High Court of Australia
High Court of Australia Dixon C.J. McTiernan, Webb, Fullagar, Kitto and Taylor JJ. Kerr v Pelly [1957] HCA 42
ORDER Appeal allowed with costs. Conviction of the defendant-appellant quashed.
Cur. adv. vult.
The following written judgments were delivered:
July 2 Dixon C.J., Fullagar, Kitto and Taylor JJ.
This is an appeal by the defendant from a conviction by a magistrate exercising federal jurisdiction. The offence of which the defendant was convicted is that created by cl. 11 of Ordinance 30C adopted by the Governor in Council under the power conferred by s. 51 of the Main Roads Act 1924-1950, aided by ss. 575-579 of the Local Government Act 1919, as amended.
Clause 11 of the ordinance provides that a driver or person in charge of any vehicle shall, when called upon by any one of certain officers, proceed to a weighbridge or other weighing device and permit the inspection and weighing of such vehicle and any goods therein or thereon. The provision extends to obeying signals to stop and certain other directions.
The facts constituting an offence under cl. 11 were established against the defendant but his answer was that he was engaged in inter-State trade commerce and intercourse and was therefore outside the scope of the regulation. It is not necessary to consider this contention in detail. It is enough to say that the argument by which it was supported fell into two parts. One part dwelt upon the possibility of the abuse of the power given by cl. 11 by frequent directions at various points on an inter-State journey which would in the aggregate constitute a serious impairment of the inter-State transaction. To this particular argument it is enough to say that if such a use of the power were made in any given case it would amount to an interference with trade commerce and intercourse which would be void; but the possibility of an attempt being made to use the authority conferred by cl. 11 for such a purpose does not itself invalidate the authority: see Wilcox Mofflin Ltd. v. State of New South Wales [1] .
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