Bilney v Western Australian Transport Board

High Court of Australia|1961-07-01|Before: Windeyer JJ, Virtue J

The applicant is a farmer and the truck is his own; it may naturally be asked how the truck comes to be a "public vehicle" within s. 52 (1) under which he was convicted. The answer is given by piling definition on definition. Section 3 defines "public vehicle" to mean any vehicle which must be licensed. Section 33 says that subject to the exceptions stated in s. 34 a commercial goods vehicle shall not operate on any road unless it is licensed under Pt II. Section 3 defines "commercial goods vehicle" so that the term covers a motor vehicle used on roads for the transport of goods. The word "goods" is defined so as to include movable chattels of every description. Part of the offence under s. 52 (1) is that the vehicle "operates" on a road. Under the definition of operates in s. 3 the word means to carry or offer to carry passengers or goods for hire or for any consideration or (what matters in this case) "in the course of or in connexion with any trade or business, save as provided by section thirty-four of this Act".

Long ago it was decided that farming does or may fall under the meaning of the word "business": Harris v. Amery [1] . And although it may not be always easy to say which side of the line a case may fall, organized farming carried on for gain as an occupation is regarded as a business: cf. In re Ogilby; Ogilby v. Wentworth-Stanley [2] . On this footing no doubt the applicant's truck was treated as carrying goods in the course of or in connexion with a business and as therefore doing something within the definition of the word "operate" unless one of the exemptions given by s. 34 (1) saved it. The material part of that section provides that no licence under s. 33 shall be necessary in respect of any commercial goods vehicle which (c) is used solely for any of the purposes mentioned in the first schedule of the Act. The first schedule contains fifteen categories of exemption, all save one being expressed with reference to the carriage of goods for a reason or upon a journey or on an occasion defined in specific and restrictive terms. Nine of the categories concern journeys connected with or arising out of rural pursuits or rural products. The first, for example, is for the carriage of the produce of farms or forests or requisites for farming or for the production of timber; but the only journey allowed is between the farm or forest and the railway station or nearest town. In the same way the second category refers to the carriage of produce and goods between the railway station or nearest town and a station property of a person engaged in the pastoral industry. The fourth refers to the carriage of grain to a flour mill for gristing, milling or treatment and the carriage of the flour, meal, bran, pollard or offal received in exchange for use on the farm producing the grain: but it must be done in a vehicle owned by the producer. These, as will be seen, are very narrowly defined exceptions and their special or limited character is increased by the use of the word "solely" in par. (c) of s. 34. The other categories of exemption, particularly in relation to rural matters, are very narrow, perhaps even narrower than the foregoing, but it is not necessary to go into them. The point which a reference to them serves to support is simply that what exceptions should be made of carriage of goods in connexion with rural pursuits has evidently been closely considered, that few exeptions have been made and they have been restricted and guarded. That governing the present case is the third exception. Its effect has already been stated and it is unnecessary to restate the list of animals and things that may be carried from the place where they are produced or the description of requisites that may be carried back. What is to be emphasized however is that the third category of exemption in the schedule speaks of the carriage of things of the first description from the place where they are produced to any other place and the carriage of the requisites of the second description on the return journey: further, it must be done in a vehicle owned by the producer. The journey must be undertaken for the carriage of goods on the forward journey and on the return journey, otherwise the exemption does not attach at all, that is to either journey: further, the goods carried must fall within the respective descriptions. It is essentially an exemption for the use of a vehicle in an operation consisting of the delivery or despatch of farm or other rural products and the back loading of requisites needed by the producer either domestically or in the production of the limited range of products named. If a farmer wants farming requisites, such as superphosphates, for his farm he can carry them himself as back loading under the third exemption in the schedule, the exemption now in question, however distant may be the place where he picks them up: and he can carry them not as back loading under the first exemption but in that case he can carry them only from the railway station or nearest town. As the applicant wished to bring the superphosphate from Albany which was by no means the nearest town and was not "the railway station", he was necessarily outside the protection of the first exception. If he was to carry his superphosphate from Albany himself he must either break the law or seek protection under the third exemption; in order to do so and for no other reason he took with him to Albany on his truck the bag of oats and sold it on arrival. The exemptions in the first schedule are described by s. 34 (1) as "purposes"; - "no licence shall be necessary in respect of a commercial vehicle which is used solely for any of the purposes mentioned in the first schedule". The "purpose" in the case of the third exemption is the carriage of goods of the defined classes on the outward and return journeys respectively, or to put it in the terms of transportation, as forward and back loading. The vehicle must be used solely for that purpose and it is a purpose sharply distinguished from the first of the "purposes" stated in the schedule by the necessity of the combination of the forward and the back loading. The combination involves a predetermined course of action. The purpose cannot be made out, the course of action cannot be pursued, unless before the vehicle sets out some directing mind has planned the combination of the outward and the return journeys with their respective loads of authorized commodities. Otherwise the outward journey while it was taking place would be outside the protection of the particular exemption and could not be saved by a subsequent unplanned and so accidental addition of a return journey of a character capable otherwise of fulfilling the conditions. From the very nature of the exemption, that is from the nature of the closely defined transaction for the performance of which the vehicle may be used, it must be antecedently planned. In that sense it depends on actual purpose. In applying to the schedule the flexible if not slippery word "purpose" it is unnecessary to concern ourselves with the nice distinctions that can be made over the immediacy or remoteness of the end to be achieved as we go down the stream of desire and expectation or look up the stream of actuating motive, reason or cause. What does concern the decision of the case is the fact that the sole reason for the journey, the sole thing to be accomplished, was the carriage of the superphosphates back. The bag of oats was thrown in only as a token compliance with a condition of immunity. Is that what the exemption was directed to? The bag of oats formed no part of the "purpose" of the journey. It might serve as a passport, so it was hoped, and it was carried for that purpose. It is not a case of a driver or owner of a vehicle who desires to fetch back a load of farm requisites taking thought as to what in the genuine course of business as a farmer he can at that opportunity take on the forward journey and so get the benefit of the immunity. No one suggests that if the motive of carrying the forward loading on a journey is to obtain the advantage of the exemption that is enough to vitiate the claim to the exception. But one has here nothing but a colourable attempt to comply with a condition by carrying for no business object an insignificant parcel of a commodity which otherwise would never have left the farm. It is this that makes me think that the proper conclusion is that the bag of oats does not make up, fulfil or satisfy the "purpose" which the third exception describes and that the applicant was rightly convicted. But for myself I would not in any case have been disposed to grant special leave to appeal. I think the application should be dismissed.

(1865) L.R. 1 C.P. 148, at p. 154. 2. (1942) Ch. 288, at p. 289. Fullagar J.

This is an application for special leave to appeal from an order of the Supreme Court of Western Australia (Virtue J.). That order affirmed a conviction of the applicant in the Court of Petty Sessions at Albany of an offence under the State Transport Co-ordination Act, 1933-1957 W.A..

The Act contains provisions of a familiar kind prohibiting the driving on a road without a licence of vehicles described as commercial goods vehicles. There is no doubt that the applicant was, at the time and place specified in the information, driving a commercial goods vehicle which was not licensed under the Act. The question is whether, in the circumstances of the case, the vehicle was exempted from the requirement of a licence by s. 34 (1) and the first schedule.

Section 34 (1), so far as material, provides that "No licence shall be necessary in respect of any commercial goods vehicle which (c) is used solely for any of the purposes mentioned in the First Schedule of this Act." The immediately relevant "purpose" is described in par. 3 of the first schedule, which reads: "The carriage of livestock, poultry, fruit, vegetables, dairy produce or other perishable commodities or wheat or oats from the place where they are produced to any other place in a vehicle owned by the producer thereof and on the return journey the carriage of requisites for the domestic use of such producer or for use by him in the production of the commodities herein named."

So far as s. 34 (1) is concerned, it has been common ground that the words "is used" mean "is being used", and that the reference is to the particular use which is being made of the vehicle at any relevant time. So far, however, as par. 3 of the schedule is concerned, a question of construction of some difficulty arises at the outset. The exemption is expressed to apply to two classes of journey - an outward journey with "produce" and a homeward journey with "requisites". But does it apply to each as an independent journey irrespective of whether the other is undertaken or intended or not? Or is it only when both journeys are undertaken and there is a connexion between the two, that the exemption applies to either? There could, of course, be an outward journey without a "return" journey, but there could not be a "return" journey unless there had first been a corresponding outward journey. Three views seem to be possible. The first is that an outward journey with "produce" and a homeward journey with "requisites" are independently exempted. The second is that neither an outward journey with "produce" nor a homeward journey with "requisites" is exempted unless the two are connected so as to form, in effect, one "round" journey. The third, which is intermediate between the other two, is that an outward journey with "produce" is exempted whether anything is carried on the return journey or not, and whether a return journey is in fact intended or made or not, but that a homeward journey with "requisites" is not exempted unless it follows on an outward journey with "produce".

The acceptance of the first of these three possible views would, as will be seen, be decisive in favour of the applicant in the present case. That view gives on its face much the most sensible and least arbitrary result. It seems to me, however, to be impossible to reconcile it with the words "and on the return journey", which occur in the provision in question. The definite article in this expression cannot, I think, be explained otherwise than as linking the homeward journey with "requisites" with a preceding outward journey with "produce", and as making the exemption depend not merely on the character of the former but also on the character of the latter. The third of the three possible views which I have mentioned is, in my opinion, the correct view.

The facts of the case are very simple. On 16th April 1959 the applicant drove an unlicensed motor truck owned by him from Kojonup to Albany, carrying one bag of oats which had been produced by him on his farm at Kojonup. He intended to sell, and did sell, the bag of oats to a dealer in Albany. He then took on a full load of superphosphate, which was for use on his farm in the production of farm produce, and proceeded to return to Kojonup. It was in respect of this return journey that the charge was laid against him. But, on the construction of the schedule which I have felt compelled to adopt, he had to prove, in order to exempt himself from the requirement of a licence, not only that he was engaged in a homeward journey with "requisites", but that this journey had been preceded by an outward journey with "produce".

It appears to me to be quite clear that the applicant established both of the facts which it was necessary for him to establish. It is agreed, of course, that he established the second, but why should he be held not to have established the first also? He had carried on the outward journey a bag of oats, which had been produced on his farm. That is all that the schedule requires.

As I understand it, the case for the respondent is based on certain so-called "admissions" made by the applicant. When he was stopped by an inspector on the highway, he told the inspector, in answer to a question, that his outward loading had consisted of a bag of oats. The inspector observed that this was not a "commercial quantity", and the applicant - perhaps misguidedly, for the expression is one of extremely dubious import - agreed. He also agreed that the carriage of the oats for sale in Albany would not have been, by itself, an "economical proposition", and that it was only by reason of the "back-loading" of superphosphate that the total outward and homeward journey was commercially worthwhile.

The applicant's claim to exemption under par. 3 of the schedule cannot, in my opinion, be affected by these "admissions". To hold that it is involves the making of drastic implications for which no justification can be found. The question is simply whether the outward journey fell within the language of the schedule. On that journey the applicant was in fact carrying produce from his farm to another place, and that was the sole purpose of the outward journey as such. There must, no doubt, be a real and genuine, as distinct from a pretended, carriage of produce. A number of more or less absurd instances were cited in argument, in all or most of which the proper finding would be that there was only a pretended carriage of produce. But I can see no reason for saying in this case that there was not a real and genuine carriage of produce. A bag of oats is not less a commercial and saleable commodity than two bags of oats or fifty bags. There is not the slightest justification for saying that the applicant was guilty of a "thinly veiled subterfuge". He did what he did quite openly, and admitted it quite freely. He believed, or hoped, that what he did brought him within the exemption. In my opinion, his belief or hope was justified, but, even if it was not, he was guilty of no subterfuge.

If there is a real and genuine carriage of "produce" on an outward journey and a real and genuine carriage of "requisites" on a homeward journey, it cannot matter that a farmer would not have undertaken one journey if he had not had the other in view, or that only one of the two journeys was profitable to him. To hold otherwise would open the door to endless and futile inquiries. If the legislature had regarded such matters as revelant, it would certainly, I should think, have attempted to say so.

The case is important enough to warrant special leave. In my opinion, special leave to appeal should be given, the appeal allowed, and the conviction quashed.

However par. 3 of the first schedule might be understood if it were found apart from its context, when read in association with the other paragraphs it appears to me to describe a single though composite purpose, consisting in the carriage in a producer's vehicle of farm products (to use a short expression) from his place of production to another place and the carriage of domestic or farming requisites (as I may call them) on the journey back to the place of production. Unless the composite purpose governs both the outward and the inward journeys the paragraph, as I read it, does not apply.

In the present case, the applicant, at the time to which the charge relates, was using his vehicle for the carriage of superphosphate, a farming requisite within the paragraph, on a journey back to his farm, after an outward journey on which the vehicle had been empty save for a solitary bag of oats grown on the farm. The question upon which the case hinged, (assuming the construction of par. 3 which I have indicated), was whether the purpose of the two-way journey was both the carriage of the bag of oats to the place where the superphosphate was loaded and the carriage of the superphosphate from that place to the farm. This is a question of substance and fact. If I had to answer it, I should agree with Virtue J. in affirming the answer of the magistrate. I should regard it as an inevitable conclusion from the admitted facts that the whole purpose in the planning and performing of the round trip was to get the superphosphate to the farm. The applicant had not the slightest reason for wanting, and in truth he did not want, to get the oats to the place where the superphosphate was to be had. In putting the bag on his vehicle he had one purpose only in mind, and that was to create, by the act of transporting it, a fact which, in the event of a prosecution, might serve to found a contention that the return journey was within par. 3 of the first schedule. The transportation of the oats was not itself, in any substantial sense, part of the purpose of the journeys.

In my opinion an appeal ought not to succeed, and special leave should for that reason be refused.

The State Transport Co-ordination Act W.A. prohibits, subject to certain exceptions, the operation of a commercial goods vehicle upon any road in the State unless the vehicle is licensed. The exception with which we are here concerned arises under s. 34 (1) and par. 3 of the first schedule which, so far as it is relevant, covers the case when a commercial goods vehicle is used solely for the purpose of the carriage of oats from the place where they are produced to any other place in a vehicle owned by the producer and on the return journey the carriage of superphosphate for use by the producer in the production of farm commodities.

The appellant was convicted under s. 52 of the Act for having been the driver of an unlicensed commercial goods vehicle at the 204/205 mile peg, Albany Highway, "which operated on the road between Albany and Kojonup". It was alleged in the information upon which the appellant was convicted that the vehicle was not exempt from the licensing provisions of the Act. At the 204/205 mile peg, the vehicle, which belonged to the appellant, was being used for the carriage of a load of superphosphate from the works at Albany to his farm at Kojonup for the growing of farm produce. Upon questioning, however, the appellant told the Board's inspector that upon the journey from Kojonup to Albany he had carried one bag of oats grown on his farm to A. P. Bird & Co. in Albany, for sale. It was admitted that it would not have been economical to run the truck from Kojonup to Albany merely for the carriage of one bag of oats without back-loading, and in the course of his evidence the appellant said: "I needed one bag to enable me to back-load super - that was my sole purpose in taking down the one bag". The appellant was convicted and, upon an order to review, this conviction was upheld by Virtue J. The appellant sought special leave to appeal and, upon the hearing of that application, the merits of the case were fully argued, so that it is possible to treat the proceeding before the Court as an appeal.

The conviction cannot stand unless the exception with which we are concerned is, as it applies here, limited to a round journey from the farm and back again, because it was as the driver on the return journey from Albany to Kojonup, when the truck was fully loaded with superphosphate, that it was alleged that the appellant was guilty of a breach of s. 52, which makes it an offence for a person to be the driver of a public vehicle which operates on any road and is not licensed under the Act. Although there is room for doubt, I have reached the conclusion that for a return journey to come within the exception created by par. 3 of the first schedule, there must be a round journey from and to the farm, and that farm produce must be carried upon the outward journey, and farm or domestic requirements on the return journey so that the clause does not create an exception for a journey back to the farm with farm or domestic requirements to be used as described without more. In reaching this conclusion I rely both upon the structure of the third paragraph of the first schedule and upon the fact that for what is described as "the return journey", it is upon the intention of the producer of the farm produce carried on the outward journey that the exception depends - that is, the domestic or farm requisites must be for the "use of such producer". The exception, therefore, would not cover the journey from Albany to Kojonup with superphosphate unless the journey from Kojonup to Albany with a bag of oats also falls within the exception.

The information does, I think, sufficiently raise the question whether the round journey which the appellant was making when intercepted was as a whole within the exception, so that the point for decision may be reduced to whether the use of the vehicle to carry one bag of oats from the farm at Kojonup to the grain store at Albany was a use solely for the purpose of the carriage of oats between the two places.

The appellant's case is that because the truck was carrying a bag of oats and nothing else, it was used solely for the purpose of the carriage of the oats. This has all the charm of simplicity, but it assumes that the purpose for which the vehicle must be used solely has nothing to do with the state of mind of the person using it but is to be determined simply upon a survey of the vehicle upon the particular occasion. Whether or not this assumption is correct seems to me to be the critical question.

Section 34 (1) (c) is in these terms: "No licence shall be necessary in respect of any commercial goods vehicle which is used solely for any of the purposes mentioned in the First Schedule of this Act", and to interpret its meaning it is, I think, necessary to look at the first schedule as a whole. It has fifteen paragraphs, and for the most part all that has to be ascertained can be ascertained objectively and without regard to anybody's state of mind (e.g., the carriage of livestock from an agricultural show, the carriage of ore from mines within a particular mining district). This is not, however, universally true and, for instance, an exception is granted in respect of the carriage of samples for exhibition to prospective purchasers but not for sale, and the carriage of a producer's grain for the purpose of being gristed and the return carriage of offal received in exchange for the grain and carried for use on the farm. It is, however, to be observed that even in such cases the state of mind that is material is concerned with the intended use of goods carried rather than with the carriage of the goods. The inference that I am disposed to draw from examination of the section in the light of the whole of the provisions of the schedule is that where any purpose of any person is material to the exception, that appears from the paragraph in the schedule itself rather than from s. 34 (1) (c) and that unless the language of any particular paragraph does require an investigation of the state of mind of any person, such an investigation is irrelevant.

Turning now to par. 3 itself, it seems to me that although, when domestic or farm requisites are being carried on the return journey, it has to be ascertained what is the intended use of such requisites by the producer of the farm produce carried on the outward journey, the relevant intention is concerned with the use of the goods that are being carried and not with the use of the vehicle by which they are being carried. Moreover, the earlier part of the paragraph seems to involve nothing more than a determination whether the vehicle is carrying farm produce and nothing else, and, if so, whether that produce is being carried from the farm on which it was produced to another place so that no element of motive or intention enters into the matter. I therefore regard the problem that faces us here as being of exactly the same kind as that which would have to be determined if the question were whether livestock is being carried from an agricultural show. This approach to the problem leads me to reject the test of reasonable economic justification for the carriage of the loading which commended itself to Virtue J. I can see no basis upon which it may be said that to carry a small pig in a large stock transport is not the carriage of livestock which would, in the case of carriage from an agricultural show, exempt the transport from the necessity of being licensed regardless of the motive or intention of the operator and regardless too of the economic loss that might be thought to follow from using a large vehicle to carry a small loading a long way.

The difference of opinion to which this case has given rise is, I think, associated with an appreciation that the interpretation of the legislation that I have adopted does make its avoidance a matter of no great difficulty. So, for instance, Virtue J. said: "It could hardly be suggested that the carriage of a half-a-dozen eggs or a pint of milk or a few pounds of potatoes on a forward journey would justify the carriage of a full load of fertiliser on the return journey". It seems to me, however, that although it may well be possible to reach a point where it can be said that despite the fact that there is upon a vehicle some farm produce (e.g., a few grains of oats), the vehicle is nevertheless not being used for the purpose of its carriage, this particular problem does not arise in the present case where a bag of oats was carried to Albany and sold there. The use of the word "solely" in s. 34 (1) (c) also gives rise to difficulties, but they exist whatever view may be taken of the problem which this case presents.

For the foregoing reasons, I have reached the conclusion that the appellant's round journey falling as it did within the third paragraph of the first schedule and the vehicle being used for no other purpose, the effect of s. 34 (1) (c) was that on that journey the vehicle was exempt from the licensing provisions of the Act and that the information should have been dismissed.

As we had a full hearing, I would grant special leave and allow the appeal and quash the conviction.

The applicant's truck was a commercial goods vehicle for the purposes of the State Transport Co-ordination Act, 1933-1957 W.A.. It thus had to be licensed unless it came within s. 34 (1) (c), which provides that "No license shall be necessary in respect of any commercial goods vehicle which is used solely for any of the purposes mentioned in the First Schedule". The purpose relied upon is that stated in the third paragraph of the schedule. That purpose may be summarized and paraphrased, for present purposes, as the carriage of farm produce from the farm to another place and on the return journey the carriage of domestic or farm requisites of the farmer. This purpose is complementary to the purposes stated in the first and second paragraphs of the schedule. They relate to the carriage of produce and goods between farms and the nearest towns or railway stations: they do not require the carriage of produce on the forward journey and a backloading of goods on the return journey: between farm and nearest town or railway the vehicle may run empty one way. The third paragraph, on the other hand, deals not with journeys between a farm and the nearest town or railway station, but with journeys from a farm to any other place and back to the farm, produce being taken out and domestic or farming requisites brought back.

The Act, as I read it, looks to the character of a vehicle as determined by the uses to which it is put rather than with the way in which it is on a particular occasion being used. It deals with the licensing and exempting from licensing of vehicles of particular characters. It does not exempt vehicles while they are being used in a particular manner: cf. Hawkins v. Edwards [1] . Some of the results of this construction, which seems to me to be the right one, are I appreciate somewhat surprising. It is not an offence to use an unlicensed vehicle on a farm in connexion with the work of the farm. But to take it on a public road is an offence, unless under s. 34 it be exempt from the necessity of a licence (throughout the Act spelt license): and it cannot, as I read the Act, be so exempt if it be used at all on the farm in the ordinary work of the farm: for to be exempt it must always be possible to predicate of it, whether or not it be in actual use, that it is a vehicle that "is used solely for any of the purposes mentioned". I am prepared to read "used solely for any of the purposes mentioned" as meaning used only for any one or more of the purposes mentioned: but I cannot see how, under the words of the Act, a commercial vehicle that is ever used anywhere for any purpose not mentioned can escape the need for a licence. The difficulty is not overcome, but rather enhanced, by the definition in s. 3 of commercial goods vehicles where the word "solely" does not appear. The phrase "is used solely for any of the purposes mentioned" is not equivalent to "is, when operating on a public road, used solely for any of the purposes mentioned".

However, in the present case, the use to which the vehicle was being actually put is known; and it must determine whether or not the vehicle could be said to be one used solely for the purpose mentioned in par. 3 of the schedule. The purpose for which a vehicle is used means, I think, the purpose for which the owner, or other person able to direct the manner of its use, uses it. Here that person was the applicant. His only reason for making the journey to Albany was to bring back a load of superphosphate. That, to my mind, was the purpose of the journey: it was the purpose for which the truck was used that day: the bag of oats was simply taken in the hope that it would enable that purpose to be carried out without a contravention of the law.

The Act can give rise to some probably uncontemplated anomalies. For example, if a farmer's truck were regularly used for the purpose of carrying farm produce to a town (not the nearest town or railway station) on the forward journey and bringing back farm requirements, but on occasions the journey was deliberately made at a particular time so that the farmer's wife might accompany him to go shopping, it would not, it would seem, then be used solely for the permitted purpose: a licence would be needed, and then s. 18 would apply. The principles applicable when rights or privileges depend upon property of any kind being used "solely" or "exclusively" for a particular purpose are well known (see Nunawading Shire v. Adult Deaf and Dumb Society of Victoria [1] ; Sisters of Mercy Property Association v. Newtown and Chilwell Corporation [2] ). To adapt what my brother Kitto said in Lloyd v. Federal Commissioner of Taxation [3] , the word "solely" here prevents a commercial goods vehicle from being used for any purpose, however minor in importance, that is collateral to or independent of the purposes stated in the schedule, as distinguished from being ancillary or incidental to them. Even so, the foreign use might be so very slight or occur so very seldom that even the emphasis given by the word "solely" would not affect the matter: see Parry v. Anglesey Assessment Committee [4] . But we are not to judge the effect of the Act by the anomalies it may create. In the present case the applicant made a substantial use of the truck for a purpose which was not in my view one of those mentioned in the schedule. In my opinion he was properly convicted, as Virtue J. held, and this Court should not interfere.

(1921) 29 C.L.R. 98. 2. (1944) 69 C.L.R. 369. 3. (1955) 93 C.L.R. 645, at p. 671. 4. (1949) 1 K.B. 246.

High Court of Australia Dixon C.J. Fullagar, Kitto, Menzies and Windeyer JJ. Bilney v Western Australian Transport Board [1961] HCA 2

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