McCarter v Brodie [1950] HCA 18

High Court of Australia Latham C.J. Dixon, McTiernan Williams, Webb and Fullagar JJ. McCarter v Brodie [1950] HCA 18

ORDER Appeals dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

June 8 Latham C.J.

The appellants F. C. McCarter and R. A. Gough were convicted on 12th October 1949 of offences against the provisions of the Transport Regulation Act 1933 Vict., s. 45. McCarter was charged for that on 2nd August 1949 at South Merbein in Victoria he was the owner of a commercial goods vehicle which operated on a public highway without the said vehicle being licensed as a commercial goods vehicle under Part II. of the Transport Regulation Act 1933. Gough was charged with driving an unlicensed vehicle in breach of the Act. I deal with the case in relation to the appellant McCarter because no separate consideration is required of the case of Gough. Section 45 of the Act provides, inter alia, that the owner of any commercial goods vehicle which operates on any public highway and is not licensed as such under Part II. of the Act shall be guilty of an offence. It was proved that the appellant was the owner of a commercial goods vehicle, that the vehicle operated on a public highway in Victoria and that it was not licensed under the Act. Accordingly if the Act applied to the appellant he was guilty of the offence charged. The appellant had applied for a licence under the Act and his application had been refused. The Act does not give any person a right to obtain a licence. The issue of licences is within the discretion of the Transport Regulation Board except in certain cases specified in s. 22. The appellant's defence was that on 2nd August his driver Gough was engaged in transporting beer from South Australia through the north-west corner of Victoria to New South Wales. Both McCarter and Gough were therefore engaged in inter-State trade and commerce. They contended that the Act was not valid in its application to such trade and commerce because s. 92 of the Constitution provided that "trade, commerce and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free." The reply to this defence was that the Act had been held to be valid in Riverina Transport Pty. Ltd. v. Victoria [1] . The appellant contends in answer to this reply that the case cited was based upon the decision R. v. Vizzard; Ex parte Hill [2] , and that the authority of both the Riverina Transport Case and of Vizzard's Case has been destroyed by the decision of the Privy Council in the case of The Commonwealth v. The Bank of New South Wales [3] (the Banking Case). That case, it is said, withdraws such approval as was given by the Privy Council to Vizzard's Case in James v. The Commonwealth [4] , and, further, stated principles which destroyed the basis of the decisions in the Riverina Transport Case and Vizzard's Case.