Stapley v Towing Masters Pty Ltd (trading as Dynamic Towing) - [2009] NSWCA 382

No judgment structure available for this case.

New South Wales

Court of Appeal

CITATION: Stapley v Towing Masters Pty Ltd (trading as Dynamic Towing) [2009] NSWCA 382

HEARING DATE(S): 7 October 2009

JUDGMENT DATE:
26 November 2009

JUDGMENT OF: Allsop P at 1; Campbell JA at 5; Handley AJA at 120

DECISION: Leave to appeal granted. Orders below set aside. Declaration that Respondent not entitled to any lien. Money in court paid out as agreed. Respondent to pay costs in Court of Appeal and below.

CATCHWORDS: CARRIERS – carriage of goods – common carriers – whether a tow truck driver arriving at an accident scene is a common carrier – characteristics of a common carrier – common callings – public nature of the role of a common carrier – APPEAL AND NEW TRIAL – whether an argument that a tow truck driver had a common carrier’s lien was litigated at trial – determining case put at trial when there were no pleadings – whether trial judge was entitled to find the existence of a lien when there was no evidence as to a holding out to the public – APPEAL AND NEW TRIAL – whether parties can be taken to have consensually litigated a question when invited to make submissions on the topic by the trial judge – ONUS OF PROOF – onus of proving a negative proposition

LEGISLATION CITED: Civil Procedure Act 2005
Tow Truck Industry Act 1998
Tow Truck Industry Regulation 1999

CATEGORY: Principal judgment

CASES CITED: Batson v Donovan (1820) 4 B & Ald 21; 106 ER 849
Baxendale v London and South Western Railway Co (1866) LR 1 Ex 137
Belfast Ropework Co Ltd v Bushell [1918] 1 KB 210
Blanch v British American Tobacco Australia Services Ltd [2005] NSWSC 241; (2005) 62 NSWLR 653
Boson v Sandford (1690) 1 Show KB 101
Branley v South Eastern Railway Co (1862) 12 CB NS 63; ER 1066
Crouch v Great Northern Railway Co (1856) 11 Exch 742; 156 ER 1031
Crouch v London and North Western Railway Co (1854) 14 CB 255; 139 ER 105
Great Western Railway Co v Sutton (1869) LR 4 HL 226
Gregory v Commonwealth Railways Commissioner (1941) 66 CLR 50
Harris v Packwood (1810) 3 Taunt 264; 128 ER 105
Jackson v Rogers (1683) 2 Show KB 327; 89 ER 968
James v Commonwealth (1939) 62 CLR 339
Lumley v Gye (1853) 2 E & B 216; 118 ER 749
Majeau Carrying Co Pty Ltd v Coastal Rutile Ltd (1973) 129 CLR 48
Naylor v Mangles (1794) 1 Esp 109; 170 ER 295
Pozzi v Shipton (1838) 1 Per & Dav 4
Sanpine v Koompahtoo Aboriginal Land Council [2005] NSWSC 365
Stapley v Towing Master Pty Ltd [2007] NSWSC 720
Stapley v Towing Master Pty Ltd [2009] NSWSC 139; (2009) 52 MVR 249
Wyld v Pickford (1841) 8 M & W 443; 151 ER 1113

TEXTS CITED: Archbold’s Pleading and Evidence in Criminal Cases, 15th ed (1862)
Bullen & Leake, Precedents of Pleadings, 3rd ed (1868) Stevens and Sons
CHS Fifoot, History and Sources of the Common Law: Tort and Contract (1949) Stevens & Sons
Fitzherbert, Natura Brevium, 9th ed (1794) J Butterworth, Fleet-Street
Abigail Firey, “ ‘For I was Hungry and You Fed Me’: Social Justice and Economic Thought in the Latin Patristic and Medieval Christian Traditions”, in ST Lowry & B Gordon (ed) Ancient and Medieval Economic Ideas and Concepts of Social Justice, (1998) Brill Academic Publishers
GW Paton, Bailment in the Common Law (1952) Stevens & Sons
Halsbury’s Laws of England, 4th ed, vol 5(1)
Holdsworth, A History of English Law, vol 3
OW Holmes Jr, The Common Law (1882) Macmillan & Co
NE Palmer, Bailment, 2nd ed (1991) LawBook Co

PARTIES: Sandra Stapley (Applicant)
Towing Masters Pty Ltd (t/as Dynamic Towing) (Respondent)

FILE NUMBER(S): CA 40176/09

COUNSEL: JJ Garnsey QC; GAF Connolly (Applicant)
GO Blake SC (Respondent)

SOLICITORS: Courtenay & Co, Solicitors (Applicant)
Sage Solicitors (Respondent)

LOWER COURT JURISDICTION: Supreme Court - Equity Division

LOWER COURT FILE NUMBER(S): 1697/07

LOWER COURT JUDICIAL OFFICER: Palmer J

LOWER COURT DATE OF DECISION: 12 March 2009

LOWER COURT MEDIUM NEUTRAL CITATION: Stapley v Towing Masters Pty Ltd (t/as Dynamic Towing) [2009] NSWSC 139

CA 40176/09
SC 1697/07

ALLSOP P
CAMPBELL JA
HANDLEY AJA
26 NOVEMBER 2009

SANDRA STAPLEY v TOWING MASTERS PTY LTD t/as DYNAMIC TOWING

Judgment

1 ALLSOP P: I have read the reasons in draft of Campbell JA. These reasons set out the history and background to the litigation and their comprehensiveness in that regard enables me to express my views shortly.

2 The issue of whether a particular type of carrier in the 21^st century (of a type – towing motor vehicles – unknown in the Middle Ages and for centuries thereafter) has the status and calling of a common carrier is a factual question requiring careful analysis not only of the activity of the particular person in question and his or her business, but also the general conduct of that type of business in the society and locality in which it operates. The reasons of Dixon J in James v Commonwealth [1939] HCA 9; 62 CLR 339 at 367-369 reveal the elements of the task.

3 This important and not straight-forward factual question was not identified in any court document or statement of issues. There were no pleadings. It arose late and over the clear, though tactfully expressed, objection of counsel. It arose in a way that was unfair on the applicant and should, with respect, have been recognised not to be part of the proceedings.

4 For the above reasons, and for the reasons given by Campbell JA with which I otherwise agree, I agree with the orders proposed by Campbell JA.

:

Nature of the Case

6 This is the concurrent hearing of an application for leave to appeal and, if leave is granted, of the appeal itself. The Applicant is the owner of a motor vehicle that was damaged when it was involved in a collision on 1 March 2007. At the time, the Applicant’s son, Mr Glen Stapley, was driving the vehicle, and a friend of Mr Stapley was a passenger. The Respondent is a licensed tow truck operator. A tow truck owned by the Respondent attended the scene of the accident in which the Applicant’s vehicle had been involved. Several other tow trucks also came to the scene.

7 The Applicant’s vehicle was insured by Australian Associated Motor Insurers Ltd (“AAMI”). Mr Stapley telephoned AAMI, and was told to make arrangements for the vehicle to be towed to a particular customer service centre operated by AAMI, where assessors could ascertain the extent of the damage, and decide whether the vehicle was worth repairing. Mr Stapley signed a towing authority with the Respondent’s driver.

8 The Respondent’s driver went to the service centre by a circuitous route, as he had offered to drop off Mr Stapley and his friend at different places that, before the accident, they had intended to drive to, and Mr Stapley had accepted that offer.

9 When the driver arrived at the customer service centre, he presented an AAMI employee with an invoice that purported to have been calculated in accordance with the number of kilometres the driver had towed the vehicle, and the prescribed statutory rate of charge. That invoice came to $922.36. The AAMI employee rejected it. The driver then refused to deliver the vehicle until he had been paid for the towing work, and told the AAMI employee that the vehicle would be stored at $120 per day. A claim for storage charges of that amount was not ultimately pressed.

10 The driver took the vehicle to the Respondent’s holding yard.

11 AAMI’s solicitors, Courtenay & Co, sent a letter by facsimile to the Respondent on the morning of 2 March 2007, denying that the Respondent had a lien over the vehicle, and threatening Supreme Court proceedings for possession under section 93 Civil Procedure Act 2005 if the vehicle was not released by 1.00pm that day.

12 The Respondent’s solicitors, Sage Solicitors, replied by facsimile on the same day, itemising a claim for $870.65. While the letter said that the Respondent’s employees “are rightfully asserting liens that are available to them pending receipt of payment from your client”, there was no identification of the basis upon which any such lien was claimed to exist.

13 Courtenay & Co replied by facsimile on 2 March 2007 reiterating the threat to bring proceedings unless, by 4.00pm that day, the Respondent agreed to release the vehicle. While that letter asserted that “No lien can be claimed”, it gave no basis for that contention.

14 The Applicant filed a summons in the Equity Division of the Supreme Court on 5 March 2007 claiming a declaration that the Respondent was not entitled to a lien over the motor vehicle, and an order for delivery up of the vehicle. The Respondent later filed a cross-summons, seeking a declaration that it was entitled to a lien.

15 The proceedings were settled on an interlocutory basis on 19 March 2007, when consent orders were made for the release of the vehicle on payment of $870.65 into court to abide the decision of the court. Those orders were expressly made on the basis that they were without prejudice and without admission as to liability. The parties have proceeded on the basis that the release of the vehicle was an interlocutory expedient that left alive the question of entitlement of the Respondent to a lien.

16 Though the proceedings are brought in the name of the Applicant, it is AAMI, exercising its rights of subrogation, that is responsible for them being prosecuted. AAMI succeeded in persuading a judge of the Equity Division that, notwithstanding the small amount of money involved, it was inappropriate to transfer the proceedings to the Local Court, in part because there was (at least then) no decision of the Supreme Court about whether a tow truck operator was entitled to a lien for its towing charges over a vehicle that it had towed: Stapley v Towing Master Pty Ltd [2007] NSWSC 720.

17 The final hearing took place on 24 and 25 February 2009, and judgment was delivered on 12 March 2009: Stapley v Towing Master Pty Ltd [2009] NSWSC 139; (2009) 52 MVR 249. The trial judge noted, at [4]:

“It is agreed by both sides that this is a test case and that a decision will be of general utility to the towing industry and to the motor vehicle insurance industry.”

18 His Honour held that the Respondent had a lien for the towing charges because it was a common carrier. His Honour rejected a submission by the Applicant that a common carrier’s possessory lien would not arise in the present case because such a lien would be contrary to the terms of the contract for towage.

19 The Respondent had submitted to the judge that there were numerous other bases upon which it had a lien – that it had a general lien, that it had a particular lien by implication from the legislation regulating the tow truck industry, that it had a particular lien by custom or usage, that it was entitled to a lien by virtue of a term implied in a towing contract to give it business efficacy, that it had a common law artificer’s lien, and that it had a lien for salvage. The judge rejected all those alternative ways in which the Respondent contended a lien existed. The Respondent has not filed a Notice of Contention, to contend that the judge was wrong in rejecting any of these alternative ways in which it had argued a lien arose.

20 Early on the first day of the hearing below there was agreement that the quantum of fees to which the Respondent was entitled was $705.76. The judge made a declaration that as and from 1 March 2007 the Respondent had a particular lien over the motor vehicle to secure the payment of its fees of $705.76 for towing the said vehicle on 1 March 2007. He ordered that there be judgment for the sum of $705.76, an order for that amount to be paid out to the Respondent from the amount in court, with the balance being refunded to the Applicant. It is common ground on this appeal that, whatever the outcome of the appeal might otherwise be, the Respondent remains entitled to $705.76.

The Proposed Grounds of Appeal

21 Because of the very small sum of money involved in the present case, leave to appeal would be necessary.

22 The grounds of appeal that the Applicant seeks to raise, if leave is granted, are of two quite distinct types.

23 The first is a challenge to the procedural propriety of the trial. The Applicant contends that the Respondent argued for the first time in final submissions that it was entitled to a particular lien as a common carrier, and that the case up to that time had been conducted on the basis that other grounds were relied upon for the existence of the lien. The Applicant contends that his Honour was in error in permitting the basis in which the case was put to be changed at that comparatively late stage, and then deciding the case on the basis of that change.

24 The second is that his Honour was wrong in holding that the Respondent was entitled to a particular lien.

Contentions Re Leave to Appeal

25 The Applicant contends that leave to appeal should be granted on the proposed first ground of appeal because it has been improperly denied a victory, and there is a question of importance for the conduct of litigation generally about whether the trial judge should have permitted a comparatively late change in the basis on which the case was put. It submits leave should be granted on the proposed second ground because there is considerable public importance in deciding whether a tow truck operator is entitled to a possessory lien for its towing charges.

26 The Respondent accepts that there is no authoritative decision on whether a tow truck operator has a particular lien for towing charges in New South Wales, and accepts that if the present proceedings could determine that issue then it would be appropriate for leave to appeal to be granted on the second proposed ground. However, the Respondent opposes the grant of leave on the basis that, whatever this Court might decide, it will not decide any general question about whether tow truck drivers are entitled to a possessory lien for towing charges. The Respondent correctly submits that the Applicant makes no challenge to the judge’s statement of the law concerning the identifying characteristics of common carriers, nor to his acceptance that a common carrier is entitled to a particular lien by operation of law. Rather, the Respondent submits that the challenge is to a factual question, of whether there was sufficient basis in the evidence for the primary judge’s finding that, in the present case, the Respondent was a common carrier.

27 The Respondent submits that, if leave is granted at all, it should be on the first ground of appeal alone. If leave is granted on the second ground, the Respondent submits that the judge was entitled to find that the Respondent was a common carrier in respect of the tow in question.

28 It is not practicable to decide whether leave should be granted concerning either of the proposed grounds of appeal without some further examination of the facts concerning how the issue concerning whether the Respondent was a common carrier arose and was dealt with at the trial.

How the “Common Carrier” Issue Arose

29 The summons was amended twice. Its final form was that of a further amended summons dated 6 August 2007. It sought:

“1. A declaration that at all material times as and from 1 March 2007 the plaintiff was entitled as against the defendant to the immediate possession of the vehicle identified in Schedule A to this summons.

2. A declaration that at no material time since 1 March 2007 has the defendant been entitled, as against the plaintiff, to assert a right to any lien over the vehicle identified in Schedule A to this summons.

3. An order that the sum of $870.65 paid into Court by the plaintiff to the account of these proceedings be paid out to the plaintiff.

4. Costs.”

30 The cross-summons was filed on 10 September 2007, and not subsequently amended. The relief it sought was:

“1. A declaration that, at all material times since 1 March 2007, the defendant has been entitled, as against the plaintiff, to assert a right to a lien over the vehicle identified in Schedule A of this cross summons or, in the alternative, that it was so entitled from 1 March 2007 to 19 March 2007.

2. An order that the sum of $870.65 paid into Court by the plaintiff to the account of these proceedings be paid out to the defendant.

3. Costs.”

31 The proceedings were not in the Commercial List, so the special form of Commercial List summons, that contains a quasi pleading, was not used. The summons and cross-summons were each of the type that identified only the relief claimed.

32 There was at no time a direction for the filing of pleadings, or for clarification of issues through any other process akin to pleading.

33 Pursuant to pre-trial directions, the parties prepared and exchanged preliminary submissions before the day of the hearing. The Appellant’s Principal Contentions of Fact and Law, dated 18 February 2009, identified in para [30] a variety of propositions concerning the law of liens. One of those propositions was:

“(e) at common law there are two general categories of persons who have long been recognised as entitled to a particular lien not in any way dependent upon usage or custom:

Naylor v Mangles

Ashburner on Mortgages

Ashburner’s Concise Treatise on Mortgages, Pledges and Liens

^nd

Fisher and Lightwood’s

Law of Mortgage,

^nd

Majeau Carrying Co Pty Limited v Coastal Rutile Limited

34 That statement appeared as part of a summary of all the ways in which a lien could arise. When the Appellant was seeking a negative declaration, that no lien existed, it was appropriate to list all the ways in which a lien might arise, and then give closer attention to those methods by which a lien might arise that were relevant to the facts of the particular case.

35 The submissions went on:

“31. Applying these principles the plaintiff submits that no lien can exist in favour of the defendant in the present case.

32. At most, the defendant carried and stored the damaged vehicle. It was not under any legal obligation to do so and no implication of a lien therefore arises from the mere fact of carriage. The defendant did nothing to alter the Vehicle or improve its value and again no lien can therefore arise.”

36 The balance of the Appellant’s submissions dealt with whether there was a lien based on commercial usage, and whether in any event the contractual terms were inconsistent with the existence of any lien.

37 The Respondent’s pre-trial Contentions of Fact and Law, which were undated, were less than two pages long. They recited uncontentious facts, and asserted:

“10. The Plaintiff is indebted to the Defendant in the sum of $870.65 and at common law the Defendant has the right to and is entitled to assert a lien over the motor vehicle as security for the performance of an obligation or the payment of a debt.”

38 That bald contention was not expanded by any argument. The submission did not refer to a single case or legal principle concerning the circumstances in which a lien arises. Thus, necessarily, it did not state how any such principle applied to the facts of the present case.

39 The pre-trial directions also required the parties to prepare, on or before 18 February 2009, an agreed statement of issues. A document entitled “Agreed Statement of Issues” was prepared. It identified two issues. The first issue related to the quantum of the towing charge to which the Respondent was entitled. The other issue was:

“Was the defendant entitled to retain possession of the plaintiff’s motor vehicle until payment of the towing charges was made to the defendant by the plaintiff, or on her behalf?”

40 This document is a mere pretence of a statement of issues. Neither it, nor the Respondent’s “Contentions of Facts and Law” document gives the reader any idea of the type of lien the Respondent was contending it would be entitled to. Neither of them identified any facts, beyond that an authority to tow had been executed by a driver who appeared to have the owner’s authority, the towing had taken place, and the towing had not been paid for, that were said to give rise to a lien. It was unclear what, if any, facts were alleged to be relevant to the existence of any claimed lien, and under what, if any, facts were in dispute.

41 The first day of the hearing was 24 February 2009. Mr Whittle SC appeared for the Appellant. Mr C Tannous, solicitor, appeared for the Respondent. Immediately when the case began, the following exchange occurred:

“HIS HONOUR: Gentlemen, I have read the pleadings, I have read the outline of your arguments. The principal question, I suppose, is whether there is, as a matter of law, a lien, or there was a lien. The two bases upon which a lien is asserted is that the law affords such a lien in the nature of a workman’s lien or repairer’s lien, alternatively there is a lien by custom or usage.

WHITTLE: That’s as we understood how the matter was put. I don’t know whether your Honour has looked at any of the cases on my learned friend’s list of authorities he sent me yesterday afternoon, some of them, it seems to me, concern maritime liens which I didn’t realise were going to be raised which we say are not relevant. If there is an argument based on that as well I will have to look at that as well.

HIS HONOUR: There is a deal of evidence going to what people think, people in the industry, to use a neutral phrase at the moment, believe or understand. Mr Tannous, is there evidence in support of an assertion that there is a lien in such cases by usage or custom?”

42 A number of affidavits had been filed from people in the tow truck industry, and from people engaged in the insurance of motor vehicles, as to whether there was any custom or usage whereby a vehicle that had been towed would not be released until the fee for towing had been paid. There was discussion between the judge and Mr Tannous about whether evidence of that type could give rise to any implied term in a contract of towage that there would be a lien. The judge raised for discussion a question of whether there could be an industry custom, of the type that had been recognised as giving rise to an implied contractual term, in a contract that was not between two participants in the one industry, but rather was between a person who belonged to a particular industry, and a member of the general public. Mr Tannous did not dissent from the judge’s statement of what he understood to be the two bases upon which a lien was asserted to exist in the present case.

43 Later that morning, after the judge had made some remarks about the costs of litigating about the quantum of the amount owing for towing charges, the following exchange occurred:

“HIS HONOUR: … What I propose as a sensible course is, let us put entirely to one side the quantification of the amount owing on the basis it will be agreed between the parties, let us focus on the question of law. Is there or is there not a lien in circumstances such as this, because it doesn’t matter what the particular circumstances of this case were, if there was a lien it is implied into every contract whatever the minor variations happen to be between the parties. So it seems to me we might better spend our time looking at the evidence which deals with whether there is a recognised lien recognised by trade or usage. That’s the only evidentiary issue as far as I can see that we should be dealing with. The other questions are questions of law.

WHITTLE: In other words, is the law [sic: lien?] implied.

HIS HONOUR: Yes, in the nature of workman’s lien or repairer’s lien and so on. If the case is run that way it will be a very intense discussion but we should be finished at least by early afternoon and the parties can save themselves a lot of money.”

44 After a brief adjournment on the first morning the parties agreed the quantum of towing charges at $705.76, and agreed that the money paid into court should be paid out in amounts that reflected that agreement.

45 On the second day, at a stage when the only evidence remaining was the cross-examination of two tow truck drivers who gave evidence about their practice concerning whether a vehicle was released before the towing charges had been paid, there was a further exchange between the judge and Mr Tannous:

“HIS HONOUR: Mr Tannous, in the hope of focusing a little bit more narrowly on what this case is all about, can you tell me please what kind of possessory lien you are asserting?

TANNOUS: Your Honour, I would be submitting that the defendant would be entitled to retain possession of the vehicle for a number of reasons.

HIS HONOUR: Not reasons. What kind of possessory lien?

TANNOUS: The first would be an implication of law.

HIS HONOUR: Is it a general lien or a particular lien?

TANNOUS: Well, your Honour, I have made submissions in relation to both, but I would be pressing the Court--

HIS HONOUR: Let’s work it out a bit more clearly. We all need to be focusing more clearly on what the factual issues relate to. Do you say there is a general lien?

TANNOUS: Yes, I do, your Honour.”

46 After some discussion about what was involved in existence of a general lien, the discussion continued:

“TANNOUS: The matter that I would be pressing the Court for is that there is a particular lien.

HIS HONOUR: If that is the case, what’s customer usage got to do with it? A particular lien doesn’t arise by custom or usage.

TANNOUS: Your Honour, I would be submitting in finding whether there is a particular lien or not, it can be an implied contract, and in the implication of the contract one looks at the conduct of the parties and custom or usage in that conduct.”

47 After Mr Tannous had announced his intention to call his next witness, there was the following exchange:

“WHITTLE: Just before Mr Assadourian goes into the witness box, I’m sorry, your Honour, because it does arise from what your Honour had just asked.

HIS HONOUR: I am bound to apply the law as it is. Mr Tannous is going to persuade the Court of Appeal to change the law.

WHITTLE: I know, your Honour. I would just like to be – maybe I am being [a] bit slow about this – but at one moment my friend says he wants a general lien and then another moment he says he wants a particular lien.

HIS HONOUR: He wants to make both, so I have to hear the evidence in relation to both and deal with it.

WHITTLE: As long as I know what the case is, not being pleading matter, your Honour.

HIS HONOUR: I will apply the law as it is and leave it to Mr Tannous to change it.

TANNOUS: I apologise if I have offended your Honour in any way.

HIS HONOUR: Not at all, Mr Tannous. I am just trying to understand what the evidence is relating to and finding it difficult, as the law presently stands, to see what custom and usage has got to do with it, except now you are pressing the submission that it is a general lien and that that the only issue to which custom and usage could possibly relate. It doesn’t relate to special liens or particular liens, but if you want to submit there is a general lien, I have to hear the evidence. It is just a question of my understanding of where we are going.”

48 After the evidence of the remaining two witnesses had been heard, addresses began. The judge called on Mr Tannous to address first. He relied on some written submissions that were a little over 13 typed pages long. Those submissions had been made available to Mr Whittle only a very short time before, and had not been made available to the judge at all. When Mr Tannous relied on those submissions, the transcript records:

“WHITTLE: This is a new set that wasn’t served.

HIS HONOUR: We will both read it for the first time.”

49 Those written submissions included:

Possessory Liens in English Law

…

Defendant is usually considered a private carrier

could become a common carrier

Bailment

Compliance with directions at scene of accident

‘(1) If the driver of a tow truck is at the scene of a motor vehicle accident, the driver must comply with any reasonable direction given to the driver by an authorised officer, police officer or emergency services officer who is present at the scene and who is exercising his or her official duties as such an officer.’

Additional circumstances in which towing authorisation required

…

(2) However, a person is not required to obtain a towing authorisation for any such accident tow work if:

…

(b) the towing is carried out in accordance with the directions of the authorised officer or police officer.”

In these circumstances

50 The Act and Regulations referred to in this passage are the Tow Truck Industry Act 1998 (“TTI Act”), and the Regulations made under it (Tow Truck Industry Regulation 1999). That Act imposes a detailed regulatory regime upon the tow truck industry.

51 The passage from NE Palmer, Bailment, 2^nd ed (1991) LawBook Co, at 969, referred to at para [47] of Mr Tannous’ submissions is:

“A common carrier is one who holds himself out as being prepared to carry for reward the goods of any person who wishes to employ his services without reserving to himself the right to refuse the goods tendered. Even though the carrier may limit the kind of goods that he professes to carry and/or the areas to which he is prepared to deliver he may remain a common carrier within those limits. Likewise his status as a common carrier is not lost merely because he does not carry between fixed termini, or because one terminus is outside the jurisdiction, or because he does not charge standard fright rates. A private carrier can assume the responsibilities of a common carrier for a particular transaction.” (footnotes omitted)

52 In these written submissions, Mr Tannous is conceding that the Respondent was usually a private carrier, but contending that it could become a common carrier if directed by a police officer or other authorised officer, exercising statutory powers under the TTI Act and Regulations, to tow a particular vehicle.

53 Mr Tannous then made some supplementary oral submissions. Insofar as those oral submissions dealt with particular bases upon which a lien arose, they dealt with implication from custom, artificer’s liens, and liens in the nature of salvage. Specifically, nothing at all was said about the lien of a common carrier.

54 Early in Mr Whittle’s submissions the topic of salvage, and how it was a creature of the maritime law, arose for discussion. The following exchange occurred:

“HIS HONOUR: … I’m not so much troubled by whether there is a direct analogy between maritime law and the law relating to motor transport or vehicle transport or any other form of transport. It is really the question of whether salvage, which is recognised as a separate operation both in the Act and the regulations of the towing, whether salvage by it nature is capable of satisfying the Common Law requirement for a particular possessory lien of adding value law by changing conditions.

WHITTLE: Our fundamental submission would be no, and, second, it doesn’t arise in this case.

HIS HONOUR: Why?

WHITTLE: Because all that happened is that the vehicle was towed.

HIS HONOUR: We are not dealing with the particular facts of this case. Don’t you want me to expound generally on whether or what circumstances liens can or cannot arise in towing, otherwise why am I hearing it?

WHITTLE: With great respect, your Honour, if I may say so, this case was brought to your Honour and brought to the Court because there was an actual dispute between the parties. We are not asking the Court for [an] advisory opinion. Your Honour has no power to do that, as your Honour knows.

HIS HONOUR: I am sorry, Mr Whittle, I thought the parties were running this as a test case.

WHITTLE: We are, your Honour, but a test case is not an advisory opinion. The Court can still only give its opinion on the facts as found; that’s the essence of the judicial function, your Honour. The High Court has said that on many occasions. This is a typical case, your Honour, of an accident occurring on a road and we have the evidence there are 65,000 tows relating to [accidents] every year, and this is a typical example of an accident that occurs and where a vehicle is towed from one place to the other. In that sense it is a test case because it involves the ascertainment of rights, and that is in a very common situation which arises in the community every day.

HIS HONOUR: Mr Whittle, I understand what you say. I find when discussing the law generally and investigating or exploring the principles which underline the law it is difficult not to engage in expressing dicta.

WHITTLE: With respect, your Honour, I wasn’t going to say that, but your Honour has now said it. If your Honour went off and made a comment about a different set of circumstances, I think with great respect that’s what your Honour would do.

HIS HONOUR: It would only be dicta.

WHITTLE: Yes, but I hope your Honour will appreciate that the facts in this case are of the very common species. This is not an unusual case.

HIS HONOUR: What I am thinking of, and the reason I am exploring this with you, Mr Whittle, is that it wasn’t until I saw Mr Tannous’ submissions and the way he puts the case that it became apparent to me that he was putting his case in a variety of different ways which all would require exploration and consideration of certain principles and a variety of principles, the result of that exploration being that it maybe, and I don’t know yet whether I have formed a view, that in certain factual situations with which a tow truck operator may be concerned, a lien may arise and in certain others it may not.

WHITTLE: Yes.

HIS HONOUR: Do I understand you to say that I shouldn’t say anything at all about the situations where it may arise if it doesn’t arise on the facts in this case?

WHITTLE: Yes, your Honour, yes.

HIS HONOUR: Well, Mr Tannous says that he makes the submission he made the submission in this case that the principle of salvage applies so I’m going to have to deal with it.

WHITTLE: He’s made the submissions. Your Honour has to deal with it, that’s true. We would submit it doesn’t arise. First of all one can deal with it at two levels, your Honour can say it doesn’t arise on the facts of this case. Your Honour can say even if the facts might support it it doesn’t arise as a matter of law. Your Honour has that two fold or two step process …”

55 The figure of 65,000 tows relating to accidents every year, that Mr Whittle referred to, was derived from some tow truck industry statistics that had been complied by the Tow Truck Licensing & Compliance Branch of the Roads and Traffic Authority and were in evidence.

56 After the lunch break, Mr Whittle continued his submission:

it was never suggested all the other grounds which are now in the defendant’s submissions. I’m going to have to deal with some of the defendant’s submissions on the run. The point about common carrier was just not raised by the defendant in any correspondence or before your Honour until we saw these submissions just before lunch.

57 The only remaining part of Mr Whittle’s submissions concerning the part of Mr Tannous’ written submissions that dealt with common carriers was:

“WHITTLE: … Can I just deal with the point raised at paragraph 46, your Honour, because this was not raised on the first day and it came as a surprise to us when we got these submissions. (Read). He then goes on and gives a definition from Palmer as to what a ‘common carrier’ may be. I don’t cavil with the definition.

First of all, can I say, as I would reiterate, we have been taken a little bit by surprise by that submission. Secondly, no one has been called to give evidence as to what the mode of the carry operation of this company in this case is. And I have already commented on the absence of the sole director. In order for your Honour to find that the defendant was a common carrier, your Honour would have to have detailed evidence of the mode of business of the defendant and I would have been entitled to examine him on it.

I will say this, your Honour, though, on the proposition that it could be a common carrier. As I understand the law, and I say, your Honour, I haven’t really had time to research this, a common carrier as classically known was a person who was obliged to carry any species of goods offered to him provided he had the capacity to do so and the person contracting was willing to pay his rates of carriage, although there is some suggestion in the authorities that, to be a common carrier, you must be always willing to discharge reasonable rates of carriage.

If someone was applying their trade as a common carrier, particularly in the old days when one sees in the old pictures around Sydney and London a drayman going along the street with his horse and drove and you could literally step out in the street, stop him and say, ‘I want you to cart these goods over to Pyrmont to be loaded on the ship for me please’ and he would be bound to do it. That’s the classic idea of the common carrier. It probably doesn’t exist so much these days.

In any event, your Honour, it would be a surprising proposition, and there has been nothing suggested in this case, that, if there was an accident and it happened that a tow truck driver was driving past, one of the people involved in the accident could go out on the road and say, ‘Please stop and cart my car’ and he is bound to cart it.

HIS HONOUR: I don’t think Mr Tannous’ point is really that. It is, by analogy, a situation in which a tow truck driver is compelled by authority of the Acts to comply with the direction of a policeman at the accident.

WHITTLE: I was just coming to that. I wanted to establish the general proposition first and then come to that situation. I can say to your Honour, and I will say it I can see some force in the proposition that in that case, having been compelled by a policeman, the analogy with the common carrier perhaps – well I will put it another way, the analogy – I will put it this way, the policy of the law which gave the common carrier a lien might similarly operate in that case because he is--

HIS HONOUR: A tow truck operator is not doing what he does pursuant to a contract with the owner but pursuant to a direction of a non-contracting party.

Majeau

it would be a tentative view because it hasn’t been fully argued and it is not thrown up by the facts in this case.

**[Note: this is not an accurate quotation, see para [95] below.]

58 It is to be observed that in this exchange both the judge and Mr Whittle deal with the topic of common carrier only in relation to the particular limited circumstance in which Mr Tannous had contended that the Respondent might be a common carrier, namely if it became the subject of a statutorily authorised direction to move a motor vehicle.

59 The only part of Mr Tannous’ oral submissions in reply that dealt with the question of common carrier was:

“TANNOUS: … In relation to the manner in which my friend asks your Honour to deal with the question of a common carrier, your decision will in effect set the foundation for the rights and obligations between tow truck operators the public and the insurance industry. We would submit that where your Honour is pronouncing a particular right to a lien or otherwise or to the ability to assert a lien or not assert a lien, then I would respectfully submit that it’s incumbent that your Honour deals with this situation in which a Government official requires in particular a police officer or an authorised officer requires a tow truck operator to tow a vehicle and notwithstanding that it doesn’t apply in this particular case, in the way that this is couched as a test case, I’d respectfully ask that your Honour should properly deal with it.”

60 That submission is to the effect that the judge ought to decide whether a tow truck driver who moved a vehicle pursuant to a statutory direction was a common carrier, but was not a submission that the judge ought decide that a tow truck driver was a common carrier in any other circumstance.

61 His Honour reserved judgment at the conclusion of the oral submissions on 25 February 2009.

62 On 2 March 2009, the judge’s Associate sent a facsimile to the legal representatives for both parties requesting written submissions on two topics. One of them was:

“whether a towing operator holding itself out to the public by advertisement as available for towing work, even if limited to certain types of vehicle and in certain areas, is, at common law, a common carrier and therefore entitled to a particular lien for towing charges”.

63 The Associate requested that written submissions be exchanged and copies forwarded to the judge by 4.00pm on 6 March 2009. The facsimile offered the parties the opportunity of making oral submissions concerning those written submissions if they wished.

64 Mr Whittle made some supplementary submissions that dealt with the law concerning common carriers. They included:

Belfast

Ropework Co Ltd v Bushell

‘One would suppose that there ought to be some simple test by which it could be determined without difficulty whether a man is a common or a private carrier, but now that the old idea that to be a common carrier by land a man must carry between fixed termini, or at any rate within defined districts, has been abandoned, I confess that I find considerable difficulty in framing the question the answer to which would be conclusive one way or the other. If one asks whether a carrier is prepared to carry for all who choose to employ him, the answer would in almost all cases be Yes. Every carrier, common or private, who seeks employment for his lorries or carts desires all persons who have goods to be carried to come to him. It is only to the extent to which such persons resort to him that his business flourishes. If one asks whether a carrier is prepared to carry at a reasonable rate the answer would again be Yes. No carrier, common or private, would profess to charge unreasonable rates. If one asks whether a carrier is bound to carry at any reasonable rate that may be offered, that is only another way of asking whether he is a common carrier. The same difficulty presents itself if one asks whether he would be liable to indictment if he refused so to carry. To answer that question it must first be determined whether he is a common carrier or no.

For the purposes of my present decision I fall back upon this question, Did the defendant, while inviting all and sundry to employ him, reserve to himself the right of accepting or rejecting their offers of goods for carriage whether his lorries were full or empty, being guided in his decision by the attractiveness or otherwise of the particular offer and not by his ability or inability to carry having regard to his other engagements? Upon the facts as found by me I answer that question in the affirmative, and in my opinion that answer shows that he is not a common carrier.’

10. If this approach is adopted, the Court would have to consider, inter alia:

(a) the terms of the contract in any particular case;

(b) the terms of any advertisement for services offered, and where and to whom it was published;

(c) whether the tow truck operator reserved to himself the right to refuse to carry any particular motor vehicle;

(d) whether the rates charged were advertised and always reasonable (even if stipulated by statute);

(e) whether, objectively speaking, the tow truck operator intended to submit himself to legal action if he refused to carry; and

(f) whether, objectively speaking, the tow truck operator carried on business in such a way that he was an insurer of all motor vehicles in his custody, as opposed to being merely a bailee who must act without negligence.

11. None of these questions can be answered in the present case as the defendant called no-one to give evidence as to the conduct of the defendant’s day to day operations, the terms on which it contracted, or how it advertised itself (if at all). Further, these issues were not examined by either party in evidence, given that it was expressly stated by the defendant at the commencment of the case that it was conducting the case on the basis of the alleged existence of an implied term granting a particular lien based on trade usage.”

65 That written submission also dealt with the way in which Mr Whittle had responded, in the course of the trial, to paragraphs 46-50 of the Respondent’s written submissions:

“16. Although directed to file and serve written submissions some days prior to the hearing, the defendant’s written submissions were handed to the Court only at the conclusion of the evidence on 25 February 2009. Plaintiff’s counsel did not therefore have a full opportunity to consider those submissions or seek instructions on them before answering them orally. At the hearing, in answer to paragraphs 46 to 50 of those submissions, counsel for the plaintiff:

(a) put to the court that the Court should not deal with the submissions made in those paragraphs because they did not arise on the facts of the case; but

(b) tentatively conceded that, if the court were minded to deal with the submissions, it might be possible to argue that, in the circumstances mentioned in those paragraphs, a tow truck driver may have a lien.

17. The plaintiff adheres to submission (a) but wishes, if it is permitted, to withdraw any concession made in submission (b) as counsel for the plaintiff has since been instructed that the factual and legal situation concerning police directed tows is more complex than suggested in the defendant’s submissions. Having no notice that this was going to be argued, no evidence was led on this point and counsel for the plaintiff did not have the opportunity to seek full instructions until after the conclusion of the hearing.

18. It is submitted that the withdrawing of the tentative concession, if permitted, will not affect any submissions made by the solicitor for the defendant.”

66 Mr Tannous’ written submission said, so far as relevant:

“2. The Definition of a common carrier as set out in my earlier submissions ‘is one who holds himself out as being prepared to carry for reward the goods of any person who wishes to employ his services without reserving to himself the right to refuse the goods tendered.’

3. To address the query raised by His Honour, it is useful to deal with each element of this definition.

4. The first element is ‘that the carrier must hold himself out as being prepared to carry for reward the goods of any person’. The goods carried in this particular case is a motor vehicle. There cannot be any dispute that the Defendant charges a fee (reward) for carrying the goods.

5. The second and more difficult element is the second element, namely, ‘without reserving to himself the right to refuse the goods tendered’.

Tow Truck Industry Act

7. The critical question is at which point in time are the goods tendered to the carrier? It cannot be said that the goods are tendered by the mere making of a telephone call to a carrier or that a person says to the carrier ‘I want you to carry my goods’. Something more must occur, such as, the person wanting to tender the goods must complete the necessary forms advising the carrier of a number of details, such as:

(i) The name of the person tendering the goods;

(ii) Some identification of the goods to be delivered; and

(iii) The destination to which the goods are to be delivered.

Without these important details, a person could not be said to have tendered the goods for carriage, and a common carrier would not practically be able to carry the goods anywhere.

8. The extent of the information required by the common carrier may vary from one common carrier to another, however, upon completion of the information required by the common carrier, it can only then be said that the goods have been tendered to the common carrier.

9. For instance if one wishes to tender a parcel to Australia Post for carriage, one must first complete the forms provided by Australia Post requesting various pieces of information, such as the delivery address on the envelope enclosing the parcel. One cannot just deliver a parcel to Australia Post without any information or even verbal information and expect it to be delivered. If the necessary information was not provided, it could not be said that the parcel was tendered to Australia Post for carriage.

Tow Truck Industry Regulation

‘In accordance with section 49(4) of the Act, a person must not carry out, or attempt to carry out, any accident towing work (other than accident towing work to which a JAS applies) unless a towing authorisation has been obtained for the towing work.’

11. Therefore, a Tow Truck Operator cannot legally accept the tender of a motor vehicle from the scene of an accident unless a Towing Authorisation is obtained. It cannot be said then that an owner of a vehicle has tendered the vehicle for carriage by a Tow Truck Operator until the Towing Authorisation is provided.

Tow Truck Industry Act

If a person has obtained a towing authorisation for the towing of a motor vehicle, the person

must

tow the motor vehicle in accordance with the particulars specified in the authorisation.

13. I would respectfully submit that once a Towing Authorisation has been completed by the owner or driver of the vehicle, the vehicle is tendered for carriage to the Tow Truck Operator and the Tow Truck Operator does not have the power to refuse to undertake the towing work.

14. Therefore, in the circumstances of a Tow Truck Operator holding itself out to the public as available for towing work (accident towing work), the Tow Truck Operator would be held at common law, to be a common carrier and would therefore be entitled to a particular lien for towing charges.”

67 Notice the way this argument proceeds. While it recognises that, to be a carrier, a carrier must hold himself out as being prepared to carry for reward the goods of any person, there is no analysis at all of what is meant by that “holding himself out”. In particular, there is no submission about to whom that holding out must occur. The argument then proceeds to argue for a particular view of when, consistently with the relevant legislation, goods could be “tendered” to a tow truck operator. It reaches the conclusion that the goods are only tendered once a towing authority has been signed. Because at that stage section 51(2) TTI Act has the effect of prohibiting the tow truck operator from refusing to tow the vehicle in question, the conclusion is reached that the tow truck operator does not “reserve to himself the right to refuse the goods tendered”.

68 The parties did not avail themselves of the opportunity that had been offered to speak to their supplementary written submissions.

The Judgment

69 The relevant portion of the judgment that leads to the conclusion that the defendant was a common carrier begins:

“38 Mr Tannous submits that the Defendant is, at common law, a common carrier and therefore has a possessory lien by implication of law. Mr Whittle SC, in a cogent argument for the Plaintiff, submits that the Defendant is not a common carrier and further says that I should express no views as to whether towing operators generally are common carriers because whether or not a particular towing operator is a common carrier depends upon the particular facts relating to the way that that operator conducts its business.

39 There is very little evidence as to the way in which the Defendant conducts its business and as to how it came to enter into the towing contract with the Plaintiff. That is largely due, I think, to the fact that the circumstances in which the contract came into existence were very straightforward and simple and, in the vast majority of cases, would be very close to, if not identical with, the way in which motor vehicle owners come to contract with towing operators. I will confine my findings in this case to the rights as between the Plaintiff and Defendant but the evidence generally suggests that those findings will be applicable to most, if not all, licensed towing operators carrying on business in this State.”

70 In summarising the law concerning common carriers, his Honour accepted a quotation from Halsbury’s Laws of England, 4^th ed, vol 5(1) para 402:

“The test as to whether a carrier of goods is a common carrier is an objective one which does not depend on whether the carrier personally intends to hold himself out as being prepared to carry irrespective of circumstances.

To constitute himself a common carrier of goods, a carrier must hold himself out, either expressly or by a course of conduct, as willing to carry for reward, so long as he has room, goods of all persons indifferently who send him goods to be carried at a reasonable price. He must hold himself out as ready to carry for hire as a business and not as a casual occupation for a particular occasion. A carrier’s advertising literature may be material in establishing his willingness to carry goods for all those who may call upon his services. … If a carrier reserves to himself the right to reject … goods [which] he is asked to carry according to his usual course of business, or if he carries only certain … goods for certain customers, he is not a common carrier.

A carrier may be a common carrier even though one of the places between which he carries is out of the jurisdiction or overseas. He may also be a common carrier even though he does not profess to carry between fixed termini at all, but is prepared to carry from or to any terminus. If a carrier professes to carry only particular kinds of goods he is (at most) a common carrier only of such goods; and if he professes to carry only from one place to another place, he is not a common carrier to intermediate places or to any other place.”

71 After discussion of some other authorities, his Honour turned to the facts. Relevantly, he noted the occurrence of the accident, that a number of tow trucks attended the scene including the Respondent’s truck, that Mr Stapley had a brief discussion with the Respondent’s driver and agreed that the driver would tow the vehicle, and Mr Stapley then signed the towing authority. The relevant portion of his Honour’s judgment then is:

TTI Act

72 His Honour went on to reject the submission that the terms of the contract were inconsistent with the existence of a lien. It was uncontroversial that a common carrier is entitled to a particular lien. His Honour recorded (at [67]):

Skinner v Upshaw

Oppenheim v Russell

Possessory Liens in English Law

Journal of Business Law

73 His Honour held that the terms of the contract were not inconsistent with the existence of a lien in the present case.

Characteristics of a Common Carrier

74 Consideration of whether there has been a mistrial concerning whether the Respondent was a common carrier requires some discussion of what is involved in being a common carrier.

75 The common carrier is one of the various occupations that are categorised as common callings. The notion of a common calling has its origins in a medieval view that society operates in a way in which people occupied certain stations in life, and had both rights and responsibilities by virtue of occupying those stations in life.

76 It is easy in the twenty-first century to read a statement of the law about common carriers, such as that of Palmer quoted at para [51] above or that of Halsbury quoted at para [70] above, still adopting the frame of reference of a modern and largely secular society in which the prevailing ideology is that relationships are formed between individuals through their individual choices. If one reads such a statement of the law with that frame of reference one will not appreciate the full implications of the words used in the statement, in particular those concerning the carrier holding himself out. That is because there is a vast difference between such modern views of how society operates and the thought world from which the notion of a common calling arose.

77 Some idea of that difference can be gathered from Abigail Firey, “ ‘For I was Hungry and You Fed Me’: Social Justice and Economic Thought in the Latin Patristic and Medieval Christian Traditions”, in ST Lowry & B Gordon (ed) Ancient and Medieval Economic Ideas and Concepts of Social Justice, (1998) Brill Academic Publishers, p 357:

oratores

bellatores

laboratores

Medieval Callings

conditio

status

dignitas

gradus

officium

78 Firey also says, at 358–9:

ca

79 In the later medieval world there was a shade of meaning of a “calling” that suggested that there was a moral responsibility to do that which one was “called” to do, because it was the Divine will that one follow that calling. That shade of meaning is perhaps nowadays more readily recognised in the Latinised form of “calling”, namely, “vocation”. Conversely, a calling could sometimes give one rights. An example of rights arising from a calling was the theory of the Divine right of kings.

80 The callings of later medieval society were varied – they included monks, priests, knights, serfs, peasants, merchants, artisans, and scholars. The different callings each had their individual responsibilities and powers, and together made up interdependent parts of a social organism. The mutual rights and responsibilities of lord and vassal or tenant in the feudal system of land tenure provide one example. A recurring theme in Shakespeare was that it was part of the natural order, not just of human society but of the entire world, that people have their place and play their allotted part in life. One example is:

Troilus & Cressida,

81 Another is:

Henry V,

82 Something of the sense of there being an obligation arising from following a calling lingered, though with obligations of a more secular kind, when the word was used to apply to an occupation.

83 A common calling was one exercised for the benefit of people in general. The Oxford English Dictionary says of “common” as an adjective:

common alehouse

common brewer

common carrier

84 Holdsworth, A History of English Law, vol 3, at 385-6 explains the application of the concept of a calling in medieval English law:

“… medieval society was regarded as divided into very distinct orders of men, each to a certain extent bound by the particular rules which applied to that particular order – each holding a particular ‘status’ regulated by law. Persons like innkeepers or common carriers, and perhaps people like smiths or surgeons, were considered to be bound by their callings to show a certain degree of skill in their respective callings. If they did not show this degree of skill they were liable to an action of trespass on the case for negligence … The ground for allowing an action of tort in … these classes of cases was at bottom public policy. It was for the interest of the community – then as now – that persons who professed a particular calling should show an adequate amount of care, skill and honesty in following their calling. They could, therefore be sued in tort if they did not come up to the standard imposed by the law.” (footnotes omitted)

85 GW Paton, Bailment in the Common Law (1952) Stevens & Sons, at 240 identified the common callings as innkeepers, victuallers, farriers, tailors, taverners, smiths, carriers, ferry-men, sheriffs, and gaolers. There is some argument amongst legal historians about the precise extent of the list of occupations that were common callings (CHS Fifoot, History and Sources of the Common Law: Tort and Contract (1949) Stevens & Sons, at 157-8). However, the strong consensus is that the carrier appears on the list.

86 Long before the particular form of action on the case known as assumpsit evolved into an action for breach of contract, the common law recognised a liability, enforceable by an action in tort, on those who fell short of the standards required of one who followed a common calling.

87 OW Holmes Jr, The Common Law (1882) Macmillan & Co explained how late medieval law was able to hold a bailee liable for loss of goods that was occasioned through his negligence in failing to act. It found his duty to act, that gave rise to an action on the case, arose from his pursuit of a common calling. Holmes said, at 184:

^[1]

Rogers v Head

Rich v Kneeland

88 Fitzherbert, Natura Brevium (originally published 1534, 9^th ed (1794) J Butterworth, Fleet-Street) at 94D said, “it is the duty of every artificer to exercise his art rightly and truly as he ought”.

89 The public nature of the role of a common carrier continues to be an essential characteristic. In Gregory v Commonwealth Railways Commissioner (1941) 66 CLR 50 at 63, Starke J referred to a common carrier as being “bound to serve the public at large in the matter of carriage …”. However, as the notion of a common calling has survived into the modern law, the source of the obligation to act has come to be seen as arising from a different source to that from which it originally was seen to arise. Now, it is seen as arising from the social role that the follower of a common calling carries out, and what he or she holds himself out to his fellow citizens as habitually doing.

90 The notion that someone who exercises a common calling has a public responsibility to carry out the tasks involved in that calling, and carry them out properly, has the effect that a common carrier can be liable in an action for tort if he refuses to accept goods which are offered to him for carriage, provided that they are the type of goods that he holds himself out as carrying, on a route over which he holds himself out as carrying, and provided he has room to take the goods: Boson v Sandford (1690) 1 Show KB 101 at 104; 89 ER 477 at 479 per Holt CJ; Jackson v Rogers (1683) 2 Show KB 327; 89 ER 968; Crouch v London and North Western Railway Co (1854) 14 CB 255; 139 ER 105; Gregory v Commonwealth Railways Commissioner at 62 per Starke J. Another ground on which a common carrier could lawfully refuse to accept goods is if the full amount of the freight is not paid to him: Wyld v Pickford (1841) 8 M & W 443; 151 ER 1113; Batson v Donovan (1820) 4 B & Ald 21; 106 ER 849; Jackson v Rogers, supra).

91 When legal writers say that a common carrier “is bound to carry” (eg Bailhache J in Belfast Ropework Co Ltd v Bushell [1918] 1 KB 210 at 214, quoted at para [64] above) or “bound to serve” (eg Starke J in Gregory, quoted at para [89] above), the obligation by which they are “bound” is, at least when the common law is the only relevant source of law to be applied, this liability to an action in tort. The form of the pleading, in the pre-Judicature system, for the action in tort against a common carrier for refusal to carry can be found in Bullen & Leake, Precedents of Pleadings, 3^rd ed (1868) Stevens and Sons, at 277 and 282-3.

92 There are a couple of judicial statements that a common carrier could also be liable to be tried on indictment for refusing to carry goods of the type he professed to carry (Pozzi v Shipton (1838) 1 Per & Dav 4 at 12 per Patteson J (arguendo, although the passage does not appear in the report at 8 Ad & E 1106; 112 ER 1106); Belfast Ropework Co v Bushell at 212 per Bailhache J). While there appears to be no reported case of a person actually being indicted for such a crime, and neither the 11^th ed (1849) nor the 15^th ed (1862) of Archbold’s Pleading and Evidence in Criminal Cases makes mention of such a crime, it is at least consistent with the public nature of the responsibilities of someone exercising a common calling that there could once have been such a crime.

93 Another aspect of the public nature of the role of a common carrier is to be found in the limitations that the law imposed on the ability of a common carrier to charge for his services. While the common carrier was not obliged to charge all his customers at the same rate (Branley v South Eastern Railway Co (1862) 12 CB NS 63; 142 ER 1066; Great Western Railway Co v Sutton (1869) LR 4 HL 226), he was not entitled to charge any customer more than a reasonable charge (Harris v Packwood (1810) 3 Taunt 264; 128 ER 105; Crouch v Great Northern Railway Co (1856) 11 Exch 742; 156 ER 1031). If the owner of goods offered a carrier a reasonable sum for carriage of them, and the carrier insisted on a higher price, which the owner of the goods paid under protest, the owner of the goods could recover the excess in an action for money had and received (Baxendale v London and South Western Railway Co (1866) LR 1 Ex 137; Great Western Railway Co v Sutton, supra).

94 The public obligation of a common carrier to accept and carry goods of the type that he professes to carry is the foundation of the particular lien of a common carrier over goods he has carried for the reasonable cost of carrying those goods. In Naylor v Mangles (1794) 1 Esp 109; 170 ER 295 at 296, Lord Kenyon said:

“Liens by common law were given where a party was obliged by law to receive goods, &c, in which case, as the law imposed the burthen, it also gave him the power of retaining for his indemnity.”

95 The close connection between the public duty of a common carrier and the lien was also recognised by Stephen J in Majeau Carrying Co Pty Ltd v Coastal Rutile Ltd (1973) 129 CLR 48 at 54:

“There are two general categories of persons who have long been recognized by the common law as entitled to a particular lien not in any way dependent upon usage or custom; those whose quasi-public calling casts upon them a common law duty towards the public at large, such as innkeepers and carriers, and who in return are entitled to this special remedy for their charges …”

96 Dixon J stated with his customary lucidity the identifying characteristics of a common carrier in James v Commonwealth (1939) 62 CLR 339 at 367-9. One of the contentions of Mr James was that the Commonwealth had committed a tort of the Lumley v Gye (1853) 2 E & B 216; 118 ER 749 variety by inducing carriers, who Mr James alleged were common carriers, to refuse to accept Mr James’ fruit for carriage. Dixon J said, at 367-9:

Lane v Cotton

eo ipso

The foundation of the obligation is the carrier’s public profession of the business which he exercises. He is not bound to assume the character of a common carrier, but, if he does, he must not refuse the functions which belong to that occupation. It is left to him to define, by his own public profession or assumption of function, the extent of his business, that is, upon what journeys and by what means he undertakes the carriage of goods and what class or classes of goods he is prepared to carry.

Johnson v Midland Railway Co

Belfast Ropework Co v Bushell

‘For the purposes of my present decision I fall back upon this question, Did the defendant, while inviting all and sundry to employ him, reserve to himself the right of accepting or rejecting their offers of goods for carriage whether his lorries were full or empty, being guided in his decision by the attractiveness or otherwise of the particular offer and not by his ability or inability to carry having regard to his other engagements?’”

97 One basis on which Dixon J rejected the argument was that it had not been proved that any of the carriers involved were common carriers. He said, at 369:

“Judicial notice may be taken of many matters of notorious fact in relation to the course of inter-State commerce, but it cannot be assumed that any particular shipowner or, indeed, shipowners generally, have not, by reserving the right to discriminate sought to avoid the assumption of the character of common carriers.”

98 In other words, the onus of proving that there has been no reservation of a right to discriminate is on the person who alleges that some particular carrier is a common carrier.

99 From this statement of law it can be seen that the mere fact that someone carries on business as a carrier is not in itself enough to make that person a common carrier. As well, there must be a taking on by that person of the status or role of being a common carrier, often proved by a holding out to the public that the carrier is willing to deal without discrimination with all people who might offer him goods of the kind he holds himself out as carrying. Whether there is that type of taking on of a status or role, or that type of holding out, concerning the business of any particular carrier, is a question of fact that can only be answered by reference to the manner in which the business as a whole of that carrier is carried out.

100 That one has the status or role of being a common carrier is something that endures over time (though of course it is a status or role that can be taken on, and can be retired from). But it is not possible to be a common carrier on only those particular isolated occasions one chooses to be. It is possible for a carrier to contract that, for a particular voyage, his liability will be the same as that of a common carrier, but that is not the same as being a common carrier.

101 In the present case, there was no evidence called by the Respondent that went to the manner in which its business as a whole was carried out. The only witness called by the Respondent who had knowledge of the manner of operation of the business was the tow truck driver. He gave evidence only about the circumstances in which the particular tow that is the subject of this litigation came to be carried out. One could conclude that, by its employee turning up in a tow truck at the accident scene, the Respondent was holding out to the drivers of the vehicles involved in the accident that it was willing to tow those vehicles. However, a holding out on a single occasion does not justify any conclusion about the social role the Respondent performs, or the manner in which the business as a whole is conducted, and in particular does not justify a conclusion that there has been any holding out to the public.

102 Even if one could conclude that the Respondent’s tow truck from time to time arrived at the scene of motor accidents and the driver held himself out as willing to tow the vehicles involved, there is no evidence of the manner in which the Respondent chose those accidents that it would attend. Being a common carrier has as an intrinsic part of it that the carrier can come, by his publicly holding himself out, to be under an obligation to carry a particular consignment of goods, even if the carrier has not chosen to do so. Even if the Respondent had a practice of turning up at the scene of certain accidents, that is consistent with it turning up at the scene of only those accidents concerning which it had chosen that it was prepared to offer its services.

103 There is no evidence in the present case of anything happening that is analogous to the way in which goods are usually made available for a common carrier to carry, namely by the owner of those goods either bringing them to the common carrier, or contacting the common carrier and requesting that the common carrier come to collect the goods. So far as the evidence goes, the only manner in which the Respondent is shown to be engaged is by the Respondent’s tow truck arriving, unbidden, at the scene of an accident, and a driver signing a towing authority.

104 Because a question about whether a particular carrier is a common carrier is a question of fact, proper litigation of that question would ordinarily require that any issues of fact that are relevant to it either be identified through pleading or a process analogous to pleading, or else identified in a statement of issues prior to commencement of the trial. In the present case that did not happen. The case proceeded on the basis that the lien claimed by the Respondent was an artificer’s lien or alternatively a lien by custom or usage. As the transcript quoted at para [43] above makes clear, on the first morning of the trial the judge was of the view that the only evidentiary issue related to whether there was a lien arising by custom or usage.

105 Even when Mr Tannous produced written submissions in the course of his final address, the only circumstance in which those written submissions contended that a tow truck driver was entitled to a common carrier’s lien was in the circumstance where a tow truck operator was directed by a police officer or other authorised officer to carry out towing work. That was a situation that had not occurred, concerning the tow that was the subject of the litigation. Mr Whittle submitted, correctly, that the judge would be acting wrongly to decide what the rights of a car owner and tow truck operator would be, in a situation that had not arisen on the facts of the instant case.

106 After lunch on the second day, Mr Whittle also went on the deal “on the run” with the submission that Mr Tannous had made concerning common carriers. However, his doing so was concerned only with the limited circumstance in which Mr Tannous’ written submission had postulated that a tow truck driver may be entitled to a lien by virtue of being a common carrier. It was only concerning that situation, which was not a situation that arose on the facts of the present case, that Mr Whittle made his tentative concession that such a lien might arise. As well, even that tentative concession was subject to his overall submission that the judge should not deal with hypothetical situations.

107 It will be recalled that the Appellant was the plaintiff in the court below, and was seeking a negative declaration, of absence of a lien. Because the Appellant was contending for a negative proposition, it bore the onus of proving that negative proposition: Sanpine v Koompahtoo Aboriginal Land Council [2005] NSWSC 365 at [170]-[186] and cases there cited; Blanch v British American Tobacco Australia Services Ltd [2005] NSWSC 241; (2005) 62 NSWLR 653 at 655-6 [6]-[7].

108 In the present case, the Appellant proved that the manner in which the tow arose in the particular case was not through Mr Stapley accepting a standing offer made to the public as a whole to carry goods of a particular kind, but rather by accepting a particular offer, made by the Respondent’s driver, to tow his particular vehicle. When it was the Respondent that had the knowledge about how it operated its business, the Appellant gave enough evidence to cast an evidentiary onus onto the Respondent to show, if it wished to contend that it was a common carrier, that it held itself out to the public. Further, by its cross-claim, seeking a declaration of an entitlement to a lien, the Respondent put itself under an onus of proving whatever facts were needed to make out its entitlement to whatever type of lien it claimed. In these circumstances there was enough of an evidentiary foundation before the judge to have justified him in making a declaration that the Respondent was not entitled to a lien.

109 It follows that, on the facts that had been proved and the arguments that had been presented up to the time judgment was reserved, the judge could not have found that there was a common carrier’s lien in the present case.

110 The question that the judge’s Associate asked the parties to address, after judgment had been reserved, is one that did not arise on the facts of the case. There was no evidence that the Respondent “held itself out to the public by advertisement as available for towing work”.

111 Further, even if a towing operator had held itself out to the public by advertisement as available for towing work, that would be insufficient to show that the towing operator a common carrier. As well, that holding out to the public would have to be on terms that the towing operator was prepared to carry for all who might employ him without reserving to himself the right of accepting or rejecting any particular offers that might be made to him. Mr Whittle was right when he listed, in para 10(a)-(d) of his supplementary submissions (set out at para [64] above) some of the topics it could be helpful to consider in deciding whether any particular tow truck operator was a common carrier. The matters he listed in paras 10(e) and (f) are conclusions of mixed fact and law that are consequences of being a common carrier, rather than part of the means of proving that someone is a common carrier. But even the matters Mr Whittle listed do not state the nub of what is involved in being a common carrier, which is to do with the public taking on and carrying out of a particular social role, in a relatively permanent way. In addition, it would have been necessary to consider whether there was anything in the TTI Act and Regulations that was inconsistent with the tow truck operator being a common carrier.

112 The factual questions that were relevant to whether the Respondent was a common carrier had not been addressed in evidence. It had not been the case of the Respondent, prior to addresses, that a tow truck operator was a common carrier. Even in the course of addresses, the Respondent’s submission was that a tow truck operator was a common carrier only in a very narrow circumstance, that did not apply on the facts of the instant case.

113 When the judge’s Associate asked for submissions on the topic of common carrier, after judgment had been reserved, the judge was thus seeking submissions on a topic that had not been litigated. When the judge had specifically asked for submissions on that topic, it was hardly open to the parties to tell him that they would not provide them. However, because the post-hearing written submissions were made in response to a specific question of the judge, it could not be said that, by providing those submissions, the parties had consensually expanded the issues in the case to include whether the Respondent was a common carrier. When the judge decided that the Respondent was a common carrier, he was making a decision about an issue that had not been litigated. This caused the trial to miscarry in a fundamental way.

114 Notwithstanding the small amount of money involved in the case, the judgment below stands as a decision of a superior court that, at least in the circumstances to which the judge referred in para [39] of his judgment, a tow truck operator is entitled to a lien as a common carrier. That decision, if allowed to stand, is likely to be followed in numerous other practical situations. I bear in mind the 65,000 instances of tows from accident sites in New South Wales each year. When the decision has been reached by a flawed process, it cannot be allowed to stand.

115 For these reasons, I would grant leave to appeal on the first ground of appeal, and set aside the decision in the court below.

116 When there has been a mistrial, a common result is that the case is sent back for retrial. In my view that would not be an appropriate course to adopt in the present case. On the issues that were litigated, the judge reached the conclusion that there was no lien. It was only in going on to consider, and decide the case on the basis of, a common carrier’s lien, that there was a mistrial. The present is one of the unusual cases where it is possible for this Court to undo the effect of the mistrial, because it is quite clear what conclusion the judge would have reached had he not gone on to consider the question of whether the Respondent was entitled to a common carrier’s lien.

117 In the circumstances, the proper orders for this Court to make, on those issues that had been litigated, are the orders the judge would have made if he had not found the common carrier’s lien. That would have been to give effect to the parties’ agreement about the quantum of the towing fee, grant the negative declaration that the Applicant sought, to dismiss the cross-claim, and make consequential costs orders.

118 In my view, leave to appeal should also be granted concerning the second question, but only for a limited purpose. That purpose is to restore the order that the judge would have made on the basis of the issues litigated before him. It should be clearly stated that the granting of leave on the second question does not involve this court in reaching its own independent conclusion on whether the Respondent had a common carrier’s lien. Indeed, it would be inappropriate for this Court to embark on its own consideration of that question, when the issue was not litigated in the court below. I should also state that I express no view about the correctness of Mr Tannous’ argument that a tow truck driver could become a common carrier if he towed a vehicle pursuant to a statutory direction, nor about how the TTI Act and Regulations affect the question of whether a tow truck driver is a common carrier. Even though I propose to declare that there was no lien over the Appellant’s vehicle, if in future someone wishes to litigate the question of whether a tow truck driver is entitled to a lien by virtue of being a common carrier, it will be open to submit that the trial judge is free to distinguish the present case, because this is a case in which the question of common carrier was not litigated.

Orders

119 The orders I propose are:

(1) Grant leave to appeal concerning the first and second proposed grounds of appeal.

(2) Direct the Applicant to file, within 7 days of the date of delivery of these reasons for judgment, a Notice of Appeal in the form of the draft contained in the White Book.

(3) Appeal allowed.

(i) Order that there be judgment for the defendant/cross-claimant in the sum of $705.76.

(ii) Order that the sum of $870.65 paid into court by the plaintiff/cross-defendant in these proceedings be paid out to the defendant/cross-claimant in the sum of $705.76 in full satisfaction of the judgment ordered in (i) above.

(iii) Order that the balance of the sum of $870.65 paid into court by the plaintiff/cross-defendant be paid out to the plaintiff/cross-defendant.

(iv) Declare that at no material time since 1 March 2007 has the defendant been entitled, as against the plaintiff, to assert the right to any lien over the vehicle identified in Schedule A to the Further Amended Summons.

(v) Cross Summons dismissed.

(vi) Order defendant to pay plaintiff’s costs.

(5) Respondent to pay Applicant’s costs of the application for leave to appeal and of the appeal.

Suitors Fund Act

: I agree with Allsop P.

**********

Citations

Stapley v Towing Masters Pty Ltd (trading as Dynamic Towing) [2009] NSWCA 382

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Stapley v Towing Masters Pty Ltd [2009] NSWSC 139

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CITATION:	Stapley v Towing Masters Pty Ltd (trading as Dynamic Towing) [2009] NSWCA 382
HEARING DATE(S):	7 October 2009
JUDGMENT DATE:	26 November 2009
JUDGMENT OF:	Allsop P at 1; Campbell JA at 5; Handley AJA at 120
DECISION:	Leave to appeal granted. Orders below set aside. Declaration that Respondent not entitled to any lien. Money in court paid out as agreed. Respondent to pay costs in Court of Appeal and below.
CATCHWORDS:	CARRIERS – carriage of goods – common carriers – whether a tow truck driver arriving at an accident scene is a common carrier – characteristics of a common carrier – common callings – public nature of the role of a common carrier – APPEAL AND NEW TRIAL – whether an argument that a tow truck driver had a common carrier’s lien was litigated at trial – determining case put at trial when there were no pleadings – whether trial judge was entitled to find the existence of a lien when there was no evidence as to a holding out to the public – APPEAL AND NEW TRIAL – whether parties can be taken to have consensually litigated a question when invited to make submissions on the topic by the trial judge – ONUS OF PROOF – onus of proving a negative proposition
LEGISLATION CITED:	Civil Procedure Act 2005 Tow Truck Industry Act 1998 Tow Truck Industry Regulation 1999
CATEGORY:	Principal judgment
CASES CITED:	Batson v Donovan (1820) 4 B & Ald 21; 106 ER 849 Baxendale v London and South Western Railway Co (1866) LR 1 Ex 137 Belfast Ropework Co Ltd v Bushell [1918] 1 KB 210 Blanch v British American Tobacco Australia Services Ltd [2005] NSWSC 241; (2005) 62 NSWLR 653 Boson v Sandford (1690) 1 Show KB 101 Branley v South Eastern Railway Co (1862) 12 CB NS 63; ER 1066 Crouch v Great Northern Railway Co (1856) 11 Exch 742; 156 ER 1031 Crouch v London and North Western Railway Co (1854) 14 CB 255; 139 ER 105 Great Western Railway Co v Sutton (1869) LR 4 HL 226 Gregory v Commonwealth Railways Commissioner (1941) 66 CLR 50 Harris v Packwood (1810) 3 Taunt 264; 128 ER 105 Jackson v Rogers (1683) 2 Show KB 327; 89 ER 968 James v Commonwealth (1939) 62 CLR 339 Lumley v Gye (1853) 2 E & B 216; 118 ER 749 Majeau Carrying Co Pty Ltd v Coastal Rutile Ltd (1973) 129 CLR 48 Naylor v Mangles (1794) 1 Esp 109; 170 ER 295 Pozzi v Shipton (1838) 1 Per & Dav 4 Sanpine v Koompahtoo Aboriginal Land Council [2005] NSWSC 365 Stapley v Towing Master Pty Ltd [2007] NSWSC 720 Stapley v Towing Master Pty Ltd [2009] NSWSC 139; (2009) 52 MVR 249 Wyld v Pickford (1841) 8 M & W 443; 151 ER 1113
TEXTS CITED:	Archbold’s Pleading and Evidence in Criminal Cases, 15th ed (1862) Bullen & Leake, Precedents of Pleadings, 3rd ed (1868) Stevens and Sons CHS Fifoot, History and Sources of the Common Law: Tort and Contract (1949) Stevens & Sons Fitzherbert, Natura Brevium, 9th ed (1794) J Butterworth, Fleet-Street Abigail Firey, “ ‘For I was Hungry and You Fed Me’: Social Justice and Economic Thought in the Latin Patristic and Medieval Christian Traditions”, in ST Lowry & B Gordon (ed) Ancient and Medieval Economic Ideas and Concepts of Social Justice, (1998) Brill Academic Publishers GW Paton, Bailment in the Common Law (1952) Stevens & Sons Halsbury’s Laws of England, 4th ed, vol 5(1) Holdsworth, A History of English Law, vol 3 OW Holmes Jr, The Common Law (1882) Macmillan & Co NE Palmer, Bailment, 2nd ed (1991) LawBook Co
PARTIES:	Sandra Stapley (Applicant) Towing Masters Pty Ltd (t/as Dynamic Towing) (Respondent)
FILE NUMBER(S):	CA 40176/09
COUNSEL:	JJ Garnsey QC; GAF Connolly (Applicant) GO Blake SC (Respondent)
SOLICITORS:	Courtenay & Co, Solicitors (Applicant) Sage Solicitors (Respondent)
LOWER COURT JURISDICTION:	Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S):	1697/07
LOWER COURT JUDICIAL OFFICER:	Palmer J
LOWER COURT DATE OF DECISION:	12 March 2009
LOWER COURT MEDIUM NEUTRAL CITATION:	Stapley v Towing Masters Pty Ltd (t/as Dynamic Towing) [2009] NSWSC 139