Re Downard-Pickford (North Queensland) Pty Ltd

[1992] QCA 370

IN THE COURT OF APPEAL

[1992] QCA 370

SUPREME COURT OF QUEENSLAND

Appeal No. 32 of 1992

IN THE MATTER of Order 64 Rule 18 of the Supreme Court Rules, Sections 68 and 74 of the Trade Practices Act and Section 6 of the Carriage of Goods by Land (Carriers' Liabilities) Act

- and -

IN THE MATTER of an Application of KENNETH GEORGE WALLIS of 36 Moreton Street, Dalby in the State of Queensland against DOWNARD-PICKFORD (NORTH QUEENSLAND) PTY. LTD.

DOWNARD-PICKFORD (NORTH QUEENSLAND) PTY. LTD.

Appellant

(Respondent)

- and -

KENNETH GEORGE WALLIS

Respondent

(Applicant)

JUDGMENT OF THE COURT

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The Chief Justice Mr Justice Davies Mr Justice Ambrose

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Judgment of the Court delivered the 30th day of

October, 1992.

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APPEAL ALLOWED. ORDER THAT THE ANSWERS GIVEN AND THE ORDER MADE BELOW BE SET ASIDE AND THAT THE QUESTIONS OF LAW WHICH REMAIN FOR THE DETERMINATION OF THE COURT BE ANSWERED AS FOLLOWS:

(1) CAN THE APPLICANT (THE PRESENT RESPONDENT) RELY UPON S.74 TRADE PRACTICES ACT AS AGAINST THE RESPONDENT?

NO.

(4) IS S.6 CARRIAGE OF GOODS BY LAND (CARRIERS' LIABILITIES) ACT EFFECTIVE TO LIMIT THE RESPONDENT'S (THE PRESENT APPELLANT'S) LIABILITY OR IS IT INCONSISTENT WITH SS. 68 AND 74 TRADE PRACTICES ACT IN ITS APPLICATION TO THIS CASE?

SECTION 6 IS EFFECTIVE TO LIMIT THE RESPONDENT'S LIABILITY AND IT IS NOT INCONSISTENT WITH THE SECTIONS OF THE TRADE PRACTICES ACT REFERRED TO.

ORDER THAT THE RESPONDENT PAY THE APPELLANT'S COSTS OF AND INCIDENTAL TO THE APPEAL TO BE TAXED AND THE TAXED COSTS OF AND INCIDENTAL TO THE APPLICATION BELOW, INCLUDING RESERVED COSTS IF ANY.

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IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 32 of 1992

IN THE MATTER of Order 64 Rule 18 of the Supreme Court Rules, Sections 68 and 74 of the Trade Practices Act and Section 6 of the Carriage of Goods by Land (Carriers' Liabilities) Act

- and -

IN THE MATTER of an Application of KENNETH GEORGE WALLIS of 36 Moreton Street, Dalby in the State of Queensland against DOWNARD-PICKFORD (NORTH QUEENSLAND) PTY. LTD.

DOWNARD-PICKFORD (NORTH QUEENSLAND) PTY. LTD.

Appellant

(Respondent)

- and -

KENNETH GEORGE WALLIS

Respondent

(Applicant)

JUDGMENT OF THE COURT

Delivered the 30th day of October, 1992

MINUTE OF ORDER:	APPEAL ALLOWED. ORDER THAT THE ANSWERS GIVEN AND THE ORDER MADE BELOW BE SET ASIDE AND THAT THE QUESTIONS OF LAW WHICH REMAIN FOR THE DETERMINATION OF THE COURT BE ANSWERED AS FOLLOWS:
(1) CAN THE APPLICANT (THE PRESENT RESPONDENT) RELY UPON S.74 TRADE PRACTICES ACT AS AGAINST THE RESPONDENT?

NO.

(4) IS S.6 CARRIAGE OF GOODS BY LAND

(CARRIERS' LIABILITIES) ACT

EFFECTIVE TO LIMIT THE RESPONDENT'S (THE PRESENT APPELLANT'S) LIABILITY OR IS IT INCONSISTENT WITH SS. 68 AND 74 TRADE PRACTICES ACT IN ITS APPLICATION TO THIS CASE?

SECTION 6 IS EFFECTIVE TO LIMIT THE RESPONDENT'S LIABILITY AND IT IS NOT INCONSISTENT WITH THE SECTIONS OF THE TRADE PRACTICES ACT REFERRED TO.

ORDER THAT THE RESPONDENT PAY THE APPELLANT'S COSTS OF AND INCIDENTAL TO THE APPEAL TO BE TAXED AND THE TAXED COSTS OF AND INCIDENTAL TO THE APPLICATION BELOW, INCLUDING RESERVED COSTS IF ANY.

CATCHWORDS:	Inconsistency of Commonwealth and State laws - wh provisions of the Carriage of Goods by Land (Carriers' Liabilities) Act (Qld) inconsistent with terms implied into a contract for services by the Trade Practices Act (Cth) - wh a promisor under s. 55 of the Property Law Act (Qld) can only raise against a beneficiary those defences that could be raised against the promisee.
Counsel:	J.D.M. Muir Q.C., with him J. Sullivan, for the appellant. H.G. Fryberg Q.C., with him A.I. Philippides, for the respondent.
Solicitors:	W.T. Purcell, Chadwick & Skelly for the appellant. Murrell Stephenson for the respondent.
Hearing date:	1 September, 1992.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 32 of 1992

IN THE MATTER of Order 64 Rule 18 of the Supreme Court Rules, Sections 68 and 74 of the Trade Practices Act and Section 6 of the Carriage of Goods by Land (Carriers' Liabilities) Act

- and -

IN THE MATTER of an Application of KENNETH GEORGE WALLIS of 36 Moreton Street, Dalby in the State of Queensland against DOWNARD-PICKFORD (NORTH QUEENSLAND) PTY. LTD.

DOWNARD-PICKFORD (NORTH QUEENSLAND) PTY. LTD.

Appellant

(Respondent)

- and -

KENNETH GEORGE WALLIS

Respondent

(Applicant)

JUDGMENT OF THE COURT

Delivered the 30th day of October, 1992.

In these proceedings the applicant respondent Wallis sought a determination of questions of law concerning the rights of the parties arising out of a contract of carriage entered into between the appellant carrier and the Queensland Commissioner of Police. The respondent, a serving police officer, took the benefit of the contract entered into by the Commissioner. It was accepted that he was the beneficiary of an arrangement entered into for his benefit within the meaning of s. 55(1) of the Property Law Act (Qld).

The following is a sufficient statement of the facts.
The appellant was a "carrier" as defined by the

Carriage of Goods by Land (Carriers' Liabilities) Act 1967 (Qld) and was a "trading corporation" for the purposes of the Trade Practices Act 1974 (Cth).

The respondent was transferred by his superior, the Commissioner of Police, from Ayr to carry out police duties in a new location at Dalby. It was agreed in the proceedings that the Commissioner entered into the subject contract in the exercise of his discretion to confer a benefit upon the respondent as a result of the decision for transfer.

For a price of $3,197.00 the appellant agreed under the appellant's standard printed conditions to transport the respondent's furniture and effects but in doing so failed to use due care and skill and caused damage totalling $1,663.37. The respondent's property had been packed in forty separate containers and there were in addition forty- seven individual items which were not packed in containers.

The appellant's failure to use due care and skill was agreed to be in breach of its duty implied by the contract which had been entered into.

No statement in writing declaring the nature and value of the respondent's goods was given to the appellant pursuant to s. 6 of the Carriage of Goods by Land (Carriers' Liabilities) Act nor was the appellant's acceptance of any increase in risk obtained pursuant to that section. In these circumstances, the section, if applicable, would have restricted the amount of any claim against the appellant to a total of $200.00 since the goods were carried in one consignment.

The questions of law which were raised for answer in the proceedings so far as they remain relevant were, in substance, whether the respondent was entitled to rely upon ss. 68 and 74 of the Trade Practices Act and in doing so defeat any attempt by the appellant to limit the respondent's claim by reference to the Carriage of Goods by Land (Carriers' Liabilities) Act. An additional question which arose below was whether certain standard conditions in the appellant's contract were effective to limit the appellant's liability but reliance is no longer placed upon this matter and we were not required to answer this further question.

The trial judge answered the substantial question remaining for consideration by concluding that s. 6 of the Carriage of Goods by Land (Carriers' Liabilities) Act was ineffective to limit the appellant's liability, holding that it was inconsistent with ss. 68 and 74 of the Trade Practices Act as those sections applied in the present case.

In view of the nature of the questions concerning constitutional limits on legislative powers raised in the proceedings the parties gave the notices called for under the Judiciary Act 1903 (Cth).

It is desirable now to set out the legislative provisions which fall to be considered. The Trade Practices Act contains these provisions:

" 68. (1) Any term of a contract (including a term that is not set out in the contract but is incorporated in the contract by another term of the contract) that purports to exclude, restrict or modify or has the effect of excluding, restricting or modifying:

(a)  the application of all or any of the provisions of this Division;

(b)  the exercise of a right conferred by such a provision;

(c)  any liability of the corporation for breach of a condition or warranty implied by such a provision; or

(d) the application of section 75A;

is void.
...

74. (1) In every contract for the supply by a corporation in the course of a business of services to a consumer there is an implied warranty that the services will be rendered with due care and skill and that any materials supplied in connexion with those services will be reasonably fit for the purpose for which they are supplied.

...

(3) A reference in this section to services does not include a reference to services that are, or are to be, provided, granted or conferred 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."

Relevant provisions of the Carriage of Goods by Land (Carriers' Liabilities) Act are as follows:

"	5. Liability of carrier for goods. (1) The liability of a carrier for loss of or injury to goods entrusted to him under a contract of carriage or as incidental to the carriage by land of a passenger for reward shall be upon the bases prescribed by this Act and not otherwise.
...

Limitation of carrier's liability. (1) A carrier shall not be liable for loss of or injury to any goods entrusted to him under a contract of carriage or as incidental to the carriage by land of a passenger for reward in an amount greater than twenty dollars per package or, in the case of unpackaged goods, per item of goods consigned or two hundred dollars per consignment, whichever is the less, unless, at or before the time such goods are delivered to the carrier the consignor has given to him a statement in writing declaring the nature and value of such goods and has received from the carrier his acceptance in writing of the consignment in question specifying the nature and value so declared and his acceptance of increased risk in respect thereof and, if the carrier requires it, there has been paid or agreed to be paid to the carrier by way of compensation for the increased risk and care expected of him an amount in addition to the ordinary rate of charge for carriage of such goods.

6.

...

(3) Where, as prescribed by subsection (1) of this section, a carrier has accepted liability in respect of particular goods in excess of the maximum liability referred to in that subsection, he shall not be liable for loss of or injury to such goods in an amount greater than the actual value of such goods or the value as so declared, whichever is the less, together with the amount of any additional charge paid as required by the carrier in respect of the carriage of such goods.

...

9. (1) Provisions of Act incorporated in contracts. There shall be deemed to be incorporated in every contract of carriage and in every other contract under which is to be performed a carriage of goods to which this Act applies the provisions of section ... five ... and of subsections (1) and (3) of section six of this Act.

(2) Contracting out prohibited. Save as is prescribed by this Act, a contract made by a carrier which purports to exclude, modify, alter or avoid any provision of this Act or directly or indirectly has the effect of such an exclusion, modification, alteration or avoidance shall, to that extent, be void except in the case of a contract made, in the event of loss of or injury to goods, with a claimant for damages in respect thereof in settlement of the claim in question."

The Property Law Act contains these provisions:

"55(1) [Duty to perform] A promisor who, for a valuable consideration moving from the promisee, promises to do or to refrain from doing an act or acts for the benefit of a beneficiary shall, upon acceptance by the beneficiary, be subject to a duty enforceable by the beneficiary to perform that promise.

55(2) [Variation or discharge] Prior to acceptance the promisor and promisee may without the consent of the beneficiary vary or discharge the terms of the promise and any duty arising therefrom.

55(3) [Entitlements on acceptance] Upon
acceptance -

(a)  the beneficiary shall be entitled in his own name to such remedies and relief as may be just and convenient for the enforcement of the duty of the promisor; and relief by way of specific performance, injunction or otherwise shall not be refused solely on the ground that, as against the promisor, the beneficiary may be a volunteer;

(b)  the beneficiary shall be bound by the promise and subject to a duty enforceable against him in his own name to do or refrain from doing such act or acts (if any) as may by the terms of the promise be required of him;

(c)  the promisor shall be entitled to such remedies and relief as may be just and convenient for the enforcement of the duty of the beneficiary;

(d)  the terms of the promise and the duty of the promisor or the beneficiary may be varied or discharged with the consent of the promisor and the beneficiary.

55(4) [Unenforceable promises] Subject to subsection (1), any matter which would in proceedings not brought in reliance on this section render a promise void, voidable or unenforceable, whether wholly or in part, or which in proceedings (not brought in reliance on this section) to enforce a promissory duty arising from a promise is available by way of defence shall, in like manner and to the like extent, render void, voidable or unenforceable or be available by way of defence in proceedings for the enforcement of a duty to which this section gives effect."

The principal matter upon which the appellant relied was s. 6 of the Carriage of Goods by Land (Carriers' Liabilities) Act. The submission requires further attention to be paid to the relevant portions of the Trade Practices Act which have been quoted above.

Section 68(1)(c) makes void any term of a contract that purports to exclude, restrict or modify or has the effect of excluding, restricting or modifying any liability of a corporation for breach of a warranty implied by a provision of the relevant Division of the Act. Both ss. 68 and 74 are included in the Division. It may be assumed that a term of a contract which operates to limit the damages otherwise recoverable for breach of a contractual warranty to use due care and skill would be regarded as modifying liability for breach of that warranty. But any limitation upon the liability of the carrier here which results from s. 6 of the Carriage of Goods by Land (Carriers' Liabilities) Act flows from the operation of that independent statutory provision and not from any contractual term express or implied. The fact that a further provision of the Carriage of Goods by Land (Carriers' Liabilities) Act, s. 9, states that there shall be deemed to be incorporated in every contract of carriage governed by the Act the provisions of subss. (1) and (3) of s. 6 does not carry the matter forward in a fashion which assists the respondent. Even if that "deemed" contractual provision were sought to be avoided by reliance upon s. 68(1)(c), the declaratory effect of the separate statutory provision enshrined in s. 6 remains. It is not possible to read the Carriage of Goods by Land (Carriers' Liabilities) Act as though s. 6 had no independent place and the whole effect of the two provisions, ss. 6 and 9, taken together, were simply to achieve a contractual incorporation of the limitation provision and no more. On the contrary, a reading of the Act conveys the impression that s. 6 is the dominant provision and s. 9 is a supplementary statement whose purpose is to ensure, perhaps out of over-caution, that the limitation will have contractual standing as one aspect of the statutory scheme which prohibits contracting out: cf. s. 9(2).

In Yamashita-Shinnihon Steam Ships Co. Ltd. v. J.N. Nicholson Pty. Ltd. [1985] 2 Qd.R. 153 the opinion was expressed that the contract of Carriage of Goods by Land (Carriers' Liabilities) Act implemented a statutory scheme for limitation of liability of carriers whether arising under contract or not: see especially at 156. There is no reason to depart from that view.

The result is that s. 68 of the Trade Practices Act which concerns itself solely with avoiding contractual terms of a certain character will not touch the restriction on liability which flows from the independent statutory operation of s. 6 of the Carriage of Goods by Land (Carriers' Liabilities) Act. It is impossible to disregard the precisely chosen words which appear at the commencement of s. 68, "any term of a contract". This leads to the conclusion that that section is concerned exclusively with contractual terms.

The further section relied on by the respondent was s. 74 of the Trade Practices Act but that section assists the respondent only to the point of ensuring that in its application to the facts of the present case there will be in operation an implied warranty that the carrier's services will be rendered with due care and skill. This much is not in contest in the present proceedings, it being conceded that there occurred a breach of an applicable duty to use due care and skill. Section 74 does not concern itself with the quantum of damages which can be recovered for breach of the implied warranty which it introduces. If s. 74(1) stood alone it would appear to invite the possibility of the parties regulating the matter for themselves or even contracting out altogether. It is the earlier provision, s. 68(1), inapplicable in the present case, which excludes generally the possibility of contractual attempts to limit liability for breach of warranty such as is implied by s. 74(1). The existence of s. 68 in the same Division of the Act as s. 74(1) provides an indication of the limited ground which the latter provision is intended to cover and shows that it is not concerned with the extent of the liability for breach of the warranty which it introduces or with questions of quantum. The draftsman of the Act was content to leave those matters to be regulated in other ways. It is not possible to read s. 74(1) as though, considered alone, it had an effect along these lines - in every contract for the supply by a corporation etc. there is an implied warranty that the services will be rendered with due care and skill and for breach of that warranty the corporation will be liable to the consumer for the full measure of damages which represents the amount of his loss.

The result of this analysis is that it should be concluded that there is no inconsistency between s. 6 of the Carriage of Goods by Land (Carriers' Liabilities) Act relied upon by the appellant and ss. 68 and 74 of the Trade Practices Act.

The question of inconsistency for the purposes of s. 109 of the Constitution has been considered in a number of cases. In the present case in their relevant aspect the Commonwealth provisions do not evince an intention to make an exclusive provision. Further, there is no direct inconsistency between the sections of the Commonwealth Act and s. 6 of the Carriage of Goods by Land (Carriers' Liabilities) Act. Therefore, s. 109 has no effect here:

see the discussion of the tests of inconsistency in Victoria v. The Commonwealth (1937) 58 C.L.R. 618 at 630, The Queen

v. The Credit Tribunal; Ex parte General Motors Acceptance

Corporation, Australia (1977) 137 C.L.R. 545 at 563-565 and

Ansett Transport Industries (Operations) Pty. Ltd. v.

Wardley (1979-80) 142 C.L.R. 237 at 259-260.

The result is that there is no need to investigate a further question which the appellant sought to raise if it should be decided that s. 74(1), considered with or without s. 68, deprived s. 6 of the Carriage of Goods by Land (Carriers' Liabilities) Act of effect. This argument was that s. 74(3) applied to the present transaction and therefore, according to its terms, excluded the operation of s. 74(1). It was contended for the appellant that the carriage contract here was "for the purposes of ... a(n) occupation carried on or engaged in by" the Commissioner for whom, by virtue of the contract, the goods were transported.

The judge below decided this question adversely to the appellant on the basis that the goods were not transported for the purposes of the Commissioner's "occupation", being influenced by a view that the functions performed by the Commissioner, which the judge described as maintaining law and order and incidental functions, were incident to a purpose of State rather than an occupation. Having in mind the Commissioner's larger responsibilities in administering a police force consisting of numerous police officers and involving himself, amongst other things, in necessary details concerning the maintenance of police establishments and the posting of officers to those establishments, it is not immediately apparent that the primary judge's conclusion on this matter was necessarily correct but, in the circumstances, it is unnecessary to examine the question further.

The respondent then argued that s. 6 of the Carriage of Goods by Land (Carriers' Liabilities) Act was not binding on the Commissioner, the contracting party, because he represented the Crown and the Crown should not be regarded as bound by that legislation. Section 13 of the Acts Interpretation Act 1954 (Qld) provides that express words are necessary for the Crown to be bound by legislation.

This further question argued on appeal, although not below, would be relevant for consideration if the Commissioner were not only the contracting party but also a party to the litigation. The Commissioner is not a party. Here it is the owner of the goods, the police officer Wallis, who has brought the proceedings and seeks to recover for the negligent damage caused to his goods. Whatever is the position of the Commissioner, on no sensible basis can the individual officer be said to represent the Crown when he sues to establish his right to recover for damage to his household goods.

It was probably the presence of s. 55(4) of the Property Law Act in the scheme of things which caused attention to be directed to the possibility that some question of Crown immunity might arise. However, that subsection, which is set out above, when more closely examined is seen to be concerned to ensure that when a third party beneficiary under a contract sues there shall be available to the promisor against that third party all defences and matters which would render the promisor's promise void, voidable or unenforceable either wholly or in part in proceedings brought by the promisee. Thus, the subsection is concerned for obvious reasons of justice to ensure that the beneficiary coming in from outside, as it were, to enforce the promise for his own benefit, will not be unduly advantaged by being placed in a stronger position than the original promisee had that person himself sought to enforce the promises. It is interesting to note that the Law Reform Commission in its explanatory statement described the intended object of s. 55(4) in these terms:

"Sub-cl. (4) is intended to ensure that defences such as mistake, fraud, misrepresentation, Statute of Frauds and Statute of Limitations, payment, etc., which may be available to the promisor against the promisee are also available to the former against the beneficiary." (Queensland Law Reform Commission Report No. 16 at pp. 40-41)

There is no reason to think that s. 55(4) constitutes an exclusive statement of the matters which can be raised to modify liability or abate the amount recoverable when the third party beneficiary sues the promisor. Especially is this so if there is available a limitation which results from the direct effect in the circumstances of an independent enactment of Parliament. Once again, looking at s. 6 of the Carriage of Goods by Land (Carriers' Liabilities) Act, it is seen that it simply declares that a carrier shall not be liable for loss or injury in the specified circumstances beyond the nominated amount.

Section 6 has an independent operation affecting liability beyond the terms which the parties may expressly agree or which are implied in their contractual arrangements by some provision of the law. Section 6 directly limits the extent of the liability which a third party beneficiary can enforce under s. 55 of the Property Law Act just as much as it limits the amount which a directly contracting promisee can recover. It does this regardless of the precise terms of the arrangement entered into by contracting parties since it has the capacity to limit the amount which an owner of goods can recover when he sues by virtue of his ownership, although not in a contractual relationship: see Yamashita-

Shinnihon Steam Ships Co. Ltd. v. J.N. Nicholson Pty. Ltd.

(supra). The conclusion must then be that s. 6 will apply
to limit the appellant's liability in the present case.

The appeal should be allowed, the answers given and the order made below set aside and the questions which remain to be answered should be answered in the following fashion:

(1) Can the applicant (the present respondent)
rely upon s. 74 of the Trade Practices Act as
against the respondent?
No.

(4) Is s. 6, Carriage of Goods by Land (Carriers Liabilities) Act effective to limit the respondent's (the present appellant's) liability or is it inconsistent with ss. 68 and 74 of the Trade Practices Act in its application to this case?

Section 6 is effective to limit the respondent's liability and it is not inconsistent with the sections of the Trade Practices Act referred to.

The respondent should pay the appellant's cost of and incidental to the appeal to be taxed and the taxed costs of and incidental to the application below, including reserved costs if any.