Winton Transport Pty Ltd v Horne [1966] HCA 51

High Court of Australia McTiernan A.C.J. Taylor, Menzies, Windeyer and Owen JJ. Winton Transport Pty Ltd v Horne [1966] HCA 51

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Aug. 26 McTiernan A.C.J.

The appellant appeals from a conviction recorded against it in a Court of Petty Sessions at Brisbane for a breach of s. 49 of The State Transport Act of 1960 Q.. It was alleged in the complaint that on 10th August 1963 on the Lockyer-Darling Downs Highway at Gailes in Queensland the appellant used a vehicle for the carriage of goods in respect of which no permit had been issued pursuant to the above-mentioned section.

The registered office of the appellant is situated at Winton in Queensland. It conducts a carrying business with a fleet of four trucks. On the date alleged one of these trucks was intercepted by a police constable attached to the Queensland Department of Transport. The truck was carrying a load of groceries to be delivered to a store in Winton owned by one Johnston. The groceries were purchased from a Brisbane wholesaler, Thomas Brown & Sons Ltd., and had been transported by another carrying company, J. N. Nicholson's Transport Company Pty. Ltd. (Nicholson) from Brisbane to a place at Tweed Heads in New South Wales. The groceries were off-loaded there and shortly afterwards and at the same place were loaded on to the appellant's truck which was to take them to Winton. The driver of the truck was an employee of the appellant and was acting under instructions from its managing director.

The order for the groceries was posted by Johnston on 7th August 1963 and the consignment instructions which he gave to Thomas Brown & Sons Ltd. were: "To Nicholson's for Winton Transport". After Thomas Brown & Sons Ltd. had received the order they delivered the groceries to Nicholson at that carrier's Brisbane depot and charged Johnston three-quarters per cent of the total invoice costs for delivery. Nicholson charged £2 12s. 6d. per ton for transporting the groceries from Brisbane to Tweed Heads and looked to the appellant for payment. The appellant then charged Johnston, the consignee, £12 per ton for the cartage from Brisbane to Winton. In stating the reasons for his decision, the learned magistrate said: "I find that the J. N. Nicholson's Transport Company Pty. Ltd. was the agent of the defendant company and that the carriage of goods from Brisbane to Tweed Heads cannot be regarded as separate but as part of an operation for the conveyance of goods from Brisbane where the goods originated to Winton where the goods were to be delivered, and that the defendant company paid J. N. Nicholson's Transport for the carriage of goods from Brisbane to Tweed Heads and that such payment was made therefor by the defendant company and not on behalf of the consignee, Mr. Johnston".