Webb v Stagg [1965] HCA 29; (1965) 112 CLR 374 (24 June 1965)

HIGH COURT OF AUSTRALIA

WEBB v. STAGG [1965] HCA 29; (1965) 112 CLR 374

Constitutional Law (Cth)

High Court of Australia
Barwick C.J.(1), Taylor(2), Menzies(3), Windeyer(4) and Owen(5) JJ.

CATCHWORDS

Constitutional Law (Cth) - Freedom of inter-State trade commerce and intercourse - Carriage of timber from mill in Tasmania to yard in Tasmania - Shipment from yard to Victoria - Tasmanian law requiring licence for journey from mill to yard - Whether two journeys or one - Whether whole journey of an inter-State character - The Constitution (63 & 64 Vict. c. 12), s. 92 - Traffic Act, 1925 (Tas.), s. 24.

HEARING

Hobart, 1965, February 10;
Sydney, 1965, June 24. 24:6:1965
APPEAL from the Court of Petty Sessions at Devonport, Tasmania.

DECISION

June 24.
The following written judgments were delivered: -
BARWICK C.J. This appeal was argued at the same time as the appeal in Deacon have already expressed in that appeal apply to this appeal. In that case, I took the view that the subject matter of the transaction between the timber miller and the Melbourne timber merchant was unseasoned timber. It was this timber which, in my opinion, had commenced its journey inter-State at the time its transport would have been intercepted by the State legislation if applied without qualification. The contrary view would treat sun dried timber as the subject of those transactions and the inter-State movement as only beginning at the point of the loading of the dried timber. I though such a view disregarded the commercial substance of the matter. In conformity with authoritative opinions which indicate that a broad commercial interpretation must be placed upon business transactions when dealing with so vital a matter as the inter-State trade of a nation, I preferred the opinion which I expressed in my earlier judgment. (at p375)

2. In the instant case, the facts were not fully investigated in that there was no description available to the Court as to what was involved in dressing timber to form an architrave or as to whether or not the processed article, the architrave, is essentially different from the timber of which undoubtedly it wholly consists. Accordingly, it is necessary for me to state the factual basis upon which I express my opinion in this appeal. (at p375)

3. Cumming Bros. Pty. Ltd. (Cummings) is a saw miller and timber merchant owning and operating a mill, known as Huntsman's mill, near Deloraine, Tasmania. At this mill it has no kiln-drying facilities: but timber milled at this mill is there racked in numbered racks. (at p376)

4. In September 1963 Burnie Board and Timber Pty. Ltd. (Burnie Board), timber merchants of Melbourne, through its representative, in conformity with a customary course of business, ordered, inter alia, a parcel of 3" X 1" timber out of a specific rack at the Huntsman's mill, up to a stated maximum quantity expressed in super feet, to be delivered, kiln-dried and dressed into architraves, f.o.b. Burnie consigned to Burnie Board in Melbourne. (at p376)

5. The respondent was carrying part of the timber comprised in this order at the time the breach of s. 24 of the Traffic Act, 1925 of the State of Tasmania was alleged to have been committed by him. He was actually carrying the timber to the premises of Kirkpatrick's at Burnie where it was to be kiln-dried and "processed" into architraves, apparently according to standing specifications which had been agreed between Cummings and Burnie Board. In due course the specific timber was there kilndried, dressed so as to form architraves, bundled for shipment, taken to the wharf at Burnie and shipped to Melbourne, consigned to Burnie Board. (at p376)

6. From such material as is available in the case, I conclude that the "processing" by Kirkpatrick's consisted in no more than cutting the timber into lengths and planing it to effect some change in profile from its rectangular shape. But it was the same timber that the purchaser had selected at the mill and had ordered which, after being lengthed and planed, was delivered to the ship for shipment to Melbourne. In my opinion, the pause in its course from mill to ship was not, in commercial significance, such a break in that journey as divided that course into two journeys, one wholly intra-State and the other inter-State: nor was its identity altered. No question of treating production or manufacture as itself part of inter-State trade, such as arose in Grannall v. Marrickville Margarine Pty. Ltd. [1955] HCA 6; (1955) 93 CLR 55, arose in Deacon v. Mitchell [1965] HCA 28; (1965) 112 CLR 353 or arises in this case. The question in each case is whether or not an inter-State movement of the timber had begun and was liable to be prevented or hindered if the State statute was allowed to operate with respect to its transport or to the vehicle by which it was being transported. (at p376)

7. Holding the view of the substance of the facts of this case which I have indicated, I am of opinion that s. 24 of the Traffic Act, 1925, as controlled by s. 3 of the Acts Interpretation Act, 1931 of Tasmania, did not apply to the defendant's vehicle whilst carrying the timber in question. (at p377)

8. In my opinion the appeal should be dismissed. (at p377)

TAYLOR J. On 12th September 1963 Cumming Bros. Pty. Limited of Burnie in Tasmania agreed to supply to a Melbourne company, Burnie Board and Timber Pty. Limited, a quantity of timber from a specified rack in the former's Huntsman mill near Deloraine. But the agreement was not for the supply of that timber simpliciter, for the agreement required that it should be first of all kiln-dried and then dressed into architraves. Cumming Bros. Pty. Limited had no facilities either at its mill or elsewhere for the kiln-drying of timber or for the dressing of timber in the manner called for by the agreement. That being so it arranged for these processes to be carried out at Burnie by Kirkpatricks Pty. Limited and, thereupon, they dispatched the timber to that company on 15th October 1963. The timber was carried for Cumming Bros. Pty. Limited by the respondent, a cartage contractor, and it is common ground that an offence as alleged was committed by him unless in the carriage of the timber to Kirkpatricks Pty. Limited's premises he was entitled to call in aid the provisions of s. 92 of the Constitution. After the timber had been kiln-dried and dressed into architraves by Kirkpatricks Pty. Limited it was "pack-bundled" for shipment on their premises and taken by straddle truck to the wharf for shipment to Melbourne. It was delivered for shipment at the wharf early in December 1963. (at p377)

2. It is about as clear as it could be that the agreement made between Cumming Bros. Pty. Limited and Burnie Board and Timber Pty. Limited did not call for the carriage of the timber to the premises of Kirkpatricks Pty. Limited, or indeed, to any other place, for kiln-drying and processing and the necessity for its dispatch to a third party for this purpose was occasioned simply by the fact that Cumming Bros. Pty. Limited had no facilities of their own which would enable them to carry out these processes. Accordingly the carriage to Kirkpatricks Pty. Limited was merely in the course of bringing into existence the goods which Cumming Bros. Pty. Limited had agreed to sell. In these circumstances the question to be resolved in the case, as I see it, is whether the carriage of the timber to Kirkpatricks Pty. Limited can properly be said to be part of an inter-State journey undertaken for the purpose of the delivery of the timber to the purchaser. In my opinion it clearly was not; it was merely a preliminary step undertaken by Cumming Bros. Pty. Limited for the purpose of enabling that company to carry out its agreement with Burnie Board and Timber Pty. Limited. In no sense was it part of an inter-State journey or, otherwise, entitled to the protection accorded by s. 92 to trade, commerce and intercourse among the States. I should add that the question involved in the case is not substantially different from that considered in Deacon v. Mitchell [1965] HCA 28; (1965) 112 CLR 353 and I find it unnecessary to repeat the observations which I made in that case. (at p378)

MENZIES J. Although this case raises problems similar to those considered in Deacon v. Mitchell [1965] HCA 28; (1965) 112 CLR 353, it requires separate consideration because the facts of each case are of vital importance in determining whether the law impeached does unconstitutionally burden inter-State trade in the particular circumstances. (at p378)

2. Here, the respondent carried timber upon a motor vehicle without the licence required by the Tasmanian Traffic Act. His vehicle was in fact licensed, but for an area which did not include Latrobe, where the offence was alleged to have been committed, and he had no out-of-area permit. He was prosecuted and successfully relied upon s. 92 of the Constitution to gain immunity from the relevant provisions of the Act. The facts were that on 15th October 1963 the respondent was carrying timber for Cumming Bros. Pty. Ltd. (hereinafter called "Cumming Bros.") from its Huntsman mill near Deloraine through Latrobe to the premises of Kirkpatrick's Pty. Ltd. (hereinafter called "Kirkpatrick's") at Burnie. Burnie Board and Timber Pty. Ltd. (hereinafter called "Burnie Board") had placed an order with Cumming Bros. for 12,000 super feet of 3-inch by 1-inch timber from particular stacks of timber at the Huntsman mill to be kiln-dried and dressed into architraves, for delivery as soon as possible. The timber which the respondent was carrying on the occasion in question was part of the timber so ordered by Burnie Board from Cumming Bros. and it was being carried to Kirkpatrick's to be kiln-dried and dressed into architraves. When these operations had taken place, the resulting 2 5/8-inch by 3/4-inch architraves were, on 4th December 1963, shipped by Cumming Bros. to W.C. Hicks Pty. Ltd. upon M.V. "South Esk" at Burnie for carriage to the consignee in Melbourne. That the timber carried by the respondent on 15th October, when kiln-dried and dressed, was part of the shipment of architraves from Burnie to Melbourne on 4th December was not in dispute. The account rendered by Cumming Bros. to Burnie Board covering the architraves so shipped was as follows: -

"Marks To Select and Standard Architraves
as per Spec. No. 1332 - F.O.B.
3 x 1 Standard Lin 10727 37/- 198 9 0
Blue 3 x 1 Select " 27789 47/3 656 10 4
Circle ---------------
854 19 4
Less 5% discount 42 14 11
----------------
812 4 5
Shipped per South Esk
X Burnie 4/12/63
Freight ) Paid A/c
63.19.6 ) 206
Pounds Exchange
Freight 63 19 6
----------------
876 3 11
Insurance 963 Pounds 2/0/1 2 0 1
B/Lading
9629 Sup. Duty Stamps
----------------
Cheque DAY'S DRAFT THROUGH
COMMERCIAL BANK OF
AUSTRALIA 878 Pounds 4 0
----------------
11 Packs
3771
3772." (at p379)

3. Kirkpatrick's charges for drying and dressing were not proved but it seems that they were borne by Cumming Bros. and the prices charged by Cumming Bros. to Burnie Board were for the finished architraves delivered to the ship. (at p379)

4. From these facts, I conclude that Cumming Bros. and Burnie Board were engaged in inter-State trade at the latest from the time of the acceptance of the order for architraves. Furthermore, when Cumming Bros. took timber from its stacks at the Huntsman mill to be carried to Kirkpatrick's for conversion into architraves, it intended that, upon completion of such conversion, the architraves so produced would be used to fulfil the contract which it had with Burnie Board. (at p379)

5. But, of course, it does not follow from what I have said that any person who, upon the instructions of Cumming Bros., took some part in the movement or the treatment of the timber after it left the Huntsman mill was engaged in inter-State trade. For instance, Kirkpatrick's, in drying and dressing the timber for Cumming Bros., was not engaged in inter-State trade. Nor, in my opinion, was the respondent, whose trade was merely to carry the timber from the Huntsman mill to Kirkpatrick's. Even if the timber in its green condition had been on its way from the Huntsman mill to Melbourne without interruption, the respondent, in carrying it, would not himself have been engaged in inter-State trade. A car driver who carries a passenger from Melbourne to Essendon does not engage in inter-State trade because his passenger intends to, and does, travel from Essendon to Mascot by air. An act of local trade, even if it be one of carriage, does not lose that character merely because it is done for a person who is engaged in inter-State trade in respect of the goods in relation to which the local act is done. (at p380)

6. The respondent himself not being engaged in inter-State trade, the next question is whether his carriage of the timber from the Huntsman mill to Kirkpatrick's was part of the carriage of the goods inter-State. I have concluded that here it was not, for much the same reasons as brought me to a like conclusion in Deacon v. Mitchell [1965] HCA 28; (1965) 112 CLR 353 The carriage of some of the timber from the mill to Burnie was not part of one inter-State journey beginning at the mill and ending in Melbourne. If such a journey began at the mill - and I do not think it did - it was decisively broken by the unloading of the timber at Kirkpatrick's, by its treatment there to convert it into the architraves required by Burnie Board, and by the packing of the architraves in lots suitable for carriage from Burnie to Melbourne. The journey of a beast to abattoirs for slaughter and dressing into meat for export inter-State is not part of the inter-State movement of the meat even when the exporter of the meat carries the beast upon its last journey. The carriage of apricots to be dried for export overseas is not part of the overseas carriage of dried apricots. I appreciate that these examples do not decide this case because their facts are not on all fours with the present case but they do indicate that there is no general rule that carriage of goods for treatment to make what is required and intended for export is part of the export journey itself. Each case must be decided upon its own particular facts and, upon the facts of this case, I am quite satisfied that it cannot be said that there was but one carriage of timber from the Huntsman mill to Melbourne. There was a carriage of timber from the mill to Kirkpatrick's and a later carriage of architraves from Kirkpatrick's to Melbourne. (at p381)

7. There remains the question whether the burden which the Traffic Act imposed upon the respondent was nevertheless an unconstitutional burden upon the inter-State trade of Cumming Bros. and Burnie Board. (at p381)

8. The relevant sections of the Traffic Act forbid any person to use a vehicle for the carriage of goods for hire unless the vehicle is licensed by the Commissioner of Police or the use is in pursuance of a permit (s. 24). Permits may be granted subject to conditions (s. 20), including a condition for the payment of "such sum or sums as shall be ascertained as the Commissioner may determine" (s. 20A). Accordingly, the Act did in terms forbid the carriage of the timber undertaken by the respondent for Cumming Bros. We have, therefore, a case where the operation of the Traffic Act does, unless restricted by s. 92, make unlawful the carriage by the respondent (a local carrier) of timber between Deloraine and Burnie for Cumming Bros. (an inter-State trader) in order that the timber might be made by Kirkpatrick's (a local manufacturer) into the architraves ordered by Burnie Board from Cumming Bros. for delivery to a ship for carriage to Melbourne. Accordingly, the Act did forbid a movement of the timber that was in the circumstances necessary if Cumming Bros. were to carry out in the way it desired its contract with Burnie Board calling for the inter-State movement of architraves made from timber which was, when the contract was made, in stacks at the Huntsman mill. (at p381)

9. I accept that s. 92 can apply to protect inter-State trade from laws which, by operating upon persons not actually engaged in inter-State trade, do as a consequence interfere with the trade of those who are so engaged, but I do not regard this as such a case. I regard it as of critical importance that "architraves" were to be moved from Tasmania to Victoria and I think it would be pressing s. 92 too far to treat it as invalidating a State law of general application when its operation would be exhausted before the architraves had been made. The local Act did no more than interfere with a way open to Cumming Bros. of having the architraves it required made up from its timber. I do not regard s. 92 as ensuring that Cumming Bros. should be able to make such arrangements as it might think fit to meet its contract with Burnie Board regardless of the provisions of State laws. The respondent's activity in carrying the timber to be made into architraves stands, for the purposes of s. 92, on exactly the same footing as the activity of Kirkpatrick's in making the architraves. To treat the constitutional guarantee as freeing the activities of either of them - when performing for Cumming Bros. some service to enable it to fulfil its inter-State contract - from restrictions imposed by the general laws of the State would, I think, be to do what was made the subject of animadversion in Grannall v. Marrickville Margarine Pty. Ltd. [1955] HCA 6; (1955) 93 CLR 55 - that is, "to press the operation of s. 92 beyond the subject matter of trade, commerce and intercourse among the States so that it denies to the legislatures of this country the power to impose any prohibition, restriction or burden if its consequences could be seen in what was done or not done in the course of interstate commerce" (1955) 93 CLR, at p 79 (at p382)

10. For the foregoing reasons, I think the magistrate was wrong in finding that to give the Traffic Act an operation extending to the use in question of the respondent's motor vehicle would bring it in conflict with s. 92. (at p382)

11. In my opinion this appeal should be allowed. (at p382)

WINDEYER J. It appears that Burnie Board and Timber Pty. Ltd., a Melbourne company, had ordered from Cumming Bros. Pty. Ltd. certain timber to be drawn from a particular rack at the latter company's Huntsman mill in Tasmania, to be dried, dressed into architraves of specified size and sent to the former company's premises in Victoria. The question on which the case turns is whether the movement of the timber from the Huntsman mill to the premises of Kirkpatrick's Pty. Ltd. at Burnie was in the course of inter-State trade. The reason why the timber was being taken to Kirkpatrick's was that that company was to kilndry it and dress it into architraves for Cumming Bros., which company had not itself facilities for that purpose. After drying and dressing by Kirkpatrick's, it was to be shipped and was in fact shipped by Cumming Bros. from Burnie to Melbourne to fulfil the order from Burnie Board and Timber Pty. Ltd. (at p382)

2. What is said for the appellant is that what Cumming Bros. were to supply to the Burnie Board and Timber company was not the unseasoned timber as it was at the mill, but that timber dried and converted into architraves. The movement from the mill to Kirkpatrick's thus occurred, it was said, not in the course of an inter-State movement of goods but in the course of the production of the goods that had been ordered. In other words the argument, as I understood it, was that Cumming Bros. should be regarded as manufacturers of architraves to order from specified materials and the movement in Tasmania of those materials before the goods to be sent to Victoria came into existence could not be in the course of inter-State trade in any relevant sense. I may say here that I am not prepared to assent without qualification to the proposition, which it was suggested was indisputable, that it could never be a contravention of s. 92 to prevent or impede a manufacturer obtaining raw material he needed to convert into an article that he had contracted in the ordinary course of his trade to send to another State. That, however, is not as I see it the question here. The question here is whether the transport of the timber to Burnie was itself inter-State commerce because it was in the course of the movement of the timber to Victoria. I appreciate the force of the appellant's argument. But its validity seems to me to depend less upon abstract distinctions between the manufacture of goods and the supply of manufactured goods than upon one's view of the facts of the case in hand. Should Cumming Bros. be said to have been sending the timber to Burnie to be there turned into architraves? Or should they be said to have been sending it to Burnie that, having been there dressed as architraves, it could go on to Melbourne? Neither statement would be wrong. But, considering the facts as a whole, I think that the latter more aptly describes the reality of the matter. I do not think it necessary that I add anything to what I have said in Deacon v. Mitchell [1965] HCA 28; (1965) 112 CLR 353 concerning the principles to be applied. No evidence was given of what was meant by architraves in this connexion. Obviously the word is not used in the primary sense it has in relation to the classical orders of architecture. In the building and timber trade I take it to mean pieces of timber of suitable dimensions to form the lintel and jambs of doorways or the framework or surroundings of doorways and windows. The evidence discloses only that selected 3-inch by 1-inch timber was to be dried and dressed to become 2-5/8-inch by 3/4 inch. This, presumably in lengths suitable for use as architraves, was what was to go forward. Cumming Bros. knew exactly what was meant in terms of lengths and so forth, for the order was for a specified quantity of timber to be supplied, so much of it in the form of "select architraves", so much as "standard architraves", both expressions relating to a specification known to both parties and in accordance with which they had contracted. If the word architrave had not been used and the order had been simply for dried timber of stated lengths and dimensions, it may be that we would not have been so warmly invited to view the movement to Burnie as part of a process of production or manufacture preliminary to any inter-State movement of goods. However that may be, I do not so view it for the purposes of the question before us. I think that the timber did not at all lose its identity as timber, that from the time it left the mill until it reached Melbourne it was essentially the same thing, that it was not converted into something else at Burnie and that its movement throughout was in the course of inter-State trade. I would dismiss the appeal. (at p384)

OWEN J. At the Court of Petty Sessions at Devonport the respondent was charged with having committed a breach of s. 24 of the Traffic Act, 1925 (Tas.). He was a cartage contractor and the owner of a motor lorry licensed for use in Traffic Area No. 3 but held no out-of-area permit authorizing the use of the lorry in Area No. 5. On the day in question, he used the lorry to carry timber in Area No. 5 and for this he was prosecuted. His defence was that the timber was being carried from a sawmill at Burnie in the course of transit to Melbourne pursuant to a contract between the sawmiller in Tasmania and a purchaser in Melbourne and that, by virtue of s. 92 of the Constitution, the relevant provision of the Traffic Act could have no application to his part in the operations. (at p384)

2. The facts are that Cummings Bros. Pty. Ltd., Sawmillers and Timber Merchants, owned a sawmill near Deloraine and the respondent had a contract with the company to cart its sawn timber from the mill to various destinations in Tasmania. The company had contracted to sell and supply to a Melbourne company, Burnie Board and Timber Pty.Ltd., a quantity of 3" x 1" timber "to be dressed into architraves and to be kiln-dried before dressing" f.o.b. Burnie for shipment to Melbourne. The vendor itself had no facilities for kiln-drying or dressing timber but had an arrangement with another company, Kirkpatricks Pty. Ltd. of Burnie, to kiln dry and process its timber. Pursuant to this arrangement the vendor sent the timber in question to Kirkpatricks' in Burnie so that it might be kiln-dried and cut into architraves and the respondent was carrying the timber to Kirkpatricks' premises for this purpose. This necessitated passing into Area No. 5 for which he held no out-of-area permit. (at p384)

3. The learned magistrate held that the respondent was entitled to the protection of s. 92 and accordingly acquitted him of the charge. In my opinion he erred in doing so. The transaction between vendor and purchaser was one for the sale and delivery of kiln-dried timber processed into architraves. The carriage of the mill sawn timber from the mill to Kirkpatricks' was for the purpose of enabling the goods which were thereafter to be embarked upon an inter-State journey to be brought into existence. It is true that the carriage of the timber from the mill to Kirkpatricks' premises and its drying and processing there were necessary steps in the production of those goods but it is only in that indirect sense that the journey from the mill to Burnie can be said to have had any relation to inter-State trade and commerce. To hold that that journey was within the protection of s. 92 would be, in my opinion, to extend the operation of that section beyond its proper limits (see Grannall v. Marrickville Margarine Pty. Ltd. [1955] HCA 6; (1955) 93 CLR 55) (at p385)

4. The appeal should be allowed. (at p385)

ORDER

Appeal allowed with costs.

Order of the Magistrate dismissing the complaint set aside. Matter remitted to Magistrate to be further dealt with.