Allied Interstate (Q) Pty Ltd v Barnes [1968] HCA 76

High Court of Australia Barwick C.J. McTiernan, Menzies, Windeyer and Owen JJ. Allied Interstate (Q) Pty Ltd v Barnes [1968] HCA 76

ORDER Appeal allowed with costs. Order of the Full Court of the Supreme Court of Queensland set aside and in lieu thereof order that the order nisi for review before that Court be discharged with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Nov. 29 Barwick C.J.

The appellant was charged before a stipendiary magistrate with having used an articulated motor vehicle to carry goods on a public road in Queensland without a permit as required by The State Transport Act of 1960 Q. (the Act). His defence was that the Act did not apply to the carriage on which he was then engaged because he was taking his load from Brisbane to Sydney. Deciding the matter on a balance of probabilities, the magistrate decided that the appellant was so engaged and accordingly dismissed the information laid against him by the respondent. Upon review, the Full Court of the Supreme Court of Queensland by majority set aside this dismissal and returned the matter to the magistrate with a direction to convict the appellant. The appellant now appeals to this Court by its special leave against the order of the Supreme Court.

The terms of the Act and the detail of the facts and circumstances evidenced before the magistrate are fully set out in the reasons for judgment of my brother Owen which I have had the advantage of reading. I have also had the advantage of reading the reasons for judgment prepared by my brother Menzies. I agree with the conclusion which each of their Honours has reached but would wish to add some observations of my own.

Counsel were prepared to discuss the question as to where the onus of proof lay in a case such as the present when a defendant claims that the carriage in respect of which he is charged was an inter-State carriage. However, as it did not appear that that question would necessarily arise the Court did not hear argument on the matter, reserving the parties' rights if a decision on the point should become necessary. As will appear, however, my brothers Menzies and Owen and I are able for our part to dispose of the appeal without expressing any view on that question.