Brambles Holdings Ltd v Pilkington [1972] HCA 6; (1972) 126 CLR 524 (9 February 1972)

HIGH COURT OF AUSTRALIA

BRAMBLES HOLDINGS LTD. v. PILKINGTON [1972] HCA 6; (1972) 126 CLR 524

Constitutional Law (Cth)

High Court of Australia
Barwick C.J.(1), Menzies(1), Windeyer(1), Walsh(1) and Gibbs(1) JJ.

CATCHWORDS

Constitutional Law (Cth) - Freedom of inter-State trade, commerce and intercourse - Carriage of goods from factory in Tasmania to Sydney - Whether inter-State character of journey broken by removal of goods from railway container to shipping container for shipment - The Constitution (63 & 64 Vict. c. 12), s. 92 - Traffic Act 1925 (Tas.), s. 24 (1) (a).

HEARING

Hobart, 1972, February 9. 9:2:1972
APPEAL from the Court of Petty Sessions at Devonport, Tasmania.

DECISION

February 9
THE COURT delivered the following judgment : -
The appellant was charged before a stipendiary magistrate sitting as a Court a motor vehicle of stated registration number and a trailer of another registration number for the carriage of goods for reward on a public street at Devonport, the said vehicles not being licensed to be used as public vehicles of that class under the provisions of the Traffic Act 1925 (Tas.). The elements of the statutory offence were made out but the appellant raised the defence that his use of the vehicles at the time in question was in carrying goods in the course of inter-State trade and commerce. (at p526)

2. The vehicle and trailer at the time charged were being used in the Devonport railway goods yard having carried a rail container belonging to the Tasmanian Government Railways loaded with a quantity of particle board sold under the name "Trudek" from Wesley Vale mills to the railway yard in Devonport. The appellant had a contract with the mill to transport "Trudek" throughout Australia and in Tasmania. The contract was not put in evidence but a witness, the north-west coast manager for the appellant, gave evidence as to the effect of the operation of the contract by saying - "We load the particle board at the mill and then deliver it to wherever it is consigned to at the other end." It was said that the rail container containing the particular parcel of "Trudek" was railed to Hobart consigned to an agent of the appellant whose duty it was to receive the container to transfer its contents into a container suitable for the receipt by the shipping company being either a container owned by the appellant or a container owned by the shipping company, and then to cause that container to be loaded onto the "Seaway Queen" to be carried to Sydney. (at p526)

3. The detailed evidence covering the movement of this parcel of "Trudek" and of the arrangements made for that movement lacked clarity and left much to be desired. We have pointed out on other occasions how vitally important it is in cases where constitutional immunity is claimed that the basic facts be carefully presented and fully evidenced. However the magistrate appears to have been satisfied in this case that the "Trudek" in question was at the time it was on the appellant's vehicle in the railway yard at Devonport being transported en route to Sydney and that in fact it was shipped from Hobart to Sydney. He was of opinion however that the removal of the parcel of "Trudek" from the railway container and its placement in the shipping container into which it seems other goods were also placed had the effect of preventing the carriage by the appellant of which complaint was made, being protected by s. 92. It may be as well if we set out his conclusion which was -

" . . . my understanding of the authorities . . . is that the
concept of the s. 92 protection . . . is for a continuous journey
of an inter-State character, and I find that on the facts here
there was a break in that journey - with the goods being sent
from Devonport by rail in the form in which they were in -
in going to Hammonds (in Hobart). There was the off-loading
there, and a re-loading of these goods together with other goods
into a shipping container - the possibility of that has been
admitted and it is part of your argument - (the appellant's)
- that that doesn't affect the situation . . . but I hold that on
those facts, despite the manifest being forwarded from
Devonport
to Sydney, the actual goods in that journey (Wesley Vale
to Hobart) were not on a continuous journey of an inter-State
character within the interpretation put on s. 92 by the High
Court in its various decisions."

He seems to have concluded that the off-loading from the railway in Hobart and the re-loading in the shipping container and perhaps also the railing of the goods from Devonport effected what he called a break in the journey of the goods from Wesley Vale to Sydney and that this break prevented that journey being of an inter-State character. Accordingly he convicted the appellant. (at p527)

4. It seems to us as we have said that the magistrate found that the appellant was carrying either by itself or under arrangements made by it the goods from the mill to Sydney and that in fact the goods did go to Sydney. Although we feel very critical of the evidence produced by the appellant we do consider it sufficient to support these findings of the magistrate. (at p527)

5. The case is one therefore in which the appellant was carrying on the business of a carrier and in this particular instance had accepted the obligation to carry this parcel of "Trudek" from the mill at Wesley Vale to the consignees in Sydney. It would seem that the volume of similar transactions total something of the order of 300 tons of "Trudek" a week. The appellant was thus engaged in inter-State trade and commerce as a carrier of goods for reward. It cannot be now disputed that to forbid the appellant to carry goods in the course of that business from State to State without the permission or licence of a State authority is an infringement of s. 92 : so much is not contested in this case. But it is said that in truth the carriage of the goods from the mill to the railway at Devonport and to Hobart were separate intra-State journeys beginning at the mill and terminating at the agent's premises in Hobart and that any inter-State movement of the goods did not begin until they had been placed in the shipping container in Hobart. In our opinion this view is untenable and is inconsistent with the decisions of this Court. There can of course be an intra-State journey which is but a prelude to an inter-State journey, in other words two distinct journeys, for the former of which there is no constitutional protection. But it is perhaps difficult to conceive of one inter-State journey that loses its character as such because, due to commercial requirements, the goods must rest at a point in the course of the journey without any change in their character so that they may be re-packed in order to be acceptable for carriage in some particular form of transport : what happened here was no more than that. The commercial necessities of the particular form of transport caused the parcel of "Trudek" to be re-packed in a fashion acceptable to the shipping company. This was a step necessary or convenient to be taken to enable their onward carriage. In our opinion the carriage of the goods by the appellant from the mill to the rail at Devonport was in the course of inter-State trade and commerce. It was none the less so because for the commercial reasons we have mentioned the goods, at a later stage in their movement to their inter-State destination, had to be removed from the railway container and placed in the shipping container. Nor does the fact that other goods were placed along with them in the shipping container for carriage to Sydney have any bearing upon the character of the carriage, in which the appellant was engaged, between the mill and the railway yard. The journey of the goods from the mill to Sydney must be distinguished from the various stages in their carriage in different vehicles, all furthering and in combination accomplishing that journey. (at p528)

6. In our opinion the appeal should be allowed and the conviction set aside. (at p528)

ORDER

Appeal allowed with costs. Conviction set aside, and complaint dismissed.