APS Group (Transport) Pty Ltd v Glen Cameron Nominees Pty Ltd (Civil) - [2015] VMC 37

IN THE MAGISTRATES’ COURT OF VICTORIA
AT MELBOURNE  E12303089
BETWEEN:
APS GROUP (TRANSPORT) PTY LTD               Plaintiffs
-and-
GLEN CAMERON NOMINEES PTY LTD               Defendants

MAGISTRATE:               GINNANE
WHERE HEARD:   MELBOURNE
DATE OF HEARING:              31 MARCH & 1 APRIL 2015
DATE OF DECISION:               30 NOVEMBER 2015
CASE MAY BE CITED AS:   APS GROUP (TRANSPORT) PTY LTD v GLEN CAMERON
NOMINEES PTY LTD

MEDIUM NEUTRAL CITATION: [2015] VMC 037

Catchwords: claim by plaintiffs for unpaid invoices for supply of labour under a ‘Supplier Agreement’ – counterclaim for damages to defendants’ prime mover by driver supplied by plaintiffs – whether plaintiffs liable for loss and damage occasioned to defendants’ truck - whether breach of agreement for the provision of ‘services’ under agreement - identification of meaning of agreement for the provision of ‘Services’ - Australian Consumer Law - whether plaintiffs breached ACL by failing to render the services under the agreement with due care and skill – whether defendants a consumer – aggregation of sums greater than $40,000 - whether agreement excluded under s 63 (a) of the ACL
REASONS FOR DECISION
APPEARANCES  COUNSEL   SOLICTORS
For the Plaintiffs/Defendants                 Mr McAloon  CIE Legal
by Counterclaim
For the Defendants/  Mr A Donald  Hunt & Hunt
Plaintiffs by Counterclaim
HIS HONOUR:
Introduction

The plaintiffs and defendants are in dispute. The proceeding is disarmingly simple but in fact raises an interesting issue of construction of a labour supply agreement entered into between them. The plaintiff companies are subsidiaries of APS Group (Holdings) Pty Ltd who I will refer to in these as ‘APS’. APS, inter alia, provides temporary labour services. The defendant companies are involved in the logistics and transportation operations and provides their services to numerous companies such as Coles. In these reasons I will refer to the defendants as ‘Camerons’.

The Statement of Claim

APS filed a Complaint and Statement of Claim dated 14 July 2014 against Camerons. It is not disputed that APS and Camerons entered an agreement for the provision of temporary labour by APS to Camerons. APS sues for the recovery of the amount of unpaid invoices for the provision of labour. A defence was filed by Camerons dated 8 August 2014. Camerons admit that the invoices remain unpaid. A counterclaim was lodged dated 7 August 2014 and subsequently amended on 8 September 2014 and again on 23 March 2015.

Counterclaim

The Second Further Amended Counterclaim (referred to in my reasons as the ‘counterclaim’) seeks to set off the extent of its loss against the unpaid invoices for the supply of labour and it pleads a number of conditions that Camerons say governed the agreement entered between it and APS. I summarize them as follows[1]:
[1] Paragraph 2 Counterclaim dated 7 August 2014
(a)   that APS was required to ensure that:
(i)the services under the Supplier Agreement were provided to the highest practical standard at all times (clause 7 (a))
(ii)All drivers supplied by APS to Camerons:
(i)     Obeyed all reasonable instructions given to them by Camerons (clause 12);
(ii) Carried out their duties and behaved in such a way as to cause no unreasonable or unnecessary disruption to the routines and procedures of Camerons (clause 13)
(b)   That APS would be liable for and would indemnify Camerons against any liability, loss , damages or expense (including legal costs on a full indemnity basis) incurred or suffered as a direct or indirect result of any of the following:
(i)     the provision of the services under the Supplier Agreement (clause 2.8(a));
(ii) any negligence or other wrongful act or omission of APS or their staff or drivers or any other person for whose acts or omissions APS were vicariously liable (clause 2.8(b))
(iii) any breach of the Supplier Agreement by APS (clause 2.8(e))
The counterclaim next recites that on or about 28 January 2014 in accordance with its Agreement with APS, it was supplied with a driver to undertake deliveries for it while using one of its Prime Movers and Trailer vehicles.
The driver was instructed by Camerons to make deliveries at the Coles supermarkets located at Kilmore and Wallan in Victoria.
Camerons allege that in breach of the Supplier Agreement APS failed to ensure that:
(a)   the Services were performed to the highest practical standard;
(b)   that the driver obeyed Camerons instructions and that the driver carried out his duties; and
(c)    that the driver behaved in such a manner as to cause no unreasonable or unnecessary disruption to the routines and procedures of Camerons.
Camerons furnished the following Particulars[2]:
[2] Counterclaim
The driver failed to make his scheduled delivery at Wallan and drove the vehicle to Broadford without the first defendant’s authority. The driver then returned to Kilmore where he made his scheduled delivery before seeking to drive the vehicle to his home in Melton without the first defendant’s authority. At approximately 8.00 am the driver drove the vehicle off the Wallan/Romsey Road and into a fence and tree because he was adjusting the radio and was not paying attention to the roadway.
Camerons claim that as a result of the breach by APS of the Supplier Agreement they suffered loss and damage comprising:
·the costs of repair to the vehicle in the amount of $77,019.16;
·the repair to a trailer including towing costs of $22,250.70;
·Hire costs of a replacement vehicle of $1,980.
Camerons’ counterclaim is pursued on an alternative ground that the driver was acting in the course of and within the scope of his employment with APS when he drove off the Wallan/Romsey road and collided with a fence and a tree.
Camerons contend that the collision was caused by the driver’s negligence by:
(a)failing to keep any or any proper lookout;
(b)failing to keep the vehicle under any or any proper control;
(c)failing to apply the brakes in time to avoid the collision or at all;
(d)failing to steer or control the vehicle so as to avoid the collision; and
(e)by adjusting the radio without having any or any proper regard to the road conditions.
Camerons allege that it was a term of the Supplier Agreement that APS would indemnify it against such loss.
Furthermore, the counterclaim presses an allegation of a breach of the Australian Consumer Law (‘the ACL’). Camerons say that the services supplied by the APS to it were in trade or commerce and that it was a ‘consumer’ within the meaning of s 3 of the ACL.
Camerons rely upon s 60 of the ACL for the imposition of a statutory guarantee that such services as were furnished to it by APS under the agreement would be rendered with due care and skill. They allege that the services provided by APS failed to comply with the statutory guarantee. The measure of damages is the same as claimed for breach of agreement.

The APS Defence to Counterclaim

APS contests a number of the allegations relied on by Camerons in its counterclaim. APS says that there was a term of the Agreement with Camerons that it would provide it with an indemnity for any damage to property or motor vehicles, excepting damage caused by any collision with a bridge, tunnel or like, real or personal, but limited to a maximum of $1,000 per occurrence (‘the Liability Cap’).
Furthermore, in relation to the ACL claim, APS says that[3]:
[3] Paragraph 13 of the Defence to Second Further Counterclaim
(a) by reason of the operation of s 63 (a) of the ACL, Subdivision B of Division 1 of Part 3-2 of the ACL, the statutory guarantee provided for by s 60 did not apply to the provision of services by APS to Camerons as the Supplier Agreement was in relation to the transportation of goods for the purposes of the business carried on by the person for whom the goods were transported; and
(b) if a guarantee arose pursuant to s. 60 of the ACL that the services supplied by APS to Camerons would be rendered with due care and skill (which it denied) then:
(i) APS guaranteed that it would render the service of selecting and assigning to Camerons a qualified and reasonably competent driver with due care and skill (‘the statutory guarantee’);
(ii) APS did not guarantee that the driving undertaken by the driver assigned by APS to Camerons would be performed with due care and skill; and
(iii) APS did not breach the statutory guarantee alleged in relation to selection and assignment of the driver, including in circumstances where:
(a)at all material times APS implemented a quality assured recruitment process that served to ensure that applicants selected for employment by APS for placement by APS with their clients (including Camerons) had the appropriate skills, competencies, Occupational Health & Safety attitude and licenses and were able to successfully complete the plaintiffs testing requirements;
(b)APS did not recruit the driver or assign the driver to Camerons until the APS Selection Process had been undertaken in connection with the driver the driver had satisfied all requirements arising under the APS Selection Processes; and
(c)prior to the driver being assigned by APS to Camerons, he had been otherwise assessed by Camerons including by completing Camerons own ‘in cab assessment’ process on 4 September 2013 and had been approved by Camerons as qualified and reasonably competent for its purposes.

Matters not in dispute

Pursuant to a Notice to Admit the following matters are not contested:
(i) On 28 January 2014 the driver drove a Prime Mover and trailer owned by the Camron’s off the Wallan-Romsey Road, in Victoria.
(ii) As at the date of the accident, the driver was an employee of APS.
(iii) The accident occurred in clear and sunny conditions.
(iv) There was no other vehicle involved in the accident.
(v) Immediately before the accident, the driver was adjusting a control on the radio of the prime mover.
(vi) The cost of repair of the prime mover was $77,019.16, the cost of repair of the trailer (including towing) was $22,250.70 and the cost of hiring a vehicle to replace the prime mover and trailer whilst being repaired was $1,980.00

The oral evidence

Mr Glen Mr Rohan (‘Mr Rohan’) testified. He is the Human Resources and Industrial Relations Manager of Camerons. He has occupied this position for 9 years. He described the business of Camerons as a logistics and transport company that it outsources its labour requirements to companies such as APS.
Mr Rohan said that the commercial relationship between Camerons and APS commenced in about April 2009. He said that his dealings were with Ben Mr Matthews (‘Mr Matthews’), the Chief Executive Officer of APS. From about 2009, and for a number of years to follow, the commercial relationship between the parties was loosely regulated.
In terms of documentation that informed the parties dealings from 2009 Mr Rohan was directed to a written document called ‘Labour Management Proposal’ (‘the Proposal’) prepared for him by Mr Matthews. Mr Rohan agreed that it was after the Proposal was provided to him in 2009 that APS started supplying Camerons with labour. The Proposal contained a “RATES SCHEDULE[4]” expressed as follows:
[4] Page 21
The charge rates Include, Casual Loading, Superannuation Workers Compensation, Payroll Tax and APS margin. All rates are exclusive of GST.
·APS are pleased to offer Glen Cameron coverage of up to $1000 to cover the excess for any damage caused by an ‘At Fault’ accident for any APS casual.
·APS are pleased to allow Glen Cameron to take any APS casual onto a permanent arrangement with Glen Cameron after they have served 500 hours.
The indemnity expressed in the Proposal was limited to a payment up to of a maximum sum of $1,000 for an ‘At Fault’ incident. The expression ‘At Fault’ was not defined in the Proposal. The Proposal was not expressed in terms of an agreement that required execution by the parties.
Mr Rohan said the indemnity expressed in the Proposal only applied ‘until the new agreement was signed’. What I understood him to mean was that the extent of the indemnity only applied until the ‘new agreement was signed’.

The New Agreement

Mr Rohan’s evidence was that he sent an email to Mr Matthews dated 19 July 2009, that read, ‘Please see T & C’s with some highlighted changes”. The attached pages to the email comprised extracts of a ‘Supplier Agreement for Glen Cameron Nominees Pty Ltd and Cameron Interstate Pty Ltd hereafter named GCG’ (‘the Supplier Agreement’). The attachment included amendments made to the terms and conditions of the Supplier Agreement by Mr Rohan. Mr Rohan testified that the changes he made included both additions and deletions. The email of 19 July 2009 from Mr Rohan attaching the Supplier Agreement contained highlighted alterations and read:
‘The big issue is overhead strikes into bridges and buildings where our tier 1[5] suppliers will cover the total cost.’
[5] A tier 1 supplier status meant ‘preferred status’
Following the sending of the 19 July 2009 email a further period of time elapsed. By email dated 1 September 2009, Mr Matthews wrote to Mr Rohan:
‘Hi Glenn,
I have just been reviewing Glen Cameron file and noticed that everything is signed except the terms of business. If you could sign the attached terms of business and fax them through that would be great’.
Mr Rohan responded by email dated 2 September 2009 :
‘Hi Ben, I had a quick look at the Terms of Business and we will need to change several clauses. Unfortunately I will be having fairly major surgery on Monday and are trying to clean things up before I go. If I can get to it I will, otherwise I will be working from home for a period prior to returning full time in about 4 weeks’.
The document was eventually agreed by the parties and was executed by them in January 2014.
I am satisfied that in the period from 2009 to January 2014, labour hire staff was supplied to Camerons to APS and their relationship was governed by the ‘Labour Management Proposal’.

Evidence of the negotiations of the Supplier Agreement

27.Prior to the execution of the Supplier Agreement in January 2014 Mr Rohan said that he had discussions with Mr Matthews about the highlights and changes he had made to the standard terms and conditions of the APS agreement. He recalled two conversations, one of which took place in December 2013 at ‘Nelsons’ restaurant Wantirna and the other at his office. He said that the operation of clause 2.8 of the Supplier Agreement was discussed at one of the two meetings. He said that he and Mr Matthews ‘discussed the whole of the clause’. According to Mr Rohan, Mr Matthews said that as far as the change required to sub-clause 2.8 (c) to provide unlimited indemnity for damage caused by collision with bridges and tunnels was concerned, this was something on which he needed to seek advice.

Mr Rohan testified that in addition to the indemnity required and reflected in sub-clause 2.8 (c) he told Mr Matthews that he regarded any ‘gross negligence would be covered by clause (b) and Ben understood that. Ben made no comment’. Mr Rohan testified that in relation to sub-clause (b) he said that ‘where their employees, casuals, agency contractors were guilty of gross negligence that clause would be relied on.’ Elsewhere in his evidence in chief Mr Rohan corrected himself, and characterised sub-clause 2.8 (b) as covering damage caused by ‘gross misconduct’. He said, ‘Gross misconduct – sorry I should have included that too’. He said that he told Mr Matthews that if there was any gross negligence or gross misconduct then it would be clause 2.8 (b) that would prevail and not clause 2.8 (c).
As regards clause 2.8 (c) Mr Rohan said that bridge and tunnels strikes had been an issue and that Camerons wanted ‘total overage’.

30.Mr Rohan did not believe that the cap of $1,000 was discussed at that meeting. Mr Rohan said that there was no further discussion about allocation of responsibility under the Supplier Agreement and that it was executed by him on 28 January 2014 and Mr Matthews on 16 January 2014[6].
[6] Exhibit D1

Mr Rohan was cross examined. He agreed that Camerons outsourced its labour requirements to fulfil contracts with parties such as Coles.
The trucks driven by APS employees and used for deliveries by Camerons were decked out in the get up and logo of Camerons.
Mr Rohan was asked about the ‘Labour Management Proposal Agreement’ that had been presented to him by Mr Matthews. He said that if the document identified in court documents was not the actual document he was provided with by Mr Matthews in 2009, then it was a very similar and he agreed that it was shortly after its provision to him that labour commenced to be supplied to Camerons by APS. He agreed that the cost of labour supplied by APS to Camerons was charged at an hourly rate.
Mr Rohan accepted that there had been occasions when APS employees had been involved in accidents following which Camerons invoiced APS however an amount no greater than $1,000 was paid out by APS. A table of incidents for the period November 2011 until May 2014 was prepared by APS to corroborate that APS paid out no amount above the $1,000 cap. Mr Rohan agreed but then said that the $1,000 cap ‘only applied until the New Agreement was signed’.
A contest arose in connection with the circumstances and payment made to Camerons by APS for an accident involving an APS employee driver named Singh that occurred on or about 5 October 2013 and whether or not in relation to damages that exceeded $1,000 APS paid more than $1,000.
Mr Donald referred to the timeline of the drafting of the terms of the Supplier Agreement that occurred in about July 2012, and conversations between Messrs Rohan and Matthews that occurred toward end of 2013, such that he submitted that the Singh invoice is very telling. The controversy occurred at or about the same period of time as Mr Rohan testified that he was advocating for a full indemnity. Mr Donald submitted that the remittance credit document is as consistent if not more so as evidence of a credit to the advantage of Camerons and not APS.
I do not regard that interpretation as consistent with the evidence, which is that aside from the Singh issue, the balance of the history of incidents is that no more than $1,000 was paid out by APS. Mr Donald submitted that it would be unsafe to make much of those facts in the absence of evidence whether such other claims involved gross negligence or misconduct. That submission by Mr Donald is predicated on the basis that such distinction was in the thinking of the parties. I am not satisfied that it was. Rather I am satisfied that whilst Camerons sought the full recovery of the damage sustained as a result of the Singh accident because it considered that ‘the APS driver was reckless and negligent in the extreme in this instance[7]’, APS relied upon the Agreement for the extent of its liability. I am satisfied that in the period both prior to and following the signing of the Supplier Agreement, Camerons issued invoices to APS on a number of occasions in which a driver supplied by APS was involved in an accident or collision that resulted in damage to a vehicle or other property of Camerons and in each case APS ultimately paid out no more than $1000.
[7] Camerons invoice dated 17/11/2013 for $2,340.86

The inclusions and deletions to the Supplier Agreement

Mr Rohan said that on receipt of the Supplier Agreement from Mr Matthews he returned it to Mr Matthews with his required changes.
Mr Rohan for example at clause 2.8 (c) made a change that Cameron’s liability would be up to a maximum of $1,000 for ‘any damage to property or motor vehicles’. He agreed that this language was similar to the language contained in the APS ‘Labour Management Proposal’ of 2009, however, it made no allowance or provided indemnity in relation to bridge or tunnel strike, that being a matter of importance as far as the negotiations of the Supplier Agreement was concerned.

The centrality of importance of the provision of unlimited indemnity for damage occasioned by bridge or tunnel strike was reflected in, for example, Mr Rohan’s email to Mr Matthews of 19 July 2012 when he wrote that the ‘big issue is overhead strikes into bridges and buildings where out tier 1 suppliers will cover the total cost’. Mr Rohan adhered to his position in cross-examination however that clause 2.8(b) was equally important to Camerons although he conceded that his email of 19 July 2012 was silent as to it.
In relation to clause 2.8(b) Mr Rohan was questioned about his discussions in relation to it with Mr Matthews in December 2013. As to his claim that he discussed with Mr Matthews that clause 2.8(b) would cover any gross negligence or gross misconduct by contractors, he acknowledged that this had not been mentioned in any correspondence sent on behalf of Camerons’ solicitors to the solicitors for APS. As well, it was pointed out to Mr Rohan by Mr McAloon, that clause 2.8(b) is not expressed as concerned with ‘gross negligence’ but instead with ‘any negligence or other wrongful omission…’ Mr Rohan said that as far as he was concerned the word ‘any’ encompassed ‘gross’ negligence. Mr McAloon suggested that there was no discussion with Mr Matthews about the interplay of clauses 2.8(b) and (c). Mr Rohan disagreed. He said that he clearly remembered it. He said he did not think he had a copy of the Supply Agreement containing the amendments he required that he sent to Mr Matthews in July 2012 with him the time of this important conversation in late 2013. Therefore he was working from memory when the conversation occurred.

The driver and the involvement and control exercised by Camerons

The driver involved in the accident was assessed by Camerons. Documents before the Court included a ‘Driver Assessment Form’ utilised by Camerons dated 4 September 2013. The driver had initially been submitted as a candidate to Camerons by a different labour supply company to APS. Camerons assessed him as suitable against a variety of criteria. Mr Rohan agreed that not every driver was accepted as suitable but the driver in question had been, and as a result, was placed on an approved driver’s list maintained by Camerons.
Mr Rohan accepted that Camerons continued to exercise supervision of drivers. He was directed by counsel to a ‘Workplace Hazard Personnel Checklist’ dated 15 May 2012 undertaken by APS after attending at Camerons work site that sets out Camerons obligations in relation to drivers. The checklist identified a series of answers to questions that identified that drivers supplied by APS would attend toolbox and staff meetings, be provided with verbal induction and formal testing, and be provided with relevant safety instructions including supervision and communication on matters such as driver fatigue. Mr Rohan agreed that Camerons managed and undertook active supervision of the supplied labour. Mr Rohan said, ‘We manage the situation, yes’.

Lisa Marie Richardson

Ms Richardson is the General Manager, Operations for the plaintiff and has occupied the position for four years prior to which she had been State Manager.
Ms Richardson proved a number of documents utilised by the parties as part of a common folder of court documents including ‘Recruitment Methodology Temporary Labour Hire’ and a reference check completed by the driver. Ms Richardson was directed to the document, ‘Recruitment Methodology Temporary Labour Hire’ and a Transport Induction Handbook. She said that all candidates are taken through each component in the Transport Induction Handbook and their responsibilities are explained. Ms Richardson identified a suite of documents maintained by APS in relation to the driver in question including a ‘Reference Check Form’ containing the driver’s previous employment experience. The driver’s reference verification identified him as ‘good’ or ‘very good’ across all pertinent indicia. A Transport Application Form included his licence details certifying him for Heavy Combination vehicles. A Job Description as well was provided. A Work Fitness Declaration Form was executed by the driver with no disclosable outcomes. An aptitude evaluation assessment was completed by the driver for literacy, numeracy and transport knowledge test. In no respect was he found wanting. In addition APS liaised with Camerons to have the driver attend on them for a practical hands on induction.
Thereafter, according to Ms Richardson, APS had no ongoing involvement in the way in which the driver discharged his duties with Camerons.
Ms Richardson was cross-examined by Mr Donald. She said her duties included writing, implementing and managing policy and procedures for the APS recruitment team in order to facilitate its business.
Ms Richardson agreed that APS remained the employer of the labour supplied to Camerons.
Ms Richardson agreed with Mr Donald that APS owed duties to its employees to provide and implement and enforce a safe system of work but she said that this was a joint responsibility undertaken in conjunction with its customers.
She was asked questions about the APS ‘Transport Induction Handbook’ supplied by APS to contract drivers. The content of the handbook is worthy of some attention. The document includes a section headed, ‘Driver Responsibilities’ and, ‘Who is covered by the chain of responsibility?’ It provides as follows:
If you are involved in any of the following road transport activities, you may be held responsible for breaches of road laws:
·Consigning…
·Packing…
·Loading…
·Driving-the physical act of driving a heavy vehicle
·Operating…
·Receiving…
The section ‘Drivers Responsibilities’ is expressed as follows:
As a driver, you need to make sure that your conduct is not compromise road safety or involve breaking the law.
Your responsibilities include ensuring that:
·Driving hours regulations (time spent driving and working, are adhered to
·You must not exceed the regulated hours for driving and working. Remember that these are maximum hours
·Required rest breaks are taken
·You should also rest when tired and have adequate sleep to prevent fatigue
·Records of your driving hours are made
·Your vehicle does not exceed mass limits
·Your vehicle and load not exceed dimension limits
·Your load is properly restrained
·You do not exceed speed limit
·You do not tamper with any equipment required to be fitted in the vehicle.
The section of the agreement headed, ‘Conditions of Employment’ consists of a number of clauses. Clause 8, is headed ‘Liability’ and provides:
The Company shall not be responsible for any acts or defaults of the Contractor and the Contractor will indemnify the Company for any claim, loss, liability, damage, cost or expense caused by the Contractor.[8]
[8] Neither counsel addressed clause 8 and the driver was not a party to this proceeding
Page 13 of the handbook contains a section headed, ‘OHS Communication & Consultation’ it includes the following:
Your Responsibilities
Everyone has responsibilities for workplace safety.
You must:
· take reasonable care for your own health and safety, and for the health and safety of anyone else who may be affected by what you do (or don’t do) at the workplace.
· Cc-operate with APS and the client is workplace you are working out with regard to any action taken to provide a safe workplace.
You must not:
· wilfully or recklessly interfere with or miss use anything provided for the purposes of health and safety
· wilfully place address the health or safety of any person at the workplace
Reporting Hazards/near Misses
If you become aware of any unsafe situation where you are working, please report this to your supervisor and the APS health and safety representative immediately.
A particular criticism levelled at APS by Camerons and pursued in cross examination of Ms Richardson was that APS had no policy to deal with ‘highly stressed employees’. Ms Richardson accepted that no such policy existed. Ms Richardson was directed to clause 7 of the Supplier Agreement and, in particular, the obligation expressed as residing with the plaintiff to:
… ensure sure that the Services are provided the highest practical standard at all times.

55.Ms Richardson accepted that the provision of the services under the agreement were to be provided according to the expressed standard.

Ms Richardson agreed with Mr Donald that on the predication that a safe system of work in relation to the driving of heavy vehicles included a prohibition on, or procedure designed to prevent, drivers driving in a ‘highly distressed state’, APS had none. Nonetheless, Mr Donald suggested to Ms Richardson that APS’s own material including ‘OHS Communication & Consultation’ and ‘Your Responsibilities’ recognised a responsibility by APS to its employees
When asked if the responsibilities outlined in the handbook were brought to the particular driver’s attention, Ms Richardson said she did not do so personally but that she relied on her understanding of regularity and believed it would have occurred as part of his induction. Ms Richardson accepted that APS had no particular mechanisms in place to ensure compliance by drivers of their workplace safety responsibilities in making a report of the type identified in the handbook. Mr Donald suggested as well to Ms Richardson that in the event a driver received distressing news APS documentation was silent as to how it was to be managed in the workplace. Ms Richardson confirmed that APS undertook a review of the accident that found that the driver had been driving around for some time prior to the accident and that a factor in its occurrence was that he had been in a highly distressed state.
Ms Richardson said in her role of General Manager, Operations she was aware that APS had regular follow ups with drivers who were temporarily placed with a client such as Camerons, but accepted that she was not involved in such a way in connection with the particular driver.
Mr Donald suggested to Ms Richardson that after induction of a driver APS ‘completely abrogated its responsibility to the driver’. Ms Richardson disagreed.
Ms Richardson was questioned about the Supplier Agreement. She agreed with counsel that it regulated the rights and responsibilities of the parties. She agreed that the obligation to provide ‘Services’ under the agreement was to provide them to the ‘highest practical standard at all times’[9] and that the obligation to do so was an ongoing obligation.

61.Ms Richardson was questioned about her understanding of the meaning of ‘Services’ supplied under the Agreement. She said that she believed it meant the supply by APS to Camerons of a suitably qualified driver. Ms Richardson was challenged about this and was asked the Supply Agreement imposed additional responsibilities on APS. Ms Richardson was questioned why, for example, if ‘Services’ was limited to the extent she believed, clause 7 of the Supplier Agreement required that ‘APS must ensure that all drivers supplied to GCG to provide the Services are medically fit to perform the Services’. Ms Richardson was unable to suggest a reason. In my view the requirement imposed on APS by, for example, clause 7 of the Supplier Agreement is not inconsistent with, or amount to, additional and separate responsibilities to the provision of a suitably qualified driver, but instead the requirements imposed on APS viz a viz a driver is consistent with APS providing ‘Services’ to Camerons of a suitable and qualified driver. Competency by way of driver qualification and regulatory compliance as responsibilities falling on APS are necessary concomitant obligations imposed on APS in fulfilling the provision of its ‘Services’ to Camerons by the supply of a suitably qualified driver.
[9] Clause 7 of Supplier Agreement (Exhibit D1)

Ms Richardson said there is at any one time APS has approximately 350 drivers spread across Australia with approximately 170 of that total number being placed in Victoria. In re-examination Ms Richardson said that in addition to the supply of drivers, APS also supplied Camerons with ‘commercial office staff and industrial staff’.
Ms Richardson said that driver fatigue is assessed and so far as the Workplace Hazard Checklist procedures documents are concerned she said they were used as part of the audit of workplace issues relevant to the client specific site. It is not a generic process but client specific. It specifies how the customer (that is, Camerons) will undertake induction of supplied labour and it identifies matters such as vehicle information, traffic management processes and supervision

Mr Matthews

Mr Ben Matthews is the Chief Executive Officer of APS. He agreed with the evidence given by Mr Rohan that the commercial relationship between APS and Camerons commenced in about April 2009.
Mr Matthews said that prior to commencing employment with APS he had worked for other businesses in relation to the supply of contract drivers and it was during this period that he came to know Mr Rohan.
Mr Matthews described the business of APS as a national recruitment provider specialising in transport, industrial, executive, commercial and retail recruitment.
He produced a document, entitled ‘Partnership in Safety Agreement’ which he and Mr Rohan signed in May 2009. He said it is a document of a type that APS provides to all its clients. It is an important document and it imposes a joint responsibility on APS and Camerons ‘to provide to all our contractors a workplace that is safe and without risks to their health’. The document very plainly imposed obligations on Camerons including:
You provide us with information about your own health and safety management system so we can establish that we are placing contractors into a work environment where Hazard identification and risk assessments have been conducted and, most importantly, that you have put in place measures to control hazards and minimise the risk of injury.
Our company representative will be permitted to visit your premises periodically to ensure that we have the most up-to-date information on your sites as well as your needs.
Overall responsibility for the day-to-day supervision of the contract at your site lies solely with you, the client. Lack of supervision can be a contributing factor to incidents, so it is your responsibility to closely monitor the work performance of contractors, provide adequate ongoing instruction, training and supervision and consult with us regarding any health and safety issue.
Those obligations arising under the Partnership in Safety Agreement follow-on from:
As a labour hire company, we do not have direct control over the environment in which a contract is work. Current legislation requires that Occupational Health & Safety is a shared responsibility between the client and the labour hire company.
Thus in light of the above, I think Mr Donald’s assertion to Ms Richardson, that APS after placing the driver with Camerons thereafter abrogated its responsibility to the driver is not sustainable.
Mr Matthews explained that APS wanted to obtain the status of a tier 1 supplier to Camerons and in order to do so it proved necessary for APS to provide Camerons with full indemnity for overhead strikes. Mr Matthews said that his starting point for negotiations with Mr Rohan had been that there be no liability at all by APS. Accordingly, this would have been more favourable to APS than prevailed under the Proposal which provided an indemnity for an ‘At Fault’ incident of up to $1,000.
Mr Matthews said that he took the Supplier Agreement with the terms required by Camerons to the APS insurer who declined to provide coverage for overhead strikes. Eventually a different insurer was obtained who was willing to provide APS with the necessary cover to satisfy Camerons.
As to whether there were two discussions about the terms and conditions comprising the Supplier Agreement, Mr Matthews said that he had no recollection of a discussion involving the interplay of clause 2 .8 (b) and 2.8 (c). Nevertheless, he accepted that he had had two conversations in about late 2013 with Mr Rohan, one of which concerned the terms and conditions of the Supplier Agreement. Mr Matthews said that it was ‘probably the case’ that he and Mr Rohan had a copy of the terms and conditions in their possession at whichever of the two meetings the terms were discussed but he was unsure. Mr Matthews said in regard to indemnity by APS, there was no discussion in relation ‘gross negligence’. In the course of cross-examination Mr Matthews said that he could ‘not recall’ if their discussions included what would happen in a scenario that involved conduct by a driver that amounted to ‘gross misconduct’. Mr Matthews said their discussion did include the matter of the $1,000 cap as well as a conversation in relation to overhead strikes and the question of the provision of ‘full liability’ for such happenings.
Mr Matthews was directed to ‘the Proposal’ he prepared for Mr Rohan. At p 21 of the document there is the applicable hourly rates schedule set by award that were charged out by APS together with an over award allowance. APS invoiced Camerons for the provision of staff including drivers, and personnel staff and warehousing personnel.
Mr Matthews impressed me in giving his evidence. In particular I found him very familiar with the documents about which he gave his evidence and about the chronology of events that he was questioned on as opposed to Mr Rohan, whom I found had a lesser recall and ready appreciation and grasps of matters to which he was directed to not only in cross examination but in his evidence in chief. On matters where the resolution of a factual dispute is not corroborated by documentation, I prefer the evidence of Mr Matthews.
By April 2014 the Supplier Agreement was signed.
Mr Matthews was asked about the invoices issued by APS to Camerons that identified that on a weekly basis totals averaged approximately $25,000 per week which amounts included not just the provision of drivers but other personnel. Mr Matthews agreed that none of the invoices and the spreadsheet produced exceeded the amount of $40,000 per week however the total of invoices exhibited over the course of the commercial relationship was in the hundreds of thousands of dollars.
Mr Matthews was cross examined by Mr Donald. Mr Donald directed Mr Matthews to the Supplier Agreement. Clause 2.8 in the form sent by Mr Matthews came back from Mr Rohan wanting certain parts excised. Mr Rohan returned the document o Mr Matthews with his preferred term written in red.
Mr Donald put to Mr Matthews that ‘Services’ is not a defined term and he was asked if ‘Services’ is limited to the provision by APS of a qualified and competent driver to undertake driving duties. This was the view of the matter after all expressed by Ms Richardson. Mr Matthews adopted a broader view and said that he regarded it as covering the ‘provision of recruitment services’. Mr Donald asked Mr Matthews if he was confident in such an answer given the obligations expressed in clause 6, 7 and 8, 10 of the Supplier Agreement and he adhered to his answer.
Mr Matthews was directed to an internal email of November 2013 to Mr Matthews in relation to a claim by Camerons for negligence by an APS driver and a claim for recompense in the amount of $2,240.86. Mr Donald suggested that this occurred in or about the time frame in which Mr Rohan alleged to have had a discussion with Mr Matthews about negligence. Mr Donald asked Mr Matthews a series of questions to the effect that in relation to the November 2013 accident APS had in fact paid out on the amounts claimed by Camerons in excess of $1,000, and such accident did not occasion damage as a result of a bridge or tunnel strike.
I have already expressed my findings on the Singh transaction am I not satisfied that the variation in amounts credited and about which Mr Matthews was questioned alters my conclusion that the transaction identified a credit having been raised in favour of APS. When Mr Donald suggested the contrary position to Mr Matthews, he said that was not his understanding and it would have been contrary to the agreement made with Camerons. Mr Matthews said he believed the invoice was short paid and hence the provision of the entry for the credit note. I prefer Mr Matthews’ account of the transaction.

Mr Matthews agreed with Mr Rohan’s evidence that they had two meetings in late 2013 of one of which was to discuss as he put it, the ‘terms of trade’ and that ‘we did in fact discuss two levels of indemnity but not gross negligence. We discussed the $1,000 cap on all blameworthy incidents (which I had no issue with) and the second element of the discussion was in respect of overhead strikes and covering the full amount of those by APS[10]’.
[10] Mr Matthews’ oral evidence
I prefer the recollection of Mr Matthews as opposed to the direct evidence of Mr Rohan because I think that the lack of any subsequent reference by Camerons at any time thereafter to Mr Matthews to the effect of their discussion as is now claimed in the counterclaim is telling.
Mr Donald tendered the time sheets for the affected driver[11] on the basis that they were relevant to the issue of ‘consumer’.
[11] Exhibit D3
Mr Donald asked Mr Matthews about ‘the spend’ billed by APS to Camerons. He said that none of the invoices produced exceeded $40,000 in the course of a week and that it is necessary to aggregate the billing on a period of more than a week but less than a fortnight in order to exceed $40,000.
Mr Matthews was directed to OHS Report prepared by APS and the ‘Incident Report and Investigation Findings’ that identified a number of prevailing factors at play such as:
Fiddling with radio
Lee advised that he had received a call – he should not have come to work today-
APS Conclusion:-
Driver …emotionally upset…not focussed on task
Driver unfamiliar with truck, as it was first time having driven the vehicle…
The report noted that the driver was to be issued a penalty/infringement notice for careless driving and 3 demerit points.

The Construction Point

Mr Donald characterised clause 2 of the Supplier Agreement as directed at the allocation of responsibility between the parties. Clause 2.8 of the agreement he submitted, allocated the risk and responsibility for loss. So far as the allocation of responsibility for loss was concerned, he submitted that the primary obligation fell to APS to indemnify Camerons ‘against any liability, loss, damage or expense (including legal costs on a full indemnity basis) incurred or suffered as a direct or indirect result of (relevantly) the provision of services under the contract: any negligence or other wrongful act or omission of the plaintiffs or its drivers; any breach by the plaintiff of the contract.
Mr Donald submitted as well that the extent of the indemnity provided by APS is informed by the fact that its liability is reduced to the extent to which Camerons can be held responsible for the loss and, furthermore, that the indemnity is expressed to be ‘not limited to any loss arising from damage caused by the plaintiff’s drivers failing to observe height warning signs on bridges, tunnels and the like.
Mr Donald submitted that clause 2.8 (c) of the Supplier Agreement obliged APS to indemnify Camerons for any damage to property or motor vehicles excepting damage caused by any collision with a bridge or a tunnel or like up to a maximum of $1,000 per occurrence. Mr Donald referred to the definition of ‘any’ as meaning ‘whatever or whichever it may be’ and, accordingly, in order for clause 2.8 (c) of the Supplier Agreement to have operative work to do, it must have another meaning as it qualifies and limits the operation of clause 2.8 in a way which is not consistent with the remainder of the clause.
Mr Donald submitted that if clause 2.8 gives rise to an ambiguity that can only be resolved by reference to extrinsic evidence, then the evidence of Mr Rohan was that clause 2.8 (c) extended only to ‘bingles’ and did not extend to significant loss caused by ‘serious misconduct’.
First, in my judgment the law requires me to approach the construction of the Supplier Agreement as a whole and with a view to its practical and commercial operation. Clause 2.8 (c) of the Agreement should be construed in a commercially sensible manner that takes account of the surrounding circumstances. In Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd[12] the Court said at 179:
The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean. That, normally, requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction.
[12] (2004) 219 CLR 165
In contrast to the submission by Camerons, APS submitted that when the factual circumstances are identified they would confirm a conclusion that a reasonable person would have understood clause 2.8 (c) of the ‘Supply Agreement’ to operate as a cap on the potential liability of APS.
Second, the language under consideration was not imposed on Camerons by APS but was the language drafted by Camerons for its benefit which APS agreed to adopt. If the language operates to the disadvantage of Camerons that result flows from its own actions.
Third, the Supplier Agreement is concerned with the provision of labour hire by APS to Camerons generally, however, clauses 6 to 15 are exclusively concerned with drivers and no other type or category of supplied labour that I was told APS also supplied to Camerons.
Fourth, the agreement was executed in early 2014 by commercial parties who had been involved with one another since early 2009. Both parties came to the negotiations seeking to achieve benefits. From the position of APS, the benefit it hoped to obtain was preferred status with Camerons as a tier 1 supplier and from Camerons point of view the benefit it wanted was a full indemnity for damage caused by ‘bridge strikes ‘.
Fifth, clause 2.8 in its executed form was different from ‘the Proposal’ that had informed the parties relationship since early 2009 pursuant to which the expression and extent of the indemnity APS offered Camerons was, ‘coverage of up to $1000 to cover the excess for any damage caused by an ‘At Fault’ accident for any APS casual’. The indemnity contained in ‘the Proposal’ although broadly expressed and capable of inviting legitimate debate as to its reach and application, nonetheless appears from the evidence to have been understood and agreed by the parties from 2009 until the commencement of the Supplier Agreement to have capped the liability of APS to Camerons at no more than $1,000 for an ‘At Fault’ accident.
Sixth, clause 2.8 of the Supplier Agreement is different. It is located in a part of the Agreement headed, ‘Responsibility’. As Mr Donald submitted, the clause allocates elements of responsibility as between APS and Camerons. The terms and conditions included at the initiative of APS in clause 2.8 read:
2.8 Responsibility
You are to comply with all pertinent legislation and indemnify us regarding the use and operation of your machinery and motor vehicles, particularly relating to licensing, registration and insurance against third-party personal injury and property damage. You acknowledge that we are not performing the services required of our employees or independent contractors; but are instead the supplier of our employees and independent contractors, at your request, to perform the work you have requested. From the time that our employees or independent contractors report to you for their duties they are under the care, control and supervision of you for the duration of the assignment. In these circumstances you agree we will not be liable to you or any third parties in respect of any damage, loss or injury of whatsoever nature or kind, however caused, whether by our negligence or the negligence of one of our workers, their servants or agents or otherwise, which may be suffered or incurred, whether directly or indirectly, in respect of the services provided under these conditions of assignment.
Seventh, Camerons agreed to the excision of this language and instead the spread of responsibility as between the parties finally agreed upon in clause 2.8 read:
APS will be liable for and must indemnify G CG and its officers, employees and agents against any liability, loss, damage, or expense (including legal costs on a full indemnity basis) incurred or suffered as a director indirect result of any of the following.
(a)    the provision of the Services under this Agreement;
(b)    any negligence or other wrongful act or omission of APS or its staff or drivers or any other person for whose act or omission is APS is precariously liable;
(c)    any damage to property or motor vehicles, excepting damage caused by any collision with a bridge, tunnel or like, real or personal, to a maximum of $1000 per occurrence;
(d)   any injury to persons, including injury resulting in death or economic loss; and
(e)    any breach of this agreement by APS.
APS’s liability under this clause will be reduced to the extent to which any action, proceeding, claim or demand which arises art of any negligent error, act or omission of G CG or any person for whose acts or omissions G CG is precariously liable.
The indemnity contained in this clause is continuous and will survive the expiry or termination of this Agreement. It also includes but is not limited to any loss arising from damage caused by APS drivers failing to observe height warning signs on bridges, tunnels and the like and fines incurred due to breaches of Road traffic regulations.
Eighth, the comparison of clause 2.8 in its negotiated state and its agreed state reveals that APS was willing to abandon the blanket like exclusion it had proposed to reserve to itself.
Nonetheless, and despite the concession made by APS to Camerons to secure the Supplier Agreement and the language of the clause rendering APS liable for loss suffered by Camerons as a result of the provision of ‘Services’ under the Agreement or any negligent or wrongful act or omission of drivers for whose acts APS would be vicariously liable, APS argued that the cap on its liability is no greater than $1,000. In other words, as APS would have it, pursuant to clause 2.8 it is not required to indemnify Camerons for more than $1,000 damage to property or motor vehicles unless the damage to property or motor vehicles was caused by any collision with a bridge, tunnel or like.
If the APS construction of the language contained in clause 2.8(c) is the proper and preferred construction, then what are the other sub-parts of the clause 2.8 directed to achieve? According to APS it is nonsensical to suggest that any other sub-part of the clause was intended to operate in such a manner as to allow Camerons to obtain an indemnity for an amount greater than an amount up to $1,000 because to construe the balance of the clause in this way would render the language in clause 2.8 (c) otiose.
What is the evidence of the principal witnesses who negotiated the Supplier Agreement as to the intention to be achieved by clause 2.8 and what assistance can be found in it?
Mr Matthews was not directed in his evidence to the point in any substantive sense other than to say, which I have accepted on balance, that there was no discussion about gross conduct or serious misconduct, and Mr Rohan whose evidence I did not accept, about the discussions and whose evidence, on the whole, I found somewhat elusive. He said that sub-clause 2.8 (c) was limited to ‘bingles’ but was not meant to cover ‘serious misconduct’. That cannot be sensibly sustained in light of the language drafted by Camerons or the findings on the evidence of discussions I have made.
I am satisfied that there was no meeting of the minds between Mr Rohan and Mr Matthews otherwise than in respect of an uncapped liability applying to property or motor vehicle damage resulting from bridge or tunnel strikes.
I am also satisfied that Camerons did not suffer loss, damage , or expense directly or indirectly as a result of:
(a)The provision of the Services under the Agreement.
It may only be said in support of this basis of the claim by Camerons that ‘Services’ are more than the provision of suitably qualified (competent) driver but in fact the ‘Services’ required a suitably qualified an competent driver and also for APS to have made provision for educating drivers supplied by it to Camerons to take reasonable steps to prevent driving in a ‘highly distressed state’.
If the ‘Services’ did not separately and independently embrace that obligation, then Camerons must be thought to have sustained its loss and damage as a direct or indirect result of;
(b)Any negligence or other wrongful act or omission of… Drivers… For whose acts or omissions APS is vicariously liable
However, for reasons that are explained later in these reasons, a negligent act of a driver is not enough to fix APS with liability under this clause.
Mr Donald said that although the evidence of the investigation identified that the police only proceeded against the driver by way of a fine and demerit points, that outcome is not probative of the question of assessing normative concepts arising under the law of negligence. I accept that analysis, but even so, I am not satisfied that I can make findings on the balance of probabilities about the nature of the conduct of the driver based on the incident report. Driving in a seriously distressed state and/or departing from the procedures required by Camerons may have occurred, but even if it did, I am not satisfied that the one incident amounted to evidence of a breach of APS’s contractual obligations to Camerons under the Supplier Agreement or amounted to negligence for which APS would be vicariously liable.
In my judgement, it has proved necessary that Camerons establish on the balance of probabilities that it suffered loss, damage or expense as a direct or indirect result of either:
·    the provision of ‘Services’ under the Agreement;
·    negligence or other wrongful act or omission by the driver for whose acts APS would be vicariously liable; or
·    any breach of the agreement by APS
Clause 2.8 (c) is of course expressed to limit the liability to $1,000.
Clause 2.8 (e) is akin to a claim for breach of contract and in light of my ultimate findings it does not assist Camerons.
If, therefore, the question is asked whether Camerons suffered a relevant loss as a direct or indirect result of the provision of the ‘Services’ under the Agreement as contemplated by clause 2.8 (a), then I am satisfied that the answer to this question is, no. I am so satisfied in reaching this conclusion for the following reasons.
First, I am not satisfied that the presence of the capitalisation of the first letter of the word ‘Services’ as it appears in the Supplier Agreement is indicative of anything in particular in light of the fact that the word is not defined in the Supplier Agreement. Second, it is not necessary for me to decide as between the evidence of Mr Matthews and Ms Richardson as to which of them had a better definition of the scope of the ‘Services’ contracted for under the Supplier Agreement. In my view, whether the narrower definition of Ms Richardson is adopted, or the broader meaning accorded by Mr Matthews is, or the multi-faceted definition argued for by Mr Donald that included the particular obligations to guard against drivers driving in a highly distressed state is preferred, the question remains whether in the provision of the ‘Services’ Camerons suffered loss or damage.
Camerons contended that the evidence established a failure by APS to equip or take steps or put practices and procedures in place that were reasonable and directed at preventing a driver from going about the performance of his deliveries ‘in a highly distressed state’. It is conceded by APS that it did not do so. However, I do not accept that such a duty fell to APS. There being the case, it cannot be found directly or indirectly that the provision of the ‘Services’ under the Supply Agreement caused the loss. If I am wrong as to the absence of such a duty on the part of APS, then I would not be satisfied on the balance of probabilities, that the breach of the duty caused the damage or the loss. The fact that APS undertook a report and arrived at conclusions about cause of the accident is not evidence of cause. The driver was not called.
In my judgment the claim by Camerons relying on the breach of the Supplier Agreement fails.

The ACL claim

Camerons claim under the ACL is that APS did in trade and commerce, supply services to it (a consumer) and in respect of the services supplied, there existed a statutory guarantee that such services were to be rendered with due care and skill.

The Preliminary Point

APS argued that Camerons is not a beneficiary of the statutory guarantee provided under s 60 of the ACL[13] because the value of the services supplied under the agreement was at the time of the supply, greater than $40,000.
[13] S 60 of the ACL states:
If a person supplies, in trade or commerce, services to a consumer, there is a guarantee the services will rendered with due care and skill
Mr Donald submitted that Camerons is a consumer within s 60 of the ACL because the value of the services supplied under the Supplier Agreement, was at the time of the supply, less than $40,000. He also referred to s 3 (10) of the ACL that creates a rebuttable presumption that a person is a ‘consumer’.
Mr McAloon submitted that Camerons was not a consumer and he relied on the total invoices produced from APS to Camerons. He submitted that the correct approach is to aggregate the amount from the date of the commencement of supply of the services by APS to Camerons in which case Camerons would not be classed as a consumer. If it is proper to rely on either separate invoices or some very limited set of time frames at which to fix the calculable amount to less than $40,000 then APS will have failed to rebut the statutory presumption.
When were the services either paid for by Camerons or became payable by Camerons? Clause 3.2 of the Supplier Agreement required that each invoice was to be paid ‘within 14 days of receipt of invoice’.
APS argued that it and Camerons conducted their affairs according to an ‘overarching agreement for the supply of labour’ and not by reference to a series of separate agreements entered from time to time and only in relation to each relevant driver.
Should the amount of each invoice billed by APS and paid by Camerons be the method adopted to determine the question of whether Camerons was a ‘consumer’? There is no ‘general rule about aggregation’ at law[14].
[14] Jefferson Ford Pty Ltd v Ford Motor Co of Australia Ltd [2008] FCAFC 60 per Gordon J at [151]
APS submitted that the construction relied on by Camerons to obtain the benefit of the statutory guarantee is artificial. APS argued that the principle relied on by Camerons and distilled from the decision of Ashley J in Deutz Australia v Skilled Engineering[15] is distinguishable. The facts of the case warrant recitation. A man supplied by Skilled was reversing a forklift along a main aisle at the warehouse premises of the plaintiff. The mast of the forklift was in an elevated position and on either side of the aisle were racks of shelving that stored diesel motors of various sizes. A bridge spanned shelving. The bridge was used for storage of light items. The mast of the reversing forklift struck the first beam in its path and by way of chain reaction shelving collapsed and a number of expensive motors were damaged. The driver of the forklift and been supplied to the plaintiff by Skilled and in a number of ways the plaintiff argued Skilled was responsible for the driver’s lack of care.
[15] [2011] VSC 194
A consideration of His Honour’s reasons and his examination of the manner in which the claims were made bear a striking similarity to the claim by Camerons in its ultimate formulation.
As to the issue of whether the plaintiff was a ‘consumer’ under the Trade Practices Act 1974 (‘TPA’) Skilled denied the plaintiff’s contention that it was and argued that the overall price of labour services supplied to the plaintiff by it exceeded $40,000. Furthermore, the allegation that the plaintiff was a consumer within the meaning of the TPA, in turn led to it imputing the statutory warranty that the supply of services by Skilled to it were to be rendered with due care and skill. Ashley J ‘readily’ concluded that the plaintiff was a consumer for the purposes of the TPA. He went on to say at [paragraph 18]:
‘There is nothing to the first defendant’s reliance on [the equivalent of s 3 (3) (a) of the ACL]. The evidence showed that the first defendant from time to time entered into agreements with the plaintiff for the provision of skilled labour. Those agreements were separate one from the other. They could not be aggregated for the purposes of calculating a price for services in the case of the agreement in performance of which Mr Sutton [the forklift driver] was supplied to the plaintiff. It is true that the services to be provided under that agreement had not been completed when the incident occurred. But the evidence is clear that the duration of provision of services was very likely to be quite short; and that the price of such services was likely to be much less than the prescribed amount.’

I am unable to reach similar conclusions from the evidence in this proceeding. The substantive evidentiary facts relied on by His Honour to exclude ‘aggregation’ are not the subject of like evidence before me. The evidence I have is of one Supplier Agreement and not a series of agreements entered into ‘from time-to-time.[16]’ Certainly no other agreements were relied on by Camerons. Furthermore, and unlike the situation in Deutz, where the evidence was ‘clear that the duration of the provision of services was very likely to be quite short,’ I had no satisfactory evidence on point at all.
[16] Deutz at [para 18] op cit
Nonetheless, Mr Donald argued that each supply of labour is a separate supply and the proof of this was the individual invoices that reveals that the ‘service’ is for less than $40,000. As well Mr Donald relied on the APS document, ‘Total Glen Cameron Spend -01/1/13 – YTD’ which although recoding total revenue of $1,392,668.37 YTD, no weekly revenue exceeded $40,000.
Mr Donald also submitted that no other component than the provision of the supply of drivers should be taken into account in light of the definition of ‘Services’ at clause 2.8 of the ‘Supply Agreement’. Mr Donald submitted that the ‘Services’ are driving services and if it were otherwise, then for example, in selecting and assessing a driver, Camerons would have been within its rights to require an APS consultant to wear Camerons livery which would be an absurd result.
I do not accept the submissions made for Camerons. I regard the arguments as akin to trying to make a square peg fit in a round hole. The evidence I had before me was that the amount of $40,000 for the ‘Services’ would be reached and exceeded during the second week of any calculation of the revenue derived by the supply of labour by APS to Camerons, and in order for amounts to be excluded from calculation so as not to exceed $40,000, a period of about a week would be the required period and such a time period is entirely arbitrary.
Mr Donald submitted that in the event aggregation of amounts was warranted then it should be aggregated only to the extent of the price of the services in respect of the driver in question. I do not accept there is any good reason to support such an approach. The evidence of time and pay sheets identifies that the driver was regularly undertaking driving services for Camerons and the evidence relied on by APS included records maintained of the ‘total Glenn Cameron Spend’. As far as I was made aware revenue was earned by reason of the primary Supplier Agreement and not a series of separate agreements between it and Camerons. I do not accept the submission made by Camerons. Therefore, I am satisfied that Camerons is not a ‘consumer’ for the purposes of the ACL, and that APS has discharged the presumption under the ACL to the contrary.
Mr Donald also submitted that by operation of s 64 of the ACL a term of the Supply Agreement such as clause 2.8 (c) that purports to exclude, restrict or modify the liability of APS as a person required to comply with the statutory guarantee is void. In light of my findings that Camerons was not a consumer under the Act, this argument must also fail.
If I am wrong and Camerons is a ‘consumer’ under the ACL, then I would not be satisfied that APS breached the statutory guarantee for the provision of the services with due care and skill in any event despite the submissions made by Mr Donald. I have already touched on the nature of this argument earlier in my reasons but it necessary to address it further in connection with the arguments based on the ACL.
Mr Donald submitted that the question of what services were contracted to be provided to Camerons is to be resolved by reference to the substance of the contract. He submitted that the scope of work constituting the services is defined by reference to the contract regulating the rights and obligations of Camerons and APS as between each other to the extent permitted by law. Mr Donald argued that ‘the scope of the services went beyond selecting and assigning to Camerons a qualified and reasonably competent truck driver but extended to a guarantee that the performance of the truck driving would be performed with due care and skill[17]’. As Mr Donald developed his argument, this is because the ‘Supply Agreement’ makes the meaning of ‘Services’ clear by reference to several clauses by which APS took upon itself responsibility for the adherence and that Camerons argued reasonably ought to impute a broader scope of services than APS would have to be the case. The several clauses relied on by Mr Donald are:
[17] Written Outline of Submission on behalf of the Defendants
Clause 7.0 (a) and (b) that appears under the heading, ‘Standard of Services’ and are expressed in these terms:
‘APS must ensure that the Services are provided to the highest practical standard at all times.’
‘APS must accept any feedback which it receives in relation to the standards of service and performance issues from GCG and must take all reasonable steps to address any issues raised by GCG’.
·    Clause 8.0 Licence restrictions and criminal offences
8.1 APS must provide details of any restrictions placed on the license of a driver providing Services
·    Clause 9.0 Training and instruction
APS must provide appropriate training and instruction to its drivers in relation to safe work practices including but not limited to safe driving and loading/unloading techniques.
·    Clause 9.1 Breach of law and incident reporting
(a)
(b) if one of APS drivers is directly involved in any incident whilst performing the Services that results in injury being sustained to any person or damage to property or an incident where a significant injury may have occurred, then APS must immediately report the incident to GCG by telephone and as soon as is practicable provide a detailed written report of the incident.
·    Clause 11 Medically Fit
APS must ensure that all drivers supplied to GCG to provide the Services are medically fit to perform the Services.
·    Clause 13 Staff behaviour
APS must ensure that its drivers providing the Services carry out their duties and behave at all times in such a way as to cause no unreasonable or unnecessary disruption to the routines and procedures of GCG or its staff.
·    Clause 14 Uniforms
(a)   APS must require all drivers providing the Services to wear at all times whilst performing the Services clothing and footwear in accordance with GCG policies and procedures.
(b)   GCG is not required to pay for the costs of uniforms or other work wear.
Mr Donald submitted that this suite of responsibilities owed by APS to Camerons may be contrasted with the contractual document in Deutz where the question was whether a contract should be properly regarded as a contract for the supply of forklift driving services or whether it was simply the provision of a forklift driver in which case due care and skill was limited to selecting and providing a suitable man. In Deutz, the contractual document was limited and there were no like burdens taken on by Skilled as were adopted by APS and that to conclude that all APS agreed to provide to Camerons was a qualified and competent man to undertake driving services is contrary to the evidence and the terms of the Supplier Agreement and the scope of ‘Services’.
Mr Donald in submissions asked rhetorically ‘What steps did the company have in place to stop him driving in his emotionally upset condition’? The answer, he responded, was none, despite the Standard of Services expressed in clause 7 of the Agreement requiring that: ‘APS must ensure that the Services are provided to the highest practical standard at all times’.
The obligation on APS under clause 7 is not absolute but limited to ensuing that the provision of the Services is to the highest ‘practical’ standard and, in accordance with its obligation under clause 9, to provide appropriate training and instruction to its drivers in relation to safe work practices including but not limited to safe driving and loading/unloading techniques. The contention is that by allowing the driver to drive for Camerons whilst in a highly distressed state APS was in breach of those clauses and hence breached the statutory guarantee as it could not be said they were rendered with due care and skill.
If I assumed for the sake of argument that the driver caused the damage claimed as a result of a lack of due care whether by reason of an adverse emotional reaction to the receipt of distressing personal information or because he was fiddling with a radio positioned in an unfamiliar area of the cab or for a combination of reasons, nonetheless, the question remains whether this amounted to a breach by APS of the statutory guarantee of due care and skill in the rendering of the ‘Services’ for which Camerons contracted. In my judgment, it does not. in dealing with a like issue, but in the context of an alleged breach by Skilled of its contractual obligation and the allied statutory warranty arising from his finding that the plaintiff was a ‘consumer’, Ashley J in Deutz, found that Skilled had not breached its obligations and he expressed the matter as follows:
In my opinion Skilled breached none of those obligations. There is nothing to indicate that its process of selection of Mr Sutton was exercised with less than due care and skill. Counsel for the plaintiff did not submit that there was any default in that connection. Nor am I satisfied that Mr Sutton was other than capable of performing the usual work tasks of a qualified forklift driver, or that he performed his duties-focus being general, and not confined to a specific moment or incident-other than with the reasonable competence of such a driver. I consider that breach of Skilled’s contractual obligations is not made out by Mr Sutton having committed a single negligent act, no matter how serious is ramifications in terms of damage occasioned to the plaintiff. There is nothing in Mr Sutton’s disclosed qualifications, experience or conduct on the job generally which makes out the plaintiff’s case in the present connection.
Moreover, and by reference to the reasoning expressed in Deutz, I am satisfied that:
·    the manner in which APS selected and assigned the driver as suitable for Camerons was an exacting and thorough process;
·    Camerons had previously approved the driver as competent and having the necessary experience to perform the designated duty;
·    Camerons not APS was responsible for supervision of the driver whilst he was in a Camerons’ vehicle and the reality of the practical limitations of the extent to which APS could control events in Camerons’ workplace (including a ‘specific moment or incident’ such as the accident) was recognised in the ‘Partnership in Safety’ Agreement the parties executed; and
·    Acknowledgments by Camerons during the ‘Workplace Hazard’ assessments undertaken by APS of Camerons.
Obviously there is a point of distinction to Deutz, in that Camerons has pursued the argument that there was default by APS in its processes and ongoing oversight and training of the driver. I do no regard the absence of a reference in the APS Transport Induction Handbook of a recommendation to drivers that they should ‘not drive in a highly distressed state’ amounted to a breach. But the point made by His Honour and remarked upon in the extract, when applied to the present controversy, leads to a result that even if APS failed in this regard it would not constitute a breach of its obligations whether under the Supplier Agreement or the statutory guarantee because the driver occasioned the damage claimed.

Does s 63 of the ACL apply as to exclude the claim by Camerons?

Although in light of my findings it is not strictly necessary for me to decide the point, but in the event I am wrong in those findings, it is appropriate I address the question of the effect of s 63 (a) of the ACL.
By operation of s 63 (a) of the ACL[18] the statutory guarantee does not apply to services supplied under ‘a contract for, or in relation to the transportation of goods for the purposes of a business, trade, profession or occupation carried on or engaged in by the person for whom the goods are transported or stored’.
[18] S 63 of the ACL states:
Services to which this Subdivision does not apply
this Subdivision does not apply to services that are, or are to be, supplied under:
(a)a contract for or in relation to the transportation or storage of goods for the purposes of a business, trade, profession or occupation carried on or engaged in by the person for whom the goods are transported or stored; or
(b)a contract of insurance
Mr Donald submitted that s 63 has no application in the circumstances of this case because the Supplier Agreement was not a contract for or in relation to the transportation of goods but was a contract for the provision of the supply of driving services given effect to by a contract for the supply of labour. He contended that to the extent APS could place reliance on the Supplier Agreement as a contract in relation to the transportation of goods it is insufficient that a subsidiary or incidental element of the contract relates to transportation or storage of goods: Fugro Spatial Solutions Pty Ltd v Cifuentes[19].
[19] [2011] WACA 202
APS submitted the Supplier Agreement was such a contract and thus s 63 operated to exclude the statutory guarantee. Mr McAloon submitted that the submission accorded with the reasoning of the High Court in Wallis v Downard – Pickford (North Queensland) Pty Ltd[20]. In that case the Queensland Commissioner of Police entered into an agreement with Downards for the carriage of goods of a police officer who was to be transferred from Ayr to Dalby. The policeman’s goods were damaged in transit as a result of the carrier’s failure to use due care and skill. The damage was in the order of $1,663.47 and when the policeman looked to the carrier for recompense it relied on the Queensland Carriage of Goods by land (Carrier’s Liability) Act 1967 under which a carrier’s liability was limited to $200. The question that ultimately came to be determined was whether the owner of the damaged goods could rely on s 68 and s 74 of the TPA 1974 in order to avoid the limitation of liability under the Queensland Act.
[20] (1994) 179 CLR 388
The High Court held that the warranty of due care and skill expressed in s 74 (1) of the TPA was not displaced by s 74 (3) (a) of the TPA that excluded the benefit of the statutory warranty to a contract for or in relation to the transportation and storage of goods for the purposes of a business, trade, profession or occupation carried on or engaged in by the person for whom the goods are transported or stored. Toohey and Gaudron JJ said that the words, ‘person for whom the goods are transported’ are ‘apt to describe both the appellant and the Commissioner of Police’ but that ‘[t]he real question is whether the transportation of the goods was for the purpose of an occupation carried on by either of those persons’.
Their Honours found that there was no sufficient incident or connection to establish that requirement. So too, Mr Donald submitted, there is an insufficient connection to find that Camerons entered into the Supplier Agreement for the purpose of the transportation of goods. That such a result may inevitably follow in relation to arrangements as between Camerons and, for example Coles, the purpose of the Supplier Agreement was the provision of labour not all of which were, on APS’s own submission, drivers.
On balance, I agree with Mr Donald’s submission. I am not satisfied that APS could rely on the benefit of s 63 (a) of the ACL and so displace the statutory guarantee required by it to render the ‘Services’ with due care and skill. Had it been necessary for me to decide the point, I would not have been satisfied that the Supplier Agreement between APS and Camerons was a contract for or in relation to the transportation and storage of goods for the purposes of a business, trade, profession or occupation carried on or engaged in by the person for whom the goods are transported or stored. However, I have already concluded that APS has discharged by evidence the presumption that Camerons was a ‘consumer’ and, otherwise in the event I have wrongly concluded in favour of APS on that point, I would not have been satisfied that Camerons had discharged its burden of proof that APS breached the statutory guarantee imposed by s 60 of the ACL.

Conclusion

There will be an order for APS on its claim in the amount of $36,829.16 which takes into account the sum of $1,000 and the counterclaim by Camerons is dismissed.
I will hear the parties in relation to interest and costs.