IXL Timbers Pty Ltd v Attorney-General

The matter comes before me in an unusual and, as I now think, somewhat unsatisfactory way. In January 1961 it was set down as an action for trial in Hobart; and on 21st February 1961 I heard the evidence. At the request of the parties I agreed to state a case for the opinion of the Full Court. The parties were to bring in for my approval a draft case stating facts which were not in dispute and leaving it to me to make any necessary findings in relation to relevant matters of fact on which the parties were not agreed. However, for one reason and another, nothing further was done in the matter until September 1962. The parties then brought in a draft case. But it was not altogether satisfactory in form. I thought that, in the circumstances, the better course was that I complete the hearing of the case and give a decision.

It was accepted by the defendant as a general proposition - as in view of the decisions of this Court it had to be - that the requirements of the Tasmanian transport legislation concerning out-of-area permits are not applicable to transactions of inter-State trade. The only question that can now arise is whether a person engaged in a particular transaction has, in relation to it, the immunity from the operation of the State law that s. 92 gives. That is the question in this case. When I entered upon the hearing of this matter I did not appreciate, although there is a reference to the matter in the pleadings, that before this action was commenced a prosecution had in fact been instituted in a court of Petty Sessions in Tasmania against the plaintiff Littlejohn, but adjourned by the magistrate sine die to enable this action to be commenced. It would have been better if that matter had come on before the magistrate; and brought to this Court on appeal in the event of a conviction. However, this case being before me, I heard it. I reserved my decision pending the delivery by the Full Court of judgments then reserved in two cases: Britton Bros. Pty. Ltd. v. Atkins [1] ; and Bell Bros. Pty. Ltd. v. Rathbone [2] . These judgments have now been given.

1. (1963) 108 C.L.R. 529. 2. (1963) 109 C.L.R. 225.

The relevant provisions of the Tasmanian legislation dealing with out-of-area permits for the carriage of goods are set out in the judgments of the Court in other cases. I need not repeat them here. The essential facts of this case are not in dispute. The company, which carries on its business of timber merchant from Hobart has two timber mills near Diddleum Plains in northern Tasmania, one called the Camden mill, the other the Diddleum Plains mill. Both are situate in Zone 3 as defined by the traffic legislation. Launceston is also in Zone 3. Hobart is in Zone 1. An out-of-area permit would, therefore, ordinarily be required for the road transport of timber from either of the two northern mills to Hobart. The plaintiff Littlejohn, is by occupation a carrier, owning and driving his own vehicle which was licensed in respect of Zone 3. For some years before 1957 he was regularly employed as a private carrier, by the company, to carry timber from its mills to Launceston, some of it for shipment from Launceston, some of it for final delivery there. During the years 1953 to 1957 the company was almost his only customer, and he did little else than carry timber. On some occasions he brought back from Launceston to the company's mills other goods such as diesel fuel as "back-loading". And on a few occasions he carried as "back-loading" some goods for other persons. The amounts he was paid for work done over the period for persons other than the company were however less, indeed much less, than one per cent of the total amount he received. He was paid by the company five shillings per 100 super feet of timber carried from the mills to Launceston. For all practical purposes he was thus at all relevant times fully occupied in working in northern Tasmania for the company as its carrier.

In October 1957 the company received orders from a buyer in Western Australia for a total quantity of 10,000 super feet of myrtle timber, to be shipped if possible by the vessel "Beltana" from Hobart. In part fulfilment of this order the company decided to send 4,134 super feet of myrtle timber that it then had stacked at its Camden mill. It arranged with Littlejohn that he should take it from the mill to the wharf at Hobart for shipment. This arrangement was made orally with Littlejohn by the acting manager of the company. The effect of the conversation was that Littlejohn was asked what he would charge to carry the timber to Hobart for loading there. He said that he would quote a price, but that if an out-of-area permit was required then the fee for obtaining it must be paid by the company. The acting manager said that, in his opinion, no permit was necessary as the timber was being sent to Western Australia, but that if one were required the company would bear the cost of it. Littlejohn later told the acting manager that his charge for carrying timber to Hobart would be sixteen shillings per hundred super feet. This was accepted by the company. Thereupon, on 15th October 1957 Littlejohn loaded the timber on to his lorry at the Camden mill and took it to the wharf at Hobart and there he helped to package it for shipment as he had been instructed to do. It was loaded on to the "Beltana" and carried in that vessel to Fremantle pursuant to a bill of lading issued to the company as consignor. Littlejohn had no out-of-area permit for his journey to Hobart.

It seems to me to be beyond doubt that, from the point of view of the company, the carriage of the timber by land to Hobart, its loading there and carriage by sea to Fremantle were one continuous operation of inter-State trade. Of course it is possible to treat any journey as composed of any number of shorter stages, as indeed it is possible to regard any whole as made up of parts. And when one stage of a journey is performed on land by a lorry and another by sea in a ship, they can easily be seen as separate episodes rather than as parts of a whole. But s. 92 is concerned with the practical realities of trade and commerce, not with philosophical divisions of a whole into its parts. "The question of when and where inter-State transit begins and ends is a question to be decided not upon the terms of a contract but as a matter of practical reality depending on the facts of each particular case": Russell v. Walters [1] This timber was being sent by the company from its mill at Camden to a consignee in Fremantle in the course of the company's trade. But, said the defendant, although this would entitle the company to the benefit of s. 92, it does not avail Littlejohn: the timber was being carried to Hobart by him not by the company: the obligation to obtain an out-of-area permit was an obligation cast by Tasmanian law on him as the registered owner and user of the vehicle: he was not a servant of the company: the need for him to have a permit was not removed because the company had engaged him to carry out part of its inter-State transaction: had he been the company's servant the case would have been different. That was the defendant's argument. But I do not think that, in cases of this kind, the critical question is whether the carrier is, in law, a servant or an independent contractor. That distinction is important for the purpose of determining vicarious liability in tort. It does not of itself determine whether the activity of an agent, using that term in its most comprehensive sense, is sufficiently involved in and identified with the inter-State transaction of his principal to attract the protection of s. 92. I have stated my view on this in Bell Bros. Pty. Ltd. v. Rathbone [2] . I accept the argument that to have the immunity from interference that s. 92 gives, the person claiming it must either be engaged in inter-State trade on his own behalf or so acting on behalf of a principal that he is his principal's alter ego, his activities being identified, in a business sense, with his principal's inter-State trade. Whether or not this is so does not depend on classifying the agent according to categories that English law has made for a different purpose. The question, it seems to me, turns rather on agency as involving a concept of representation. It seems appropriate to quote Holmes J. who, speaking of the development of the concept of agency, said: "The next step is simply that others not servants in a general sense may be treated as if servants in a particular connexion. This is the progress of ideas as shown us by history; and this is what is meant by saying that the characteristic feature which justifies agency as a title of the law is the absorption pro hac vice of the agent's legal individuality in that of his principal": The Common Law, p. 233. As to the general notions involved, and the difficulties that arise from varying uses of the word "agent", see Colonial Mutual Life Assurance Society Ltd. v. Producers & Citizens' Co-operative Assurance Company of Australia Ltd. [1] , per Dixon J. [2] . The legal character of the relationship between the company and Littlejohn is, I think, less important in this case than the task Littlejohn was performing for the company. He was employed to take the timber to the wharf at Hobart and there to assist in having it put aboard the "Beltana". That was the purpose, and the sole purpose, of his journey. Consistently with the decisions of this Court, he could not be required to obtain a permit to do this.

1. (1957) 96 C.L.R. 177, at p. 184. 2. (1963) 109 C.L.R., at pp. 239, 240. 3. (1931) 46 C.L.R. 41. 4. (1931) 46 C.L.R., at pp. 48-50.

I do not think that a declaration in general terms should be made as asked in either the writ or the statement of claim. Cases of this kind much depend upon their particular facts and circumstances. The declaration I make is that: By reason of s. 92 of the Commonwealth Constitution, the plaintiff Athol Littlejohn could not lawfully be required to have a permit under s. 20 (2) of the Traffic Act 1925 of the State of Tasmania to use his vehicle to carry the timber he in fact carried from Camden in Tasmania to Hobart in Tasmania on 15th October 1957. The defendant must pay the plaintiffs' costs.