Simms v West [1961] HCA 62; (1961) 107 CLR 157 (23 October 1961)

HIGH COURT OF AUSTRALIA

SIMMS v. WEST [1961] HCA 62; (1961) 107 CLR 157

Constitutional Law (Cth)

High Court of Australia
Dixon C.J.(1), McTiernan(2), Kitto(3), Taylor(4) and Windeyer(5) JJ.

CATCHWORDS

Constitutional Law (Cth) - Freedom of inter-State trade, commerce and intercourse - Purchase of goods inland in a State by agent in that State for a principal in another State - Obligation of agent to transport goods to wharf at coast for shipment to principal in the other State - Whether carriage of goods by road to coast part of an inter-State operation in the carriage of goods - Applicability of State Transport Act to agent's vehicle on journey to coast - Necessity for permit under that Act - The Constitution (63 & 64 Vict. c. 12), s. 92 - The State Transport Facilities Acts, 1946 to 1959 (Q.), ss. 3, 23 (1), 24, 25, 26.

HEARING

Brisbane, 1961, September 8, 11;
Melbourne, 1961, October 23. 23:10:1961
APPEAL from the Court of Petty Sessions at Ravenshoe, Queensland.

DECISION

October 23.
The following written judgments were delivered:-
DIXON C.J. Section 23(1) of The State Transport Facilities Acts, 1946 to on any road at any time a vehicle for the carriage of . . . goods . . . unless at the time . . . those goods . . . are carried upon that vehicle under and in accordance with a provision of Pt III of the Act. On 2nd September 1959 a Ford truck loaded with sawn maple timber was used on roads for the carriage of the timber from Ravenshoe to the wharf at Cairns. There was no permit for the vehicle or its journey, and having regard to the nature of the load and the purpose of using the road, the vehicle was not used in accordance with any provision of Pt III of the Act. (at p161)

2. The defendant is the managing director of the North Queensland Timber Traders Pty. Ltd. and has been convicted under s. 23 as a person responsible for the use of the vehicle, he and not the company having for some reason been chosen as the defendant. His defence was that the timber was being carried in the course of transit from the timber mills in Ravenshoe by road and sea to the purchasers of the timber in Sydney, and that to prevent carrying the timber by road to the wharf at Cairns for shipment was to interfere with the freedom of inter-State trade and commerce. (at p161)

3. It was not suggested that without contravening the actual terms of s. 23 it was possible to transport the timber by road from the mill to the wharf, as for example by employing other carriers. It is not necessary to go into the evidence by which the transaction in relation to the purchase and transportation of the timber was proved: it is enough to say that North Queensland Timber Traders Pty. Ltd., of which the defendant was managing director, acting under the authority of their principals, Bradshaw & Duncan Pty. Ltd. of Sydney, bought on their behalf as disclosed principals the timber from Stewart & Condon Pty. Ltd. of Ravenshoe for the purpose of delivery by road and ship to their principals in Sydney. As between Bradshaw & Duncan Pty. Ltd., the purchasers of the timber, and North Queensland Timber Traders Pty. Ltd. it was the obligation of North Queensland Timber Traders Pty. Ltd. to carry the timber to Cairns and see that it was loaded upon the ship which would take it to Sydney. In these circumstances the impossibility under State law of North Queensland Timber Traders Pty. Ltd. carrying the timber to the coast without the contravention of the terms of s. 23 of The State Transport Facilities Acts, 1946 to 1959 (Q.), would mean a direct interference with the inter-State trade of Bradshaw & Duncan Pty. Ltd. The question is not whether North Queensland Timber Traders Pty. Ltd. can make out an interference with the inter-State trade of that company. The decision in Hughes v. The State of Tasmania [1955] HCA 30; (1955) 93 CLR 113 may suggest that considered only as a carrier carrying on business in Queensland the actual carrying by that company could not be regarded as necessarily amounting in itself to an operation of inter-State commerce. It must be kept in mind, however, that the burden in that case of which the carrier complained was nothing but a financial exaction from him: one which did not interfere with the inter-State trade of the merchant whose fruit he carried. The carrier was licensed for an area but to perform the service he needed an "out of area permit" and for that he had to pay unless he could obtain protection against the payment under s. 92. But the question here is not whether the carrier because of his own operations can make out a complete immunity under s. 92. The case depends on the interference with the consignee's inter-State trade. It is one where a Sydney purchaser from an inland source of production in Queensland has bought goods for delivery into New South Wales and is entitled to have his goods delivered by road as well as by ship in the course of his inter-State transaction. If under s. 23 carriage by road is denied to that trader, the inter-State transportation of the commodity is made impossible except by means of the railways. That is made quite clear by the decision of the Court in Russell v. Walters [1957] HCA 21; (1957) 96 CLR 177 . The carriage of the timber from the mills at Ravenshoe to the wharf and thence to Sydney by ship must be considered a continuous inter-State operation in the carriage of the goods. Any interference which prevents the operation must be outside the application of s. 23. This is so whether the protection against the interference by s. 23 with the operation is regarded as the direct effect of s. 92 of the Constitution or the necessary result of the limitation of the application of s. 23 which flows from s. 3 of The State Transport Facilities Acts, 1946 to 1959 (Q.). It follows that the appeal should be allowed and the conviction set aside.

McTIERNAN J. My understanding of the reasons in Hughes v. The State of Tasmania [1955] HCA 30; (1955) 93 CLR 113 leads me to the conclusion that this appeal should be dismissed.

2. That case and the present are, in my opinion, similar in all essential respects. The commerce burdened by pecuniary exactions in the former case was transportation by road. In the present case the complaint of the appellant is about restrictive legislation interfering with transportation by road. In neither case was the transportation an inter-State activity. In both cases it was accessory to inter-State commerce, a sale of goods between two States. It was decided in Hughes v. The State of Tasmania [1955] HCA 30; (1955) 93 CLR 113 that the fact that the plaintiff was performing a service to an inter-State transaction did not give him immunity under s. 92 from the pecuniary exaction. Inter-State trade, commerce and intercourse only are within the protection of the section. It was decided, therefore, in Hughes v. The State of Tasmania [1955] HCA 30; (1955) 93 CLR 113 that the plaintiff had to carry on his business as an intra-State carrier in accordance with the law of the State even though it burdened the service of transportation he was performing for inter-State commerce. The question of the application of the decision in Hughes v. The State of Tasmania [1955] HCA 30; (1955) 93 CLR 113 arises because s. 23 of The State Transport Facilities Acts, 1946 to 1959 (Q.), prohibited the appellant from using a motor vehicle for the carriage of the timber from the sawmill to the wharf at Cairns unless the carriage was under and in accordance with the Act. The effect of this provision was that the appellant had to obtain a permit under s. 24. No doubt an application for a permit would not have been successful. The purpose of the prohibition in s. 23 is exactly the same as that for which the Tasmanian legislation imposed the pecuniary burdens on the plaintiff in Hughes v. The State of Tasmania [1955] HCA 30; (1955) 93 CLR 113 . Paragraph 8(a) of the case stated (1955) 93 CLR, at pp 116, 117 was as follows: "The purpose of the defendant commission in the imposition of the said charges in respect of 'out-of-area permits' is to prevent the plaintiff by means of road transport from competing with railways operated by the commission in the carriage of the said fruit except upon payment of the said charges". Prohibition and pecuniary exaction are alike obnoxious to s. 92. But only if they detract from the freedom of inter-State trade, commerce and intercourse. The situation of the appellant was, as an intra-State carrier, that he had to observe the provisions of The State Transport Facilities Acts in transporting the timber to Cairns. By "appellant" the company which he managed is meant. The economic or practical result of the Act was that he had to use the facilities for transportation provided by the Queensland Railways to have the timber brought to Cairns. Being an intra-State carrier he had no right to break the law of Queensland and use a motor vehicle for the carriage of the timber from the sawmill to the wharf at Cairns. In my opinion, the conviction is right and the appeal should be dismissed.

KITTO J. I have had the advantage of reading the judgments of the Chief Justice and Taylor J. I agree in them and have nothing to add. (at p163)

TAYLOR J. The appellant is the managing director of North Queensland Timber Traders Pty. Limited, a company which in the course of its business at Cairns acts as an agent for companies in other places, including companies in other States, in and about the purchase, transport and shipment of timber in and from northern Queensland. It so acted in September 1959 when, on behalf of Bradshaw & Duncan Pty. Limited of Sydney, it purchased for that company, as a disclosed principal, a quantity of timber from Messrs. Stewart & Condon Pty. Limited at Ravenshoe. It can be gathered from the evidence that the duties of North Queensland Timber Traders Pty. Limited (hereinafter referred to as the agent) under its arrangement with its principal were not limited merely to the purchase of the timber in question; it was obliged to pay for, and it did in fact pay for, it on behalf of its principal and it undertook to transport it from Ravenshoe to the ship's side at Cairns. After arrival at the wharf it was shipped by the "Kuranda" to the principal in Sydney. Subsequently the agent was reimbursed by its principal the purchase money which it had outlaid and it was paid for its services and for the carriage to the seaboard. The shipping freight was paid by the principal direct to the shipping company. (at p164)

2. In fact, the timber in question was carried from Ravenshoe to Cairns on a truck leased by the agent and driven by one of its servants. But this, it was claimed, constituted an offence against s. 23(1) of The State Transport Facilities Acts, 1946 to 1959 (Q.), because the provisions of that sub-section prohibited the use of the vehicle for that purpose unless an appropriate permit had issued. No permit had, in fact, been issued and accordingly the appellant was charged with, and ultimately convicted of, an offence against the sub-section. Upon the appeal, which is now brought to this Court, the appellant asserts that he was wrongly convicted because the statutory provision could not, in the circumstances disclosed by the evidence, operate to prohibit the carriage of the timber to the seaboard. On the other hand the respondent contends that this case is governed by the decision of this Court in Hughes v. The State of Tasmania [1955] HCA 30; (1955) 93 CLR 113 . (at p164)

3. In that case it appeared that the appellant, a shipping agent and carrier in Launceston, had entered into an agreement with certain Hobart merchants by which he undertook to transport by road all of their inter-State fruit imports from the seaboard at Burnie, Devonport and Launceston to their ultimate destination at Hobart. The fruit, itself, was purchased from merchants in other States, the terms of each sale being f.o.b. at the port of shipment. Upon arrival at any of the Tasmanian ports mentioned the practice was for the appellant to clear the goods and then transport them to Hobart. For the purpose of such transport he was required by the Tasmanian Traffic Act to secure what was called an "out-of-area" permit. The facts of the case showed that, at the relevant time he was the holder of such a permit and that he was, therefore, lawfully entitled to carry the fruit in question to Hobart. His complaint however, and his only complaint, was that the charges which, by the conditions of his permit, he was required to pay, constituted an interference with the freedom of trade and commerce among the States. This contention was rejected, it being held, firstly, that the carrying activities of the appellant himself formed no part of such trade or commerce and, secondly, that, even if it might be said that his vehicle was used in the transport of goods which at the time were still in the course of inter-State trade, that circumstance provided no foundation for the proposition that the exaction of the charges in question from him, in the course of his business, constituted any interference with the inter-State trade of his principals. (at p165)

4. This brief analysis serves to make it clear that the present case raises an entirely different problem for here we are concerned with a complaint that the legislation which is impugned operated directly, in the circumstances of the case, to prohibit the carriage by road of goods the subject of inter-State commerce and, consequently, to prevent such goods from passing from one State to another. In many aspects the case bears a strong resemblance to the later case of Russell v. Walters [1957] HCA 21; (1957) 96 CLR 177 where the Tasmanian Traffic Act was held to have no application to the carriage of certain fruit to Launceston from the ship's side at Burnie. The fruit in question had been purchased by the defendants from a merchant in Melbourne, consigned by him by the "Taroona" to Burnie and there loaded on to the defendants' truck and taken by them to their depot at Launceston. The Court was of the opinion that the provisions of the Traffic Act, which required the holding of an "out-of-area" permit, imposed a burden or restriction on trade and commerce and that they could have no application in so far as they purported to apply to inter-State trade and commerce. Then, since the course of trade made it clear that the character of inter-State commerce attached to the journey which the fruit made from the time of its departure from Melbourne to the time of its arrival at the defendants' depot in Launceston, it was considered that the provisions of the Act could not operate so as to prohibit the completion of the journey to Launceston. (at p166)

5. In the present case the situation is much the same although the problem arises with respect to the first, and not the last, stage of an inter-State journey. It is conceded that, from the time of the delivery of the timber in question to the agent, it became the subject of inter-State trade and commerce. As such it was to be transported to Cairns and then shipped to Sydney. But if the provisions of The State Transport Facilities Acts applied with full force in such circumstances, then the Act must be taken to have forbidden the purchaser, except at the uncontrolled discretion of the Commissioner, to use any form of road transport to take his timber to the seaboard for shipment. Such a prohibition, operating in circumstances such as those disclosed by the evidence, is clearly obnoxious to the provisions of s. 92 of the Constitution. Indeed, consistently with Russell v. Walters [1957] HCA 21; (1957) 96 CLR 177 , the respondent was prepared to concede that the provisions of the Act could not operate so as to prevent the servants of the purchaser from transporting his timber to the seaboard. But for some reason which did not clearly appear he maintained that the contrary view should be entertained in the case where the carriage was undertaken, not by the servants, but by the agents of the purchaser. We have no doubt that no such distinction can validly be made and that the provisions of s. 23(1) had no application to the journey in question. (at p166)

6. One other matter remains to be mentioned. The defendant in the proceedings before the magistrate was not the agent but its managing director and it is said that he was charged because it appeared that he had counselled or procured the commission of the alleged offence. Then, it is said, he had no contractual obligations to the purchaser, he, himself, was not engaged in inter-State trade or commerce and he was not, therefore, entitled to rely upon the provisions of s. 92 of the Constitution. In our view there is no substance in this contention. Plainly enough, the effect of the Act, if it applied to the journey in question, was to prevent the passage, initially by road, of goods, then in the course of inter-State trade, from one State to another. That being so, the appeal must be allowed and the conviction set aside. (at p166)

WINDEYER J. I agree that this appeal should be allowed. The timber was bought at Ravenshoe for the purpose of being taken to Sydney. It was to be moved from Ravenshoe to Cairns for shipment to Sydney. In the circumstances, the State law did not require, and could not lawfully have required, the appellant or his company to obtain a permit under The State Transport Facilities Acts for the use of the vehicle for the carriage of the timber by road on the first stage of the journey to Sydney. (at p167)

ORDER

Appeal allowed with costs. Order that the conviction and order of the Court of Petty Sessions at Ravenshoe be quashed. In lieu thereof order that the complaint be dismissed. Order that the respondent pay the appellant's costs of the complaint and proceedings therein in Petty Sessions and refer it to the District Registrar to fix such costs as may seem to him reasonable.