CROSS v BARNES TOWING AND SALVAGE (QLD) PTY LTD & ORS [2005] NSWCA 273

CROSS v BARNES TOWING AND SALVAGE (QLD) PTY LTD & ORS [2005] NSWCA 273

The Tow Truck Industry Act 1998 (NSW) does not contravene s92 of the Constitution as it does not impose discriminatory burdens of a protectionist kind on interstate operators; the exemption under reg 69(1) does not apply because 'towing work' commenced in New South Wales when the actual towing started, not when the vehicle left Queensland. The charges against the defendants should not have been dismissed on constitutional grounds.

Parties
Plaintiff: Brian Clarence Cross; First Defendant: Barnes Towing and Salvage (QLD) Pty Ltd; Second Defendant: James Michael Ruff; Third Defendant: John Anthony Dent
Jurisdiction
Australia
Judgment Date
18 August 2005
Procedural Posture
Criminal Appeal / Appeal From Local Court Decision
Outcome
Appeal allowed with costs
Legal Topics
Freedom of Interstate Trade and Commerce, Freedom of Interstate Intercourse, Statutory Interpretation of Tow Truck Industry Regulation, Licensing Requirements for Interstate Tow Truck Operators
Constitutional Law Statutory Interpretation Freedom of Interstate Trade and Commerce Freedom of Interstate Intercourse Statutory Interpretation of Tow Truck Industry Regulation Licensing Requirements for Interstate Tow Truck Operators

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Parties

Brian Clarence Cross

Plaintiff

Barnes Towing and Salvage (QLD) Pty Ltd

First Defendant

James Michael Ruff

Second Defendant

John Anthony Dent

Third Defendant

Procedural Posture

Criminal Appeal / Appeal From Local Court Decision

Legal Issues

  1. 1 Whether the Tow Truck Industry Act 1998 (NSW) contravenes s92 of the Constitution by imposing discriminatory burdens of a protectionist kind on interstate tow truck operators
  2. 2 Proper interpretation of reg 69(1) and 69(2) of the Tow Truck Industry Regulation 1999 (NSW): meaning of 'towing work' and 'starts in this State'

Ratio Decidendi

The Tow Truck Industry Act 1998 (NSW) does not contravene s92 of the Constitution as it does not impose discriminatory burdens of a protectionist kind on interstate operators; the exemption under reg 69(1) does not apply because 'towing work' commenced in New South Wales when the actual towing started, not when the vehicle left Queensland. The charges against the defendants should not have been dismissed on constitutional grounds.

Court Disposition

Appeal allowed with costs

Orders

  • Orders of the Local Court at Lismore dismissing the relevant charges set aside
  • Charges remitted to the Local Court for findings to be made that the offences were proved and for further hearing and determination according to law