Queensland, the second vehicle is registered in New South Wales. In Boggabilla, a town situated in the State of New South Wales some six miles south of Goondiwindi, which is situated in Queensland on or close to the border of New South Wales, the appellant possesses a depot. The depot consists of a three-bay galvanized iron garage. It had been in the occupation of the appellant for some time and more recently he had leased it; to be exact the lease took effect from 3rd February 1958. In the building he maintained a "dump" of petrol and he deposited goods there as occasion required. If he desired to transfer goods from one truck to another and for that or any other purpose it was necessary to hold them in store, he used the depot for the purpose. Apparently his business included the carriage of goods from Moree to Boggabilla as well as from places in Queensland. He described himself as carrying on business at Bungunya and at Boggabilla and the description does not seem incorrect. (at p609)

5. The road from Bungunya to Goondiwindi is an earth road and it is said that, at all events in certain weather, it is unsuitable for the semi-trailer and diesel. The road from Goondiwindi to Brisbane apparently possesses a bitumen surface as does the road from Goondiwindi across the border to Boggabilla. The appellant's tariff for the carriage of goods was 3 pounds a ton from the Bungunya area to Boggabilla and 8 pounds a ton from Boggavilla to Brisbane. When he carried wool and apparently other goods from the Bungunya district consigned to Brisbane he was accustomed to carry them to Boggabilla by his snub-nosed International and there deposit them pending reloading them upon his semi-trailer and diesel for carriage on to Brisbane. The distance from Bungunya to Boggabilla is about fifty-one miles; the distance from Boggabilla to Brisbane is about two hundred and forty miles. The semi-trailer could carry about seventy to seventy-three bales of wool, that is about ten tons. The International flat-top would carry no more than forty-five bales or about six tons. (at p609)

6. Some time before 17th February 1958 the appellant agreed with a grazier who resided near Bungunya to carry his wool to Brisbane. This gentleman knew that the charge would be 11 pounds per ton and he knew also that the route would be by Boggabilla for the purpose of unloading the wool from the truck into the depot and thence to load it upon the semi-trailer. Most graziers in the district do not, it is said, wish to stack their wool but prefer that the wool should be taken away in consignments keeping pace with the shearing. It was the course which the appellant agreed to follow in the particular case. The smaller load capacity of the flat-top made it suitable for this purpose and on the occasion in question the appellant loaded about forty bales of wool upon it at the grazier's station property and carried it to Boggabilla. At the depot at Boggabilla there were some empty fuel drums. He unloaded the wool and placed it upon them, closed the garage and left the wool there. Next day the wool was loaded by the appellant's driver upon the semi-trailer and thirty empty petrol drums were placed on top of the wool. The load was then carried to Brisbane. (at p610)

7. It was during the journey of the International flat-top from Bungunya to Boggabilla carrying the forty bales of wool that the appellant is alleged to have committed the offence of using on a road in Queensland a vehicle for the carriage of goods otherwise than in accordance with the statutory provisions. (at p610)

8. 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. The case in a sense is complementary to that of Naracoorte Transport Co. Pty. Ltd. v. Butler [1956] HCA 72; (1956) 95 CLR 455 . The appeal should be allowed with costs and the conviction and order of the Court of Petty Sessions at Goondiwindi quashed. (at p610)

ORDER

Appeal allowed with costs. Order that the conviction and order of the Court of Petty Sessions at Goondiwindi be quashed. In lieu thereof order that the information be dismissed with costs to be taxed.