Jackson v Horne

High Court of Australia|1965-07-01|Before: Windeyer JJ

High Court of Australia Barwick C.J. Kitto, Taylor, Menzies and Windeyer JJ. Jackson v Horne [1965] HCA 44

ORDER Appeal allowed with costs. Conviction and orders of the magistrate set aside and in lieu thereof order that the complaint be dismissed.

Appeal from the conviction by a stipendiary magistrate of the appellant of an offence against s. 49 of The State Transport Act of 1960 Q..

Section 2 of the Act requires the Act to be read and construed so as not to exceed the legislative power of the State.

The facts of the matter are few, and were specifically found by the magistrate.

On 14th July 1963 a vehicle driven by one Bennett at Gailes on the Lockyer-Darling Downs Highway was carrying a bulldozer, five drums of distillate, a quantity of stock food and a quantity of groceries. The vehicle was the property of Marathon Transport Pty. Ltd. (Marathon), which has its headquarters at Aramac, Queensland. The appellant's brother, B. G. Jackson, is the managing director of Marathon, and the appellant's wife is both its secretary and the only paid supervisor of its activities at Aramac.

Combined Collection Agency (the Collection Agency) is a registered firm, of which the appellant's brother, B. G. Jackson, and his wife and their two children, for whom B. G. Jackson and his wife are trustees, are the only members.

The appellant conducts the business of the firm, or at least so much of it as involves the making of arrangements for the transport of goods, from the office of Marathon at Aramac. The Collection Agency is engaged in entering into contracts for the carriage of goods, but does not itself carry. Its practice is to let a contract for carriage to other carriers, including Marathon. The appellant is the only paid servant of the firm and, in his capacity as its manager, handles all arrangements for the carriage of goods which it undertakes.

In June 1963 one Cameron of Aramac purchased in Brisbane a bulldozer from Moore Road Machinery Queensland Pty. Ltd. Having purchased it, he made a contract with the Collection Agency, through the appellant, to transport the bulldozer from Brisbane to his property at Aramac. The appellant thereupon made a contract between the firm and Morley Transport Company (Morley) to carry the bulldozer from Moore Road Machinery Queensland Pty. Ltd.'s premises at Brisbane to Tweed Heads where Morley maintained a depot. The bulldozer was carried by Morley in pursuance of this arrangement from Brisbane to Tweed Heads, and placed in its depot there.

At all relevant times the defendant, though having no legal relationship with Marathon, was acting de facto as its manager. In that capacity he gave instructions to the driver Bennett to proceed to Tweed Heads with a vehicle belonging to Marathon to uplift and bring back to Aramac a load of goods from Morley's depot at Tweed Heads. The driver obeyed these instructions and at Tweed Heads loaded the bulldozer from Morley's depot. It does not appear where he obtained the other goods, which were on the vehicle when it was seen by the State Transport Officer at Gailes.

The vehicle was thus proceeding from Tweed Heads to Aramac carrying goods. No permit existed for the carriage of the bulldozer either in the name of any person or in respect of any vehicle.

The appellant was charged that he "did use on a road namely the Lockyer-Darling Downs Highway aforesaid a vehicle to wit a Leyland Towing Unit NOV-251 and Trailer NVB-692 for the carriage of goods such goods not being at that time carried upon that vehicle under and in accordance with a permit " under The State Transport Act of 1960 Q.. This permit is to be "in respect of such vehicle and in the name of such person." On this charge he was convicted. The basis of the conviction was that he was an accessory, falling within the terms of s. 7 of The Criminal Code Q. and thus liable to be charged and punished as if he were a principal. It was held that he had committed or procured the commission of an offence under s. 49 of The State Transport Act.

This could only be made out, in the circumstances of the case, in my opinion, if either Marathon or Bennett committed an offence under that Act in using the vehicle which was driven by Bennett at the relevant time. But if the vehicle was then being driven in the course of an inter-State journey, it could not have been held that it was used in breach of the section; for, because of s. 2 of The State Transport Act and s. 92 of the Constitution, s. 49 does not apply to such a use.

It is beyond doubt, in my opinion, that the vehicle was in the course of an inter-State journey at the relevant time. It was proceeding carrying freight from Tweed Heads to Aramac. It is nothing to the point that some of the goods it carried namely the bulldozer, if its transit from one place to another could be separated from the movement of the vehicle, was itself in reality in transit from Brisbane to Aramac and not, except for its carriage on Marathon's vehicle at this time, itself in the course of inter-State trade. Nor is it of consequence in this case that neither the consignor of the bulldozer nor the Collection Agency was engaged in inter-State trade or commerce. It is plain enough on the facts of the case that the transport of the bulldozer from Brisbane to Tweed Heads and thence to Aramac was undertaken to avoid the necessity of obtaining a permit under The State Transport Act. But the question in the case is not whether the particular arrangements were entered into with intent to achieve that result. The question is whether a State by its statutory provisions may forbid the user, without its permission, of a vehicle in the course of a journey from one State to another.

In this case, there is, in my opinion, no room for the view that Marathon's vehicle was really engaged in one journey from Aramac or some other point in Queensland to Aramac so as to bring the case within any of the decisive reasoning in Harris v. Wagner [1] or in Western Interstate Pty. Ltd. v. Madsen [2] . The vehicle was not engaged in carrying the bulldozer from Aramac to Tweed Heads; it proceeded to Tweed Heads to uplift the load to be carried thence to Aramac.

(1959) 103 C.L.R. 452. 2. (1961) 107 C.L.R. 102.

Clearly, such a movement is protected by s. 92 from any such interference. If the State wishes to prevent persons who are not actually engaged in inter-State commerce avoiding the consequences of its transport legislation, it must find some other way of doing so than by attempting to interfere with the freedom of vehicular movement inter-State.

In my opinion, neither Marathon nor Bennett, even if he "used" the vehicle which he drove, committed an offence against s. 49 of the Transport Act.

However, it is proper that I indicate that, in my view, Bennett could not in any case have been found to have "used" the vehicle on this occasion in question. Where a vehicle is authorizedly driven by an employee or owner of the vehicle and there is no relevant permit in existence, it is, in my opinion, the owner who for the purpose of s. 49 "uses" the vehicle and not the employee who merely drives it under his master's orders. In my opinion, they cannot, in such a case, both be said to have "used" it. Consequently, the appellant was wrongly convicted.

The appeal should be allowed with costs and the conviction quashed.

This appeal is brought under s. 39 (2) (b) of the Judiciary Act 1903-1960 Cth against a conviction under s. 49 of The State Transport Act of 1960 Q. which provides that a person who at any time uses or causes or permits to be used on any road a vehicle for the carriage of goods shall, unless such goods are being at that time carried upon that vehicle under and in accordance with a permit under the Act issued in respect of such vehicle and in the name of such person, be guilty of an offence against the Act.

Since a permit under the Act may be issued or withheld at discretion and is not in any circumstances obtainable as of right (see s. 37, especially its concluding provision), s. 49 must be treated, either by force of s. 2 or in consequence of the direct operation of s. 92 of the Constitution, as having no application in respect of any use of a vehicle which is had, or is caused or permitted to be had, in the course or for the purposes of any trade, commerce or intercourse among the States within the protection of s. 92. The sole ground upon which the appellant resisted the charge below and now appeals against his conviction is that the conduct which was charged against him as an offence related to a use of a vehicle which for this reason fell outside the application of the section.

It is common ground that on the relevant occasion the vehicle in question was used on a road in Queensland for the carriage of a certain tractor, and that no permit in respect of the vehicle was then subsisting. The appellant, though not himself the driver of the vehicle, was charged with having so used it as to be guilty of the offence created by s. 49, the prosecution relying for this result upon the provision in s. 7 of The Criminal Code Q. that when an offence is committed any person who commits or procures any other person to commit the offence is deemed to have taken part in committing the offence and to be guilty of it, and may be charged with actually committing it.

The driver of the vehicle in question, one Bennett, was an employee of the owner, a company called Marathon Transport Pty. Ltd., to which I shall refer as Marathon. Bennett drove the vehicle on the relevant occasion in the course of his employment by Marathon, and the user of the vehicle on that occasion was therefore a user by Marathon: cf. Hall v. Moss [1] ; cf. James & Son Ltd. v. Smee [2] . It was also, in one sense at least, a user by Bennett: cf. Gifford v. Whittaker [3] , though there may well be room for argument that Bennett should not be held to have used the vehicle in the relevant sense in view of the fact that a permit under the Act does not save a person who uses a vehicle from committing an offence under s. 49 unless it is a permit both in respect of the vehicle and in the name of that person, and that s. 39 shows that a permit is obtainable only by the owner of the vehicle or a person who holds in respect of the vehicle a "licence to hire" under Pt III of the Act. But however this may be, it is at least clear that if the use which Marathon made of the vehicle by its servant Bennett was an offence under s. 49, the appellant was rightly convicted as having procured the commission of that offence; for the prosecution proved that it was he, purporting to act as manager of Marathon's business, who personally directed Bennett to carry the tractor on the vehicle on the journey to which the charge related, and that he knew there was not then in existence any permit to use the vehicle for that purpose.

(1947) Q.W.N. 51. 2. [1955] 1 Q.B. 78. 3. [1942] 1 K.B. 501.

Accordingly, unless Marathon's use of its vehicle for the carriage of the tractor was in the course or for a purpose of inter-State trade, it is clear, first, that Marathon itself was guilty of an offence under s. 49 by reason of Bennett's driving the vehicle with the tractor on board on the relevant occasion, and, secondly, that the appellant was rightly convicted of an offence under that section by reason of his having procured that use of the vehicle by Marathon.

The facts to be considered are not in dispute. The appellant was the manager of a business carried on by a firm called Combined Collection Agency in Aramac. The business consisted in obtaining orders for the transportation of goods and procuring fulfilment of the orders by carriers. The firm did not itself transport goods. In the same town a company called Marathon Transport Pty. Ltd. conducted a carrying business. The appellant's wife was the secretary of this company and its only executive officer in Aramac. The appellant himself had no legal connexion with the company. When the Combined Collection Agency had occasion to let a contract to Marathon the appellant sometimes gave the order to his wife as secretary of Marathon, leaving her to give the necessary instructions to one of Marathon's drivers, and sometimes he gave the instructions to a driver directly without troubling to mention the matter to his wife first. In other respects, too, he acted as if he had some authority in Marathon's affairs, and in fact he described himself as its unofficial manager. The order which he received as manager of the Combined Collection Agency with respect to the tractor above referred to was an order from a man named Cameron for the conveyance of the tractor from Brisbane to Aramac. He let two contracts for this purpose, the one to an independent carrier, referred to in the evidence as Morley's Transport, for the carriage of the tractor from Brisbane to Tweed Heads, and the other to Marathon for the carriage of the tractor from Tweed Heads to Aramac. The latter contract he let by the short-cut procedure of himself giving instructions to one of Marathon's drivers, who on this occasion, as I have said, was Bennett.

Morley's Transport conveyed the tractor from Brisbane to a depot at Tweed Heads, and placed it there in storage space which was under lease to the Combined Collection Agency. Bennett loaded it from that space, together with some goods which had not come from Queensland, on to a semi-trailer belonging to Marathon, and drove the semi-trailer to Aramac.

The use thus made of Marathon's vehicle for the carriage of the tractor, if considered by itself, would necessarily be held to have been a use for a purpose of inter-State transportation, which is a form of inter-State trade; and it necessarily follows that so much of that use as took place on a Queensland road, if considered as a part of that use and nothing more, should be held to have been protected by s. 92 from the consequences provided by s. 49 of The State Transport Act. The conviction of the appellant was based, and is now supported by the respondent, upon a view of the facts which may be expressed by saying that the use of the vehicle in conveying the tractor from Tweed Heads to Aramac was characterized not by a single purpose but by two successive purposes, the first being the purpose of completing an excursion into and out of New South Wales, undertaken for no other object than that of attempting to attract the protection of s. 92 for the whole journey from Brisbane to Aramac, and the second being the purpose of completing the purely intra-State operation of conveying the tractor from Brisbane to Aramac. The argument is that the first purpose was accomplished as soon as Marathon's vehicle had crossed the border into Queensland, and that therefore there was no purpose of inter-State trade to be served by the subsequent use of the vehicle on the Queensland road: the only purpose of that subsequent use was a purpose of intra-State trade.

A series of decisions, including Golden v. Hotchkiss [1] , Harris v. Wagner [2] and Western Interstate Pty. Ltd. v. Madsen [3] , has shown how in some cases it is both possible and necessary to distinguish between parts of a journey, holding that though one part is within the protection of s. 92 because it consists of inter-State movement another part is outside the protection because it consists of intra-State movement which is not so connected with the inter-State movement by singleness of purpose that the protection of s. 92 must extend to it in order to be effectual as to the inter-State movement. By reference to the reasoning of these cases the respondent seeks to support his argument here. He contends, and it may be conceded at once, that the appellant's main purpose in arranging for the conveyance of the tractor to Tweed Heads and thence to Aramac was to perform his engagement to Cameron by getting the tractor from Brisbane to Aramac, and that his purpose in having it conveyed into and out of New South Wales was a subsidiary purpose which he engrafted on to the other in the belief that by so doing he would obviate the necessity for a permit under The State Transport Act for the Queensland portion of the conveyance. But while these facts would no doubt be material if the appellant had used, or had procured another to use, a vehicle to carry the tractor from Brisbane to Aramac via Tweed Heads they are not material in the present case, because the charge related to the use of a vehicle by Marathon (or Bennett) in the course of a journey which for Marathon (or Bennett) began at Tweed Heads and not at Brisbane. It is essential to bear in mind that what was alleged against the appellant was only that he procured the commission of an offence by another. The question whether the conduct of that other which was relied upon as constituting the offence procured was or was not a use of a vehicle for a purpose of inter-State trade is necessarily a question which is unaffected by any purpose the appellant may have had. It is one to which no purpose is relevant save the purpose of the actual user at the time of the alleged offence. It is a question as to whether Marathon (or Bennett), in using Marathon's vehicle for the carriage of the tractor from Tweed Heads to Aramac, was pursuing throughout that journey one unseverable purpose, or was really carrying into effect two consecutive purposes, one explaining the journey as far as the Queensland side of the border and the other explaining the journey thence to Aramac.

(1959) 101 C.L.R. 568. 2. (1959) 103 C.L.R. 452. 3. (1961) 107 C.L.R. 102.

To this question there can be but one answer. The vehicle was used throughout the journey for the fulfilment of the contract let to Marathon by the Combined Collection Agency. That purpose admits of no distinction between the use of the vehicle on the Queensland road from the border to Aramac and its use on the New South Wales road from Tweed Heads to the border. There was only one use of the vehicle for the carriage of the tractor, a use which began at Tweed Heads and finished at Aramac. It was a plain example of the use of a vehicle for inter-State transportation, an example even plainer than occurred in Beach v. Wagner [1] and indistinguishable in any material respect from that which gave rise to the decision in Naracoorte Transport Co. Pty. Ltd. v. Butler [2] .

(1959) 101 C.L.R. 604. 2. (1956) 95 C.L.R. 455.

For these reasons I am of opinion that the appellant was wrongly convicted and that the appeal should be allowed.

It is I think clear to the point of demonstration that the conviction of the appellant, by reason of the provisions of s. 7 of The Criminal Code Q., cannot be maintained unless the facts disclose that an offence against s. 49 of The State Transport Act of 1960 Q. was committed by either the owner of the vehicle in question, Marathon Transport Pty. Ltd. or its driver, Bennett. That neither was guilty of any such offence is clearly shown by the reasons of the Chief Justice with which I am in agreement. Accordingly I am of the opinion that the appeal should be upheld.

This is an appeal against a conviction for using a vehicle upon a road in Queensland for the carriage of goods without a permit in contravention of s. 49 of The State Transport Act of 1960 Q.. A number of grounds of appeal were relied upon by the appellant but the only one with which I propose to deal is that involving s. 92 of the Constitution, viz. that by reason of s. 2 of the State Act and s. 92 of the Constitution the provisions of s. 49 did not apply to the use being made of the vehicle when and where the offence was alleged to have been committed because that use was in the course of inter-State trade - being the carriage of goods from Tweed Heads in New South Wales to Aramac in Queensland and nothing more.

The salient facts can be stated shortly. The defendant, as manager of Combined Collection Agency - a firm constituted by B. G. Jackson (the defendant's brother), his wife and children - arranged for one transport company (S. C. Morley's Transport Company - which I shall call "Morley's") to carry goods from Brisbane to that company's depot at Tweed Heads and for another transport company (Marathon Transport Pty. Ltd. - a company of which B. G. Jackson was managing director and the defendant's wife secretary, which I shall call "Marathon") to pick up the goods at Morley's depot at Tweed Heads and carry them to Aramac. It was the use of Marathon's vehicle at Gailes on the Lockyer-Darling Downs Highway in Queensland while carrying the goods from Tweed Heads to Aramac without a permit which was relied upon to establish the offence charged on the footing that the defendant had procured Marathon to use its vehicle in such a way as to constitute an offence under s. 49.

If the use of its vehicle by Marathon in the circumstances stated constituted an offence by that company under s. 49, the defendant could properly be convicted of the offence with which he was charged. The Criminal Code, s. 7. However, I am satisfied that, in using its vehicle as it did, Marathon was using the vehicle exclusively in the course of inter-State trade and that, therefore, by reason of s. 92 of the Constitution and s. 2 of the State Act, s. 49 did not apply to that use of the vehicle.

This is not a case where it is possible to treat Morley's and Marathon as combining in one transport operation, viz. to carry the goods from Brisbane to Aramac by way of Tweed Heads. Morley's contract with the Agency was to carry goods from Brisbane to Tweed Heads (an inter-State journey); Marathon's contract with the Agency was to carry goods from Tweed Heads to Aramac (another inter-State journey); and I can find no way of combining the separate performance of each of these two contracts by Morley's and Marathon respectively so as to amount to the carriage of goods in one transport operation lacking the character of inter-State trade.

It is for this reason that I have come to the conclusion that this appeal must be allowed.

It is said for the respondent that the bulldozer which formed part of the load of the vehicle when it was arrested was there in the course of its movement from a consignor in Brisbane to a consignee at Aramac; and that the sending of it by the consignor for delivery to the consignee was not transformed into a transaction of inter-State trade because it was to reach its intended destination by a detour via Tweed Heads. This is so, and it was virtually conceded to be so by the appellant. But it is beside the point in this case. It is possible, although it is not a necessary inference from the facts proved, that the so-called sub-contract between the firm called Combined Collection Agency and Marathon Transport Pty. Ltd. was more of a formality than a reality, that the firm was little more than a name of convenience, and that Marathon was a puppet in the organization by which the appellant and his brother carried on business. But, if it be the fact, that too is I think beside the point.

This Court has said more than once that the question whether or not a particular activity occurs in the course of inter-State commerce depends upon commercial realities. Colourable transactions that lack commercial reality such as mere "border-hopping" get no protection from s. 92. But I agree entirely with the Chief Justice that it is of no consequence in this case that neither the consignor of the bulldozer nor the members of the firm, Combined Collection Agency, was engaged in inter-State trade and commerce. The only question in this case is whether at the relevant time the vehicle was being used in contravention of the Act. It was being driven from Tweed Heads with goods for delivery at Aramac. This movement of the vehicle was thus plainly inter-State commerce, unless it could be said that it was but an integral part of a larger journey in which the crossing and re-crossing of the border at Tweed Heads was an irrelevant detour. When and where inter-State transit begins and ends is to be decided as a matter of practical reality depending on the facts of each particular case: see e.g. Russell v. Walters [1] , and per Kitto J. in Golden v. Hotchkiss [2] . The question in this case is not whether the carriage of goods within a State is so much a part of or so connected with their carriage to another State that it is within the protection of s. 92. Here the question is whether the use of the vehicle upon a journey from another State was without the protection of s. 92. The argument that it lacked the protection of s. 92 was, as I understood it, based upon the proposition that the purpose for which the vehicle was being used was the carriage of the bulldozer which had been brought to Tweed Heads with the intent only that it should be thence returned to Queensland. But it was not shown that there was, in the relevant sense, a unity, continuity or integration in the carriage of the goods to Tweed Heads by the Morley Transport Company and the use of the Marathon Company's vehicle to carry them from Tweed Heads to Aramac. The offence as charged lay in the use of the vehicle. It was in fact being used to take goods from a place in New South Wales to their final destination which was in Queensland.

(1957) 96 C.L.R. 177, at p. 184. 2. (1959) 101 C.L.R. 568, at p. 597.

On other matters argued I have nothing to add to what the Chief Justice has said.

At a glance

Court

Decision date

Before

Source

Judgment (45 paragraphs)

Parties