Tamar Timber Trading Co Pty Ltd v Pilkington

Tamar Timber Trading Co Pty Ltd v Pilkington - [1968] HCA 15 - HCA 1968 case summary — Zoe

[51]

The appellants' argument failed, I think, to recognize the fundamental point in Grannall v. Marrickville Margarine Pty. Ltd. [1] and Beal v. Marrickville Margarine Pty. Ltd. [2] . The point is that s. 92 decrees freedom, not for every step a person may take with a view or for the purpose of preparing to carry out an example of inter-State trade, but only for a step which itself is in the course of, or for the purpose of actually carrying out, an example of inter-State trade; and that therefore a step which is only a prerequisite of the initiation of such an example is outside the subject matter of the protection. It is inconsistent with the doctrine elaborated in those cases, and it only confuses the issue, to add together all a person's prerequisite steps and all the examples of inter-State trade in which he engages, to treat the whole as his inter-State trade, and then to say that the freedom extends to every act done in the course or for the purposes of that trade. The cases cited show that the trade or commerce referred to in s. 92 is not a general course of conduct, but is a particular act or transaction. They show that it is not right even to add together a particular prerequisite step and the particular example of inter-State trade which the step makes possible and treat the aggregate as an example of inter-State trade. The Court made its point clear by saying that "manufacture or production within, or importation into, the Commonwealth is an essential preliminary condition to trade and commerce between the States in merchandise. But that does not make manufacture, production or importation trade and commerce among the States. It is no reason for extending the freedom which s. 92 confers upon trade and commerce among the States to something which precedes it and is outside the freedom conferred": Grannall's Case [1] . The logic of this proposition applies not only to manufacture, production and importation but also to the carriage of goods to a point where their assembly or treatment may be carried out as an essential preliminary to their being sold for delivery to a buyer in another State, or as an essential preliminary to their being held for shipment to a person in another State as and when he calls for them. The theme of Grannall's Case [2] is that the "freedom to sell and deliver or transport across State borders" is illegitimately enlarged if it is applied to a process of getting goods ready to be sold and delivered or transported across State borders. In my opinion, once the facts of the case are correctly analysed the judgments above mentioned dispose of the appellant's argument.

[75]

However, it is further contended by the appellants that the legislative provision created a situation which made it difficult, or even impossible for the trading company to perform its agreement with the company and that, in the circumstances, they are entitled to invoke the provisions of s. 92. In considering this contention it is important to bear in mind that the legislative provision is not a law "operating in reference to or in consequence of any matter or thing itself forming part of trade, commerce or intercourse among the States" (Wragg v. New South Wales [1] ); it is a law applying generally and indifferently to the transport of commodities within Tasmania and as long as the freedom which was thus restricted does not impair the freedom of the individual "to engage in activities conducted across State boundaries, that is to say the freedom which s. 92 gives to transportation, movement, transfer, interchange and communication between one State and another and to all other forms and variety of inter-State transaction whether by way of commercial dealing or of personal converse or passage", (Grannall's Case [2] ) there can be no question of the infringement of the constitutional provision. In this connexion it should be noticed that by s. 3 of the Acts Interpretation Act 1931 Tas every Act is to be read and construed subject to the legislative powers of the State and so as not to exceed such powers, to the intent that, where any enactment thereof, but for that provision, would be construed as being in excess of such powers, it shall nevertheless be a valid enactment to the extent to which it is not in excess of such powers. It has long been recognized that restrictions on activities imposed by Acts of general application do not infringe the provisions of s. 92 even though such proscribed activities are essential preliminary conditions to trade and commerce between the States. As was said in Grannall's Case [1] : "No doubt goods are the subject matter of the freedom to sell and deliver or transport across State borders and if, by reason of legislative restrictions, goods of a given description do not come into existence and are not imported into Australia, there is to that extent no subject matter. It is of course obvious that without goods there can be no inter-State or any other trade in goods. In that sense manufacture or production within, or importation into, the Commonwealth is an essential preliminary condition to trade and commerce between the States in merchandise. But that does not make manufacture production or importation trade and commerce among the States. It is no reason for extending the freedom which s. 92 confers upon trade and commerce among the States to something which precedes it and is outside the freedom conferred."

[77]

In my view no significant distinction can be made between the present case and the case of Deacon v. Mitchell [2] where the majority of the Court decided that the respondents were not at the time of the offences charged entitled to the protection of s. 92 either on the ground that the relevant acts of transportation were being performed in the course of inter-State trade or on the ground that the restriction was one which, in the circumstances, constituted an impediment to such trade and I adhere to the view which I then expressed. On this latter point I observe that a law of general application which prohibits or restricts an activity which is not, itself, an activity of the character to which s. 92 gives protection does not infringe the provisions of that section. Examples of such laws are those which restrict production of a commodity which it is intended shall be used in inter-State trade (Grannall's Case [3] ) even though the obligation of manufacture for the purposes of inter-State trade is an obligation contractually undertaken (Beal v. Marrickville Margarine Pty. Ltd. [4] ); those which prohibit the importation of articles including those intended for use in inter-State trade (Reg. v. Anderson; Ex parte Ipec-Air Pty. Ltd. [5] ), and those which operate, inter alia, to impose restrictions on the disposal of articles imported from other States (Wragg's Case [1] ). I can see no distinction in principle between these cases and the case where a person in one State purchases timber in that State and transports it to an assembly point where, it is either to be there delivered to a purchaser who intends to use it in the course of inter-State trade, or to be stored or stacked in order that it may be used, from time to time, to fill orders from other States for specific quantities and specifications of dressed timber. It would, of course, be otherwise if it appeared that the law imposing restrictions on the initial transport operated by reference to or in consequence of any matter or thing itself forming part of trade, commerce or intercourse among the States but this is not such a case.

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Judgment (114 paragraphs)

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