Western Interstate Pty Ltd v Madsen [1961] HCA 63

High Court of Australia Dixon C.J. McTiernan, Kitto, Taylor and Windeyer JJ. Western Interstate Pty Ltd v Madsen [1961] HCA 63

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Oct. 23 Dixon C.J.

At the Court of Petty Sessions at Ipswich the appellant company was convicted of an offence under s. 23 of The State Transport Facilities Acts, 1946 to 1959 of Queensland. By way of defence to the charge the company relied upon s. 92 of the Constitution of the Commonwealth. The Court of Petty Sessions therefore exercised federal jurisdiction. Accordingly an appeal from the conviction lies directly to this Court as of right: s. 39 (2) (b) of the Judiciary Act 1903-1961 Cth. Hence the present appeal. It is an attempt to support in point of law a carefully devised plan to give to what in its essential commercial purpose was the carriage of goods from one part of Queensland to another the quality of inter-State trade, commerce and intercourse. The defendant company carries on business as carriers of goods. The carriage is done by a fleet of trucks which are housed in a depot in Brisbane. The company was incorporated in New South Wales. Associated with it in business are certain other companies having the same office and depot, in particular Western Transport Pty. Ltd. That company was incorporated in Queensland. Another such company is Maranoa Transport Pty. Ltd. There is an office at Toowoomba, the registered office of Western Transport Pty. Ltd., and there, it is said, all the accounting of the various companies was done, apparently as a function of Maranoa Transport Pty. Ltd. The importance of this central accounting is that, under the plan, collections appear to have been made by various companies that could only have been correctly attributed under some such accounting operation or system. Not the least important place in this case is taken by a company yet to be named, Westraders Pty. Ltd. It is a company incorporated in New South Wales and the suggestion that it is associated under the same control was disclaimed by the chief witness for the defence, the manager of the defendant company. According to him, it was represented by a director named Thaw, at a very small town called Legume in New South Wales just across the Queensland border. The evidence discloses nothing about the formation, capitalization, organization or membership of this company but it is significant that letters addressed to it were by direction delivered into the box at the post office belonging to the defendant company. Thaw evidently conducted a store and cafe by the roadside in this township and at the time when the events occurred upon which the charge against the defendant company rests, Thaw provided a local habitation and a name for Westraders Pty. Ltd. consisting of a deal box nailed to his wall and bearing that name in black stencil. There was an aperture in the box so that papers might be placed in it and removed. A little later this was supplemented by a board on posts at the side of the store bearing a fuller inscription. In his evidence the manager of the defendant company said that after the case in this Court of Harris v. Wagner [1] decided on 27th November 1959, in which, as he said, "our previous method was proved wrong", "a method whereby Western Interstate was permitted to carry goods to New South Wales thereby to make a contract with a New South Wales company was arranged." Westraders Pty. Ltd. was the New South Wales company. Less than three weeks after the decision the manager addressed to Westraders Pty. Ltd. at Legume a letter setting out the arrangement or plan or whatever it may be called. The letter is expressed a little indefinitely but what it amounted to was this: Westraders Pty. Ltd. would or might at its election "charter" from Western Interstate Pty. Ltd. vehicles arriving at Legume for a journey involving the delivery of the goods for the carriage of which the vehicle is "under charter" to Westraders Pty. Ltd. During the "charter" to that company, it was to be a bailee of the vehicle which together with the driver was to be under its control. That company would also have authority to purchase oil and fuel for the journey and effect any necessary repairs at the expense of the defendant company, Western Interstate Pty. Ltd. The letter ended "You must arrange for each vehicle which you elect to charter to display a sign not less than twelve inches by eighteen inches that the vehicle is under charter to you. It will be our responsibility to cause the sign to be removed when the journey is completed and to return the sign to you". After some experiments in pursuance of this last paragraph which drew strong objection from the traffic authorities, it was abandoned.