Barry v Stewart [1965] HCA 69

High Court of Australia McTiernan A.C.J. Kitto, Menzies, Windeyer and Owen JJ. Barry v Stewart [1965] HCA 69

ORDER Appeal allowed with costs; order of the Supreme Court of South Australia set aside and in lieu thereof order that the appeal to that Court from the Court of Summary Jurisdiction be allowed with costs and that the conviction and order of the latter Court be set aside and an order of acquittal be substituted therefor.

Cur. adv. vult.

The following written judgments were delivered:—

Dec. 17 McTiernan A.C.J.

In my opinion the appeal should be dismissed.

The appellant asks the Court to make an order setting aside his conviction on a charge of contravening s. 14 of the Road and Railway Transport Act, 1930-1957 of South Australia. The conviction was made by a Court of Summary Jurisdiction of that State. The Supreme Court of that State dismissed an appeal against the conviction.

It was proved at the hearing before the Court of Summary Jurisdiction that on 12th December 1962 the defendant drove a truck belonging to R. S. Jennings on "a controlled route" between Mount Gambier and Adelaide; the truck carried packs of timber consigned by Penola Milling Co. Ltd. from its mill at Penola, a town in South Australia, north of Mount Gambier; the consignees of the timber were in Adelaide; the defendant was employed by Jennings to drive the truck; neither Jennings nor the defendant held a licence satisfying the provisions of s. 14. The Court of Summary Jurisdiction also found that the transportation was not a stage of a journey which was really inter-State commerce. The contested issue was whether the defendant was driving the vehicle in the course and for the purpose of inter-State commerce which commenced at Dartmoor, a town in Victoria, to which the timber had been carried by a carrier named Schleter by his own truck. Schleter gave evidence that on 11th December 1962 he received a message from T. W. Hedditch, the manager of Hedditch & Son Pty. Ltd., which conducted a transport agency, to go to the mill at Penola. The message was, "to pick up a load to take over the border". Schleter said he travelled to the mill by his truck when he received the message. On arrival Schleter loaded the truck with timber. The timber was the same load as that transported by the vehicle which the defendant drove from Mount Gambier to Adelaide on 12th December 1962. The loading of the truck at the mill took three hours. The timber was in packs when put on Schleter's truck. These packs were consigned by the mill to consignees in Adelaide. Consignment notes were prepared at the mill and these were handed to Schleter. When Schleter was about to drive the vehicle away to his destination which Hedditch called a "depot" Schleter sent a message to Jennings at Mount Gambier. Schleter said that the words of the message were "to go over the border to pick it up". This meant that the timber would be unloaded from Schleter's truck to Jennings' truck by a crane which Hedditch kept at his "depot" at Dartmoor and Jennings was to drive his own truck when loaded with the timber to Adelaide. Jennings, in fact, drove it as far as Mount Gambier. He directed the defendant to take over the truck on its arrival at Mount Gambier and drive it to Adelaide and upon arrival there to deliver the packs of timber to their respective consignees. The journey to Adelaide ended on the next day. The defendant did as he was directed. He brought back with him consignment notes which had been taken by Schleter or Jennings from a book of forms of consignment notes prepared by Hedditch and given by him to them to use when either took timber back over the border to Adelaide which the other had taken from the mill at Penola. A sample of Hedditch's consignment note used in connexion with the transportation of the timber in the present case was as follows: