Cross v Barnes Towing and Salvage (QLD) Pty Ltd & Ors

[2005] NSWCA 273

NSW Court of Appeal

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Interrogate

Catchwords

1. Constitutional Law (Cth)
2. › Freedom of interstate trade and commerce
3. › Section 92
4. › Whether licensing regime for tow truck operators imposes discriminatory burden of protectionist kind on interstate trade
5. › Whether test for intercourse limb same as trade and commerce limb where intercourse occurs in course of trade or commerce
6. › Commonwealth of Australia Constitution Act, s 92
1. Statutory Interpretation
2. › Tow Truck Industry Regulation 1999 (NSW)
3. › Meaning of 'towing work'
4. › Whether travelling to accident site constitutes 'towing work'
5. › Whether towing work 'starts' in State where contract made or where physical towing commences
6. › Tow Truck Industry Regulation 1999 (NSW), reg 69(1), (2)
1. Criminal Law
2. › Statutory offences
3. › Tow truck industry regulation
4. › Carrying on business as tow truck operator without licence
5. › Whether sending recovery vehicle into NSW and towing vehicle back to Queensland constitutes carrying on business in NSW
6. › Tow Truck Industry Act 1998 (NSW), ss 15, 23(1)(c), 59, 88

Quick Take

Where interstate intercourse occurs in the course of trade or commerce, the applicable test under s 92 of the Constitution is the Cole v Whitfield test of discriminatory burden of a protectionist kind, not the broader test applicable to non-commercial intercourse. A State licensing regime that applies equally to interstate and intrastate operators, with licences readily available and merits review of refusals, does not contravene s 92 absent evidence that the scheme operates in practice to effect discrimination of a protectionist kind. Travelling to an accident site for the purpose of towing is not 'towing work' within the meaning of the Tow Truck Industry Regulation 1999 (NSW), reg 69.