Bell Bros Pty Ltd v Rathbone [1963] HCA 7; (1963) 109 CLR 225 (29 March 1963)

HIGH COURT OF AUSTRALIA

BELL BROS. PTY. LTD. v. RATHBONE [1963] HCA 7; (1963) 109 CLR 225

Constitutional Law (Cth)

High Court of Australia
Dixon C.J.(1), McTiernan(2), Kitto(3), Taylor(4), Menzies(5), Windeyer(6) and
Owen(7) JJ.

CATCHWORDS

Constitutional Law (Cth) - Freedom of inter-State trade, commerce and intercourse - Consignment of goods by merchant from mill in Western Australia to yard in Victoria - Composite contract of carriage by land and sea - Carriage to wharf for shipment - Licence required by State law - The Constitution (63 & 64 Vict., c. 12), s. 92 - State Transport Co-ordination Act, 1933-1961 (W.A.), s. 52 (1) (a).

HEARING

Melbourne, 1962, October 22, 23;
Sydney, 1963, March 29. 29:3:1963
APPEAL from the Police Court at Perth, Western Australia.

DECISION

1963, March 29.
The following written judgments were delivered:-
DIXON C.J. This is an appeal against a conviction by a Court of Petty officer of the Commissioner of Transport who laid a complaint against the appellant Bell Bros. Pty. Ltd., an incorporated company, that being the owner of a public vehicle which was not licensed as such under the State Transport Co-ordination Act, 1933-1961 (W.A.), but which operated on a road, namely the South West Highway, contrary to the provisions of s. 52(1)(a) of the Act, is not exempted and was so guilty of an offence. It appeared that on the occasion charged the vehicle was carrying nothing but a load of timber consigned from the timber mill at Nannup of the Kauri Timber Company Ltd. to Melbourne. The journey of the timber was of course by land and sea and the vehicle was the necessary means of carrying the timber over the land in Western Australia to the place of shipment by sea. The shipment by sea would be from Fremantle. In my opinion the carriage by land was portion of a continuous journey of an inter-State character. The evidence that it was of this character appears to me to be conclusive. But it is right to say that the documentation is confused and unsatisfactory. But whichever way the documents are read or regarded it is plain that the timber was consigned by the Kauri Timber Co. Ltd. upon one journey from the Nannup mill to Melbourne and that Bell Bros. Pty. Ltd. were to undertake the land carriage which was necessary to the port of shipment and the vehicle in question was on this occasion engaged in nothing else. It appears to me to follow from Simms v. West [1961] HCA 62; (1961) 107 CLR 157 and Russell v. Walters [1957] HCA 21; (1957) 96 CLR 177 that the land carriage came within the protection of s. 92. The State Transport Co-ordination Act (W.A.) contains (see s. 4) a provision restricting its operation where it might be invalid, as for example under s. 92. (at p229)

2. It follows from the foregoing that the conviction was wrong and the appeal should be allowed. (at p229)

MCTIERNAN J. This is an appeal by Bell Bros. Pty. Ltd. against an order of the Police Court at Perth made on 23rd August 1962. It is a full appeal on law and fact: Wishart v. Fraser [1941] HCA 8; (1961) 64 CLR 470, at p 480 The appellant was thereby convicted on a complaint of the respondent, Rathbone, that on 16th January 1962 the company owned a commercial goods vehicle, namely a semi-trailer which was not licensed under the State Transport Co-ordination Act, 1933-1961 (W.A.) and operated it contrary to the provisions of s. 52(1) of that Act, although not exempted from licensing. The fine imposed was 5 pounds with 42 pounds 18s. 6d. costs. (at p229)

2. The facts were that one, Sinclair, an employee of the appellant company was driving the vehicle from Nannup in the South West of Western Australia to North Fremantle. The vehicle was laden with about 16 tons of sawn timber of which delivery was taken from the Kauri Timber Company Limited at its Nannup timber mill. The timber was conveyed in the vehicle to a depot at North Fremantle. The depot was owned by McIlwraith's Transport Pty. Ltd. and they conveyed the timber to the ship's side. It was then loaded on to the s.s. "Beltana" and transported by that ship to the Port of Melbourne and subsequently delivered to the consignees who were the Kauri Timber Company at South Melbourne. As far as the actual carriage of the timber was concerned the appellant company operated only between Nannup and North Fremantle. (at p229)

3. There was tendered in evidence a "contract note" purporting to be a contract between Kauri Timber Co. Ltd. of the one part and Adelaide Steamship (Operations) Ltd. and Bell Bros. Pty. Ltd. of the other part for the carriage of six packages of sawn timber from Nannup to South Melbourne. It would appear that the six packages were identical with the load carried by the appellant's vehicle from the mill at Nannup to the Port of Fremantle on 16th January 1962. The s.s. "Beltana" was a vessel of Adelaide Steamship (Operations) Ltd. They were the actual carriers by sea of the timber from Fremantle to Melbourne. The appellant's driver, Sinclair, who took delivery of the timber at Nannup signed the "contract note" on behalf of Bell Bros. Pty. Ltd. and the Steamship Company. The magistrate found that he had the necessary authority from both parties to do so. This finding seems to me to be supported by the evidence. A company McIlwraith, McEacharn Ltd. as agents for the Steamship Company and Bell Bros. Pty. Ltd. subsequently sent to the Kauri Timber Co. Ltd. an invoice for 906 pounds 13s. 4d.; part of this sum, 331 pounds 10s. 0d., was for the carriage of the timber from the Nannup mill to Lorimer Street, South Melbourne. (at p230)

4. The accountant of McIlwraith, McEacharn Ltd. said in evidence that the latter sum was distributed between the Steamship Company and Bell Bros. Pty. Ltd. It was not proved in evidence in what proportion. Another employee of that company could, according to the view of the magistrate, have given that information but he was not called as a witness. The defence of Bell Bros. Pty. Ltd. to the complaint was based on s. 92 of the Constitution. They alleged that the carriage of the timber from Nannup to North Fremantle was part of an inter-State journey -- that they and the Kauri Timber Co. Ltd. were engaged in inter-State trade. It was conceded by the prosecution that the licensing provisions of the State Transport Co-ordination Act were not applicable to inter-State trade and commerce by reason of s. 92 of the Constitution but they alleged that the carriage of the timber from Nannup to North Fremantle was intra-State trade and commerce. It was said for the defence that it was part of the inter-State journey beginning at Nannup and terminating in South Melbourne. The "contract note" was proved in the cross-examination of Sinclair who was called by the prosecution. What Sinclair's evidence amounted to was that he was instructed to sign it for his employers and Adelaide Steamship (Operations) Ltd., to leave one copy with the consignor at Nannup and to take four copies with him and to carry the timber from Nannup to North Fremantle. He said: "I had nothing to do with the timber after unloading it. I drove away and that was the end of the job". (at p230)

5. The grounds, therefore, upon which Bell Bros. Pty. Ltd. claimed the protection of s. 92 were that according to the "contract note" they and the Steamship Company agreed with Kauri Timber Pty. Ltd. to carry the timber in question from the mill at Nannup to South Melbourne by land and sea and in performance of this contract Bell Bros. Pty. Ltd. used their truck operated by their driver, Sinclair, to carry it from Nannup to North Fremantle on behalf of both themselves and the Steamship Company whilst the Steamship Company used their vessel the s.s. "Beltana" to carry it from North Fremantle to Melbourne on behalf of themselves and Bell Bros. Pty. Ltd. (at p231)

6. The magistrate said: "In the present case the Court is entitled to ask how and to what extent has the relationship set out in the 'contract note' been translated into fact? The timber was certainly carried inter-State but what was the part of Bell Bros. Pty. Ltd. in it? I feel that with such an important matter in issue evidence should have been forthcoming from those who alone had the peculiar knowledge of the real facts surrounding the transaction". (at p231)

7. There is no doubt that the prosecution was entitled to prove, if it could, that the relationship between Bell Bros. Pty. Ltd. and the Adelaide Steamship Company in connexion with the carriage of the timber was really not referable to the contract note at all but on the contrary each had a separate relationship to the consignor not provided for in the contract note or that Bell Bros. Pty. Ltd. was really an independent sub-contractor of the Steamship Company not a joint contractor for the whole journey as the contract note represents. But I think that the contract note must be accepted at its face value and that it shows prima facie that Bell Bros. Pty. Ltd. and the Steamship Company were joint inter-State carriers in relation to the whole journey from Nannup to South Melbourne. There is no countervailing evidence to rebut this prima facie case. I do not think that the facts of the case are analogous to those in Hughes v. The State of Tasmania [1955] HCA 30; (1955) 93 CLR 113; Russell v. Walters [1957] HCA 21; (1957) 96 CLR 177; and Simms v West (1961) 107 CLR 157 (at p231)

8. In my opinion Bell Bros. Pty. Ltd. were protected by s. 92 on the occasion in respect of which they were convicted. I agree that the appeal should be allowed. (at p231)

KITTO J. I agree in the judgments which have been prepared by my brothers Menzies and Owen. (at p231)

2. In the argument for the respondent much reliance was placed upon the case of Hughes v. The State of Tasmania [1955] HCA 30; (1955) 93 CLR 113 In Simms v West [1961] HCA 62; (1961) 107 CLR 157 the Chief Justice explained Hughes' Case [1955] HCA 30; (1955) 93 CLR 113 by saying that the burden of which the carrier there complained was nothing but a financial exaction upon him: one which did not intefere with the inter-State trade of the merchant whose fruit he carried (1961) 107 CLR, at p 162 Taylor J. expressed himself similarly, and I agreed. Hughes v. The State of Tasmania [1955] HCA 30; (1955) 93 CLR 113 is therefore to be taken as applying only where the established fact is that a burden which a provision places upon a carrier is not also a burden upon the customer whose goods are carried. The Court decided that in such a case a carrier whose conveyance of goods is wholly within one State derives no protection under s. 92 of the Constitution from the fact that his inter-State carrying forms part of an inter-State movement of the goods on the part of the customer. Simms v. West [1961] HCA 62; (1961) 107 CLR 157, however, establishes that the burden of a provision prohibiting carriage (as distinguished from regulating it) is not of this kind. It decides that such a provision burdens by its direct operation the customer who desires his goods carried as well as the carrier, and that therefore s. 92 prevents the prohibition from applying, as against either the carrier or the customer, to any carriage, intra-State though it be, which is an integral part of an inter-State movement of the goods. (at p232)

3. I agree that the appeal should be allowed. (at p232)

TAYLOR J. In my opinion this case is governed by the decision in Simms v. West [1961] HCA 62; (1961) 107 CLR 157 and the appeal should, therefore, be allowed. I should add that I have had the advantage of considering the reasons prepared by my brothers Menzies and Owen and I agree with their observations and conclusions. (at p232)

MENZIES J. The appellant was convicted of an offence against the provisions of the State Transport Co-ordination Act (W.A.) in respect of the operation upon a Western Australian road of an unlicensed public vehicle which was carrying six packages of timber (which I shall call "the timber") from Nannup to North Fremantle. The only ground of appeal is that, because the vehicle was carrying the timber in the course of inter-State trade protected by s. 92, the provisions of the Act in question had no application to the operation of the vehicle because of s. 4 of the Act, which requires that it shall be construed so as to be within constitutional power. The question is then whether the vehicle was operating in the course of inter-State trade. (at p232)

2. For the appellant it was contended in the first place that the vehicle was operating in the course of the appellant's own inter-State trade because it was carrying the timber in part performance of a contract to which it was a party for the inter-State movement of the timber. The appellant was a cartage contractor carrying on business in Western Australia which, it was claimed, was party to a contract made between the Kauri Timber Co. Ltd., Adelaide Steamship (Operations) Ltd. and itself whereby the Steamship Company and the appellant undertook to carry for the Kauri Company timber from its Nannup mill, Western Australia, to its premises at Lorimer Street, South Melbourne, Victoria, by road and sea per the "Beltana" or any other vessel through the ports of Fremantle and Melbourne. The contract note in a roneoed form containing these particulars had, between the place for the insertion of the name of the consignor and a box for the description of the goods consigned, a place for the consignor's signature and the box was followed by the following receipt: "Received the above-mentioned cargo for transportation to destination as above for and on behalf of", then followed in print: "Adelaide Steamship (Operations) Ltd. By their managing agents The Adelaide Steamship Co. Ltd. Per . . . . . . . . . . . . . . . . . . . . . . . .". Here on both contract notes exhibited appeared the signature "W. Sinclair". Opposite, the printed name "McIlwraith McEacharn Ltd." was ruled out: underneath, a dotted line with the word "Per" below had been provided for the insertion of another name and on this line the name "Bell Bros. Pty. Ltd." had been added in manuscript printing. After the word "Per" there appeared the signature "W. Sinclair". Before a place for the receipt of the goods by the consignee there was this note: "A bill of lading for the above goods will be issued on demand". No price appeared. On the reverse side of the contract note there were thirteen conditions of contract couched in language applicable to carriage on sea and land: thus, condition 12 was as follows: "Where a vehicle is delayed by any cause beyond the control of the carrier or where the delay is caused by the carrier obeying instructions given by the consignor the cost of such delay shall be to the consignor's account". (at p233)

3. Sinclair, an employee of the appellant, whose signature it was that appeared under the names "Adelaide Steamship (Operations) Ltd." and "Bell Bros. Pty. Ltd.", had signed when taking delivery of the timber at Nannup mill. He gave evidence that he signed as he did on behalf of the appellant and of the Adelaide Steamship Company. His evidence was to the effect that he had with him five copies of the contract note, that the description of the goods to be carried was filled in by a clerk of the Kauri Company at the mill to complete the documents which were signed by the clerk in the place for the consignor's signature and by himself as aforesaid, the clerk keeping one copy and giving him the other four copies which he later handed to another clerk at the premises of McIlwraith's Transport Pty. Ltd., North Fremantle, where he unloaded the timber. The learned magistrate made the following findings: "Mr Sinclair who took delivery of the timber at Nannup and who, as I said, is employed by Bell Bros. Pty. Ltd. signed the document on behalf of both his own firm and the Adelaide Steamship Co. Ltd. and he appears to have had the necessary authority from both parties to do so. Subsequently, the Kauri Timber Co. Ltd. received an invoice from McIlwraith, McEacharn Ltd. as agents for the Adelaide Steamship Co. Ltd. and Bell Bros. Pty. Ltd. for 906 pounds 13.4. Part of this sum, namely 331 pounds 10.0 was for the carriage of the timber from Nannup mill to Lorimer Street, South Melbourne. Mr. Ribbans, the Accountant of McIlwraith, McEacharn, said that his firm received the above moneys and paid part of the proceeds to the Adelaide Steamship Co. Ltd. and part to Bell Bros. Pty. Ltd. How the moneys were distributed to both companies and in what proportions, has not been stated". (at p234)

4. These findings, however, do not stand by themselves and the learned magistrate also said: "Last year, the Kauri Timber Co. Ltd. negotiated with the Associated Steamship Owners with respect to the movement of timber from the former's mills in Western Australia to Eastern States ports" and, after referring to these earlier negotiations in which he said the appellant did not appear to have figured much, he made the following observations: "All this does not suggest that Bell Bros. Pty. Ltd. was engaged in inter-State trade, in fact it suggests the contrary. The inference is that Associated Steamship Owners were interested in providing through cartage and the defendant company was merely an inter-State carrier providing the first leg of the land transport under sub-contract or some other arrangement with the Association . . . The mere addition of the company's name to the document does not prove that it is engaged in inter-State trade even in relation to this particular transaction and that in carrying the timber from Nannup to North Fremantle it obtains the protection of s. 92. It is the inter-State transaction itself that is protected by s. 92 of the Constitution and not some form of document submitted to the Court which may or may not represent the true transaction". Earlier he had said: "It is obvious, however, from the evidence that the 'contract note' does not contain all the terms agreed on between the parties. Furthermore, on the evidence or the lack of it, I am unable to say what role was played by the defendant company in the transaction purported to be covered by the 'contract note'". (at p235)

5. It is true that the appellant was not shown to have done more with regard to the particular transaction than (1) to send a truck and driver with papers to be completed to cover the carriage of the timber from Nannup to Lorimer Street; (2) to pick up the timber at Nannup; (3) to sign the receipt previously set out at the end of the completed contract note; (4) to carry the timber from Nannup to the premises of McIlwraith's Transport Pty. Ltd. at North Fremantle and deliver it there together with documents covering door-to-door transport; and (5) to have received from McIlwraith McEacharn Ltd. its share of what the Kauri Company paid to that company as agent of the Adelaide Steamship Company and the appellant for the carriage of the timber from Nannup to Lorimer Street. These things, however, are sufficient of themselves to satisfy me that the appellant was party to a contract for continuous carriage of the timber from Nannup mill to Lorimer Street and that in part performance of that contract it picked up the timber and carried it to North Fremantle where it handed over the timber and the documents so that the contract could be fully performed. From this it would follow that in carrying the timber as it did between Nannup and North Fremantle the appellant was itself engaged in inter-State trade. So far as the Kauri Company was concerned, there was but one contract with two carriers for carriage of the timber from Nannup to Lorimer Street and it was for the performance of that contract that is paid McIlwraith McEacharn Ltd. the sum of 331 pounds 10s. 0d. I see no way whereby a contract between the Kauri Company and the appellant for the carriage of the timber from Nannup to North Fremantle can be spelt out nor can I see any basis for inferring that the Kauri Company contracted with the Adelaide Steamship Company only and not with the appellant at all and that there was a sub-contract between the Adelaide Steamship Company and the appellant pursuant to which the appellant did all that it did. The magistrate's finding that the 331 pounds 10s. 0d. which McIlwraith McEacharn Ltd. received from the Kauri Company for the carriage of the timber from Nannup to Lorimer Street, South Melbourne, was received as agent for the Adelaide Steamship Company and the appellant is as contrary to such a supposition as is the contract note itself. I consider, therefore, that in carrying the timber as it did the appellant was engaged in the performance of a contract for inter-State movement of the timber and I would not have thought it would have mattered had it appeared that, as between themselves, the Adelaide Steamship Company and the appellant had agreed that the appelland should do no more than it was proved it did and that its share of the proceeds of the contract as a whole was to be calculated by reference to what it had done. On this view what the Western Australian Act upon its terms sought to do was to require the appellant to obtain a discretionary licence to carry on inter-State trade. It is this that Hughes and Vale Pty. Ltd. v. The State of New South Wales (No. 1) (1955) A.C. 241; (1954) 93 C.L.R. 1 and later cases have established is contrary to s. 92. It follows that the licensing provisions here under consideration must be read as inapplicable to the operations the subject of the charge upon which the appellant was convicted. (at p236)

6. Even, however, on the magistrate's view that the appellant itself did no more than carry the timber from Nannup to North Fremantle for reward, I think, with respect, that the conviction of the appellant was wrong. The movement of the timber from Nannup through North Fremantle and Melbourne to Lorimer Street, South Melbourne, was an inter-State operation and to prevent the appellant from carrying out part of that inter-State movement unless it had obtained a licence under the Act authorizing the use of its vehicle for that purpose would, in my opinion, amount to an unconstitutional interference with the freedom of inter-State trade upon which the appellant could rely to have the Act read down to constitutional limits. I regard this as established by Russell v. Walters [1957] HCA 21; (1957) 96 CLR 177 and Simms v West [1961] HCA 62; (1961) 107 CLR 157 (at p236)

7. In the earlier case, where the owner of goods which had been landed at Burnie by ship from Victoria carried them on his own vehicle to his own premises in Launceston, which was their destination, it was held that the vehicle was being used in the course of and for the purposes of inter-State trade because the movement of the goods from Burnie to Launceston was part of the inter-State movement of the goods which had begun at the Victoria Market in Melbourne. The Court there said: "We are of opinion that the character of inter-State commerce attached to the journey of the fruit in question from the time of its departure from Deacon's premises at the Victoria Market in Melbourne to the time of its arrival at Walters's premises in Launceston. The end and object in view from the inception of the transaction was the arrival of the fruit at Walter's premises in Launceston. It was essentially a Melbourne-Launceston transaction. The intended destination of the fruit, when it left the Victoria Market, was Launceston. Deacon was responsible for part of the journey which the fruit had to make, and Walters was responsible for the rest of that journey, but it was a single journey that was in contemplation. Three instruments of transport were involved - Deacon's truck, the ship Taroona, and Walters's vehicle - but all were contributing to a single end. The reality of the situation was not different from what it would have been if one truck, loaded with the fruit, had been driven from the Victoria Market to Port Melbourne, loaded on the ship there, unloaded at Burnie, and then driven from Burnie to Launceston. Such a case might at first sight have seemed clearer than the present case, but the facts of the present case cannot be held to produce a different result" (1957) 96 CLR, at pp 184, 185 These words mutatis mutandis apply here to the movement of the timber from Nannup to South Melbourne and as in that case it was held that the licensing provisions of the Tasmanian Traffic Act could not apply to the vehicle carrying the goods from Burnie to Launceston, so it should here be held that the provisions of the State Transport Co-ordination Act (W.A.) cannot apply to the vehicle carrying the timber between Nannup and North Fremantle. (at p237)

In Simms v. West [1961] HCA 62; (1961) 107 CLR 157 it was decided that the carriage of timber in Queensland from Ravenshoe to the port of Cairns for shipment to the purchaser in Sydney by the agent of that purchaser was part of a continuous inter-State operation in the carriage of goods so that s. 23 of the State Transport Facilities Act (Q.) requiring a permit for the use of the vehicle to do so did not apply. The purchaser in Sydney was a company Bradshaw & Duncan Pty. Ltd; the agent which carried the timber from Ravenshoe to Cairns was North Queensland Timber Traders Pty. Ltd. With regard to the movement of the timber in Queensland, the Chief Justice with the agreement of Kitto J. said: "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, 1946-1959 (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 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" (1961) 107 CLR, at pp 161, 162 These statements would cover this case even if, contrary to my view, the appellant in carrying the timber from Nannup to North Fremantle should itself be regarded as engaged in nothing but an operation of intra-State trade and this would be so whether it is to be regarded as having done what it did for the Kauri Company itself or for some other company which had contracted with the Kauri Company for the inter-State movement of the timber. In the course of his valuable argument Mr. Wilson relied strongly upon Hughes v. The State of Tasmania [1955] HCA 30; (1955) 93 CLR 113 In the view I take of the facts that decision is distinguishable but if it is implicit in that case that in the circumstances here the appellant, if not itself engaged in an operation of inter-State trade, cannot rely upon the burden imposed upon it by the Act as involving an unconstitutional interference with the inter-State trade of others, then, as the citations I have made show, a different decision has already been given in the later case of Simms v. West [1961] HCA 62; (1961) 107 CLR 157 (at p238)

9. For the foregoing reasons the appeal should be allowed. (at p238)

WINDEYER J. I agree that this appeal should be allowed. But I do not base this conclusion upon the document dated 16th January 1962. I am not persuaded that this records a contract between the appellant and Kauri Timber Co. Limited by which the appellant undertook the carriage of timber from Nannup Mill to Melbourne. Rather it seems to me that the document, read in the light of the surrounding circumstances, shows that the shipping company, Adelaide Steamship (Operations) Limited, undertook to transport the goods from Nannup to Lorimer Street, South Melbourne, and that the appellant was to perform the portion of the journey that had to be performed by land in Western Australia, that is from Nannup to the seaboard, as the agent, so it seems to me, of the shipping company. The appellant's name was added to the document; but I am not satisfied that, if by some misfeasance of the ship the goods had been lost at sea, the appellant would have been liable for breach of contract. (at p239)

2. However, the case does not, in the view I take of it, depend on finding that the appellant was an inter-State carrier, nor even that the shipping company had agreed to carry the goods from the mill at Nannup and deliver them in South Melbourne. The inter-State trade and commerce in question was, as I see the matter, that of Kauri Timber Co. Limited. In the course of its business it sent timber from its mill at Nannup to its branch in South Melbourne. The appellant was to carry the timber on the first stage of that journey, namely from Nannup to the port of shipment. In the circumstances, to require it to obtain a licence under the State Transport Co-ordination Act (W.A.) to enable it to do so would be to restrict the freedom that s. 92 assures. (at p239)

3. It was conceded in the argument for the respondent that a timber miller sending his own timber in his own vehicle driven by his own servant to a seaport, for shipment to another State, could not be required to obtain such a licence. And, as I understood the argument, it was further conceded that it would make no difference if the owner of the timber did not own the vehicle but had it on hire; and that it would not matter whether the driver was paid by the piece or by a salary, nor whether he was engaged by the month, by the week, or for a particular journey. The critical question, it was said, Was he a servant or an independent contractor?: Only if he were a servant would s. 92 give him any immunity. But this, to my mind, is to substitute a narrow legalistic test for the broad economic idea embodied in the wide words of s. 92. In considering the effect of s. 92 on commercial transactions, attention should, in my opinion, be directed to whether the transaction that it is intended should be accomplished, is in reality and as a whole a transaction of inter-State commerce; and if so, whether the impugned legislation interferes, in a real and relevant sense, with the activities of some person engaged in its accomplishment. Each case depends upon all its facts and circumstances. Phrases such as "continuous journey", "preliminary journey", "independent transaction", "integral part" and so forth have a relative, not, in the metaphysical sense, an absolute meaning. So that the question in many cases is one both of fact and of degree. For example, it would not follow that a carrier having a general carrying business within a State would avoid the need for a licence under a State Act by carrying some parcel to be despatched to a destination in another State along with other goods for destinations within the State. But that would not be because his carriage of that parcel was not in the course of the inter-State trade of his principal, but because his own current activity was not confined to inter-State trade and the requirement of a licence for it did not in any relevant sense burden or impede the inter-State trade of his principal. Here the appellant's actions were at the relevant time all being done in the direct performance of the genuine inter-State trade of Kauri Timber Co. Limited, and were so associated with that trade that an interference with them, as distinct from their mere regulation, would be a contravention of s. 92. If there was once room for doubt about this, it should, I think, have been dispelled by the decision in Simms v. West (1961) 107 CLR 157 (at p240)

OWEN J. The appellant was convicted upon a complaint charging it with an offence under the State Transport Co-ordination Act (W.A.) in that it had operated a commercial goods vehicle which was not licensed under that Act and not exempted from its licensing provisions. At the time of the alleged offence the vehicle, which was admittedly not licensed, was carrying a parcel of 16 tons of timber from a timber mill owned by the Kauri Timber Co. Ltd. at Nannup in Western Australia to Fremantle whence it was to be shipped by sea to Melbourne consigned to the Melbourne office of the Kauri Timber Co. Ltd. It is not questioned that so far as the Kauri Timber Co. Ltd. was concerned the movement of the timber from its mill in Western Australia to its Melbourne office was a carriage of goods in the course of its inter-State trade and the question is whether in the circumstances of the case the appellant is entitled to rely upon s. 92 of the Constitution. Its case is put in several ways. First it is said that the evidence shows that it had contracted with the Kauri Timber Co. Ltd. to carry the timber from Nannup to Melbourne and was therefore itself engaged in inter-State trade so that the licensing provisions of the State Act could have no application. In the next place it was said that, even if its contract of carriage was merely to transport the timber from Nannup to Fremantle, this was but one step in a continuous inter-State carriage and that the licensing provisions of the State Act could have no application because they would burden or restrict the Kauri Company's inter-State trade. (at p240)

2. The contract of carriage was contained in a document which was handed to the appellant's driver when the timber was being loaded on the truck at Nannup. It was headed: "Contract Note Inter-state Transport Door to Door Service Inflammable and Hazardous Cargo - Dangerous cargo permit must be obtained by consignor for this cargo and handed to carrier before cargo can be accepted. Inflammable and hazardous cargo must not be shipped in seatainers except by special arrangement with carrier. - Seatainer Insurance - Free insurance on door-to-door consignments in seatainers is automatically arranged in terms of condition 13 endorsed hereon. 16/1/1962. - Please carry the goods described hereunder in accordance with these instructions and upon the terms and conditions of contract on front and back hereon from: (Consignor) Kauri Timber Co. Ltd. - (Address) Nannup Mill - To be delivered to Kauri Timber Co. Ltd. (Consignee's Name) at Lorimer St., South Melbourne (Address of Consignee) - Carriage to be by road and sea per vessel Beltana (Name of Ship) (or any other vessel) through the port of Fremantle and through the port of Melbourne - Freight and charges payable at Fremantle - Name of consignor Kauri Timber Co. Ltd. - consignor's signature

Marks and Nos. Packages Description of Measurement
Packages and and Weight
Contents
6 5 Sawn Jarrah 522 cubic
1 assembled FJ feet

Received the above-mentioned cargo for transportation to destination as above for and on behalf of: Adelaide Steamship (Operations) Ltd. By their managing agents The Adelaide Steamship Co. Ltd. per W. Sinclair - Bell Bros. Pty. Ltd. per W. Sinclair-A Bill of Lading for the above goods will be issued on demand - Received the abovementioned goods in good order and condition Date................19... ........................Signature of Consignee or Agent. On the back of the document was the heading: "Conditions of Contract" followed by 13 clauses, some of them applicable to carriage by land or sea and some applicable only to sea carriage. By cl. 1 the word "Carrier" was defined to mean "the carrier contracting for the carriage of this consignment and if more than one each of them severally and both of them jointly and includes the carrier's servants and agents and any sub-contractor for carriage whether by road or by sea and also the servants and agents of any such sub-contractor." (at p241)

3. The appellant's driver, Sinclair, had authority to sign the document on behalf of the appellant and of Adelaide Steamship (Operations) Ltd. (at p241)

4. No doubt the contract was intended to be performed by the appellant carrying the timber from Nannup to Fremantle and by the Adelaide Steamship Co. carrying it by sea from Fremantle to Melbourne but the contract was one by which the appellant as well as the Adelaide Steamship Co. undertook the carriage from Nannup to Melbourne and was therefore itself engaged in inter-State trade. It seems not unlikely that the form of contract was designed to overcome any difficulties which might otherwise have been raised by the decision in Hughes v. The State of Tasmania [1955] HCA 30; (1955) 93 CLR 113 but that is no reason for denying to the document what seems to me to be its true meaning and effect. Accordingly I am of opinion that the first submission made on behalf of the appellant should be upheld. (at p242)

5. But even if the case is to be regarded as one in which the only obligation undertaken by the appellant was to carry the timber from Nannup to Fremantle so that it might be shipped to Melbourne, the appellant would still be entitled to the protection of s. 92. The situation would then be identical in all material respects with that which was considered in Simms v. West [1961] HCA 62; (1961) 107 CLR 157 Counsel for the respondent placed much reliance on the earlier decision of the Court in Hughes v. The State of Tasmanina [1955] HCA 30; (1955) 93 CLR 113 From what was said about that case in Simms v. West by Dixon C.J., (1961) 107 CLR, at p 162 and by Taylor J (1961) 107 CLR, at pp 164, 165 it seems that Hughes, whose business it was to carry goods intra-State, held the necessary licence or permit which entitled him to carry the inter-State trader's goods from the point of arrival in Tasmania to their final destination in that State and that his claim to the immunity conferred by s. 92 failed because it was considered that the inter-State trade of his principal was not burdened or impeded by the fact that Hughes had been required to pay moneys to obtain his licence. If that be correct then the facts in the present case are of a very different character. (at p242)

6. In my opinion the appeal should be allowed. (at p242)

ORDER

Appeal allowed with costs.

Order that the conviction made by the Police Court at Perth on 23rd August 1962 be set aside and in lieu thereof that the complaint be dismissed with 40 pounds costs.