Britton Bros Pty Ltd v Atkins [1963] HCA 8; (1963) 108 CLR 529 (29 March 1963)

HIGH COURT OF AUSTRALIA

BRITTON BROS. PTY. LTD. v. ATKINS [1963] HCA 8; (1963) 108 CLR 529

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 - Sale of goods by seller in Tasmania to buyer in New South Wales - Carriage of goods by seller to wharf for shipment - State statute - Public vehicle licensing system - Licences limited to areas - Permit needed to use vehicle outside area - Use of vehicle by seller outside licensed area - Whether prohibited - The Constitution (63 & 64 Vict. c. 12), s. 92 - Traffic Act 1925-1954 (Tas.), ss. 14, 15 (5), (6), (11), 20A, 24 (1), 30 (1).

HEARING

Melbourne, 1962, October 19;
Sydney, 1963, March 29. 29:3:1963
APPEAL from the Court of Petty Sessions at Launceston, Tasmania. The appellant, Britton Bros. Proprietary Limited, was charged before the Court of Petty Sessions at Launceston, Tasmania, on the information of the respondent Atkins, that on 14th December 1960 it caused to be driven as a public vehicle a certain motor lorry licensed for Area 8 in a place in or upon which the licence in respect thereof did not authorize the said vehicle to be used, namely on the Bass Highway, a public street at Boat Harbour in the Municipality of Wynyard in Tasmania and thereby was guilty of an offence under the Traffic Act 1925-1954 (Tas.).

DECISION

1963, March 29.
The following written judgments were delivered : -
DIXON C.J. This is an appeal by a defendant from a conviction by a Court of charged as an incorporated company. The conviction was upon a complaint laid by the respondent, a sergeant of police, that on 14th September 1960 the appellant company did cause to be driven as a public vehicle a motor lorry licensed for area 8 in a place in or upon which the licence did not authorize the vehicle so to be used, namely on the Bass Highway at Boat Harbour in the Municipality of Wynyard in Tasmania, contrary to the said Act (scil. s. 24 (1) of the Traffic Act 1925-1954 of the State of Tasmania). The effect of the material part of this legislation is stated in the reasons of this Court in Hughes v. The State of Tasmania [1955] HCA 30; (1955) 93 CLR 113 as follows : "Under certain provisions of the Traffic Act and Transport Act, in order to" carry goods in certain circumstances the carrier "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 tare weight of the vehicle and the mileage . . . 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. 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 halfpenny 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." (1955) 93 CLR, at pp 121-123 . A permit to carry outside the primary area is known as an out-of-area permit. (at p532)

2. In the present case the appellant company owned a motor lorry which carried its own goods and was therefore a public vehicle within the statutory meaning. On 14th September 1960 the vehicle was loaded with sawn timber and was driven by a driver in the permanent employ of the company from a place near Smithton called Brittons Swamp on a journey to Burnie wharf. The motor lorry was licensed for area 8 but the journey involved it in going into and through area 6 where it was intercepted. The driver did not possess and did not obtain or pay the fee or charge for an out-of-area permit for carrying in this area. The timber was blackwood which had been loaded in packs for shipment upon an inter-State journey. As it appears to me, from beginning to end the transaction was part of a journey by land and by sea of the timber upon a consignment by Britton Bros. Pty. Ltd., the defendant company, from a mill of theirs at Brittons Swamp to two consignees in Sydney, one named William Brandts (Australia) Pty. Ltd. and the other J. P. Browne. The driver was employed at wages by the defendant company and had been so employed for a number of years. It was his work to drive the truck with a load of timber from the sawmill at Brittons Swamp to the wharf at Burnie. The load on the occasion in question consisted of timber wired in two-feet packs for shipping. The order from Brandts was put in. It was dated from Sydney and desired Britton Bros. Pty. Ltd. to supply blackwood according to a specification by shipment and/or despatch to Sydney consigned to William Brandts, and the timber was shipped at Burnie. (at p533)

3. The transaction with Browne's was on a somewhat different footing but it involved acceptance of an order for the delivery of timber to Browne's in Sydney and the timber was carried from the mill by the lorry on the same occasion and consigned by ship to Browne's in Sydney. (at p533)

4. The question is whether the liability to pay the out-of-area fee or charge applied to the journey from the mill to the wharf at Burnie in so far as it included a journey through area 6. It seems clear that the entire journey of the timber from the mill to Sydney was a journey forming part of inter-State trade and commerce. It seems equally clear that in so far as the out-of-area fee or charge burdened the transaction, s. 92 should apply to free the transaction of the burden. In Hughes v. The State of Tasmania [1955] HCA 30; (1955) 93 CLR 113 , this Court had before it a case in which the out-of-area fee or charge was charged upon an independent carrier whose vehicles were his own and who was carrying fruit in various parts of Tasmania into areas for which he was not licensed so that he had to pay an out-of-area fee or charge. Some of his loads consisted of fruit imported into Tasmania and landed at ports distant from their final place of destination or delivery. This Court held that he obtained no immunity from the imposition of the out-of-area fee or charge. The reason is given in the joint judgment of the Court in the following passage: "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" (1955) 93 CLR, at p 124 . Kitto J. in a separate judgment expressed the reason as follows : "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. 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" (1955) 93 CLR, at pp 125, 126 . His Honour cited Hospital Provident Fund Pty. Ltd. v. State of Victoria [1953] HCA 8; (1953) 87 CLR 1, at p 17 . In the present case, however, the person engaged in inter-State commerce is the defendant company and from the inter-State character of its course of business is entitled to a freedom from every interference with it. The out-of-area fee or charge is imposed on it directly and in virtue of what it does in the course of the inter-State transaction. This makes the reasoning in Hughes' Case [1955] HCA 30; (1955) 93 CLR 113 quite inapplicable. It brings the whole transaction within the authority of Simms v. West [1961] HCA 62; (1961) 107 CLR 157 . There, in referring to Hughes v. The State of Tasmania [1955] HCA 30; (1955) 93 CLR 113 , I said : "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" (1961) 107 CLR, at p 162 . (at p535)

5. In my opinion it is quite clear that the out-of-area fee or charge burdens, even if to a small extent, part of a journey which though made up of two parts, land and sea, is otherwise uninterrupted; it extends from Brittons Swamp in Tasmania to Sydney. Section 92 frees the defendant from all governmental burden upon the transaction and that includes liability to pay the out-of-area fee or charge. The conviction is therefore wrong and the appeal should be allowed and the conviction set aside. (at p535)

McTIERNAN J. I agree that this appeal should be allowed. (at p535)

2. The journey from Britton's Swamp to Burnie, in the course of which the appellant committed the offence alleged in the complaint, was in fact a part of a longer inter-State journey terminating in Sydney. He was making the journey by a public highway but that part of the highway on which he was driving was outside the area for which his motor vehicle was licensed under the State Act. It is shown that he was using that part of the highway in the course of and for the purposes of his inter-State trade - between Tasmania and New South Wales. He ought not to have been convicted for exceeding his licence because he was protected against the operation of the State Act by s. 92 of the Constitution. (at p535)

KITTO J. The argument addressed to us on behalf of the respondent concentrated upon one question. It may be put in this way. A timber miller whose mill is in Tasmania enters into a contract with a timber merchant in New South Wales under which the miller is to consign timber of a specified description and quantity at a specified price f.o.b. at a Tasmanian port for delivery to the timber merchant at Sydney. The contract does not require that the timber shall be taken from the miller's premises, but in fact the miller places on his vehicle at his mill timber which he intends to convey to a Tasmanian port and there to consign to the merchant in fulfilment of the contract. A Tasmanian statute, if it has full effect according to its terms, makes his proposed carriage of the timber to the port an offence. Does s. 92 of the Constitution prevent the Tasmanian statute from applying to the proposed carriage ? (at p536)

2. The submission for the respondent is that the answer should be, No. It concedes that once the timber is on the ship it is committed to an inter-State journey which s. 92 protects. It does not dispute that a carriage of timber by the miller within Tasmania would be protected by s. 92 if it were a carriage in the course of a series of movements which in a practical view are the components of a single movement inter-State. But it insists, in effect, that where a miller is conveying timber from one place in Tasmania to another place in Tasmania with a view simply to putting himself in a position to perform at the end of that movement a contract to send unascertained timber from the place then reached to an inter-State destination, the conveyance within Tasmania forms no part of the inter-State movement, and is outside the operation of s. 92. (at p536)

3. The contention may be expressed in other words by saying that the movement within Tasmania is as clearly separate from the contemplated inter-State movement as it would be if the timber belonged to a third party who was conveying it to a port in the hope of selling it there to anyone who might be wanting timber for export from Tasmania. In my opinion it is precisely in the difference between the case just suggested and the present case that the point is to be seen which is fatal to the respondent's argument. In the present case, but not in the other, the movement of the timber within Tasmania is put in train by the miller as a means of fulfilling a contract which necessitates his selecting timber for the purposes of the contract somewhere in Tasmania, whether close to the side of a suitable ship or remote from it, and to set the timber in motion with Sydney as its fixed, though not necessarily irrevocably fixed, destination. In my opinion these circumstances are sufficient to give the whole journey of the timber, from the mill to Sydney, the character of a single coherent piece of inter-State transportation, and therefore attract the protection of s. 92 for the carriage of the timber from the mill to the Tasmanian seaboard. (at p536)

4. I agree that the appeal should be allowed. (at p537)

TAYLOR J. In my opinion this case is completely governed by the decisions of the Court in Russell v. Walters [1957] HCA 21; (1957) 96 CLR 177 and Simms v. West [1961] HCA 62; (1961) 107 CLR 157 . Accordingly I would allow the appeal and quash the conviction. (at p537)

MENZIES J. The appellant, which is the owner of a timber mill near Smithton, Tasmania, on 14th September 1960 carried eleven packs of sawn blackwood upon its own vehicle from its mill to the port of Burnie for shipment to Sydney. The road from Smithton to Burnie ran through two traffic areas (Areas 6 and 8) and the vehicle was licensed under the Tasmanian Traffic Act for Area 8 but that licence did not authorize its use in Area 6 without an out-of-area permit which had not been obtained. The appellant was charged with an offence of causing the vehicle to be used as a public vehicle at Boat Harbour, which was in Area 6, without a licence, contrary to the Traffic Act and was convicted and fined 7 pounds 10s. 0d. Because goods were being transported in the course of the appellant's trade or business the vehicle was at the time in question being used as a public vehicle for the purposes of the Traffic Act by reason of the provisions of s. 16 of the Transport Act 1938 and the only question was whether s. 92 of the Constitution provided an answer to the charge. (at p537)

2. Of the eleven packs that were being carried, five (totalling 3,486 super feet) were shipped upon the vessel "Wanaka" to Wm. Brandts (Australia) Pty. Ltd., 310 George Street, Sydney, a company to which the appellant had contracted to supply 2000 super feet of first-class air-seasoned blackwood, size 3 X 3, of random lengths for 169/6 per 100 less 5% f.o.b. In the event the consignee accepted and paid for the additional 1,486 super feet that the appellant despatched. The other six packs were consigned to J. P. Browne, Wingello House, Angel Place, Sydney, seemingly upon terms that the consignee would sell the timber for the appellant at the prices set out in the 1956 Tasmanian Timber Association's price list upon a commission of 5%. These packs were also shipped upon the "Wanaka" which left Burnie for Sydney on 16th September 1960. (at p537)

3. The carriage of the timber from the mill at Smithton to the Sydney destinations, looked at as a whole, was unquestionably inter-State in character and, unless such carriage ought to be split into three sections: (1) from the mill to the ship - intra-State; (2) from Burnie to Sydney by ship - inter-State; and (3) from the ship in Sydney to the consignees' addresses - intra-State, the timber, when the offence was alleged to have been committed, was being carried from a place in one State to places in another State. In the case of timber leaving a mill in Tasmania packed for shipment to Sydney which is carried as packed first by road, then by sea and then by road again to its Sydney destinations, I cannot find any sufficient reason for not regarding each part of the operation as carriage inter-State. The consignor and the consignee are clearly enough engaged in inter-State trade at least from the time that an order is given or an arrangement for supply made until the transaction is finally completed; the timber is the subject of inter-State trade from the time it was packed for shipment at the latest until its delivery in Sydney at the earliest; not only are the sea carriers engaged in inter-State trade but so are the stevedores and waterside workers who load and unload the ship; at each point as the timber moves forward from mill in Tasmania to timber yard in Sydney it is being carried from a place in one State to a place in another State and to treat the handling and carriage of the timber before it reaches the wharf of shipment in one State and after it leaves the wharf of arrival in the other State as intra-State and not inter-State in character would be to draw artificial lines not in accord with the realities of trade. For these reasons I think that in carrying the timber from its mill to the wharf at Burnie the appellant was engaged in inter-State trade. (at p538)

4. The relevant provisions of the Tasmanian Traffic Act and Transport Act have been set out in the judgments of this Court in Hughes v. The State of Tasmania [1955] HCA 30; (1955) 93 CLR 113 and Russell v. Walters [1957] HCA 21; (1957) 96 CLR 177 and it is unnecessary to repeat them or to say more about them than that it was properly conceded that, if the appellant was on the occasion in question carrying the timber in the course of its inter-State trade, then s. 92 of the Constitution would deny to the provisions of the Traffic Act under which the conviction was made any application to those operations of the vehicle with which we are here concerned. (at p538)

5. This appeal is, I think, concluded in favour of the appellant by the earlier decisions in Russell v. Walters (2) and Simms v. West [1961] HCA 62; (1961) 107 CLR 157 . In the former case it was decided that, when the owner of goods which had been landed in Tasmania by ship from another State carried them on his own vehicle to his own premises, which was their destination, the vehicle was being used in the course of inter-State trade and the licensing provisions of the Traffic Act could have no application. That decision seems to me to govern equally the case of an owner of goods carrying them on his own vehicle from his premises to a wharf for shipment to another State. In the second case the carriage of timber in Queensland from Ravenshoe to the port of Cairns for shipment to the purchaser in Sydney by an agent of that purchaser was regarded as part of a continuous inter-State operation in the carriage of goods so that the provisions of The State Transport Facilities Acts, 1959 to 1960 (Q.), which correspond with those of the Tasmanian legislation here under consideration, could have no application. If carriage in Queensland from Ravenshoe to Cairns was part of a continuous inter-State operation in the carriage of goods, as it was held to be, the same must be true here of the carriage in Tasmania from Smithton to Burnie. (at p539)

6. For these reasons this appeal ought in my opinion to be allowed. (at p539)

WINDEYER J. In my opinion this appeal should be allowed. (at p539)

OWEN J. The appellant, a timber miller in Tasmania, entered into an f.o.b. contract with a company carrying on business in Sydney for the sale and despatch to Sydney from Tasmania of a quantity of its timber. At or about the same time, it arranged to ship another parcel of timber from Tasmania to a timber merchant in Sydney to be sold by the latter on its behalf. To fulfil these contracts the timber had to be carried from the appellant's mill to the port of Burnie whence it was to be shipped to Sydney. The first step in that journey, from the mill to Burnie, was made in a motor truck owned by the appellant. The truck was licensed under the Tasmanian Traffic Act for use as "a public vehicle" in Traffic Area 6 but was not licensed for use in Traffic Area 8, through which it had to pass on the way to Burnie. The licensing provisions of the Traffic Act are set out in some detail in the judgment of this Court in Hughes v. The State of Tasmania (1957) 93 CLR, at pp 122, 123 and need not be repeated. It is sufficient to say, as was said in that case, that they "impose a burden or restriction on trade and commerce and are invalid insofar as they purport to apply to inter-State trade and commerce". In the course of the carriage of the timber from the mill to the ship's side at Burnie, the truck was driven through Traffic Area 8 and there followed the prosecution and conviction of the appellant for using the vehicle in an area for which it was not licensed. (at p539)

2. The sole question is whether s. 92 of the Constitution affords a defence to the charge. In my opinion it does. The decisions of this Court in Russell v. Walters [1957] HCA 21; (1957) 96 CLR 177 and Simms v. West [1961] HCA 62; (1961) 107 CLR 157 cover the case and the earlier decision in Hughes v. The State of Tasmania [1955] HCA 30; (1955) 93 CLR 113 is distinguishable. That was a case in which an action was brought by a Tasmanian carrier, whose sole business was that of carrying intra-State, claiming that he was entitled to the immunity conferred by s. 92. He based his claim upon the fact that in the course of his business he contracted with merchants engaged in inter-State trade to carry fruit purchased by them in other States for delivery in Tasmania from the port of arrival in Tasmania to destinations in that State. It does not appear from the report of that case that Hughes held the necessary licences enabling him to carry the inter-State trader's fruit, but in the judgments of Dixon C.J. and Taylor J. in Simms v. West [1961] HCA 62; (1961) 107 CLR 157 this was stated to be the fact and it was further said that the only burden of which he 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" (1961) 107 CLR, at p 162 . (at p540)

3. In the present case the inter-State trader complains that its inter-State trade is burdened or restricted because it is forbidden to carry its goods from its place of business in Tasmania to the port of shipment unless it takes out a permit to use its truck in Traffic Area 8. (at p540)

4. In my opinion the appeal should be allowed. (at p540)

ORDER

Appeal allowed with costs. Set aside the order of the Court of Petty Sessions at Launceston in Tasmania made on 20th March 1962 and in lieu thereof order that the complaint dated 13th March 1961 be dismissed.