Russell v Walters [1957] HCA 21

High Court of Australia Dixon C.J. McTiernan, Webb, Fullagar, Kitto and Taylor JJ. Russell v Walters [1957] HCA 21

ORDER Informations dismissed. Order that the complainant pay the costs of the complaint in this Court, including the costs of removal, and the costs in the court of petty sessions.

Cur. adv. vult.

The Court delivered the following written judgment:—

April 8 Dixon C.J., McTiernan, Webb, Fullagar, Kitto and Taylor JJ.

The defendants, Geoffrey Henry Walters and Brien Michael Richardson, were charged in the Court of Petty Sessions at Launceston with offences against s. 24 (1) II of the Traffic Act 1925-1954 Tas.. The charges arose out of the journey of a motor vehicle from Burnie to Launceston on 14th February 1956. The vehicle was owned by Walters, and was being driven on Walters's business by Richardson, who was an employee of Walters. The defence to each charge was that the vehicle was at the material time being used in the course of, and for the purposes of, inter-State trade, and that s. 24 (1) II of the Traffic Act could not, consistently with s. 92 of the Constitution, be applied to it. A constitutional question being thus raised, the cases were removed into this Court by order made under s. 40 of the Judiciary Act 1903-1955 of the Commonwealth.

The Traffic Act 1925 contains provisions for the licensing of "public vehicles", which differ in detail but not in substance from those provisions of the State Transport Co-ordination Act 1931-1951 N.S.W. which have been held, so far as they purport to apply to vehicles engaged in inter-State trade, to infringe s. 92: see Hughes & Vale Pty. Ltd. v. State of New South Wales [No. 1] [3] . The general effect of the Tasmanian system is explained in Hughes v. State of Tasmania [4] . Section 24 (1) of the Tasmanian Act, so far as material, provides that "no person shall drive or use or cause or permit to be driven or used as a public vehicle any vehicle in or upon any traffic area in or upon which the licence in respect thereof does not authorise it to be so driven or used." Walters was charged with using the vehicle or causing or permitting it to be driven or used, and Richardson was charged with driving it. The vehicle was licensed under the Act for use as a public vehicle in one of the "traffic areas" into which the State of Tasmania is divided by the Act, but on the occasion in question it travelled, during the latter part of its journey, outside that area. Since it was being used exclusively for the carriage of Walters's own goods, it was not being used as a public vehicle within the meaning of the definition of that term in s. 3 of the Traffic Act, but s. 16 of the Transport Act 1938 provides (subject to certain exceptions) that, for the purposes of the Traffic Act, a vehicle shall be deemed to be used as a public vehicle if goods are transported in it for the purposes of sale or in the course of any trade or business. This provision brings Walters's vehicle within the terms of s. 24 (1) II of the Traffic Act, and it seems clear that the only question in each case is whether s. 92 of the Constitution affords an answer to the charge.