Bell Bros Pty Ltd v Rathbone [1963] HCA 7

High Court of Australia Dixon C.J. McTiernan, Kitto, Taylor, Menzies, Windeyer and Owen JJ. Bell Bros Pty Ltd v Rathbone [1963] HCA 7

ORDER Appeal allowed with costs. Order that the conviction made by the Police Court at Perth on 23rd August 1962 be set aside and in lieu thereof that the complaint be dismissed with £40 costs.

Cur. adv. vult.

The following written judgments were delivered:—

1963, March 29 Dixon C.J.

This is an appeal against a conviction by a Court of Petty Sessions at Perth exercising federal jurisdiction. The respondent is an officer of the Commissioner of Transport who laid a complaint against the appellant Bell Bros. Pty. Ltd., an incorporated company, that being the owner of a public vehicle which was not licensed as such under the State Transport Co-ordination Act, 1933-1961 W.A., but which operated on a road, namely the South West Highway, contrary to the provisions of s. 52 (1) (a) of the Act, is not exempted and was so guilty of an offence. It appeared that on the occasion charged the vehicle was carrying nothing but a load of timber consigned from the timber mill at Nannup of the Kauri Timber Company Ltd. to Melbourne. The journey of the timber was of course by land and sea and the vehicle was the necessary means of carrying the timber over the land in Western Australia to the place of shipment by sea. The shipment by sea would be from Fremantle. In my opinion the carriage by land was portion of a continuous journey of an inter-State character. The evidence that it was of this character appears to me to be conclusive. But it is right to say that the documentation is confused and unsatisfactory. But whichever way the documents are read or regarded it is plain that the timber was consigned by the Kauri Timber Co. Ltd. upon one journey from the Nannup mill to Melbourne and that Bell Bros. Pty. Ltd. were to undertake the land carriage which was necessary to the port of shipment and the vehicle in question was on this occasion engaged in nothing else. It appears to me to follow from Simms v. West [1] and Russell v. Walters [2] that the land carriage came within the protection of s. 92. The State Transport Co-ordination Act W.A. contains (see s. 4) a provision restricting its operation where it might be invalid, as for example under s. 92.