Verey v Andy's Earthworks Pty Ltd

[2012] HCATrans 297

[2012] HCATrans 297

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S90 of 2012

B e t w e e n -

WAYNE LESLIE VEREY

Applicant

and

ANDY’S EARTHWORKS PTY LTD
(ABN 80 092 545 492)

Respondent

Application for special leave to appeal

HEYDON J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 16 NOVEMBER 2012, AT 12.32 AM

Copyright in the High Court of Australia

MR B.J. GROSS, QC:   May it please the Court, I appear with MR J.D. CAIRN, for the applicant.  (instructed by Herbert Weller Solicitor)

MR K.P. REWELL, SC:   May it please the Court, I appear with my learned friend, MR G.J. SMITH, for the respondent.  (instructed by Mersal & Associates Pty Ltd)

HEYDON J:   Yes, Mr Gross.

MR GROSS:   Your Honours, the amendments which were made to the definitions of “motor vehicle” and “vehicle” now found in section 3 of MACA and section 3 of the Road Transport (General) (Act) were introduced into New South Wales in 1997.  This was done in order to implement a nationally approved package of reform of road transport law.  The result is that these changes that all of the States and Territories define “vehicle” and “motor vehicle” by reference to whether it is on wheels. 

HEYDON J:   Just one moment, Mr Gross; I am sorry to interrupt.  Those counsel and others who were present in matters seven and eight, those matters will be taken at 2 pm.  Yes, Mr Gross.

MR GROSS:   Your Honours, New South Wales alone introduced a regulation on 2 March 2011 which is something called the “Doumit amendment” to include tracked vehicles in the definition of “vehicle”.  This regulation is prospective only.  It does not change the position in New South Wales for past occurrences and Doumit and this case, if they remain the law, still potentially affect the legal rights and obligations outside New South Wales in a whole range of situations where “vehicle” is the relevant word to be considered, by reference to whether it is on wheels.  Your Honours, the Court of Appeal in the present case followed its earlier decision in Doumit, which it said was correctly decided.

Doumit and this case hold that tracked vehicles, that is, vehicles that move on continuous tracks such as excavators, cranes and bulldozers are not vehicles because the tracks, rather than the wheels themselves, make direct contact with the ground.  Your Honours, we say that whether a vehicle is on wheels depends on whether wheels are underneath the vehicle and cause or contribute to its movement and direction, and are an inherent part of the travel mechanism of the vehicle, as designed.  We say it does not depend on whether the wheels make direct contact with the ground, rather than the continuous tracks under the wheels are doing so.

We also submit that it matters not whether or to what extent or in what way the wheels take the weight, or share some of the weight of the vehicle.  That is not a relevant matter, although we will address that later.  Your Honours, prior to the Doumit decision in November 2009 the decided cases in this area, including High Court authority and New South Wales Supreme Court authority which dealt with tracked vehicles held that tracked vehicles, that is, vehicles moving on endless metal tracks, were motor vehicles for relevant purposes. 

Your Honours, in Doumit, Justice Handley thought that the presumed intention of Parliament in making the 1997 amendment was to narrow the definition of “vehicle” or “motor vehicle” by excluding tracked vehicles from the definition because they were not on wheels.  We say that the more obvious parliamentary purpose was simply to bring New South Wales into line with the uniform national package of legislation to which the States and the Territories had all agreed to conform in 1996.  So when on is looking at statutory construction errors, we say there are a number of errors here before I deal with the particular case. 

Your Honours, the first error of statutory construction related to the use of legislative history in that the Court of Appeal did not consider the national context of the amending legislation and also the relevant legislative history Australia‑wide, bearing in mind that vehicles cross State lines.  Secondly, there was an error of statutory construction in that the court’s purpose of construction approach characterised the legislative purpose far too narrowly.

Thirdly, we say there is an error of statutory construction by reading down legislation which ordinarily, as a matter of public policy, should be comprehensive in its coverage, to introduce an anomalous exception in relation to tracked vehicles which has no obvious policy justification by reference to the general goals of legislation which deals with vehicles in various contexts.  Your Honours, we say that such a construction by the Court of Appeal unnecessarily undermines some of the goals of this type of legislation.  For example, there is no sensible reason why owners and drivers of tracked vehicles should be excused from State laws regarding safe vehicle maintenance, vehicle registration or negligent driving.

Your Honours, the fourth error we contend is that the Court of Appeal did not give effect to all of the words of the definition.  Your Honours, the wording is “any description of vehicle”.  When you use introductory words like “any description” obviously a wider class is being aimed for without unnecessary discrimination and we would submit that the breadth of coverage which was intended is inconsistent with the narrow view taken by Justice Handley.

Your Honours, the important fact in the present case, and I suppose in Doumit as well, the back wheels provide locomotive power to the vehicle.  Both sets of wheels provide direction to the vehicle and facilitated its movement in the manner in which the vehicle was designed to work.  Your Honours, the relevant question was mischaracterised by the Court of Appeal.  Your Honours, the relevant question was whether the vehicle was “on wheels” – that is, what did the vehicle have under it, and not what was making direct contact with the ground.  The issue of whether a vehicle is on wheels is a question of how you characterise the vehicle, whether it is in space or traversing country.  Your Honours, the Court of Appeal erred by concentrating on what was on the ground instead of what was on the vehicle.  Your Honours, Justice Beazley, who wrote a short concurring judgment, said that the vehicle:

was not “on wheels”.  It was on tracks.

Your Honours, that was her Honour’s expression.  Now, of course, it can be on both.  There was no reason why there had to be a choice.  There is nowhere in the definition of “vehicle” which inserts the words “wholly” or “only” alongside or following the words “on wheels”.  Justice Beazley said that the problem with the tracks was that they did not, as it were, follow or become the outer cladding of the wheel or wheels, rather like a tyre.

Your Honour, we agree that the wheel on that type of vehicle does not have fixed cladding, but each of the tracks operates as cladding of the rotating wheel when it becomes functionally useful to do so, given the design features of the vehicle.  In similar vein Justice Macfarlan accepted that tyres or snow chains, which are on the wheels of a vehicle and contact the ground, do not prevent the vehicle from being on wheels because, Justice Macfarlan said, the tyres or snow chains follow the cirque or shape of the wheels.  His Honour noted that the tracks of the excavator have an elongated shape between the two back wheels and the two front wheels.

We submit that does not matter.  What you have, in effect, is that the two sets of wheels share a common tread.  I suppose you could theoretically design tyres, rubber tyres, in the same way, but the fact that there is a sharing of the tread because of the rotation of the tracks, and of course the tracks also perform a function of holding the vehicle because of their grip on the ground in between the two sets of wheels, that does not relevantly change matters.

Your Honours, we can accept that the tracks do not follow a circular route as they go round an individual wheel although, if one is looking at circularity as a test of whether you have got a wheel, the tracks do, at the point of engagement, engage with the rotating wheel between 12 o’clock and 6 o’clock at one point and 6 o’clock and 12 o’clock at the other wheel.  So that at the point where it matters they do, in fact, form that circular shape.  That is through, I suppose, 180 degrees they do not do the full circle.

Now, the question of whether the tracks or what is outside the wheel forms a circular shape, rather than some sort of elliptical shape or some mixture of rectangle and half‑circles is an unwieldy way to define a vehicle.  We would submit that just looking at the way in which the analysis proceeds it cannot be a principal basis upon which excluding tracked vehicles from vehicle ‑ ‑ ‑

GAGELER J:   It might be a principled way of dealing with what a wheel is, though, do you not think?

MR GROSS:   Yes.  I will accept the wheel could be circular – I do not think that is too controversial – but looking at whether something is on wheels is, in our submission, to be looked at as to whether you do have those circular objects which are in a relevant place and perform the relevant function and whether something is interposed does not change the equation.  But the attempts to justify it by reference to the examples I have given do not quite, in effect, meet the relevant intellectual response to this particular proposition.

Your Honours, Justice Macfarlan relied upon what he described as “common parlance”.  Now, if common parlance is the test, let us apply for the question whether not a vehicle is on wheels but whether you are on your feet.  You are on your feet whether you are standing in ordinary shoes or in swimming flippers, or on snow skis or water skis.  The elongated shape or the particular shape which the object under your feet takes makes no difference to the question of whether you are on your feet.  The only difference is that the shape of the objects interposed enables you to accommodate the exigencies of the surface you are either standing on or are passing through and provide for more efficient movement on or through that particular surface.  But on wheels is a question of looking at the vehicle itself and not as to whether there is something interposed in order to enable those wheels to more effectively operate and perform their function.

Your Honours, can I just go to one other matter, if I may?  If, in fact, you have a vehicle which is stuck on a muddy track and the wheels are spinning, you can put any number of objects under there, including boards and the like, and the vehicle, which is then on, say, boards is still on its wheels but you have something interposed.  Now, of course, the nature of tracks, continuous tracks, is in effect you are providing in anticipation for difficulties, or potential difficulties, in maintaining locomotion and obviously perform stability functions and the like.

Your Honours, the mere fact that something could be interposed in order to enable something to work, given the terrain which it is on, does not change the inherent characteristic of the vehicle itself, even though it has that particular need at that individual time.  When you are on a tractor or an excavator or a similar vehicle, that is a constant need or consideration.  The fact you have dealt with it by a design mechanism does not change the equation.

Your Honours, just one final matter, if I may?  Your Honour, Justice Macfarlan added as a point that he thought from the photographs that the excavator was not on wheels because a significant part of the weight of the vehicle did not rest on those wheels and the principal weight rested on the rollers.  Your Honours will have seen the photographs, but the rollers are the cylindrical objects between the two sets of wheels and obviously take part of the weight.

Your Honours, we would question his Honour’s conclusion that the wheels do not take a significant part of the weight.  We would invite your Honour’s attention to the photograph on page 49 of the book.  Even if the rollers do help – one can see that is why they are – wheels must necessarily take part of the weight because the wheels themselves are interconnected or integrated with the overall machinery of the particular vehicle and the wheels are an important part of that overall structure taking the weight.

Further, we add that with vehicles like this where you have tracks, they are made to operate on undulating ground and, of course, the degree to which weight is taken at any given point depends on the particular task.  Whether a vehicle is horizontal or in some variant of that should not change its characteristics as being defined as a vehicle.  Your Honour, we would submit that how the total weight is shared or taken is not relevant to the definition.

Your Honours, we submit this is a case which raises a cardinal question of principle which is applicable to the country generally and not just to New South Wales or this particular case.  We submit that the Court of Appeal fell into error and it would be appropriate, if the Court sees fit, to correct that error.

HEYDON J:   Thank you, Mr Gross.  We need not trouble you, Mr Rewell.

This application turns on the construction of the words “any description of vehicle on wheels” in paragraph (a) of the definition of “vehicle” in the Road Transport (General) Act 2005 (NSW).

The Court of Appeal of the Supreme Court of New South Wales held that those words did not include an excavator, the cabin of which rested on a base connected to two parallel endless tracks which rested on the ground.  The court did so even though within the tracks were front and rear wheels and even though the locomotive power of the excavator depended on the rear wheels.

The primary reason for the Court of Appeal’s conclusion was that the evidence did not demonstrate that any significant part of the weight of the excavator rested on the wheels and the tracks were not part of the wheels.  The applicant makes various criticisms of that reasoning.  However, the reasoning is insufficiently attended by the risk of error to justify the grant of special leave to appeal.

The application is dismissed with costs.

AT 12.49 PM THE MATTER WAS CONCLUDED