Stoneham v Ryan's Removals Pty Ltd [1978] HCA 59; (1978) 143 CLR 79 (19 December 1978)

HIGH COURT OF AUSTRALIA

STONEHAM v. RYAN'S REMOVALS PTY. LTD. [1978] HCA 59; (1978) 143 CLR 79

Constitutional Law (Cth)

High Court of Australia
Gibbs A.C.J.(1), Stephen(2), Mason(3), Jacobs(4), Murphy(5) and Aickin(6) JJ.

CATCHWORDS

Constitutional Law (Cth) - Freedom of interstate trade, commerce and intercourse - Carriage of goods for reward - Goods consigned from one point in State to another - Other goods in same vehicle consigned interstate - Whole load taken to another State and part unloaded there - Balance of goods brought back to State of origin - Whether interstate trade, commerce or intercourse - Motor Car Act 1958 (Vict.), s. 20 - Commercial Goods Vehicles Act 1958 (Vict.), s. 22 (1)* - The Constitution (63 & 64 Vict. c. 12), s. 92.

* Section 20 of the Motor Car Act 1958 (Vict.) and s. 22 (1) of the Commercial Goods Vehicles Act 1958 (Vict.) are set out at p.99[1978] HCA 59; , (1979), 143 CLR 79

HEARING

Melbourne, 1978, May 2, 3.
Sydney, 1978, December 19. 19:12:1978
APPEAL from the Supreme Court of Victoria.

DECISION

Dec. 19.
The following written judgments were delivered:-
GIBBS A.C.J. These appeals are brought from orders of the Supreme Court of respondent of offences against s. 20 of the Motor Car Act 1958 (Vict.) and s. 22 of the Commercial Goods Vehicles Act 1958 (Vict.). The offences were said to have been committed on the morning of 21st October 1976, when a vehicle owned by the respondent company was used to carry goods for reward on a public road at Warrnambool in Victoria. It is not now disputed that it was proved that both offences were committed unless the carriage of the goods on the occasion in question was in the course of interstate trade, commerce or intercourse. (at p83)

2. The evidence established that on 20th October 1976 the respondent's vehicle was driven from Melbourne to Warrnambool. The respondent was a carrier, and the vehicle, a semi-trailer, was carrying goods some of which were intended for delivery in Warrnambool and others for delivery in Mt Gambier (which is in South Australia); 95 per cent of the goods carried were intended for Warrnambool. The vehicle arrived at Warrnambool at about 8.30 o'clock at night and called at the respondent's depot there. It appears that the vehicle remained in Warrnambool for some hours, but no goods were unloaded. The vehicle then went on to Mt Gambier, where the respondent had another depot. The goods intended for Mt Gambier were unloaded at that depot, and the vehicle later returned to Warrnambool, carrying the rest of the load. At about 9 a.m. on 21st October the vehicle was driven through the streets of Warrnambool to the supermarket of Woolworths, the consignee of a considerable quantity of the goods, which were then unloaded and delivered. Notwithstanding some documentation contrived by the respondent, which showed that the goods had been consigned from Melbourne to Mt Gambier, and from Mt Gambier to Warrnambool, there can be no doubt that the respondent's contract was simply to carry the goods for Woolworths from Melbourne to Warrnambool. The respondent's managing director gave a number of reasons why the goods intended for Warrnambool were carried on to Mt Gambier. He said that the respondent conducted an overnight service and that the goods intended for Mt Gambier had to be there on the morning of 21st October. In fact, however, it appears that although the goods were urgently required they were not delivered until 22nd October. He also said: "The goods were carried to Mt Gambier to gain the protection of s. 92. We had to take the goods to Mt Gambier and back because we would not have got to Mt Gambier in time . . . Warrnambool is on the road to Mt Gambier and the best way to get there is via Warrnambool." (at p84)

3. The magistrate found that the vehicle was "being operated for a dual purpose having a divided load". He held that the carriage of the goods for delivery in Mt Gambier was protected by s. 92 of the Constitution but that the carriage of the goods for delivery in Warrnambool was an intrastate transaction. He referred to the evidence of the managing director that he had sought to organize his business so as to procure the protection provided by s. 92, but he made no specific finding as to what was the purpose of the respondent in carrying to Mt Gambier the goods intended for Warrnambool. McInerney J. found that the journey was "a genuine, bona fide interstate journey". This finding of the learned judge was criticized in argument before us but I see no justification for disturbing it. Whether or not the goods for Mt Gambier had to be delivered urgently, the respondent had a genuine commercial reason for taking its semi-trailer to Mt Gambier, and for carrying there the goods intended for Warrnambool. It may safely be inferred that by the time the vehicle arrived in Warrnambool from Melbourne it was too late to deliver the goods to the consignee. It is true that it is possible to suggest a number of courses that might then have been open to the respondent. If the evidence that the goods intended for Mt Gambier had to be there by the next morning be rejected (and the magistrate did not say that he rejected it), the respondent could have kept the vehicle at Warrnambool for the night and on the following morning could have delivered the goods intended for Warrnambool, before going on to Mt Gambier. Another possible course was to unload the goods that night (assuming that the forklift necessary to enable that to be done was available, a question which the evidence leaves doubtful), and to leave at the depot those goods intended for delivery in Warrnambool. If that had been done it would have been necessary to re-load the goods in the morning on to another vehicle, or on to the semi-trailer when it returned from Mt Gambier, to enable delivery to be effected. Since the semi-trailer had in any case to proceed to Mt Gambier and return through Warrnambool, it would seem to have been obviously more convenient to leave the goods on the vehicle as was in fact done. It would therefore not be correct to say (and the magistrate did not find) that the sole purpose of carrying the goods to and from Mt Gambier was to gain the protection of s. 92. (at p84)

4. The offence created by s. 20 of the Motor Car Act is only committed if the vehicle is used "otherwise than for interstate trade commerce or intercourse"; the section so provides in express terms. Section 22 of the Commercial Goods Vehicles Act does not contain a similar express provision, but it is established by authorities too numerous to mention that the provisions of such a section could not validly be applied to the use of a vehicle in the course of interstate trade or commerce; it must be read down accordingly - s. 3 of the Acts Interpretation Act 1958 (Vict.). The sole question for our decision in the present case is whether in the circumstances mentioned it was right to conclude, as McInerney J. concluded, that the vehicle was being used in the course of interstate trade or commerce at the time when it was being driven on the streets of Warrnambool on the morning of 21st October. (at p85)

5. There is no doubt that a journey from Warrnambool to Mt Gambier, or from Mt Gambier to Warrnambool, is an interstate journey. The respondent was free to send its vehicle on such a journey. However the statutory provisions in question do not attempt to penalize an owner simply for taking a vehicle on a journey; the offence lies respectively in the use of the vehicle and in the carriage of goods in the vehicle for reward. It is clear that neither the use of the vehicle to carry from Melbourne the goods which were delivered in Mt Gambier, nor the carriage of those goods, constituted an offence under the relevant statutes, because such carriage was part of the respondent's interstate trade or commerce, and the use of the vehicle for that purpose was in the course of that interstate trade or commerce. It is equally clear that the carriage of the goods between two places within the one State and the use of the vehicle for that purpose - in themselves intrastate activities - would not take on the character of interstate trade or commerce simply because the vehicle was engaged on an interstate journey, and was carrying other goods between one State and another. A vehicle, although making an interstate journey, may be put to two distinct uses, and may at the one time be carrying some goods in the course of interstate trade and other goods in the course of intrastate trade. So much is established by Pioneer Express Pty. Ltd. v. Hotchkiss [1958] HCA 45; (1958) 101 CLR 536 ; the decision in that case applies equally to freight as to passengers: see Golden v. Hotchkiss (1959) 101 CLR 568, at p 579 and Harris v. Wagner [1959] HCA 60; (1959) 103 CLR 452, at pp 464-465 . The use of the vehicle to carry the goods destined for Warrnambool, and the carriage of the goods from Melbourne to Warrnambool, did not necassarily acquire an interstate character from the fact that the vehicle was at the same time used to carry other goods to Mt Gambier. (at p85)

6. Further, the fact that the goods crossed the re-crossed the border in the course of their journey from one place within Victoria to their final destination within the same State did not in itself mean that the use of the vehicle to carry them on the road in Warrnambool, or the carrying of them there, was in the course of interstate trade or commerce. It is well established that a transaction of carriage between two places within the one State does not acquire an interstate character because the carrier makes an artificial diversion over the border: see Harris v. Wagner [1959] HCA 60; (1959) 103 CLR 452 ; Western Interstate Pty. Ltd. v. Madsen [1961] HCA 63; (1961) 107 CLR 102 and Winton Transport Pty. Ltd. v. Horne [1966] HCA 51; (1966) 115 CLR 322 . On the other hand, if the diversion across the border has a business purpose, apart from the wish to secure the protection of s. 92, the carriage will be held to have been made in the course of interstate trade: Beach v. Wagner (1959) 101 CLR 604 ; Roadair Pty. Ltd. v. Williams [1968] HCA 18; (1968) 118 CLR 644 ; Ward (J. & J.) Pty. Ltd. v. Williams [1969] HCA 65; (1969) 119 CLR 318 . It is needless to discuss the facts of these well-known decisions, but it appears to me that the true ground of distinction between the two lines of cases is that in the former, where the protection of s. 92 was denied, the only purpose of crossing the border was to attempt to obtain immunity under the section, so that the crossing of the border was "nothing but an interruption of an essentially intra-State transaction" - "a superficial excrescence on the journey": see Harris v. Wagner (1959) 103 CLR, at pp 458-459, 461, 467, 470-472 . In the latter cases, on the other hand, the carrier was engaged upon an interstate journey "for the perfectly legitimate purposes of his business"; he was acting in conformity with a practice adopted "for the general purposes of his business": see Beach v. Wagner (1959) 101 CLR, at p 610 and Roadair Pty. Ltd. v. Williams (1968) 118 CLR, at p 647 . (at p86)

7. The most recent discussion of this question occurred in Ward (J. & J.) Pty. Ltd. v. Williams [1969] HCA 65; (1969) 119 CLR 318 . In that case the Court rejected an argument that in deciding whether an operation was of an interstate or an intrastate character it was erroneous to consider matters relating to the carrier's convenience, business organization and ordinary practices (1969) 119 CLR, at pp 319, 332 . The main judgment was given by Walsh J., with whom Barwick C.J., Kitto, Menzies, Windeyer and Owen JJ. concurred. Although Walsh J. expressed the view that it was relevant to consider whether the carrier had some commercial purpose - a real and not a pretended commercial purpose - for crossing the border, in his opinion this is not the sole criterion or test. He said (1969) 119 CLR, at p 333 :
"When the question to be decided has been whether or not the use for the carriage of goods of a road in one State, before an intended detour across the border into another State has begun, or after such a detour has been completed, was an activity to which the character of inter-State trade or commerce should be assigned, the purpose for which the goods were going to be carried or had been carried across the border into the other State has been treated as an important consideration. . . . But to say this is not the same as to say that a single and decisive test has been established by which the character of inter-State trade or commerce has been ascribed to all journeys in which there has been or there is about to be a crossing of the border which had a 'real commercial purpose' and denied to all journeys in which the border crossing, already made or to be made, had no such purpose."
Although it is no doubt correct to say, as Walsh J. said, that the question whether the border has been crossed for a real commercial purpose does not provide a single and decisive test, I find it impossible to imagine any case in which it could be said that a vehicle carrying goods between two points within one State was used in the course of interstate trade or commerce by reason only of the fact that it had crossed the border in the course of its journey, unless there had not been some real purpose in crossing the border, other than the purpose of attempting to bring the transaction within s. 92. In some cases the purpose might simply be to travel by the most convenient route, which might be across the border and back again. In other cases the manner in which the carrier's business was organized might provide the purpose for crossing the border. As Kitto J. pointed out in the additional reasons which he gave in Ward (J. & J.) Pty. Ltd. v. Williams (1969) 119 CLR, at p 325 , no gloss is to be placed upon the language of s. 92 which limits its application to cases where "a genuine commercial purpose", or "the ordinary course of business", has characterized the movement across the border. The actual movement across the border is always protected. But when the question is whether the carriage of goods on a journey that began and ended within one State, or the use of a vehicle for the purposes of that carriage, was in the course of interstate trade or commerce, the fact that the border has been crossed can not give that carriage or use an interstate character, unless there was a real purpose for crossing the border. This does not mean that the Court is concerned to inquire whether it was profitable, sensible or in the public interest for a person seeking the protection of s. 92 to engage in interstate trade; it means that in deciding whether he has engaged in interstate trade, it is in some cases not merely relevant, but of fundamental importance, to ask whether he had any real reason for crossing the border. (at p88)

8. There are weighty dicta in favour of the view that where a carrier has diverged from his intrastate journey to cross the border, for no other reason than to gain the protection of s. 92, the journey from the point of the deviation to the border, and the return to the point where the deviation began, or even to the ultimate destination, have an interstate character: see Harris v. Wagner (1959) 103 CLR, at p 458 , Western Interstate Pty. Ltd. v. Madsen (1961) 107 CLR, at p 110 , and Ward (J. & J.) Pty. Ltd. v. Williams (1969) 119 CLR, at p 324 . I do not find it necessary to consider in the present case whether those dicta are consistent with principle, or with the authorities that have decided how a particular act of carriage is to be characterized. In the present case, having regard to the findings of McInerney J., it should be accepted that the respondent had a genuine business purpose in crossing the border. The case is indistinguishable from Beach v. Wagner [1959] HCA 24; (1959) 101 CLR 604 , Roadair Pty. Ltd. v. Williams [1968] HCA 18; (1968) 118 CLR 644 , and Ward (J. & J.) Pty. Ltd. v. Williams [1969] HCA 65; (1969) 119 CLR 318 and the carriage from Mt Gambier to Warrnambool, and the use of the vehicle for the purpose of that carriage, were of an interstate character, notwithstanding that the transaction between the respondent and Woolworths was entirely of an intrastate character. It is true that one motive of the respondent in going to Mt Gambier was to secure the protection of s. 92, but once it is held that it was engaged in interstate trade, its motive for doing so does not matter. As Windeyer J. said in Western Interstate Pty. Ltd. v. Madsen (1961) 107 CLR, at p 117 : "People may, of course, choose to engage in inter-State trade because they will in it have the protection of s. 92: but they do not get the protection of s. 92 by pretending to be engaged in inter-State trade." (at p88)

9. For these reasons, which depend very much upon the particular facts of the case, I would dismiss the appeals. (at p88)

STEPEHN J. I would dismiss this appeal for the reasons appearing in the judgment of my brother Mason. (at p88)

MASON J. On 29th March 1977 the respondent, which is a company carrying on business as a carrier and haulage contractor, was convicted in the Magistrates' Court at Warrnambool of an offence against s. 20 of the Motor Car Act 1958 (Vict.), as amended, and of a further offence against s. 22 of the Commercial Goods Vehicles Act 1958 (Vict.). The offence under the Motor Car Act of which the respondent was convicted was that on 21st October 1976 at Warrnambool, being the owner of a motor car registered without payment of a fee by reason of its being used or intended to be used in Victoria solely for inter-State trade, the respondent did authorize, permit or suffer the vehicle to be used in Victoria otherwise than for inter-State trade without the appropriate registration fee first being paid. The offence under the Commercial Goods Vehicles Act of which the respondent was convicted was that on the same day at Warrnambool the respondent was the owner of a commercial goods vehicle which operated on a public highway, the vehicle not being authorized by licence or permit so to operate. Neither information nor summons identified the precise place in Warrnambool at which it was alleged the respondent's vehicle was relevantly used or operated. On appeal to the Supreme Court (McInerney J.) the convictions were set aside on the ground that the respondent's use and operation of its vehicle on the occasion in question fell within the protection conferred by s. 92 of the Constitution (1978) VR 484 . By special leave the appellant now appeals to this Court. (at p89)

2. The two convictions in the Magistrates' Court arose out of the same transactions and events. The respondent's Volvo semi-trailer, registered No. IS 5114, was driven by one Clifford from Melbourne to Warrnambool on 20th October 1976, thence from Warrnambool to Mt Gambier and back to Warrnambool, arriving there at 9 a.m. approximately on 21st October 1976. The trailer was loaded at Melbourne with groceries for Woolworths at Warrnambool stacked in six pallets, oil for the Shell Company at Dennington, groceries for Target stores at Mt Gambier and a roll of carpet for Paterson's Pty. Ltd. at Mt Gambier. All the goods were loaded in Melbourne. A "Direct Delivery Docket" was made out by the manager of the Melbourne depot of the respondent and this docket showed that the goods were on consignment from Melbourne to Mt Gambier. The vehicle proceeded from Melbourne to Warrnambool, which lies on the direct route from Melbourne to Mt Gambier. It arrived at Warrnambool at 8.30 p.m. approximately on the night of 20th October. It did not proceed to Woolworths' store but stopped at the respondent's depot. No goods were unloaded from the vehicle at Warrnambool. Mr. Ryan, the managing director of the respondent, said that it would not have been possible to make delivery to Woolworths of the goods destined for Woolworths at that time of night. He also stated that the goods destined for Mt Gambier were urgently required and that it would not have been possible to deliver them in time had the Woolworths goods been unloaded at Warrnambool en route to Mt Gambier on the night of 20th October. The magistrate made no finding on these matters. However, he held that the journey on 20th and 21st October was a continuous journey which was interstate in character. In the Supreme Court, McInerney J. held that the journey to Mt Gambier was bona fide and interstate and that the return journey was part of the same interstate journey or itself a fresh interstate journey. Ryan said that the Woolworths goods were carried to Mt Gambier in order to gain the protection of s. 92. Nevertheless, the circumstances revealed by the evidence show that, despite the existence of this motive, McInerney J. was correct in approaching the case on the footing that it was commercially convenient and practical to carry the Woolworths goods to Warrnambool via Mt Gambier. (at p90)

3. After stopping at the respondent's depot at Warrnambool the vehicle was then driven by Clifford to Mt Gambier where he himself unloaded the goods to be delivered there. Clifford drove the vehicle back from Mt Gambier to Warrnambool, arriving there, as I have said, at approximately 9 a.m. on 21st October 1976. The vehicle turned into the back entrance of Woolworths' supermarket in Timor Street, Warrnambool where the six pallets of groceries were unloaded by means of a forklift. Evidently, it was the use and operation of the vehicle in Timor Street that was relied upon to sustain the two charges for it was deposed to by Mr. McDonald, an officer of the Transport Regulation Board, and it appears to be the only evidence given by the prosecution relating to use and operation of the vehicle in Warrnambool on 21st October. Whether the driving of the vehicle in Timor Street involved any diversion from the direct route to Melbourne from Mt Gambier the evidence does not disclose. (at p90)

4. The delivery docket to which I have referred did not reflect the substance of the contract between the respondent and Woolworths relating to the carriage of the goods from Melbourne to Warrnambool. The magistrate found that the contract did not call for transportation of the goods to Warrnambool via Mt Gambier. It simply called for their carriage from Melbourne to Warrnambool. The transportation of the goods and form of the delivery docket were arranged by the respondent to suit its own purposes. (at p90)

5. Before I examine the statutory provisions I should make some comments on the character, as revealed by these facts, of the trade and commerce in which the respondent was engaged. The journey undertaken by the vehicle from Melbourne to Warrnambool, thence to Mt Gambier was an interstate journey. It entailed a crossing of the State border between Warrnambool and Mt Gambier. The trailer was driven from Melbourne to Mt Gambier in order to deliver goods destined for Mt Gambier. The fact that the trailer was also carrying goods for Warrnambool and that they constituted the major portion of the load do not deprive the journey to Mt Gambier of its interstate character. Likewise, the return journey between Mt Gambier and Warrnambool or so much of the entire return journey as lay between these points was interstate because it entailed a crossing of the border which cannot be severed from the rest of the journey. The entire journey between Melbourne and Warrnambool on the way back from Mt Gambier therefore had an interstate character, whether the journey be regarded as entire or whether it be regarded as two distinct journeys broken by the stop and delivery of goods at Mt Gambier. (at p91)

6. In order that the journey, in particular the Mt Gambier-Warrnambool section of it, should attract the operation of s. 92 it is necessary that it forms part of interstate trade and commerce or intercourse. The character of interstate trade, commerce or intercourse attaches to the return journey (whether it involves the carriage of goods for reward or not) undertaken after the outward interstate carriage of goods for reward has been completed. As the return journey from Mt Gambier to Warrnambool was on the direct route home to Melbourne from the interstate destination at Mt Gambier the driving of the vehicle from Mt Gambier back to Warrnambool, certainly to the extent to which it coincided with the return route to Melbourne, formed part of interstate trade or commerce. And it has even been pointed out that the protection afforded by s. 92 attaches to so much of the return part of a diversionary journey across a State border undertaken to give an intrastate carriage of goods an interstate flavour as lies between the point reached outside the State and the point of deviation within the State on the route between the place where the goods were picked up and the place of destination. See Harris v. Wagner (1959) 103 CLR 452, at p 458 ; Western Interstate Pty. Ltd. v. Madsen [1961] HCA 63; (1961) 107 CLR 102, at p 110 . (at p91)

7. None the less the appellant submits that the actual carriage of the goods between Mt Gambier and Woolworths' store at Warrnambool formed no part of interstate trade or commerce, the respondent not having contracted for reward to carry the goods between those two points. No doubt it is proper to draw a distinction between the movement interstate of a vehicle and the intrastate carriage of goods or passengers by that vehicle on part of its interstate journey (Pioneer Express Pty. Ltd. v. Hotchkiss [1958] HCA 45; (1958) 101 CLR 536 ). There it was decided that the carriage of passengers intrastate on a vehicle making an interstate journey on which it was carrying other passengers interstate did not constitute part of interstate trade and commerce. This is not such a case for here the goods were carried interstate across the State border notwithstanding that the contract of carriage did not require such a carriage. (at p92)

8. It is instructive to examine some of the cases in which a carrier transported goods across a State border in the course of a non-diversionary journey in discharge of a contract calling for carriage between two points within the one State. They show that the interstate character of the contract of carriage is a relevant, but by no means a decisive, consideration, to be taken into account in deciding whether the actual carriage forms part of interstate trade. (at p92)

9. In Beach v. Wagner [1959] HCA 24; (1959) 101 CLR 604 the Court unanimously held that a journey from Bungunya in Queensland via Boggabilla in New South Wales to Brisbane was an interstate journey entitled to the protection of s. 92, notwithstanding that the bales of wool which were carried were the subject of a contract of carriage between Bungunya and Brisbane which did not call for their carriage via Boggabilla. The carrier maintained a depot at Boggabilla and it was found that the interstate journey was undertaken for the legitimate purposes of the carrier's business. The Court said (1959) 101 CLR, at p 610 :
"It does not seem to be material that the wool was carried to Boggabilla in the course of fulfilling a contract of carriage requiring it to be picked up at Bungunya in Queensland and delivered in Brisbane. It was in the course of the appellant's business to use a place in New South Wales as a depot for the trans-shipment and handling of goods as well as for a garage and petrol dump."
In the result the appellant was acquitted of a charge under s. 23 (1) of the State Transport Facilities Acts, 1946 to 1955 (Q.), which provides that a person shall not use on any road at any time a vehicle for the carriage of goods unless, at that time, the goods are being carried upon the vehicle pursuant to a licence or permit. (at p92)

10. Subsequently in Roadair Pty. Ltd. v. Williams [1968] HCA 18; (1968) 118 CLR 644 it was held that a journey by a carrier between Albury and Wodonga formed part of interstate trade and commerce protected by s. 92 in circumstances where the carrier had carried on a truck from Melbourne to Albury certain heavy goods consigned to persons in Albury. The goods were loaded on the truck in such a way that the heavy goods could not be removed unless the truck was completely unloaded. The truck proceeded to Albury where the goods destined for consignees there were removed and the truck proceeded to Wodonga after refuelling. Barwick C.J., Kitto, Menzies and Owen JJ. in a joint judgment concluded that the case was governed by the decision in Beach v. Wagner [1959] HCA 24; (1959) 101 CLR 604 . Their Honours went on to say (1968) 118 CLR, at pp 647-648 :
"The fact is that in the ordinary course of its business the appellant had established its depot at Albury for the purposes we have already mentioned and in the case under review the heavy goods destined for Wodonga could not have been stowed on top of the load and dropped off there en route to Albury. It would, no doubt, have been physically possible to have unloaded the whole consignment of goods at Wodonga on the way from Melbourne to Albury, delivered the pallets and the concrete posts and members to their respective consignees, reloaded the lighter goods and taken them on to the depot for sorting and distribution, but that was not a practical proposition. . . . It is true that the ultimate destination of those heavy goods loaded in Melbourne was another point in Victoria but the carriage of them across the border to Albury and back across the border to Wodonga gave the whole of their carriage, in the circumstances of this case, the character of the carriage of goods interstate."
It was held that the appellant committed no offence against s. 22 of the Commercial Goods Vehicles Act. (at p93)

11. Finally, in Ward (J. & J.) Pty. Ltd. v. Williams [1969] HCA 65; (1969) 119 CLR 318 a carrier of goods for reward transported on a truck from Geelong in Victoria to a depot at Mt Gambier in South Australia goods consigned to a firm in Hamilton, Victoria. At Mt Gambier other goods consigned to Mt Gambier were unloaded and further goods for Hamilton taken on. The truck was then driven to Hamilton where the goods destined for that town were delivered. It was held that the making of the journey between Mt Gambier and Hamilton formed part of interstate trade, commerce or intercourse which was protected from the operation of s. 22 of the Commercial Goods Vehicles Act 1958 by s. 92 of the Constitution. Walsh J., with whom the other members of the Court agreed, stated that the case was governed by Beach v. Wagner [1959] HCA 24; (1959) 101 CLR 604 and Roadair Pty. Ltd. v. Williams (1968) 118 CLR 644 . His Honour explicitly rejected the suggestion that the decision in Roadair Pty. Ltd. v. Williams [1968] HCA 18; (1968) 118 CLR 644 turned on the facts that the goods destined for Wodonga were heavy goods loaded beneath lighter goods destined for delivery in New South Wales and that this would have caused a difficulty in the way of unloading the former goods at Wodonga on the way from Melbourne to Albury. His Honour said (1969) 119 CLR, at p 331 to so explain the case was to ignore the statement that the case was governed by Beach v. Wagner [1959] HCA 24; (1959) 101 CLR 604 . Earlier Walsh J. had said (1969) 119 CLR, at p 329 :
"We are not concerned in this case with the character of the trading in the goods by the supplier in Geelong or by the consignee in Hamilton. Protection is not claimed by the appellant on the footing that a burden placed on it as carrier of the goods would interfere with interstate trade of the person for whom they were carried: cf. Simms v. West (1961) 107 CLR 157, at p 161 and Deacon v. Mitchell [1965] HCA 28; (1965) 112 CLR 353, at p 364 ."
His Honour had gone on to say (1969) 119 CLR, at p 329 :
"In carrying goods in the course of its own business the appellant was itself engaged in trade or commerce. . . . It is necessary to examine the relevant circumstances and to decide whether or not the operation upon which the appellant was then engaged and the carriage of goods then being performed by the use of its vehicle had an interstate character. In making that decision on the facts, one of the facts to which regard must be had is that the original starting point and the ultimate destination of the transport of the twine were both in the same State, but that fact cannot be decisive. See Golden v. Hotchkiss (1959) 101 CLR 568, at p 589 ."
Later Walsh J. observed (1969) 119 CLR, at p 330
"The facts of this case do not support a view that the crossing and recrossing of the border were, in the words of Taylor J. in Harris v. Wagner (1959) 103 CLR 452, at p 472 , a 'diversionary incident' which was merely 'a superficial excrescence on the journey'." (at p94)

12. On the other hand, the Supreme Court of Victoria (Herring C.J.) took a different view in McDonald v. Findlay (1963) VR 55 . There the defendant carried on his vehicle from Melbourne some goods bound for Barham in New South Wales and other goods bound for Kerang which is fifteen miles inside Victoria and not far from Barham which is just outside Victoria. At both places the carrier had a substantial depot. The vehicle proceeded first to Barham where the goods destined for that place were unloaded. The following morning the vehicle proceeded to Kerang and on this journey it was intercepted, the carrier being charged under s. 22 of the Commercial Goods Vehicles Act. In concluding that the defendant was guilty of the charge Herring C.J. stated that as the contract of carriage to Kerang was an intrastate transaction and as the crossing of the border was not an essential element in the performance of the contract s. 92 did not protect the carriage of the goods. This reasoning is erroneous. The fact that the contract of carriage was an intrastate transaction was not, as his Honour seemed to think, a matter of decisive importance; it was, as is demonstrated by the three decisions of this Court to which I have referred, merely one of the matters to be taken into consideration. (at p95)

13. In saying that, in order to come within the protection of s. 92, the crossing of the border was an essential element in performing the contract Herring C.J. relied on the observations of Fullagar J. in Harris v. Wagner [1959] HCA 60; (1959) 103 CLR 452, at p 465 :
"When the carriage of goods by road between two points in the State is protected by s. 92, it can only be because that carriage is undertaken as an essential - that is to say, a necessary, or at least natural and appropriate - means of performing a larger operation which possesses the character of interstate commerce."
Fullagar J. was addressing his remarks to a journey which was on the facts a diversionary journey and they should be understood in this light. However, to the extent to which his Honour's observations might be taken to suggest that the actual carriage of goods between two points in the one State is an interstate carriage of goods, when undertaken by means of an interstate journey, only if it entails an interstate transportation which is an essential element in performing the contract of carriage I disagree with them. Where, as here, the goods destined for delivery within the State are conveniently transported across a State border on a vehicle which is proceeding interstate to carry other goods bound for a destination outside the State and the goods first mentioned are delivered on the way back, their carriage should be regarded as having an interstate character, even if the delivery involves some deviation from the route back to the point of commencement of the carriage which was in this case Melbourne. It goes almost without saying that in such a case the journey across the State border is not diversionary in character. (at p95)

14. Whether there was a deviation in the instant case does not clearly appear from the evidence. The relationship which exists between Timor Street and the main highway was unexplained. However, it is apparent that if there was a deviation it was minor. (at p96)

15. It is important to recall that in this appeal it is the trade of the carrier, not that of the consignor, that is in question. The relevant freedom guaranteed by s. 92 is that of the carrier to move goods across a State border. That freedom does not depend on the contract with the consignor having an interstate character. The movement of the goods across the border is protected whether the contract of carriage is an interstate or intrastate transaction. And s. 92 will invalidate any attempt to prohibit or burden that movement. But in many cases the difficult question which arises for determination is how much of the carriage of goods in the course of which they are transported across a State border falls within the protection of s. 92. It is in connexion with this question that the interstate or intrastate character of the contract of carriage becomes relevant. Though it is a relevant consideration, for the reasons which I have given it is not a decisive factor in this appeal. (at p96)

16. What I have already said is in itself sufficient to dispose of the case without the necessity for my engaging in a discussion of the operation of the statutory provisions and of their relationship with s. 92. Once the conclusion is reached that the carriage of the goods between Mt Gambier and Warrnambool formed part of interstate trade and commerce that carriage could not be subjected to a legislative prohibition or burden. In the past it has been recognized that a parliament may, conformably with s. 92, prohibit a carrier from carrying for reward passengers or goods otherwise than in the course of or for the purpose of interstate trade on a vehicle which is engaged on an interstate journey because it is carrying other passengers or goods interstate (see Pioneer Express Pty. Ltd. v. Hotchkiss [1958] HCA 45; (1958) 101 CLR 536 ). Once it is concluded that the character of the carriage of the goods between Mt Gambier and Warrnambool was interstate there is no scope for the application of this principle. (at p96)

17. In the result it may be said that the prosecution failed to establish an offence against s. 20 of the Motor Car Act because it failed to show that the respondent, as owner of the vehicle, did "use the motor car or trailer or authorize permit or suffer the motor car or trailer to be used in Victoria otherwise than for interstate trade commerce or intercourse" within the meaning of the section. The charge under s. 22 of the Commercial Goods Vehicles Act fails for a similar reason. Section 22 (1) makes it an offence on the part of the owner and driver of a commercial goods vehicle to operate the vehicle on a public highway when it is not authorized by licence or permit so to operate. The word "operate" is defined by s.3 (1) to mean "(in the case of any vehicle) carry goods for hire or reward or for any consideration or in the course of any trade or business whatsoever". Literally s. 21 read in the light of this definition would prohibit the carriage of goods in the course of interstate trade and commerce. As the section must be read so as to accommodate itself to s. 92, it does not comprehend the carriage in question. (at p97)

18. I would dismiss the appeal. (at p97)

JACOBS J. Where goods are consigned from one place in a State to another place in the same State and if those goods are carried out of the State into another State and then back again into the first State the carriage of those goods may be, but is not necessarily, trade commerce and intercourse among the States. An important circumstance is that the carriage into the other State and out of it to the place of ultimate consignment is in the ordinary course of the business of the carrier: Beach v. Wagner [1959] HCA 24; (1959) 101 CLR 604 : Roadair Pty. Ltd. v. Williams [1968] HCA 18; (1968) 118 CLR 644 ; for the "perfectly legitimate purposes of his business" as it was described in Beach v. Wagner (1959) 101 CLR,at p 610 . This result is not affected by the fact that it would have been physically possible to deliver the goods in the course of the journey before crossing the State boundary: Roadair (1968) 118 CLR at p 647 . In Ward (J. & J.) Pty. Ltd. v. Williams [1969] HCA 65; (1969) 119 CLR 318 the "commercial purpose test", as it was there described, was adopted by Walsh J. (with whose reasons Barwick C.J., Windeyer and Owen JJ. agreed) as an important, but not sole, consideration in determining the question whether the carriage of the goods interstate and then back again was trade commerce and intercourse among the States. He said (1969) 119 CLR, at p 333 :
"When the question to be decided has been whether or not the use for the carriage of goods of a road in one State, before an intended detour across the border into another State has begun, or after such a detour has been completed, was an activity to which the character of interstate trade or commerce should be assigned, the purpose for which the goods were going to be carried or had been carried across the border into the other State has been treated as an important consideration. This is illustrated by such cases as Harris v. Wagner [1959] HCA 60; (1959) 103 CLR 452 and Western Interstate Pty. Ltd. v. Madsen [1961] HCA 63; (1961) 107 CLR 102 . But to say this is not the same as to say that a single and decisive test has been established by which the character of interstate trade or commerce has been ascribed to all journeys in which there has been or there is about to be a crossing of the border which had a 'real commercial purpose' and denied to all journeys in which the border crossing, already made or to be made, had no such purpose."
Kitto J. expressed agreement with the reasons of Walsh J. but in his added reasons pointed out that the tests of "ordinary course of business" or "commercial purpose" are not tests of the applicability of s. 92 but of the indivisibility of the journey interstate and back again. (at p98)

2. In the present case it seems to me that the application of the tests of "ordinary course of business" or "genuine commercial purpose", though perhaps not the only tests to be applied, were of very great importance. Unfortunately no finding upon them was made by the magistrate at first instance. On the order to review McInerney J. found that there was "a genuine act of interstate trade or commerce, namely, the carrying of goods from Melbourne to Mt Gambier via Warrnambool" and that "the same interstate trade and commerce required the return of the vehicle from Mt Gambier to Warrnambool" and, further, that there was "a bona fide commercial purpose in the defendant's journey to Mt Gambier". I am not quite clear whether McInerney J. was here directing his attention to the purpose of carrying the Warrnambool goods out of Victoria and back into it again, or whether his statements were not based simply on the facts that there were goods to be carried to and delivered at Mt Gambier and that the Victorian-based vehicle then had to return to Victoria. Nevertheless, the finding was open that there was "a bona fide commercial purpose" in carrying the Warrnambool goods out of the State and back into it again and that the goods were so carried as "a genuine act of interstate trade and commerce" even though a finding to the contrary would have been quite open, especially in view of the admitted evidence of a motive to obtain the protection of s. 92. I am not satisfied that the decision of McInerney J. was wrong on the facts and I would therefore dismiss the appeal. I would however spell out what is implicit in what I have stated, namely, that in a case where goods for delivery in the same State are carried out of the State and back again, the fact that they are carried out of the State in the same load as goods genuinely destined for delivery in the second State and that the vehicle is entitled to return to its home State does not of itself provide an answer to the question whether the carriage of the goods ultimately destined for delivery in the State of consignment is an act of trade commerce and intercourse among the States. (at p98)

MURPHY J. The respondent company was convicted of two offences by a magistrate in Warrnambool, Victoria. The first was a breach of the Commercial Goods Vehicles Act 1958 (Vict.), s. 22 of which provides:

"(1) The driver and owner of any commercial goods vehicle which -
(a) operates on any public highway; and
(b) is not authorised by licence or permit so to operate -
shall be severally guilty of an offence against this Part: . . ."

The second was a breach of the Motor Car Act 1958 (Vict.), s. 20 of which provides:
"The owner of any motor car which is registered without payment of a registration fee by reason of its being used or intended to be used solely for interstate trade commerce or intercourse shall not, unless the appropriate registration fee is first paid, use the motor car or authorize permit or suffer the motor car to be used otherwise than for interstate trade commerce or intercourse."
On an order to review, the Supreme Court of Victoria McInerney J.) set aside the convictions (1978) VR 484 . Special leave to appeal was granted on 17th March 1978. This appeal concerns the proper application of the two Acts in the light of s. 92 of the Constitution. (at p99)

2. The respondent had a contract to carry goods from Melbourne to Warrnambool (both in Victoria) which was carried out by taking the goods, together with other goods destined for Mt Gambier in South Australia, from Melbourne to Warrnambool and on to Mt Gambier where the goods destined for Mt Gambier were unloaded. The vehicle then returned with the goods which were the subject of the contract to Warrnambool where they were delivered. The magistrate's finding shows that there was no practical necessity for these goods to be taken out of Victoria and that it was done in an attempt to gain the protection of s. 92 of the Constitution and thus avoid payment of the taxes under the legislation. (at p99)

3. The elements of the offence under the Commercial Goods Vehicles Act (being the owner of a commercial goods vehicle which operated on a public highway and which was not authorized by licence or permit so to operate) were established. The legislation does not impose any custom duty or similar tax discrimination against trade and commerce among the States. In my opinion, s. 92 is inapplicable (see the reasons I gave in Buck v. Bavone [1976] HCA 24; (1976) 135 CLR 110, at pp 132-138 , H. C. Sleigh Ltd. v. South Australia [1977] HCA 2; (1977) 136 CLR 475, at pp 526-528 and Finemores Transport Pty. Ltd. v. New South Wales (1978) 139 CLR 289 ). Even if the vehicle were being operated in the course of trade and commerce among the States at the time of the alleged offence, the requirement of a permit does not involve any breach of s. 92 and the legislation should not be read down (in accordance with s. 3 of the Acts Interpretation Act 1901, as amended, which confines legislation within constitutional limits) in order to exempt the respondent from the requirement of a permit. (at p100)

4. For the same reason, s. 92 is not applicable to s. 20 of the Motor Car Act. However, by the terms of s. 20, if at the time of the alleged offence against the Motor Car Act the vehicle was being used otherwise than for interstate trade, commerce or intercourse, the offence is made out. The contract for carriage of the goods between two points in the one State was trade or commerce, but not interstate trade or commerce. The carrying out of the contract was also trade or commerce, but was it trade or commerce among the States? In the absence of any practical necessity for those goods to be taken outside the State, the vehicle was used at the place and time charged otherwise than for trade or commerce among the States. It is no answer to the charge under s. 20 of the Motor Car Act that the vehicle was also used for interstate trade or commerce in carrying other goods to Mt Gambier outside the State and returning from that journey. I find it difficult to attribute to the Parliament of Victoria an intention to exempt an owner in the circumstances of this case. In my opinion the magistrate rightly convicted the respondent. (at p100)

5. These appeals are from orders setting aside convictions. In substance the orders are dismissals or acquittals. The respondent is a corporation. The fundamental principle against allowing appeals against dismissals of charges is generally attributed to maintenance of personal freedom (see Benson v. Northern Ireland Road Transport Board (1942) AC 520 ; Cox v. Hakes (1890) 15 App Cas 506, at p 522 . It is a question whether that principle should apply in favour of artificial entities (see United States v. Security National Bank (1976) 430 US 950 (51 Law Ed 2d 799); [1976] USCA2 894; 546 F 2d 492 ; "The Applicability of the Double Jeopardy Right to Corporations", Duke Law Journal, vol. 3 (1977), p. 725). The respondent did not contend that the appellate jurisdiction conferred by s. 73 of the Constitution did not authorize the appeal and that special leave should be rescinded. (at p101)

6. In these circumstances, the appeals should be allowed. (at p101)

AICKIN J. In this matter I have had the advantage of reading the reasons for judgment prepared by my brother Mason and I am in entire agreement with what he says in those reasons. (at p101)

2. I would add only two comments. First, it seems to me that the present case is covered by the decision of this Court in Beach v. Wagner [1959] HCA 24; (1959) 101 CLR 604 ; Roadair Pty. Ltd. v. Williams [1968] HCA 18; (1968) 118 CLR 644 and Ward (J. & J.) Pty. Ltd. v. Williams [1969] HCA 65; (1969) 119 CLR 318 . The second comment is that the appellant's argument placed substantial reliance on the decision of Herring C.J. in McDonald v. Findlay (1963) VR 55 , but that case was decided before the second and third of the three cases just referred to and is, in my opinion, inconsistent with them. Indeed, I would regard it as inconsistent with Beach v. Wagner [1959] HCA 24; (1959) 101 CLR 604 . It is, I think, clearly based upon a view of s. 92 which is contrary to the decisions of this Court. (at p101)

3. I agree that the appeal should be dismissed. (at p101)

ORDER

Appeals dismissed with costs.