Smith v Capewell
142 CLR 50926 ALR 507
(Judgment by: Stephen J)
Between: Smith
And: Capewell
Judges:
Barwick CJ
Gibbs J
Stephen JMason J
Murphy J
Aickin J
Subject References:
Constitutional Law (Cth)
Judgment date: 4 October 1979
Melbourne
Judgment by:
Stephen J
The respondent, a skin dealer from Charleville in Queensland, in April 1976 visited the premises of a skin-buying firm in Botany, New South Wales, and agreed to sell and deliver to that firm some kangaroo skins. A few days later he delivered the skins to the premises of the Botany buyer. These skins he had obtained in the Charleville district and had processed at his own Charleville works.
He was later charged, under s. 105 (a) of the National Parks and Wildlife Act, 1974 (NSW), with the offence of carrying on at Botany the business of a skin dealer while not being licensed to do so. The information was dismissed by the magistrate upon the ground that the "transaction", that is the sale of the skins, was "an example of direct trade between the two States" which was directly burdened by the provisions of s. 105: since that burden was not merely regulatory his Worship held it to be offensive to s. 92 of the Constitution. Section 105 was accordingly held to have no valid application.
On this appeal only two issues arise: one relating to s. 92, the other concerned with whether the respondent was in any event shown to be carrying on business at Botany as charged. As to the latter there was evidence that he did, in the words of s. 105 (a), "carry on the business of a skin dealer" in Charleville and that his visits to Botany in April 1976 were in the course of that business, as had been an earlier visit by him to Botany in March of that year. His sale and delivery of skins at Botany was no isolated transaction but was a part of his regular activities as a skin dealer, albeit that most of those activities were conducted in Queensland. That being so all the ingredients of the offence charged were made out and the only remaining issue is that concerning s. 92.
It too may be dealt with quite shortly. In my view, the conduct which constituted the offence charged, the sale and delivery of skins to the Botany buyer, was not an instance of interstate trade and does not attract the protection of s. 92. Put another way, the terms of s. 105 have not operated upon any interstate trade of the respondent so as unconstitutionally to burden it and this because that conduct contained no relevant interstate feature. The only interstate flavour lent to the conduct derives from two factors: the respondent's residence in Queensland, where he conducts his principal business activities, and the place of origin of the skins, Queensland. Neither of these factors, whether viewed singly or in combination, suffices to attract to his conduct the protection of s. 92, they do not serve to make the transaction into which he entered one of interstate trade .
The fact that the places of residence or of business of the parties to a sale of goods are in different States does not confer any interstate quality upon their transaction in trade, nor does the fact that the goods which the vendor sells in fact originate in one State and are carried into another State for delivery to the purchaser there. That movement of the goods will itself be an instance of interstate trade but what is here relevant, the carrying on of business by the vendor in New South Wales, constituted by the sale and delivery in the course of his business activities, itself possesses no interstate character. It would be a different matter if the transaction which constituted the offence of carrying on business while unlicensed was one which stipulated that the skins which the vendor was to sell and deliver were to come from Queensland. Had it done so, the transaction would indeed possess an interstate character. But this was no part of the bargain between the parties.
As authority for the foregoing propositions it is enough to cite the early case of W. & A. McArthur Ltd. v. Queensland (1920) 28 CLR 530 , esp at p 559 , and a recent decision which reaffirmed and applied its doctrine: H.C. Sleigh Ltd. v. South Australia (1977) 136 CLR 475 , at pp 495, 507-508 .
In an appropriate case the constitutional protection of the freedom of interstate movement, as an example of interstate trade, may require that the first sale following that movement should itself be the subject of constitutional protection. That cannot be the case here. Interstate movement may be burdened by restrictions or prohibitions upon the subsequent sale of what is moved, but a sale which precedes the interstate movement and does not, by its terms, call for that movement lacks the character of interstate trade and cannot retrospectively acquire the protection of s. 92 simply because delivery of what is sold turns out to involve such movement. A law which validly applies to the sale at the time it is made, because that sale is no part of interstate trade, will not become unconstitutional because the vendor chooses to perform the contract by supplying goods from interstate.
I would allow this appeal.