Appeal against a decision of the Road Freight Transport Industry Tribunal in Matter No. RFT 9 of 2012 given on 6 February 2013

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

FULL BENCH

CITATION : 2013 WAIRC 00355

DELIVERED : Friday, 14 June 2013

FILE NO. : FBA 1 OF 2013

Appellant

AND

Mr Gene Lawson

Respondent

ON APPEAL FROM:

Jurisdiction : Road Freight Transport Industry Tribunal

Coram : Commissioner S J Kenner

Citation : [2013] WAIRC 00070; (2013) 93 WAIG 294

File No. : RFT 9 of 2012

Catchwords : Industrial Law (WA) - appeal against decision of single Commissioner sitting as the Road Freight Transport Industry Tribunal - appellant sought to raise new points on appeal that raise issues going to the jurisdiction of the Tribunal - construction of the meaning of an 'owner-driver' within the meaning of the Owner-Drivers (Contracts and Disputes) Act 2007 (WA) considered - points raised could have been met by the calling of evidence at first instance

Legislation : Industrial Relations Act 1979 (WA) s 26(1)(b), s 49;

Owner-Drivers (Contracts and Disputes) Act 2007 (WA) s 3, s 4, s 4(2), s 5, s 5(1), s 6, s 9, s 38(1), s 38(1)(a).s 40(a), s 43(1), s 43(1)(b), s 47, s 47(1), s 47(4);

Road Traffic Act 1974 (WA) s 5(1), s 111AB(4);

Interpretation Act 1984 (WA) s 19, s 19(1), s 19(1)(a);

Administrative Appeals Tribunal Act 1975 (Cth) s 33(1)(c);

Road Traffic (Tow Truck) Regulations 1975 (WA) reg 4(7);

Road Traffic (Vehicle Standards) Regulations 2002 (WA) sch 1.

Result : Appeal dismissed

Representation:

Counsel:

Appellant : Mr A J Power and Ms J M Stevens

Respondent : Mr A M Dzieciol and Ms C M Collins

Solicitors:

Appellant : Messrs Hammond Legal

Respondent : Transport Workers' Union of Australia, Industrial Union of Workers, Western Australian Branch

Case(s) referred to in reasons:

Burswood Resort (Management) Ltd v The Australian Liquor, Hospitality and Miscellaneous Workers Union, Miscellaneous Workers Division, Western Australian Branch (1996) 76 WAIG 4417

Chief Executive Officer, Department of Agriculture and Food v Ward [2008] WAIRC 00079; (2008) 88 WAIG 156

Federated Clerks' Union of Australia, Industrial Union of Workers, WA Branch v George Moss Ltd (1990) 70 WAIG 3040

Gordon v Commissioner of Police [2011] WASCA 168; (2011) 91 WAIG 1825

H v Minister for Immigration and Multicultural Affairs [2000] FCA 1348

Hamersley Iron Pty Ltd v Association of Draughting, Supervisory and Technical Employees, Western Australian Branch (1984) 64 WAIG 852

Holland v Jones (1917) 23 CLR 149

Minister for Education v Liquor Hospitality and Miscellaneous Union, Western Australian Branch [2011] WAIRC 00818; (2011) 91 WAIG 1839

Pochi v Minister for Immigration and Ethnic Affairs [1979] AATA 64

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355

Re Bolton; Ex parte Beane [1987] HCA 12; (1987) 162 CLR 514

Rizhao Steel Holding Group Co Ltd v Koolan Iron Ore Pty Ltd [2012] WASCA 50

Ross v The Queen (1979) 141 CLR 432

SGS Australia Pty Ltd v Taylor (1993) 73 WAIG 1760

The Civil Service Association of Western Australia Inc v Director-General, Department for Child Protection [2010] WAIRC 00206; (2010) 90 WAIG 214

The Minister for Health v Drake-Brockman [2012] WAIRC 00150; (2012) 92 WAIG 203

Water Board v Moustakas (1988) 180 CLR 491

Case(s) also cited:

Knight v FP Special Assets Ltd [1992] HCA 28; (1992) 174 CLR 178

Reasons for Decision

SMITH AP:

The appeal and the order appealed against

1         This is an appeal made pursuant to s 43(1) of the Owner-Drivers (Contracts and Disputes) Act 2007 (WA) (the Owner-Drivers Act), against an order made by the Road Freight Transport Industry Tribunal (the Tribunal).  The order appealed against was made pursuant to s 47 of the Owner-Drivers Act by the Tribunal on 6 February 2013. 

2         The matter came before the Tribunal as a dispute referred by Mr Gene Lawson who operated a towing business trading under the name of Autocare Towing Service.  The dispute arose out of towage work Mr Lawson carried out for Kingstyle Investments Pty Ltd (Kingstyle).

3         After hearing evidence and submissions, the Tribunal ordered Kingstyle to pay the sum of $12,752 to Mr Lawson.  The Tribunal also ordered Kingstyle to pay Mr Lawson interest on the sum at the rate of 6% per annum from 24 April 2011 to the date of the order in the sum of $1,320.

4         Section 47 of the Owner-Drivers Act empowers the Tribunal to hear and determine a dispute referred to it under s 40(a) of the Owner-Drivers Act by a person who is a party to an owner-driver contract that arises under or in relation to an owner-driver contract.  Under s 47(1) of the Owner-Drivers Act, the Tribunal is empowered to hear and determine the dispute for the purposes of s 38(1).  Section 38(1) of the Owner-Drivers Act provides:

(1) By this section the Commission has jurisdiction to -

(a) hear and determine disputes that may be referred to the Commission under this Part; and

(b) enquire into and deal with any other matter in relation to the negotiation of owner-driver contracts that may be referred to the Commission under this Part.

5         In making a determination under s 47(4) of the Owner-Drivers Act, the Tribunal is empowered to order the payment of a sum of money found by the Tribunal to be owing by one party to another party.

6         The grounds of appeal raise arguments that go to the Tribunal's jurisdiction to hear and determine the dispute referred under s 38(1)(a) of the Owner-Drivers Act.  Kingstyle says that unless the vehicle used by Mr Lawson when carrying out the work in question was a heavy vehicle within the defined meaning in the Owner-Drivers Act, the Tribunal did not have jurisdiction to hear and determine the dispute.  It also argues the Tribunal erred in that it assumed it had jurisdiction to hear and determine Mr Lawson's application on the basis that the contract between him and Kingstyle was an owner-driver contract within the meaning of the Owner-Drivers Act, when Mr Lawson was not an owner-driver and was not a party to an owner-driver contract, so no dispute could arise under the Owner-Drivers Act.

7         Kingstyle's arguments about jurisdiction are two-fold.  Firstly, it says that when the established principles of statutory construction are applied to the interpretation of the Owner-Drivers Act, it is clear that an owner-driver contract under the Owner-Drivers Act means an owner-driver contract in what is traditionally understood as the heavy haulage transport or road freight transport industry and is not intended to apply to the towing of vehicles by tow trucks.  Kingstyle says that the evidence before the Tribunal, such as it was, demonstrated that Mr Lawson was in the tow truck industry and not in the road freight transport industry which is concerned with the transport of goods in heavy vehicles.  In particular, the relevant contract between Kingstyle and Mr Lawson was not one for the transport of vehicles 'in a heavy vehicle' as defined in the Owner-Drivers Act.  Secondly, Kingstyle contends that it was not proven by Mr Lawson that the maximum loaded mass of the vehicle in question was as defined in s 3 of the Owner-Drivers Act and s 111AB(4) of the Road Traffic Act 1974 (WA) (the RT Act).

Tribunal's reasons for decision

8         Mr Lawson claimed that during the period between January 2010 and March 2011, he provided towage services to Kingstyle for which he had not been paid.  In concise reasons for decision, Kenner C set out what he found to be the following uncontested facts:

(a) It was not in dispute between the parties that at all material times between January 2008 and May 2011 Mr Lawson operated a tow truck and provided his services to Kingstyle under an owner-driver contract for the purposes of the Owner-Drivers Act.

(b) Mr Lawson gave evidence that he was approached by Kingstyle and offered work as a tow truck operator.  Mr Lawson purchased a tilt tray tow truck and commenced working for Kingstyle in accordance with an owner-driver contract.  The terms of the arrangement were oral and Mr Lawson mainly dealt with the nephew of the owner of Kingstyle, 'Leon', and the administration staff in Kingstyle's office.

(c) The work Mr Lawson received from Kingstyle was mainly through insurance companies.  A call was made by Kingstyle's home base to Mr Lawson to notify him of a tow job which he could accept or decline.  There was also some private work done for mechanical workshops.  Mr Lawson also undertook a very small amount of work on his own account.

(d) Once Mr Lawson received and confirmed a tow job, he transferred the job number to his invoice book and undertook the towage work.  Every few weeks, Mr Lawson submitted his invoices to the office of Kingstyle.  Mr Lawson's uncontradicted evidence was that he performed all of the services set out in the invoices that were tendered as exhibit A1.  Exhibit A1 comprised of some 129 invoices.  Mr Lawson prepared a schedule from his computer records setting out the invoiced jobs, with full particulars, in respect of which no payment had been received from Kingstyle.  This document was tendered as exhibit A2.  The total amount claimed by Mr Lawson was the sum of $12,834.53.

(e) A term of the owner-driver contract between Mr Lawson and Kingstyle involved a deduction of 25% from the gross invoiced sums, representing in effect, a commission payment payable to Kingstyle for sourcing the towage work.

9         The central contention of Kingstyle's defence at first instance was that there was an agreement that if Kingstyle was not ultimately paid by an insurer, any payments previously paid by Kingstyle were to be deducted from payments owing to Mr Lawson.  When this matter was put to Mr Lawson in cross-examination he strongly denied there was any such agreement.  Kingstyle was represented by its owner at the hearing before the Tribunal at first instance and it did not call any evidence on its own behalf.  In the reasons for decision, Kenner C recorded that Kingstyle's representative, Mr Valentino, was cautioned that in the event that no sworn testimony was adduced by Kingstyle, and there was a conflict in the contentions advanced by it and Mr Lawson, then the Tribunal may be obliged to accept the sworn testimony of Mr Lawson.

10      Commissioner Kenner rejected Kingstyle's argument that there was an agreement with Mr Lawson that if ultimately Kingstyle did not receive payment from its insurer client it could deduct such sums of money from amounts already paid to Mr Lawson.  Commissioner Kenner found that Kingstyle led no evidence to support such a contention and the contention was directly inconsistent with the sworn evidence of Mr Lawson, which evidence was accepted by the Tribunal.  Commissioner Kenner also found that at the material time by operation of s 9 of the Owner-Drivers Act, it was unlawful for a hirer to make payments to an owner-driver contingent on whether the hirer is ultimately paid by another person.

11      Commissioner Kenner then found that Mr Lawson had given his evidence honestly and accounted for the work he performed for Kingstyle during the material times.  However, Kenner C found there was one minor discrepancy between exhibit A3 and exhibit A1 which related to one particular invoice for work performed on 8 April 2010 in the sum of $100.  As there was no such invoice contained in exhibit A1, that claim was disregarded.

12      For these reasons, Kenner C found that Mr Lawson had established his claim and made the order the subject of this appeal.

Legislation

13      The preamble to the Owner-Drivers Act provides it is an Act to promote a safe and sustainable road freight transport industry by regulating the relationship between persons who enter into contracts to transport goods in heavy vehicles and persons who hire them to do so, to establish the Tribunal and the Road Freight Transport Industry Council, and for related purposes.

14      Under s 6 of the Owner-Drivers Act, the Act is expressed to apply to and in relation to, among other activities, owner-drivers who are engaged under an owner-driver contract that is entered into in Western Australia or that is subject to the law of Western Australia.

15      The meaning of 'owner-driver' is set out in s 4 of the Owner-Drivers Act.  Section 4(2) of the Owner-Drivers Act provides:

(2) For the purposes of this Act an owner-driver is -

(a) a natural person -

(i) who carries on the business of transporting goods in one or more heavy vehicles supplied by that person; and

(ii) whose principal occupation is the operation of those vehicles (whether solely or with the use of other operators); or

(b) a body corporate (other than a listed public company) that carries on the business of transporting goods in one or more heavy vehicles that are -

(i) supplied by the body corporate or an officer of the body corporate; and

(ii) operated by an officer of the body corporate (whether solely or with the use of other operators) whose principal occupation is the operation of those vehicles; or

(c) a partnership of persons, at least one of whom is a person referred to in paragraph (a).

16      The meaning of owner-driver contract is defined in s 5(1) of the Owner-Drivers Act which provides as follows:

For the purposes of this Act, an owner-driver contract is a contract (whether written or oral or partly written and partly oral) entered into in the course of business by an owner-driver with another person for the transport of goods in a heavy vehicle by the owner-driver.

17      'Goods' are defined in s 3 of the Owner-Drivers Act to include freight and materials.  A 'heavy vehicle' is defined in s 3 of the Owner-Drivers Act to mean a vehicle, as defined in the RT Act, with a gross vehicle mass of more than 4.5 tonnes and 'gross vehicle mass' is defined in s 3 of the Owner-Drivers Act as a term that has the same meaning as it has in s 111AB(4) of the RT Act.  Section 111AB(4) of the RT Act defines the 'gross vehicle mass' of a vehicle to mean the maximum loaded mass of a vehicle:

(a) as specified by the manufacturer; or

(b) as specified by the relevant authority if -

(i) the manufacturer has not specified a maximum loaded mass; or

(ii) the manufacturer cannot be identified; or

(iii) the vehicle has been modified to the extent that the manufacturer's specification is no longer appropriate;

Kingstyle's submissions

18      The central issue in this appeal is whether Mr Lawson was at the relevant time an 'owner-driver' within the meaning of the Owner-Drivers Act.  To establish this jurisdictional fact, Kingstyle says it was incumbent on Mr Lawson to prove the facts that would establish he carried on a business of transporting goods in a 'heavy vehicle' as defined in the Owner-Drivers Act.  Kingstyle argues that when the evidence given in the proceedings before the Tribunal is examined, together with the provisions of the legislation that confer jurisdiction on the Tribunal, it is clear that there was no evidence that adequately demonstrated that Mr Lawson was involved in the transport of goods or materials in a heavy vehicle in the road freight transport industry.

19      Kingstyle says an examination of the evidence is important as it demonstrates that Mr Lawson did not satisfy the onus on him to bring sufficient evidence before the Tribunal that he was carrying on business transporting goods or materials in a heavy vehicle.  The only relevant evidence given by Mr Lawson was that he was a truck driver driving tow trucks for Mr Valentino's company from January 2008 to around April to May 2011.  When asked what sort of vehicle did he have, he said, 'I supplied my own tilt tray tow truck'.  Then when he was asked what was the gross vehicle mass of the vehicle he said, 'Over four and a half thousand tonne.  Over 4,500.'  (AB 39-40).

20      Kingstyle points out that no evidence was given by Mr Lawson of what a tilt tray tow truck is or how it operates.  Kingstyle contends this is not a matter that could properly be the subject of judicial notice.  It is only a fact, that is so generally known that every ordinary person may be reasonably presumed to be aware of it, that a court can take judicial notice of such a fact:  Holland v Jones (1917) 23 CLR 149, 153 (Isaacs J).  Despite the fact that the Tribunal is required by operation of s 39(2) of the Owner-Drivers Act to have relevant knowledge in the field of road freight transport and that may encompass knowledge of what a tilt tray truck is, such knowledge known to the Tribunal is not sufficient to invoke the principle of judicial notice.

21      A heavy vehicle relevantly means a vehicle as defined in the RT Act with a gross vehicle mass of more than 4.5 tonnes.  Whilst Kingstyle does not make any real complaint about Mr Lawson's evidence that the vehicle had a gross vehicle mass of more than four and a half thousand tonne as this was clearly an error as his evidence, in any event, the evidence given by Mr Lawson is merely an expression of an opinion and does not meet the statutory requirement.  It is argued that for Mr Lawson to prove that the tilt tray truck had a gross vehicle mass of more than 4.5 tonnes it would be necessary for evidence to be given of the maximum loaded mass of the vehicle as specified by the manufacturer or as specified by the relevant authority.  If the vehicle in question was last licensed in Western Australia, the relevant authority is the Director General of the Road Traffic Authority:  s 111AB(4) definition of 'relevant authority' in the RT Act and s 5(1) definition of 'Director General' in the RT Act.

22      Consequently, Kingstyle says it was not proven by Mr Lawson that the relevant contract between Kingstyle and Mr Lawson was one for the transport of goods in a heavy vehicle, as defined in the Owner-Drivers Act.  This remains the case even though no evidence was led by Kingstyle about the gross vehicle mass of Mr Lawson's vehicle.  Kingstyle points out that it was for Mr Lawson to prove these facts and he did not do so and the failure to prove these matters meant Kingstyle had no case to answer.

23      Kingstyle's second argument goes to the issue as to what industry or industries the Owner-Drivers Act applies.  Kingstyle points out that in s 4 of the Owner-Drivers Act, an owner-driver is defined as a person who carries on 'the business of transporting goods in one or more heavy vehicles' and in s 5 of the Owner-Drivers Act, an owner-driver contract is defined to mean a contract entered into in the course of business by an owner-driver with another person for 'the transport of goods in a heavy vehicle' by the owner-driver.  Kingstyle's argument turns on the construction of the use of the words 'the business of transporting goods in one or more heavy vehicles' and the words 'transport of goods in a heavy vehicle'.  It is argued that these words specifically cover the transport of goods and materials 'on' or 'in' heavy vehicles, but the words used do not contemplate the transport of a vehicle by towing.  Of importance, however, Kingstyle concedes that the transport of goods and materials on a truck that has a tray, as opposed to a contained area at the rear, would come within the scope of s 4 and s 5 of the Owner-Drivers Act.

24      Kingstyle says that no evidence was given that Mr Lawson was transporting the vehicles on the back of his truck, as opposed to towing the vehicles.  Kingstyle does not say to tow is not to transport, but it says to tow goods or materials is not to 'transport in', or is not capable of being characterised as the 'carrying on the business of transporting goods'.  It argues that if the words 'transporting by' was used it would provide for a broader interpretation of the meaning of transporting goods and materials in a heavy vehicle.

25      Pursuant to s 19 of the Interpretation Act 1984 (WA), extrinsic material can be used in the interpretation of legislative provision.  Section 19(1) of the Interpretation Act provides:

(1) Subject to subsection (3), in the interpretation of a provision of a written law, if any material not forming part of the written law is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material — 

(a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the written law and the purpose or object underlying the written law; or

(b) to determine the meaning of the provision when — 

(i) the provision is ambiguous or obscure; or

(ii) the ordinary meaning conveyed by the text of the provision taking into account its context in the written law and the purpose or object underlying the written law leads to a result that is manifestly absurd or is unreasonable.

26      Kingstyle says regard can be had to the second reading speech for the Owner-Drivers (Contracts and Disputes) Bill 2006 (WA) (the Bill) pursuant to s 19(1)(a) of the Interpretation Act.  When regard is had to what was said in the second reading speech it can be said that it confirms the ordinary meaning of the text.  The passages of the second reading speech that Kingstyle relies upon in support of this argument are as follows:

The purpose of the Owner-Drivers (Contracts and Disputes) Bill 2006 is to provide legislation that ensures safe and sustainable rates for owner-drivers in the road transport industry. We expect heavy haulage drivers to operate in a safe manner, with proper fatigue management practices in place. However, unless owner-drivers are paid reasonable rates, the pressure will be on to cut corners to meet the high cost environment in which they operate.

This bill recognises inequity in the bargaining positions of owner-drivers and hirers. Several studies have indicated that excessive competition in the trucking industry has resulted in lower than economic rates, leading to driving hours above safe levels, the use of stimulant drugs to keep drivers awake, reduced maintenance on vehicles, unsafe work schedules and unsafe loads.

Owner-drivers are the most vulnerable and least protected sector in their industry. The sector is often characterised by low-level earnings, high rates of business failure, and working conditions that many members of the community would consider unacceptable. This legislation aims to regulate this industry so that standards are maintained at a high level and that self-employed drivers are guaranteed a reasonable rate of return.

Fuel prices have been trending upwards, raising financial pressure upon already marginal owner-drivers in the trucking industry, particularly long-distance drivers. Although increases in fuel prices are directly related to international fuel price increases, owner-drivers have sought relief and assistance from the state. Fluctuations in fuel prices during 2006 indicate that price volatility is likely to continue. The legislation will provide owner-drivers with some capacity to ensure that they do not bear all the risks associated with these fluctuations. The legislation will cover all operators and hirers of vehicles with a tonnage limit greater than 4.5 tonnes, in circumstances in which those vehicles are used for the carriage of goods for reward. The tonnage limit of 4.5 tonnes has been used as it is in a number of other statutes that apply to the road freight industry, including the Western Australian Commercial Driver Fatigue Management Code of Practice and the federal diesel fuel rebate scheme. Amongst other things, the legislation provides owner-drivers with security of payment; establishes the Road Freight Transport Industry Council; and establishes a mandatory code of conduct.

27      Kingstyle says that these passages of the second reading speech confirm Kingstyle's interpretation of what constitutes transport in a heavy vehicle.  Kingstyle's written submissions filed together with the notice of appeal also make some submissions about the explanatory notes to the Bill.  However, when counsel for Kingstyle appeared before the Full Bench, counsel made a submission that it was only necessary to have regard to what was said in the second reading speech to the Bill.  Counsel says it is clear when regard is had to what was said in the second reading speech that owner-driver contracts are contracts for the transport of goods in heavy vehicles, being part the road freight transport industry.  In short, it is said it is clear that an owner-driver contract under the Owner-Drivers Act means an owner-driver contract in what is traditionally understood as the heavy haulage transport or road freight transport industry.  It is not intended to apply to the towing of vehicles by tow trucks.

28      Kingstyle says if you take the view that goods and materials must be 'transported on or in a heavy vehicle' to invoke the jurisdiction of the Owner-Drivers Act, you do not need to decide whether there is a distinction to be made between a trucking industry that transports goods on or in a heavy vehicle and the towing industry.  Kingstyle says that this issue cannot be determined in this matter as insufficient evidence was given before the Tribunal.

29      Kingstyle concedes that none of the points put to the Full Bench were put before the Tribunal.

30      For these reasons, Kingstyle says the Tribunal was not seized of jurisdiction to hear and determine the application and seeks an order that the appeal be upheld and the order be quashed.

Mr Lawson's submissions

31      Mr Lawson in submissions filed on 10 May 2013 points out the matter of the jurisdiction of the Tribunal was not raised at the hearing at first instance, but says that it is conceded that this issue is properly before the Full Bench on the appeal.  However, this concession was made prior to the receipt of Kingstyle's supplementary submissions and oral submissions which made it clear that Kingstyle's arguments do not simply rely upon an interpretation of the legislation as a matter of law but also rely upon the factual circumstances that were established or not established before the Tribunal.

32      Mr Lawson in his submissions pointed out that Kingstyle's written submissions filed with the notice of appeal raised three matters as follows:

(a) the Owner-Drivers Act was enacted to deal with issues in the 'road freight transport industry' which Kingstyle submits refers to 'heavy haulage transport';

(b) Mr Lawson was at all relevant times involved in the 'tow truck industry'; and

(c) the tow truck industry is separate and distinct from the road transport industry.

33      Mr Lawson points out that at the hearing before the Tribunal he gave unchallenged evidence that at the relevant time, he was carrying on the business of transporting motor vehicles in a tilt tray tow truck.  Further, it was not in dispute that there was a contract between Mr Lawson and Kingstyle to transport motor vehicles for Kingstyle and Mr Lawson supplied a truck for the purposes of the contract which had a gross vehicle mass of more than 4.5 tonnes.

34      Mr Lawson says that:

(a) an owner-driver contract was made between Mr Lawson and Kingstyle;

(b) the contract was entered into by Mr Lawson as an owner-driver in the course of business;

(c) the contract was for the transport of goods, namely motor vehicles; and

(d) the motor vehicles were to be transported by Mr Lawson in a heavy vehicle, namely a truck with a gross vehicle mass of more than 4.5 tonnes.

35      Mr Lawson does not accept that there is a distinction between the heavy haulage transport or road freight transport industry, and the towing of vehicles by tow trucks.

36      Mr Lawson argues that the description 'tilt tray tow truck' implies that the vehicle in question had a tray that was used for carrying of vehicles.  Thus, he says this was evidence of carrying on the business of transporting goods in a heavy vehicle supplied by him.  Consequently, Mr Lawson says the jurisdiction of the Tribunal was properly invoked.  In any event, Mr Lawson says that the Tribunal could take judicial notice of what a tilt tray tow truck is as such trucks carry their load on the tray of the vehicle.

37      Mr Lawson also points out that there is the obligation on a court or tribunal when construing legislation to prefer a construction that will promote the purpose of legislation and to avoid the construction that would not promote that purpose or object:  The Civil Service Association of Western Australia Inc v Director-General, Department for Child Protection [2010] WAIRC 00206; (2010) 90 WAIG 214, 227 - 229 (Smith AP).

38      Mr Lawson says that:

(a) the meaning of the words in a statute should be derived from the words in the statute itself.  Whilst extrinsic materials can be used to assist in this process, if necessary, those materials cannot be used to contradict the plain meaning of the words in the statute:  Gordon v Commissioner of Police [2011] WASCA 168; (2011) 91 WAIG 1825.  Nor can regard be had to such materials in the absence of ambiguity, uncertainty or manifest absurdity or unreasonableness as an express statement of intention in an explanatory memorandum cannot prevail over the words actually used in the Act:  Gordon v Commissioner of Police (1828 - 1829) applying Re Bolton; Ex parte Beane [1987] HCA 12; (1987) 162 CLR 514.

(b) the Owner-Drivers Act should be construed liberally as it is beneficial legislation.

(c) if regard is had to the second reading speech, it is clear that the purpose of the Owner-Drivers Act is to provide safe and sustainable rates for owner-drivers in the road transport industry and to provide a forum for the resolution of disputes between owner-drivers and hirers, including payment disputes, through the Tribunal.

(d) the Owner-Drivers Act does not define 'road freight transport industry' and 'road transport industry'.  However, these two terms are synonymous and refer to the transport of goods by road by vehicles of various sizes and types and the only limitation imposed by the Owner-Drivers Act in relation to owner-driver contracts is that the vehicle used by the owner-driver for the purposes of the contract must have a gross vehicle mass of more than 4.5 tonnes.

39      In relation to the argument that there was insufficient evidence about the gross vehicle mass of Mr Lawson's vehicle, Mr Lawson makes a submission that the nature of the work is such that a tow truck driver has to be aware of the mass his vehicle can carry, as significant penalties can be imposed on a truck driver who carries a load beyond the weight allowed by legislation.  Mr Lawson also says the owner of Kingstyle was an experienced operator in the transport industry and employed tow truck operators and contractors and was aware of the gross vehicle mass of tow trucks.  Consequently, the appellant was in a position where it could have challenged the evidence given by Mr Lawson in respect of the gross mass of the vehicle.

40      It was not in dispute before the Tribunal that Mr Lawson was in business on his own behalf and contracted to Kingstyle and when the evidence is examined there was more than sufficient material upon which the Tribunal who has a degree of knowledge of the transport industry could accept as sufficient to find jurisdiction to properly seize the dispute.

Duty to consider whether jurisdiction has been invoked

41      In every matter before it the Tribunal has a duty to decide whether it has jurisdiction.  This duty applies to all courts and tribunals and cannot be conferred by consent.  In Chief Executive Officer, Department of Agriculture and Food v Ward [2008] WAIRC 00079; (2008) 88 WAIG 156 Ritter AP, with whom Wood C agreed, observed [79] - [83]:

79 As stated by the Full Bench in Crown Scientific Pty Ltd v Clarke (2007) 87 WAIG 598 at [96], the 'Commission like any other court or indeed any Tribunal, has a duty to decide whether or not it has jurisdiction'. As set out in that paragraph there is a wealth of authority to support the proposition. As stated by Kirby J in BHP Billiton Ltd v Schultz (2004) 221 CLR 400 at [131]:-

'Before entering upon the exercise of jurisdiction and power, every court or tribunal must satisfy itself as to the existence of such jurisdiction and power. At least, it must do so where there is a contest or an apparent problem.'

80 In the footnote to this sentence, his Honour cited Federated Engine-Drivers and Firemen's Association of Australasia v Broken Hill Pty Co Ltd (1911) 12 CLR 398 at 415; Federated Amalgamated Government Railway and Tramway Service Association v New South Wales Railway Traffic Employees Association (1906) 4 CLR 488 at 495; Cockle v Isaksen (1957) 99 CLR 155 at 161; Re Boulton; Ex parte Construction, Forestry, Mining and Engineering Union (1998) 73 ALJR 129 at 133 at paragraph [21]. Kirby J repeated the same point more recently in Old UGC, Inc v Industrial Relations Commission of New South Wales in Court Session (2006) 225 CLR 274 at paragraph [51]. The cases which his Honour cited in Schultz show that this is a principle of long pedigree.

81 In Federated Engine-Drivers at 415, Griffiths CJ referred to the existence of this 'first duty' as existing 'if only to avoid putting the parties to unnecessary risk and expense'. In the same case, Barton J at page 428 said that it 'is wrong to accept jurisdiction without sufficient inquiry as to refuse it with precipitancy'. The point made by Griffiths CJ about the first duty and the avoidance of unnecessary risk and expense for the parties was adopted by Katz J in Re Gilles Contracting Pty Ltd (in Liq); Khatri v Price and Another (1999) 95 FCR 287; (1999) 166 ALR 380 at [14] and by the New South Wales Court of Appeal in Kirby v Sanderson Motors Pty Ltd (2002) 54 NSWLR 135, per Hodgson JA (Mason P and Handley JA agreeing) at paragraph [33], amongst other cases. It is also apposite here.

82 To use the words of Kirby J quoted earlier, in these applications there was an 'apparent problem'. It was one which the Senior Commissioner was aware of and noted. Accordingly, the problem needed to be addressed and resolved. It could not be side-stepped merely because the question of 'power' had 'not been the subject of argument by counsel'. Even if the issue had not been raised or argued by counsel the Senior Commissioner should have made the parties aware of it, provided an opportunity to make submissions about it and then made a decision.

83 Also, any agreement between the parties could not have provided jurisdiction when in truth there was none. (See Bolgari v Steiner School and Kindergarten [2007] VSCA 58 at [55] and footnote 28 where Federated Engine-Drivers was cited as well as Fingleton v The Queen (2005) 227 CLR 166.) In Fingleton, Hayne J at paragraph [196] said that 'a concession about the court's jurisdiction … would not bind the court'. Although this was said in the context of a criminal trial, the same applies to any civil court or tribunal of limited jurisdiction. Dr Catherine Button in her article 'The Federal Courts "Arising Under" Jurisdiction and the Development of a "Contingent Jurisdiction"' (2006) 27 Australian Bar Review 327 at 348 cited Federated Engine-Drivers and said 'even where the parties do not contest jurisdiction … it is well established that a court is obliged to consider its own jurisdiction before exercising it'. In my respectful opinion this is plainly correct.

42      In this matter, no concession was made that there was jurisdiction to hear and determine the dispute.  However, the evidence given by Mr Lawson about the weight of the vehicle used by him to carry out the work the subject of the contract between the parties and description of the vehicle he purchased and used for the work was not disputed by Kingstyle.  In Mr Lawson's notice of referral of the dispute filed on 3 August 2012, Mr Lawson pleaded in paragraph 3 of the notice:

The Applicant provided services to the Respondent between January 2010 and March 2011 by way of towing of vehicles at the request of the Respondent Pursuant to an oral agreement between the parties ('the Owner-Driver contract'), using a tow truck provided by the Applicant, which was a heavy vehicle for the purposes of the Owner-Drivers (Contracts and Disputes) Act 2007) ('the Act').

43      Kingstyle in its counter-proposal did not join issue with the matters pleaded in paragraph 3 of the notice.  The counter-proposal raised a number of immaterial matters and made a general plea that Kingstyle did not owe Mr Lawson any money.  When the matter was heard by the Tribunal, Mr Valentino on behalf of Kingstyle elected not to give evidence and simply attempted to put forward what Kingstyle claimed was its defence and that was:

(a) It was a term of the contract between the parties that if an invoice was not paid by an insurance company within 90 days the invoiced amount would be deducted by Kingstyle from monies owed to Mr Lawson.

(b) No deduction of a commission fee of 25% had been accounted for in the amounts claimed.

44      At the conclusion of the evidence (which was given solely by Mr Lawson), Mr Lawson's counsel, Mr Dzieciol, made the following submission (AB 61):

And so - and Mr Valentino still claims that he hasn't had time or opportunity to - to go through the records. So unfortunately that's not really satisfactory, and that's, in our submission, not a defence to the claim. Mr Lawson has given evidence that at the relevant time, he was a - an owner-driver, that his vehicle had a - a gross vehicle mass of in excess of 4.5 tonne and that he had a contract with Mr Valentino's company to undertake work. So - and that doesn't appear to be in dispute, so we say that therefore the contract was an owner-driver contract and that the Tribunal therefore has jurisdiction to deal with this matter.

45      The only observation Kingstyle's representative put forward about the jurisdiction of the Owner-Drivers Act was in answer to a question by Kenner C.  At page 31 of the transcript the following exchange took place (AB 64):

KENNER C: All right.

Well, Mr Valentino, are you aware that under the Owner-drivers Contracts and Disputes Act 2007 you can't withhold payments if you don't get paid by your client?

VALENTINO, MR: No, sir, because - --

KENNER C: That's not lawful?

VALENTINO, MR: - - , I did not know that applies to the towing industry. I know it does to - in other industries but it - it doesn't even seem practical in the towing industry.

KENNER C: Well, it applies to all parties who are in an owner-driver contractual relationship. That's - that's the law.

46      In this exchange it appears Kingstyle's representative had been unaware of the defence Kingstyle wished to pursue was not available at law in defence of a claim for monies owed under an owner-driver contract and is not a matter relevant to the points now sought to be raised in this appeal.

47      In reasons for decision Kenner C found it was not in dispute between the parties that at all material times Mr Lawson operated a tow truck and provided services to Kingstyle under an owner-driver contract.  However, if the points now sought to be raised on appeal and the arguments put forward on behalf of Kingstyle are accepted, an examination of the evidence reveals the finding that Mr Lawson provided services to Kingstyle under an owner-driver contract could not have been open.

Should Kingstyle be permitted to raise new points on an appeal

48      Leaving aside the issue whether the evidence given by Mr Lawson was sufficient at law upon which a finding that an owner-driver contract had been entered into between the parties at the material time, the first issue that arises in this appeal is whether the jurisdictional issue raised by Kingstyle in this appeal can be raised.

49      Whilst Mr Lawson in his written submissions conceded that the issue was properly before the Full Bench, it was not apparent from the written submissions filed by Kingstyle prior to the filing of Mr Lawson's written submissions, that the determination of the issues of jurisdiction turned on not only the interpretation of the Owner-Drivers Act, but also on an analysis of Mr Lawson's evidence at the hearing at first instance.  In these circumstances, the issue arises whether the Full Bench should allow the issue to be raised.

50      Appeals brought under s 49 of the Industrial Relations Act 1979 (WA) (the IR Act) are not by way of rehearing, but are appeals in the strict sense:  Hamersley Iron Pty Ltd v Association of Draughting, Supervisory and Technical Employees, Western Australian Branch (1984) 64 WAIG 852; see the discussion in The Minister for Health v Drake-Brockman [2012] WAIRC 00150; (2012) 92 WAIG 203 [73] (Smith AP and Beech CC).  Fresh evidence can, however, be admitted by a Full Bench where special or exceptional circumstances are raised:  Federated Clerks' Union of Australia, Industrial Union of Workers, WA Branch v George Moss Ltd (1990) 70 WAIG 3040.  This does not allow a matter to be heard without regard to the manner in which a matter was conducted at first instance.  In Rizhao Steel Holding Group Co Ltd v Koolan Iron Ore Pty Ltd [2012] WASCA 50, Martin CJ set out the circumstances when a new point may be raised on appeal to an appellate body at [49] - [52]:

49 [I]n University of Wollongong v Metwally (No 2) [1985] HCA 28; (1985) 60 ALR 68, the High Court observed:

It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so (71).

50 Similar observations were made by the Court of Appeal of New South Wales in the case under appeal in Coulton v Holcombe. Their Honours observations as to:

... the finality of litigation; the difficulty of inducing an appeal court to consider new facts; the undesirability of encouraging tactical decisions not to present an issue at first instance: keeping it in reserve for appeal; and the need for vigilance to avoid injustice to a party having to meet new facts and new issues of law for the first time at the appeal court

were endorsed by the plurality in Coulton v Holcombe (8) as important principles underpinning the public interest in the finality of litigation: see also Liftronic Pty Ltd v Unver [2001] HCA 24; (2001) 179 ALR 321, 330 - 331 (Gummow and Callinan JJ).

51 However, this is not to say that a new point can never be raised on appeal. In Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491, the plurality (Mason CJ, Wilson, Brennan and Dawson JJ) observed:

It is true that in Maloney v Commissioner for Railways (1978) 18 ALR 147, 152 it was recognised that in 'very exceptional cases' a plaintiff's omission to put at trial a case formulated on appeal may not be conclusive against him. But it was pointed out that the opportunity to assert the new case at another trial should only be granted where the interests of justice require it and such a course can be taken without prejudice to the defendant. No exceptional circumstances arise in this case where the parties adopted the course which they took of their own choice (498).

52 It is significant to note that the High Court has twice described the circumstances in which a party will be allowed to raise a new point on appeal as 'very exceptional'. Such a course will only be permitted if two requirements are met. First, the interests of justice must require determination of the new point. Second, there must be no prejudice to the party against whom the new point is taken.

51      In SGS Australia Pty Ltd v Taylor (1993) 73 WAIG 1760, the Full Bench found it was the duty of the Full Bench to entertain a plea as to jurisdiction irrespective whether the point had been taken at first instance.  It is clear that this principle applies where the jurisdictional issue sought to be raised for the first time on appeal is a bare legal point.  However, in circumstances where additional or different evidence may have been led if the point had been raised at first instance, it is open to the Full Bench to refuse to permit an appellant to raise the issue for the first time.  In recent times courts and tribunals have applied this rule strictly.

52      In Minister for Education v Liquor Hospitality and Miscellaneous Union, Western Australian Branch [2011] WAIRC 00818; (2011) 91 WAIG 1839 [23] - [24], I had regard to the principles set out in Water Board v Moustakas (1988) 180 CLR 491, 497 - 498 and then had regard to the observations of Branson and Katz JJ in H v Minister for Immigration and Multicultural Affairs [2000] FCA 1348 [7] - [8] where their Honours said:

In our view, the readiness with which appeal courts have in the past been satisfied that it is expedient in the interests of justice to allow a fresh point to be argued and determined on appeal is unlikely to continue into the future. The volume and complexity of the cases presently required to be heard and determined by the intermediate appellate courts of Australia is such that it is increasingly important that such courts are able to devote their time to the genuine review of first instance decisions. It is becoming increasingly difficult, in our view, to establish that it is expedient in the interests of justice that the time of three or more judges should be spent giving original consideration to issues that ought to have been raised before the primary judge. The interests of justice in this sense extend beyond the interests of the parties to the appeal to encompass the interests of other litigants whose appeals require hearing and determination, and the broad public interest in efficient judicial administration.

53      I then observed at [25] - [26]:

25 When assessing whether it would be expedient in the interests of justice to allow a new point to be raised Branson and Katz JJ also had regard to whether the point had any merit [9].

26 From these passages the following principles guide when a finding could be made that it is expedient and in the interests of justice to entertain a point:

(a) The point must be one of construction or of law and not be met by calling evidence.

(b) In deciding whether or not a point was raised at trial no narrow or technical view should be taken. Ordinarily the pleadings will be of assistance.

(c) In very exceptional cases an omission to put a case formulated on appeal may not be conclusive. The opportunity to assert the new case should be granted only where the interests of justice require it and such a course can be taken without prejudice to the defendant.

(d) Consideration of the interests of justice should extend to a consideration of relevant matters beyond the interests of the parties to the interests of other litigants and efficient case management.

(e) When assessing the interests of justice, the merit of the new point sought to be raised is a relevant consideration.

54      Where the point sought to be raised for the first time is an issue that goes to jurisdiction, the same rule applies.  This was made clear by the Industrial Appeal Court in Burswood Resort (Management) Ltd v The Australian Liquor, Hospitality & Miscellaneous Workers Union, Miscellaneous Workers Division, Western Australian Branch (1996) 76 WAIG 4417.  In that matter the appellant had applied to register an agreement which had the effect of varying and renewing a current registered industrial agreement.  On appeal by the union against the decision to register the agreement the appellant sought to be heard on an issue that was said to be jurisdictional.  The appellant sought to advance an argument that the Full Bench had no jurisdiction to hear the appeal because the union's officers had not been duly elected and were not authorised to bring the appeal.  The Full Bench refused to entertain the argument and heard and determined the appeal.  On appeal to the Industrial Appeal Court the Court held the Full Bench had not erred.  Justice Anderson, with whom Rowland and Franklyn JJ agreed, held (4419):

The Full Bench took the view that this question of authorisation should have been argued below and that all the relevant evidence should have been canvassed below. I am not persuaded this was wrong. An appeal tribunal is entitled to refuse to allow matters which ought to have been agitated below to be raised for the first time before it at least where the matters involve disputed factual issues. This is a rule of broad application, applied in the interests of expedition and the finality of legal proceedings. Coulton v Holcombe (1986) 162 CLR 1 at 7; University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 at 483; The Water Board v Mustakis (1988) 68 ALJR 209; Paltara Pty Ltd v Dempster (1991) 6 WAR 85 at 99.

Although in one sense the issue of authority to bring the appeal did not arise until the appeal stage, that would be taking too technical a view of the principle. The appeal proceeding was part of the intervenor proceedings and the issue whether the intervenor proceedings generally were properly authorised and whether the people purporting to file appropriate documents were authorised to do so raised substantial factual issues which could have been settled at first instance. I am not persuaded the Full Bench was wrong to decide the present appellant should be held to the conduct of its case below. There was plainly an opportunity before the Commissioner to challenge the authority of those purporting to represent the first respondent in the intervenor proceedings and the failure to take advantage of that opportunity, whether it was deliberate or inadvertent, entitled the Full Bench to say that should be the end of the matter.

As the appellant's argument was developed before us it seemed to me to be firmly based on the proposition that because this issue of due authorisation went to the jurisdiction of the Full Bench to hear the appeal the Full Bench had no discretion to decline to entertain argument on the point and its refusal to do so therefore constituted fatal error. I am unable to accept this proposition. In the first place I am not sure the rule that an appeal tribunal may refuse to allow a point to be raised for the first time in the appeal where contested issues of fact are involved does not apply even where questions of jurisdiction arise. See the comments of Deane J in Squire v Rogers (1979) 27 ALR 330 at 337.

55      In this matter it is conceded on behalf of Kingstyle that the points raised in this appeal could be met by the calling of evidence.  This concession is important.  In my opinion, the points now sought to be raised on appeal should have been raised when the matter was heard at first instance.  Even if the matters were raised after Mr Lawson's case was closed, an application could have been made on behalf of Mr Lawson to re-open his case and call further evidence.  In the circumstances, whether or not leave would have been granted is a matter of discretion for the Tribunal and is a matter that is not necessary to consider in this appeal.

56      It becomes very clear that the jurisdictional points sought to be raised on behalf of Kingstyle could be met by the calling of evidence when the type of evidence or material that could have been led to establish jurisdiction is considered.  In respect of the requirement to prove the gross vehicle mass of the vehicle specified by the manufacturer used by Mr Lawson when carrying out work for Kingstyle was more than 4.5 tonnes, pursuant to s 43(1)(b) of the Owner-Drivers Act and s 26(1)(b) of the IR Act, it is important to have regard to the fact that the Tribunal is not bound by the rules of evidence, but may inform itself on any matter in such a way as it thinks just.  This allows the Tribunal to act on material that is rationally probative.  In Pochi v Minister for Immigration and Ethnic Affairs [1979] AATA 64, Brennan J considered s 33(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth) that was in substance the same as s 26(1)(b) of the IR Act.  In that decision Brennan J asked the question:

How are facts to be proved, and how is the sufficiency of proof to be determined when there are no rules of evidence binding upon either the Minister or the Tribunal? Section 33(1)(c) of the Administrative Appeals Tribunal Act provides that 'the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate.' Although the Tribunal is governed by statute in the approach which it must take in assessing the evidence, and the Minister is not, I do not know that the statute confines the Tribunal to an approach which is more restricted than the approach which the Minister might properly take in assessing the same evidence.

The Tribunal and the Minister are equally free to disregard formal rules of evidence in receiving material on which facts are to be found, but each must bear in mind that 'this assurance of desirable flexible procedure does not go so far as to justify orders without a basis in evidence having rational probative force', as Hughes C.J. said in - Consolidated Edison Co. v. National Labour Relations Board [1938] USSC 176; (305 U.S. 197 at p.229). To depart from the rules of evidence is to put aside a system which is calculated to produce a body of proof which has rational probative force, as Evatt J. pointed out, though in a dissenting judgment, in The King v. War Pensions Entitlement Appeals Tribunal; ex parte Bott [1933] HCA 30; (1933) 50 CLR 228 at p.256:

'Some stress has been laid by the present respondents upon the provision that the Tribunal is not, in the hearing of appeals, "bound by any rules of evidence." Neither it is. But this does not mean that all rules of evidence may be ignored as of no account. After all, they represent the attempt made, through many generations, to evolve a method of inquiry best calculated to prevent error and elicit truth. No tribunal can, without grave danger of injustice, set them on one side and resort to methods of inquiry which necessarily advantage one party and necessarily disadvantage the opposing party. In other words, although rules of evidence, as such, do not bind, every attempt must be made to administer "substantial justice."'

That does not mean, of course, that the rules of evidence which have been excluded expressly by the statute creep back through a domestic procedural rule. Facts can be fairly found without demanding adherence to the rules of evidence. Diplock L.J. in Reg. v. Deputy Industrial Injuries Commissioner, Ex parte Moore [1965] 1 Q.B. 456 at p.488 said:

'These technical rules of evidence, however, form no part of the rules of natural justice. The requirement that a person exercising quasi-judicial functions must base his decision on evidence means no more than it must be based upon material which tends logically to show the existence or non-existence of facts relevant to the issue to be determined, or to show the likelihood or unlikelihood of the occurrence of some future event the occurrence of which would be relevant. It means that he must not spin a coin or consult an astrologer, but he may take into account any material which, as a matter of reason, has some probative value in the sense mentioned above. If it is capable of having any probative value, the weight to be attached to it is a matter for the person to whom Parliament has entrusted the responsibility of deciding the issue.'

Lord Denning M.R. in T.A. Miller Ltd. v. Minister of Housing and Local Government [1968] 1 WLR 992 at p.995 said much the same:

'Tribunals are entitled to act on any material which is logically probative, even though it is not evidence in a court of law.'

and he repeated that observation in Kavanagh v. Chief Constable of Devon and Cornwall [1974] 1 Q.B. 624 at p.633. In the United States where considerable judicial attention has been given to fact finding by administrative tribunals (see Schwartz Administrative Law, Boston, 1976 paras. 115 et seq), substantially the same principle has been expressed. It was thought, at one time, that the Consolidated Edison judgment required that some legal proof had to be adduced, and that hearsay evidence alone could not support an adverse finding (see Schwartz, op.cit., para. 118). But in Richardson v. Perales, [1884] USSC 274; 402 US 389 at p.407 the Consolidated Edison case was construed in this way:

'The contrast the Chief Justice was drawing ... was not with material that would be deemed formally inadmissible in judicial proceedings but with material "without a basis in evidence having rational probative force." This was not a blanket rejection by the Court of administrative reliance on hearsay irrespective of reliability and probative value. The opposite was the case.'

The majority judgments in Bott's case show that the Tribunal is entitled to have regard to evidence which is logically probative whether it is legally admissible or not. Starke J. said at pp. 249,250:

'The Appeal Tribunal can obtain information in any way it thinks best, always giving a fair opportunity to any party interested to meet that information; it is not obliged to obtain such independent medical opinion, for instance, upon oath, and whether cross-examination shall take place upon that opinion is entirely a question for the discretion of the Tribunal; it is not bound by any rules of evidence, and is authorized to act according to substantial justice and the merits of the case.'

57      His Honour, Brennan J, then went on to point out:

As the New South Wales Law Reform Commission has pointed out in its Report on the Rule against Hearsay, hearsay 'has a wide scale of reliability' (1978, L.R.C. 29, p.35), and there is no reason why logically probative hearsay should not be given credence. However, the logical weaknesses of hearsay evidence may make it too insubstantial, in some cases, to persuade the Tribunal of the truth of serious allegations.

58      Whilst the evidence given by Mr Lawson at first instance was insufficient as the evidence given by him did not establish the weight specified by the manufacturer, such a matter may have been within Mr Lawson's knowledge as he was required by law to take steps to obtain accurate and reliable information of the weights specified by the manufacturer that his tow truck could carry and comply with loading limits.  Regulation 4(7) of the Road Traffic (Tow Truck) Regulations 1975 (WA) requires every tow truck to:

have the name and address of the owner of the vehicle, together with the unloaded mass and GVM of the vehicle and its class as determined by these regulations, clearly marked on some conspicuous part of the right hand side of the vehicle, in letters at least 50 millimetres high and 25 millimetres wide.

59      As counsel for Mr Lawson pointed out, Mr Lawson is bound by the law not to load a vehicle that is in excess of a vehicle's gross vehicle mass:  see sch 1 Road Traffic (Vehicle Standards) Regulations 2002 (WA).

60      Evidence could also have been adduced on behalf of Mr Lawson as to how the tilt tray tow truck operated and whether a vehicle that was to be towed by Mr Lawson's truck was towed from behind or loaded onto Mr Lawson's truck.  After hearing this evidence, the Tribunal would be in a position to make a proper assessment of whether Mr Lawson's vehicle could be characterised as used for the transport of goods within the meaning of s 5(1) of the Owner-Drivers Act.

61      For these reasons I am of the opinion that Kingstyle should not be allowed to raise these points in this appeal.

62      In any event, even in the absence of any explanation of how a tilt tray tow truck operates, I do not think that the words used in s 5(1) of 'transport of goods in a heavy vehicle', or the use of the words in s 4(2) to describe an owner-driver as a person or body corporate who 'carries on the business of transporting goods in one or more heavy vehicles', should be construed as narrowly as contended by Kingstyle.  Counsel for Kingstyle made a submission that the use of the word 'in' a heavy vehicle would encompass the transport of goods 'on' a heavy vehicle.  If that is accepted, then the word 'in' must have a broader meaning that goes beyond the literal spatial concept of 'in'.

63      When construing a legislative provision, the process of construction must always begin by examining the context of the provision that is being construed:  Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [69] (McHugh, Gummow, Kirby and Hayne JJ) and the cases cited therein.  The instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals:  Project Blue Sky [70] (McHugh, Gummow, Kirby and Hayne JJ); Ross v The Queen (1979) 141 CLR 432, 440 (Gibbs J).  Thus, the context of a legislative provision must be examined. 

64      The Owner-Drivers Act regulates heavy vehicles.  A heavy vehicle is defined not by types of vehicles but solely by its gross vehicle mass.  As the submissions filed on behalf of Mr Lawson point out, the Owner-Drivers Act applies to owner-drivers who transport goods in small trucks used by couriers and delivery drivers.  The Owner-Drivers Act also applies to the owner-drivers of road trains that transport goods interstate.  Type of goods transported is immaterial.  Provided goods transported by a heavy vehicle can be characterised as freight or materials, the Owner-Drivers Act applies:  see definition of goods in s 3 of the Owner-Drivers Act. 

65      How those goods are transported is also immaterial.  For example, goods could be in a sea container that is loaded on top of a tray truck, or goods may be transported inside a truck.  Similarly, goods such as a car that is said to be towed could be transported in a number of ways.  The car could be loaded on the tray of a truck, towed partially or wholly behind a truck, with some of the wheels of the car off the road.  The method of towing may depend on the type of heavy vehicle and perhaps the car or vehicle that is being towed. 

66      Methods of transport in a heavy vehicle are not specified in the Owner-Drivers Act.  Nor is there any discussion about the method of transport in the second reading speech of the Bill.  The Minister, however, does say, 'This legislation will cover all operators and hirers of vehicles with a tonnage limit greater than 4.5 tonnes, in circumstances in which those vehicles are used for the carriage of goods for reward'.  That statement, in my opinion, confirms the meaning of the definition of owner-driver in s 4(2) and s 5(1), that is, the type of vehicle used by an owner-driver in the transport of goods for reward is qualified or defined only by the gross vehicle mass of the vehicle.

67      For these reasons, I am of the opinion the appeal should be dismissed.

BEECH CC:

68      I have had the advantage of reading in draft form the Reasons for Decision of Her Honour the Acting President.  I agree with Her Honour that the respondent should not be permitted to raise new points in this appeal.  Whether or not Mr Lawson was an owner-driver for the purposes of the Owner-Drivers (Contracts and Disputes) Act 2007 is a matter for the proper interpretation of that Act.  The word "owner-driver" obtains its precise meaning or sense from the context in which it is used in that legislation and not by considering whether Mr Lawson was in the "towing industry".  I agree with Her Honour's conclusions and with the order to issue.

MAYMAN C:

69      I have read a draft of the reasons for decision of the Acting President.  I agree with those reasons and have nothing further to add.