Holloway v Pilkington [1972] HCA 8

High Court of Australia Barwick C.J. Menzies, Windeyer, Walsh and Gibbs JJ. Holloway v Pilkington [1972] HCA 8

ORDER Appeal allowed with costs. Conviction set aside and complaint dismissed.

The Court delivered the following judgment:—

Feb. 11 Barwick C.J., Menzies, Windeyer, Walsh and Gibbs JJ.

The appellant was convicted, on 3rd November 1971, by a stipendiary magistrate sitting as a Court of Petty Sessions at Burnie, of using, as a public vehicle, a motor vehicle, which was licensed as a cart for Area 6 in which Burnie is situated, in a place in or upon which the licence in respect thereof did not authorize the vehicle to be so used contrary to s. 24 (1) (b) of the Traffic Act 1925 Tas.. The appellant defended the charge against him on the ground that because the said vehicle was being used by him at the time and place detailed in the charge in the course of inter-State trade and commerce, the said section of the Traffic Act did not apply to that use.

The appellant established that he was the appointed agent for T.N.T.—an abbreviation for T.N.T. Vic.-Tas. Pty. Ltd. of 654 Footscray Road, West Melbourne—for transport and storage of goods mainly to and from Burnie wharf and to and from Devonport wharf: that T.N.T. was engaged in transport of goods to and from the Australian mainland from and to various parts of Tasmania: that T.N.T. had instructed him to uplift two shipments of refrigeration plant and equipment from ships arriving from Melbourne at Burnie and to deliver that plant and equipment to its destination, i.e. Stanley Cool Stores at Stanley. This instruction was contained in what is termed in the evidence "a manifest", prepared in Melbourne by T.N.T. and transmitted to the appellant in Burnie.

The appellant did uplift each of these shipments, part of which arrived in a container. The arrival of the two ships was separated by a couple of days. The appellant was instructed to deliver the whole of the shipment at Stanley by midday on a specified date as men to install the plant and equipment were to arrive from Melbourne that day from the suppliers of the plant and equipment. The appellant carried out these instructions, several vehicles of the appellant being used to do so.