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Williams v Sinclair [1967] HCA 4; (1967) 116 CLR 613 (21 March 1967)

CATCHWORDS

HEARING

DECISION

2. It is common ground between the parties that on the occasion to which the charge referred the vehicle identified in the information was a commercial goods vehicle within the meaning assigned to that expression by s. 3 (1) of the Act, and was carrying goods on a public highway in the course of the trade or business of its then owner, a man named Robertson, who held no licence or permit in respect of it. Since the word "operate" is defined by s. 3 (1) to mean, in the case of a vehicle, carry goods for hire or reward or for any consideration or in the course of a trade or business, the facts so far stated necessitate the conclusion that the vehicle operated on a public highway while not authorized by licence or permit so to operate. (at p617)

3. The respondent was not the driver of the vehicle, nor was he the owner of it in the ordinary sense of the word "owner" ; but in order to make out the charge the appellant relied upon a provision in s. 3 (1) of the Act by which the word is given an extended meaning for the purposes of Pt I of the Act. The provision, so far as material, is that in relation to any vehicle which is used for the carriage of goods pursuant to a contract agreement or arrangement for the carriage of such goods by more than one commercial goods vehicle "owner" includes not only every person who is the owner or joint owner or part owner of a commercial goods vehicle, but also every person within certain other descriptions of which one is "any forwarding agent who negotiates makes arranges or is in any way concerned with any such contract agreement or arrangement". By reference to this provision the Court was invited to conclude from certain facts now to be mentioned that at the material time the respondent was the "owner" of Robertson's vehicle. Two propositions were involved : first, that the use of the vehicle for the carriage of the respondent's goods was pursuant to a contract, agreement or arrangement for their carriage not only by that vehicle but by another commercial goods vehicle as well, and secondly that at that time the respondent was a "forwarding agent" who negotiated, made, arranged or was concerned in such a contract, agreement or arrangement. (at p617)

4. The additional facts are these. Some of the goods for the carriage of which the respondent was using the vehicle on the occasion in question were the respondent's, and Robertson was carrying them in execution of a contract which the respondent had made with him for the carriage of those goods from Melbourne in Victoria to Albury in New South Wales. The respondent's overall object was to get the goods to Beechworth and Stanley in Victoria ; but in order to exclude the application of Pt I of the Act by taking advantage of the provision in s. 4 that that Part should not apply to or in respect of any commercial goods vehicle while being used exclusively in the course of inter-State trade, commerce or intercourse he had planned to have the goods taken by Robertson across the border to Albury and then to have them taken by another carrier named Tippins, who had no legal connexion with Robertson, back across the border to Beechworth and Stanley. Accordingly he had entered into an appropriate contract with Tippins, quite separately from the contract with Robertson. By this procedure he hoped to ensure for the use of the vehicles in carrying his goods on the respective journeys the protection of s. 92 of the Constitution of the Commonwealth if not of the provision in s. 4 of the Act that Pt I shall not apply to or in respect of any commercial goods vehicle while being used exclusively in the course of inter-State trade, commerce or intercourse. (at p618)

5. The first question, then, is whether Robertson's vehicle was being used for the carriage of goods pursuant to a contract, agreement or arrangement for the carriage of such goods by more than one commercial goods vehicle. A conclusion that it was being so used could not be reached save by holding that the respondent by making his contract with Robertson and his contract with Tippins made an arrangement (or arrangements) for the carriage of his goods by more than one commercial goods vehicle. Plainly the only arrangement he had with Robertson was for the carriage of the goods simpliciter : there was no stipulation that more than one vehicle should be used. The same is true of the only arrangement he had with Tippins. Although no doubt he expected that Robertson and Tippins would use different vehicles, there was nothing in his contract with either to prevent the one from borrowing the other's vehicle, or to prevent them both from using the one vehicle belonging to someone else. Consequently, even if the two contracts should be considered as together forming, from the respondent's point of view, an arrangement for the carriage of the goods from Melbourne to Beechworth and Stanley, it was not an arrangement for carriage by more than one vehicle. Moreover an application of s. 23 (b) of the Acts Interpretation Act 1958 (Vict.) would not overcome the difficulty, for the two contracts were not arrangements, any more than they were an arrangement, for the carriage of the goods by more than one vehicle. (at p618)

6. Let it be supposed, however, that the two contracts should be considered as a composite arrangement by the respondent - they could not be considered as a composite contract or agreement - for the carriage of the goods by two vehicles. The question then arises, on the definition of "owner", whether the respondent, in making the arrangement, was a forwarding agent. Obviously he was not in the general sense of the expression, but the appellant contends that he must be deemed for present purposes to have been a forwarding agent because s. 3 (1) defines the expression to mean any person who, whether or not he carries on business other than as a forwarding agent, on one or more occasions arranges or offers to arrange the carriage by road of goods. The contention rests upon the view that a consignor who contracts with a carrier for the transportation of goods "arranges" the carriage of the goods with the carrier. In a broad sense this may be said, but the indications are strong that that is not the sense in which the Act uses the word. The very choice of the expression "forwarding agent" to bear the defined meaning leaves little if any room for doubt that the kind of arranging that is referred to is such as an intermediary effects in procuring a carrier for the transportation of goods at the instance of an intending consignor. An example may be found in the case of Jackson v. Horne [1965] HCA 44; ; (1965) 114 CLR 82 , which we may observe, without making too much of the point, had been very recently decided when the definition of "owner" was given its present form by an amending Act. But any doubt there might otherwise have been as to whether "arranges" refers in this context to the action of one who brings consignor and carrier into contractual relationship is surely removed by the expression "offers to arrange" ; for it is a person who desires to act as an intermediary, and not an intending consignor who makes a direct offer to a carrier to engage him for the carriage of his goods, who is properly described as offering to arrange the carriage. It seems quite clear, therefore, that the respondent was not a forwarding agent within the meaning of that expression in the Act, and therefore was not "an owner", let alone "the owner", of Robertson's vehicle when it was found operating on a public highway on the occasion referred to in the charge. (at p619)

7. For these reasons we are of opinion that the decision dismissing the information was right, and accordingly we have no need to consider any of the other questions that were discussed in the course of the case. In particular we find it unnecessary to pass upon the constitutional question which, before the Court of Petty Sessions, brought the matter within federal jurisdiction. (at p619)

8. The appeal must be dismissed. (at p619)

ORDER