DISPUTE RE ALLEGED CONTRAVENTION OF THE OWNER-DRIVERS (CONTRACTS AND DISPUTES) ACT 2007

IN THE WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

SITTING AS

THE ROAD FREIGHT TRANSPORT INDUSTRY TRIBUNAL

CITATION : 2025 WAIRC 00918

DELIVERED : Friday, 7 NOVEMBER 2025

FILE NO. : RFT 1 OF 2025

Applicant

AND

Onsite Rental Group Operations Pty Ltd

Respondent

Catchwords :  Owner-driver contract - Dispute re alleged contravention of the Owner-Drivers (Contracts and Disputes) Act 2007 - Whether claims are beyond the jurisdiction of the Tribunal - Whether referrals validly made pursuant to s 40 Owner-Drivers (Contracts and Disputes) Act 2007 - Principles applied - Whether the Tribunal has jurisdiction to hear and determine the matters referred             

Legislation : Owner-Drivers (Contracts and Disputes) Act 2007 (WA) ss 3, 4, 5, 7

       Industrial Relations Act 1979 (WA) s 114     

Result : Jurisdiction found

Representation:

Applicant : Ms Melissa Gillespie  

Respondent : Mr Michael Mistilis (of counsel)

Case(s) referred to in reasons:

Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410

Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337

Commonwealth Bank of Australia v Barker [2014] HCA 32; (2014) 243 CLR 169

Deliver2U (WA) Pty Ltd v GD Mitchell Enterprises Pty Ltd t/a Lite N’ Easy Perth [2018] WAIRC 00217; 98 WAIG 242

Deliver2U (WA) Pty Ltd v GD Mitchell Enterprises Pty Ltd t/a Lite N’ Easy Perth [2018] WAIRC 00734; 98 WAIG 1101

Goddard v Collins [1984] VR 919

Mak Industrial Water Solutions Pty Ltd v Doherty (No 2) [2023] WASC 279

Project Blue Sky Inc & Others v Australian Broadcasting Authority (1998) 153 ALR 490

Reasons for Decision

Contents

The OD Act and the Tribunal  [12]

The Tribunal’s jurisdiction [19]

Legal test to be applied [26]

The parties’ evidence and submissions [38]

The services agreement [46]

The contract [50]

Contact schedule [51]

Evidence of Christopher Sergeant [58]

Cross examination of Mr Sergeant [68]

Evidence of Peter Sinagra [71]

Evidence of David Sinagra  [82]

Cross examination of David Sinagra [103]

The respondent’s first outline of submissions [109]

The respondent’s second outline of submissions [123]

The applicant’s submissions [137]

Consideration [156]

Construction of s 5 of the OD Act [162]

Course of business [166]

Principles that apply when interpreting the services agreement [171]

Context in which the contract was made [174]

Evidence on the services agreement [177]

Framework Agreement [184]

Terms of the services agreement [192]

Orders for services [197]

Reference to heavy vehicles [211]

Implied terms [217]

Use of heavy vehicles is necessary [226]

Implied term would be binding on the respondent [231]

Subcontracting [234]

Light vehicles [239]

Conclusion [243]

1          In or around 1 April 2023, Joondalup Transport Pty Ltd (applicant) was engaged by Onsite Rental Group Operations Pty Ltd (respondent) to provide transport services on an ongoing basis (contract).

2          Under the contract, the applicant was required to pick up and deliver equipment and other items the respondent hires out to clients, mostly in the building and construction industry. The goods or items the applicant transported include on hire equipment, portable buildings, amenities sheds, toilets, generators and shipping containers (transport services).

3          By way of a letter dated 29 January 2025 the respondent, without notice, terminated it’s contract with the applicant (termination).

4          In response to the termination, the applicant on 6 March 2025, filed a Form 7 - Referral to the Road Freight Transport Industry Tribunal, (application).

5          One of the matters raised in the application is whether, because of the termination, the respondent is required to make a payment in lieu of notice under Schedule 1, Division 4 of the Owner-Drivers (Contracts and Disputes) Act 2007 (WA) (OD Act).

6          Also in issue, is whether the respondent is liable to pay damages for allegedly imposing a ban on the applicant performing work as subcontractor, to other transport companies the respondent has since engaged, to provide transport services on its behalf.

7          In relation to both claims, the respondent opposed the application on the grounds the Commission, sitting as the Road Freight Tribunal (Tribunal) does not have the jurisdiction to deal with the matter (jurisdictional objection).

8          By it’s jurisdictional objection, the respondent says the Tribunal cannot deal with the application because the contract is not an ‘owner-driver contract’ as defined in s 5 of the OD Act. Rather, the respondent says that it has a transport services contract in which there is no express or implied terms that require the use of a heavy vehicle to provide transport services.

9          The respondent submits that the contract between the parties is not an owner-driver contract under the OD Act, because it does not contain an express or implied term that the goods the subject of it, are to be transported in a heavy vehicle.

10       On Thursday 4 September 2025, I convened a hearing, during which both parties presented evidence and made submissions on the jurisdictional objection (jurisdictional hearing).

11       In the reasons to follow, I have considered:

1. whether the contract is an owner-driver contract; and

2. if the Tribunal has the jurisdiction to deal with the application.

The OD Act and the Tribunal

12       In deciding this matter, it is useful to pay some attention to the purpose of the OD Act and the role the Tribunal is intended to play within its statutory scheme.

13       The long title of the OD Act confirms that it is beneficial legislation, that was introduced to promote a safe and sustainable road freight industry, by regulating the relationship between the people who make contracts to transport goods in heavy vehicles, with the people who hire them.

14       Amongst the matters within the scope of the OD Act, are the provision of and compliance with, minimum statutory standards in owner-driver contracts.

15       These include minimum payment terms, the notice that is to be given when terminating owner-driver contracts, remedies for unconscionable conduct, negotiations in good faith, the provision of safe and sustainable rates and other matters arising between owner-drivers and hirers, that apply through a Code of Conduct.

16       The OD Act much like the Industrial Relations Act 1979 (WA) (IR Act) provides a framework within which owner-driver contracts are to be negotiated and formed.

17       In the same way s 114 of the IR Act contains a prohibition on contracting out, the OD Act contains a similar provision which relevantly provides as follows:

7.  Act prevails over owner-driver contracts

(1)           A provision in an agreement or arrangement in force on, or entered into after, the coming into operation of this section, whether an owner-driver contract or not and whether in writing or not, that —

(a)                purports to exclude, modify or restrict the operation of this Act or the code of conduct; or

(b)                is contrary to or inconsistent with anything in this Act, the code of conduct or an order of the Tribunal,

has no effect.

(2)           A provision in an agreement or arrangement that has no effect because of subsection (1) does not prejudice or affect the operation of other provisions of the agreement or arrangement.

(3)           Any purported waiver, whether in an owner-driver contract and whether in writing or not, of an entitlement under this Act has no effect.

(4)           Despite subsection (1), during the 6 months beginning on and including the day on which this section comes into operation, a provision of an owner-driver contract that is contrary to or inconsistent with a provision of this Act or the code of conduct prevails to the extent of the inconsistency.

18       The OD Act also established the Tribunal, with a broad jurisdiction to hear and determine disputes arising under ‘owner-driver’ contracts. From its inception, the Tribunal was established to provide a relatively less formal dispute resolution forum, that would allow disputes arising under the OD Act, to be dealt with by conciliation and arbitration.

The Tribunal’s jurisdiction

19       To attract the jurisdiction of the Tribunal, an applicant is required to prove that it is a party to an ‘owner-driver contract’.

20       Self-evidently, an ‘owner-driver contract’ will involve an ‘owner-driver’ which is a defined term under s 4 of the OD Act as follows:

 4. Term used:  owner-driver

  (1) In this section –

  Listed public company has the same meaning as it has in the Income Tax Act 1997 of the Commonwealth;

  Officer, of a body corporate has the same meaning as it has in the Corporations Act 2011 of the Commonwealth.

 (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).

21       A ‘heavy vehicle’ under s 3 of the OD Act has the same meaning as set out under s 3(1) of the Road Traffic (Vehicles) Act 2012 (WA); a vehicle with a ‘gross vehicle mass’ (GVM) of more than 4.5 tonne (heavy vehicle).

22       Also defined is the term ‘owner-driver contract’. To this end, s 5 of the OD Act states:

 5. Term used:  owner-driver contract

  (1) For the purposes of this Act, an owner-driver contract is a contract (whether written or 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.

  (2) It does not matter than an owner-driver contract provides for an owner-driver to perform services other than transporting goods, as long as the services to be performed under the contract predominantly relate to the transport of goods.

  (3) To avoid doubt, an owner-driver contract does not include a contract that is a contract of employment.

23       When ss 4 and 5 of the OD Act are viewed together, four elements stand out as necessary to prove the existence of an owner-driver contract. These include the following:

1. there is a contract;
2.           the contract has been entered into in the course of business;
3.           the contract is between an owner-driver with another person; and
4.           the contract is for the transport of goods.

24       In the present case, proof of the first four matters was uncontroversial and was agreed between the parties. There was no dispute the applicant is an owner-driver. It was also accepted there was a contract between the parties for the transportation of goods.

25       However, there is a further element that was very much a live issue between the parties; the use of a heavy vehicle must be part of the bargain between the parties.

Legal test to be applied

26       A Full Bench of the Commission in Deliver2U (WA) Pty Ltd v GD Mitchell Enterprises Pty Ltd t/a Lite N’ Easy Perth [2018] WAIRC 00734; 98 WAIG 1101 (Deliver2U-2) described the relevant test to be applied to determine if an ‘owner-driver’ has made an ‘owner-driver contract’.

27       Deliver2U-2 involved an appeal of a jurisdictional decision Senior Commissioner Kenner (as he then was) made, in a dispute that was referred to the Tribunal.

28       At issue was whether a business which had engaged an owner-driver to deliver insulated boxes of pre-packaged meals had agreed to him using a heavy vehicle to make deliveries: Deliver2U (WA) Pty Ltd v GD Mitchell Enterprises Pty Ltd t/a Lite N’ Easy Perth [2018] WAIRC 00217; 98 WAIG 242 (Deliver2U-1).

29       The delivery agreement between the owner-driver and the hirer in Deliver2U-1, did not stipulate the size or the tonnage of the vehicle that the owner-driver was required to use for his deliveries. The hirer claimed that in the absence of a requirement that a heavy vehicle be used, the delivery agreement did not constitute an ‘owner-driver contract’ and the provisions of the OD Act did not apply.

30       Following a detailed analysis of the OD Act, the Senior Commissioner in Deliver2U-1, concluded at [27] there was strong legislative intention that the use of a heavy vehicle, must be a part of the bargain between the parties for a contract to be an owner-driver contract as defined in s 5.

31       At [28] the Senior Commissioner held the owner-driver had not made an owner-driver contract because the use of a heavy vehicle was not an express term of his contract with the hirer.

32       On appeal to the Full Bench, the owner-driver in Deliver2U-2 argued the Senior Commission had erred by concluding a contract must expressly provide that a heavy vehicle be used, for it to be an ‘owner-driver contract’ within the meaning of the s 5 of the OD Act.

33       The owner-driver contended that as a matter of fact, all that is required to attract the jurisdiction of the Tribunal is for an owner-driver to show that goods are or were, transported for a hirer, in a heavy vehicle.

34       In its decision, the Full Bench in Deliver2U-2 rejected this submission. Acting President Smith, with whom Commissioners Emmanuel and Matthews agreed, accepted the Senior Commissioner’s reasoning that a necessary element of an ‘owner-driver contract’ was the inclusion of a term that a heavy vehicle would be used as part of the parties’ bargain.

35       However, the point of difference between the Full Bench decision in Deliver2U-2 and that of the Senior Commissioner in Deliver2U-1 was the finding a contract could also by way of an implied term provide that a heavy vehicle be used.

36       At paragraphs [60] and [61] Acting President Smith stated;

‘In my respectful opinion, whether an owner driver has entered into a contract with another person for the transport of goods in a heavy vehicle will turn on whether it is an express term or an implied term that the goods the subject of the contract are to be transported in a heavy vehicle.

Whether such a term is to be implied should turn upon whether it is a necessary incident for the effective performance of the contract.  That is, the effective performance of the contract can only be achieved if the goods in question are transported in a heavy vehicle as defined.  To determine whether such a term should be implied would depend upon the evidence in each matter as to whether a heavy vehicle was objectively required to transport goods, the subject of the contract in question.’

37       It therefore follows that because of the decision in the Deliver2U-2, the Tribunal in determining whether it has the jurisdiction to deal with a dispute involving an owner-driver, is required to examine the contractual relationship between the parties and be satisfied that the use of a heavy vehicle, whether by way of an express or implied term, forms a part of their bargain.

The parties’ evidence and submissions

38       Having described the test to be applied to determine if the parties had made an owner-driver contract, it is necessary to provide a summary of the following;

1. the matters that were agreed between the parties;
2. evidence from the parties; and
3. the parties competing submissions on whether the contract required a heavy vehicle to be used.

39       Prior to the jurisdictional hearing, the applicant and the respondent filed a statement of agreed facts and a bundle of agreed documents.

40       Pursuant to programming orders that were issued by consent ([2025] WAIRC 00246 and [2025] WAIRC 00393), the parties each filed witness statements with various attachments as well as outlines of submissions. They also filed a statement of agreed facts and a bundle of agreed documents.

41       By way of evidence, the applicant filed the following:

1.        Witness Statement from the applicant’s counsel; Melissa Anne Gillespe (Ms Gillespe) dated 30 May 2025 - (Exhibit A1);
2.        Witness Statement of Peter Roy Sinagra (Peter) dated 30 May 2025 - (Exhibit A2);
3.        Witness Statement of David Elton Sinagra (David) dated 30 May 2025 - (Exhibit A3); and
4.        Supplementary Witness Statement of David Elton Sinagra dated 26 June 2025 - (Exhibit A4)

42       The contents of Ms Gillespie’s statement are not contentious. Much of the information in her statement was traversed in evidence provided by the applicant’s other witnesses. On this basis I do not consider there is a need to provide a summary of her evidence.

43       As evidence, the respondent filed the following:

1. Witness Statement of Christopher Sergeant (Mr Sergeant) dated 17 June 2025 – (Exhibit R1); and
2. Statutory Declaration from Christopher Sergeant dated 13 March 2025 – (Exhibit R2).

44       During the jurisdictional hearing Mr Sergeant was cross examined by Ms Gillespie. David was cross examined by the respondent’s counsel, Mr Michael Mistilis.

45       In addition to their written outlines, the parties during the jurisdictional hearing, were each given an opportunity to make further oral submissions.

The contract

46       In the Statement of Agreed Facts, the parties accepted that:

‘Between on or about 1 April 2023 and 29 January 2025 the applicant provided transport services to the respondent pursuant to a written contract between the parties which was titled ‘Terms and Conditions of Transport Services’.’

47       During the jurisdictional hearing, the written contract described in the Statement of Agreed Facts was admitted into evidence as ‘Exhibit A6’ (services agreement).

48       As my summary of the parties’ submissions will show, the respondent argued that the services agreement was the whole of the contract between the applicant and respondent. The respondent submitted the services agreement is a comprehensive document, that contained all the terms of the contract between the applicant and the respondent.

49       The applicant on the other hand has a different view of the services agreement. In contrast to the respondent’s contentions, the applicant submitted the services agreement is not the entire agreement between the parties. The applicant claimed the contract was ‘partly oral’ and there are terms that are implied, in addition to the express terms that are contained in the services agreement.

The services agreement

50       The services agreement contains the following relevant clauses:

 1. DEFINITIONS

 “Carrier” means the person (including an entity) engaged by Onsite to provide the Services as set out in the Contract Schedule.

 “Driver or Drivers” means any individual employed or engaged by the Carrier to perform the Services.

 “CoR laws” means the road safety legislation, regulations and guidelines which govern the transportation of goods and road safety, including the Heavy Vehicle National Law and NTC load Restraint Guide 2018, as amended from time to time.

 “Goods” means the goods received by the Carrier from Onsite along with any container, packaging or pallets supplied by or on behalf of Onsite.

 “Legislative Requirements” means:

  (a) Acts, Ordinances, regulations, orders, awards and proclamations of the Commonwealth or State including Australian Standards and the Building Code of Australia any other applicable codes of practice;

  (b) local laws, by laws, orders, ordinances and legal requirements of any relevant authority, including local government;

  (c) approvals, compliance requirements and requirements of organisations having jurisdiction in connection with the carrying out of the work under the Agreement; and

  (d) fees and charges payable in connection with the foregoing.

 …

 “Order” means the order issued by Onsite specifying the Goods, time and place for collection and delivery of the Goods.

 …

 “Services” means the whole of the operations and services undertaken by the Carrier in anyway whatsoever connected with or concerning the Goods as described in this Contract including in any Order.

 “SHEQ Requirements” means all applicable WHS Laws, rules, Codes of Practice, Australian Standards, CoR laws, and any procedures, guidelines and manuals of Onsite relating to safety, health, environment or quality as amended from time to time.

 …

 “Vehicle” means any vehicle and related equipment utilised to provide the Services.

 …

 2. SERVICES

 2.1 Onsite engages the Carrier to perform the Services. The Carrier may use employees or sub-contract part of the Services to engage Drivers to perform the Services.

 2.2 The Carrier warrants that:

  (a) It will undertake the Services with due care and skill using appropriately qualified, licensed, trained, supervised and competent Drivers;

 …

  (e) All vehicles are:

    (i) fit for their intended purpose;

    (ii) regularly maintained and serviced by the Carrier                 (iii)              safe, clean and without risks to any person;

    (iv) if required by Onsite, fitted with an operational GPS tracking device and video camera/s;

    (v) fully compliant, registered, operated, maintained and serviced in accordance with all applicable Legislative Requirements; and

    (vi) structurally sound, fitted with appropriate and operational safety devices (including, where applicable, safe load indicators, overload alarms, burst/hydraulic lock out valves, earthing, anemometers, and warning lights) and marked with a means of identification and safe working load.

  (f) It has performed, and will continue to perform, risk assessments of all risks and hazards to which persons may be exposed during the course of providing the services, it has implemented, and will continue to implement, control measures to, so far as is reasonably practicable, ensure that persons are not exposed to risks to health and safety and, to the extent consistent with the forgoing obligations, will provide the Services in compliance with all:

   (i) relevant site requirements for delivery and collection;

   (ii) SHEQ Requirements;

   (iii) Safe Work Method Statements; and

   (iv)  the specifications and requirements as set out in the Schedule and each Order.

 …

 3. ORDER FOR SERVICES

 3.1 As a Framework Agreement, the Carrier agrees to submit to Onsite a Quote with the rates detailed. Onsite may (in its absolute discretion) accept the Quote by issuing an Order to the Carrier. If the Carrier’s Quote contains any additional terms and conditions which are inconsistent with this Agreement, the terms and conditions of this Agreement prevail.

 3.2 As a Schedule of Rates Agreement, the Carrier’s Schedule of Rates are attached as Annexure A, and Onsite will issue an Order to the Carrier based on these rates. The Carrier is required to provide to Onsite a written acknowledgment of receipt of the Order. Rates are inclusive of any costs associated with site inductions, training and safety requirements.

 …

 4. COLLECTION AND DELIVERY

 4.1 The Carrier will collect the Goods at the designated place for collection at the time specified in the Order and shall deliver the Goods at the designated place for delivery in the same state and condition in which the Carrier received the Goods.

 4.2 Any change in the state and/or condition of the Goods must immediately be notified by (or on behalf of) the Carrier to Onsite in writing followed by a detailed written incident report describing the chronology of the incident with photographs. Onsite may, in its absolute discretion direct the Carrier to cease undertaking any of the Services until the detailed written incident report is provided to Onsite in a form that is acceptable to Onsite.

 4.3 Prior to leaving the collection site, the Carrier must ensure:

  (a) the Vehicle is loaded with the correct Goods pursuant to the Order;

  (b) delivery paperwork is accurately completed;

  (c) the Goods are fit for transportation; and

 (d) a safe Vehicle loading process is followed and Goods are safely secured, in compliance with all applicable SHEQ Requirements.

 4.4 The Carrier acknowledges the Services must be performed by the date and time stated in the Order and in accordance with the SHEQ Requirements The Carrier must immediately notify Onsite in writing if it is unable to comply with the date and time requirements stated in the Order (including but not limited to the SHEQ Requirements) for any reason whatsoever.

 …

8. RATES

 8.1 The Rates are either detailed in Item 5 of the Contract Schedule, or in each individual Quote under the Framework Agreement.

 8.2 Onsite will pay the Carrier’s invoices on the date set out in the Contract Schedule.

 8.3 The Carrier acknowledges and agrees that any cost and charges relating to hardware, software, telephone, internet usage or data usage associated with providing the Services is at the cost of the Carrier.

 8.4 Onsite may set off from any amounts it owes to the Carrier against any amounts the carrier owes to Onsite.

Contract schedule

51       In addition to the terms I have extracted above, the services agreement includes a ‘Contract Schedule’ (contract schedule), which lists a series of sub-headings. Under each sub-heading, there are two columns.

52       One column lists the items relevant to each of the sub-headings. The other column contains information from the parties that is relevant to each of the items listed under each sub-heading.

53       The first column under sub-heading 3 of the contract schedule: ‘Key Terms’ lists a series of items including ‘Framework Agreement (clause 3.1)’. The information appearing in the second column next to this item states;

‘Quote to be submitted before each Order; OR’

54       The next item that is listed under the sub-heading ‘Key Terms’ is ‘Schedule of Rates Agreement (Clause 3.2)’. The information that appears in the second column next to this item states;

‘Order based on the attached Schedule of Rates’.

55       Sub-heading 4 of the contract schedule is titled ‘Scope and Services’. One of the items that is listed under this sub-heading is ‘Number of vehicles’. The information provided in the second column next to this item is ‘6’ (Number of Vehicles – 6).

56       Although, some hourly rates are provided under sub-heading 5 of the contract schedule, they do not reveal if a heavy vehicle is to be used to cart ‘goods’ as defined in the services agreement.

57       In addition, a Schedule of Rates was not attached to either the services agreement or the contract schedule.

Evidence of Christopher Sergeant

58       In order, Mr Sergeant was the first witness who gave evidence in the jurisdictional hearing. Referring to his witness statement (Exhibit R1), he said that he works for the respondent as its Regional Operations Manager, for the Western Region.

59       Mr Sergeant said that he commenced work with the respondent in 2016. He described his primary duties as supervising operations in the Western Region, as well as managing safety and compliance.

60       He said that as Regional Operations Manager, he received frequent reports and business updates from all Western Australian-based branches. He said that one of these reports was a spreadsheet titled ‘Copy of Day Sheet’ that Mr Sergeant attached to Exhibit R1 which was marked as “Annexure A” (day sheet).

61       Mr Sergeant said the day sheet provided a detailed breakdown of the raw data recording each individual transportation job the applicant completed, in the period 8 January 2024 to 20 December 2024.  He explained that the raw data in table was collected, maintained and updated by staff at the respondent’s Wangara branch (Wangara branch).

62       Also attached to Exhibit R1 was a summary table that Mr Sergeant prepared, which he said tallied the raw data in the day sheet. He also said it summarised the total in hours of transport services the applicant provided, as well as a breakdown of those transport movements (and percentages) performed by the driver of the vehicle in each given entry. This second table was attached to Exhibit R1 as Annexure B (Annexure B).

63       In Exhibit R1, Mr Sergeant said that in his capacity as Regional Operations Manager and from the updates he received from the respondent’s staff, that he was aware the day sheet was a live document which the respondent updated regularly. He said that a copy of the day sheet was made available to David up until the applicant ceased to provide transport services for the respondent.

64       Mr Sergeant said that from time to time, the applicant subcontracted Services to other transport firms including ‘Everywhere Possible Transport’, ‘Gecko Logistics (Gecko Logistic)’, ‘Tomkins’, ‘Westwide’, ‘VPL’, ‘Roberts Tilt Tray’, ‘Lift and Go’, ‘Tilt-a-Crane’, and ‘Northfleet’.

65       Mr Sergeant said that from his review of the day sheet, be believed subcontracted services, accounted for approximately 4.78% of all transport services the applicant provided for the respondent under the services agreement.

66       He also gave evidence that some of the items the applicant carried for the respondent under the services agreement could have been carried using a vehicle with a gross vehicle mass of less than 4.5 tonnes.

67       For completeness, Mr Sergeant was referred to Exhibit R2, which was an earlier Statutory Declaration he prepared on 13 March 2025. The information in this document is materially similar, to what was contained in Exhibit R1.

Cross examination of Mr Sergeant

68       Under cross examination, Mr Sergeant acknowledged that he was not involved in the day-to-day operations of the Wangara branch and that he had prepared Exhibits R1 and R2 from information that was provided to him by the respondent’s staff.  Mr Sergeant accepted that he did not work closely with David at any time (ts 18).

69       Mr Sergeant was challenged on his evidence about the accuracy of the day sheet and Annexure B. He accepted that some of the entries in the table he prepared (Annexure B) were based on his assumption that it contained the names of subcontractors the applicant had engaged. He conceded that some of the subcontractors that were referred to in Annexure B were engaged by the respondent and not the applicant (ts 19).

70       In contrast to what he said in Exhibit R2, Mr Sergeant also explained the daysheet listed jobs that were carried out by one of the respondent’s employees (ts 21).

Evidence of Peter Sinagra

71       Peter’s witness statement (Exhibit A2) was accepted into evidence by consent. He said that he has driven and operated his own truck for about 39 years. He said that he is the applicant’s company secretary and one of its directors. His wife, Jennifer Sinagra (Jennifer), is the other director.

72       Peter confirmed that David is the applicant’s operations manager and that David’s wife Casandra Sinagra, works for the applicant as it’s accounts manager.

73       Peter stated that the applicant is in the business of transporting goods in heavy vehicles. He said that before the applicant was established as a company, he operated a transport business as a partnership with Jennifer under the name of P.R. & J.E. Sinagra Cartage Contractors.

74       He said that sometime in 2022, David joined the business as a driver, which was when the company was formed. He said that on 21 November 2022, the company Joondalup Transport Pty Ltd was incorporated.

75       In his statement, Peter said that although he is a director of the applicant, he drives the company’s trucks on a full-time basis. He said that other than truck driving, he does not have any other duties beyond his statutory duties as director. He said that one hundred percent of his working time is spent driving the applicant’s trucks and carrying out the jobs the applicant is hired to do.

76       He said the applicant owns eight trucks, being three prime movers, two HIAB trucks (trucks with a loader crane, known as a HIAB, mounted on them) and three tilt tray trucks. Peter said that along with himself, the applicant has three other full-time drivers. Peter said that David also drives the applicant’s trucks, but only on a part-time basis, as required.

77       Peter said the work the applicant performs is allocated according to the truck that is required for the job to be performed and the other work the applicant has on at the time.

78       He said that as the operations manager, David keeps a spreadsheet of the jobs the applicant has for the day, which he assigns to the drivers. Peter said the applicant’s drivers are allocated jobs based on the type of work that needs to be done and the truck that is best suited for the job.

79       Peter said that none of the applicant’s drivers worked solely for the same client and a driver may perform jobs for several clients on any one day, depending on how David assigns the work.

80       Peter said that in or around February 2023, the applicant commenced providing transport services for the respondent, which he said was ‘formalised’ on 1 April 2023. By this, I understood Peter to mean that this was when David signed the services agreement.

81       He described the applicant’s work as delivering and picking up the different types of items the respondent hires out to other companies. Peter said this included carting portable buildings, toilets, machinery, Gensets, and shipping containers.

Evidence of David Sinagra

82       David filed two witness statements for the jurisdictional hearing, the first of which was (Exhibit A3). In this statement, David said he is the applicant’s operations manager. He said that before commencing work with the applicant, he had driven trucks for different employers and worked as a self-employed, sole-trader truck driver.

83       He said the applicant is ‘in the business of providing transport services and transporting goods by heavy vehicle’. For this purpose, he said the applicant owns eight trucks, which are comprised of three prime movers, two HIAB trucks, and three tilt trays.

84       David said that as well as being one of the applicant’s directors, his father Peter, works as a driver on a full-time basis. Peter does not perform any other duties for the applicant. He said the applicant employs three other full-time drivers. David said that he also drives trucks when required.

85       He stated that his role as the applicant’s operations manager requires him to organise all the jobs to be done and to allocate them to each driver. David said he also organises vehicle maintenance when needed, purchases and sells the vehicles the applicant uses, and quotes/costs the jobs the applicant performs.

86       David said the applicant contracts with various companies to provide transport services. He described the work the applicant performs as delivering and picking up equipment that belongs to these companies. He said the applicant has arrangements with around 20 different companies.

87       As the operations manager, David said he keeps a detailed spreadsheet of the jobs the applicant receives. He said that it is his job to assign the appropriate drivers for each job. David said the applicant’s drivers are moved between various contracts and may be assigned work for several different companies on the same day, which depends on the jobs received.

88       David said that before he started working for the applicant, he was the operations manager for Gecko Logistics. He said that in this role, he managed the transport contract that Gecko Logistics had with the respondent. To this end, David was based at the respondent’s Wangara branch. He said this arrangement commenced sometime in 2017.

89       He said that in 2022, the management of Gecko Logistics decided to downsize its business. David said that following this, he had discussions with the respondent about the applicant providing the transport services Gecko Logistics had previously provided.

90       David said the respondent agreed the applicant would provide these services, which officially started in or around late February 2023.  He said that on or around 1 April 2023, the applicant and the respondent agreed upon the services agreement, which he signed on the applicant’s behalf.

91       He said that after the applicant commenced providing transport services to the respondent, he continued to work from the Wangara branch. He said the applicant’s drivers were also based at the Wangara branch. David’s description of the items the applicant carted for the respondent aligned with the description that Peter provided in his evidence

92       David said that each one of the applicant’s drivers completed some work for the respondent each day. He said that in addition to the jobs the applicant performed for the respondent, the applicant’s drivers also did jobs for other customers and that this continued until late 2025.

93       David said the applicant’s drivers were required to complete daily time sheets on the jobs they performed and the hours they worked. He said this was so the applicant could keep a track of the time each driver worked and to ensure the drivers complied with the driver fatigue rules.

94       As an example of the time sheets that were completed by the applicant’s drivers, David referred to Peter’s timesheets that were in the bundle of agreed documents (Exhibit A7).

95       In his second witness statement (Exhibit A4), which the applicant filed in response to Mr Sergeant’s witness statement, David confirmed that all of the trucks described in his witness statement were heavy vehicles.

96       In Exhibit A2, David said that he did not accept Mr Sergeant’s initial evidence that it was the respondent’s staff who completed the day sheet. David said that he entered the information into the day sheet on the jobs the applicant completed.

97       David did not accept the applicant had engaged subcontractors to the extent Mr Sergeant had claimed in his evidence. In Exhibit A2 David denied engaging ‘VPL’, ‘Roberts Tilt Tray’ or ‘Northfleet’. He also disputed the figure Mr Sergeant provided, on the percentage of services the applicant subcontracted to other transport providers.

98       In Exhibit R2, David said he did not dispute that some of the items the applicant carried for the respondent, could have been carried using a vehicle with a GVM of less than 4.5 tonnes. David said that all the applicant’s vehicles have a GVM above 4.5 tonnes and the applicant mostly carried out work for the respondent using these vehicles.

99       In response to further re-examination by Ms Gillespie, David explained that while he was working as the operations manager for Gecko Logistics, his employer, who was approaching retirement, suggested he take over their business (t-s 46-48).

100    David said discussions involving himself, representatives for the respondent and Gecko Logistics occurred, following which the applicant purchased some of the vehicles Gecko Logistics were using, to provide transport services for the respondent.

101    He said the applicant purchased six vehicles, that are referred to in the services agreement, which he said over time was increased to eight. David said that in ‘quarterly review meetings’ the respondent asked for continuous improvements and additions to the applicant’s fleet of vehicles.

102    He gave evidence to the effect that despite making additions to the fleet, the parties never updated the service agreement (t-s 48).

Cross examination of David Sinagra

103    In cross examination, David admitted the applicant carted some goods for the respondent that did not require the use of a heavy vehicle. However, he said the amount of this work was minimal. More specifically, David said that seven out of a total of four thousand or so jobs, the applicant performed for the respondent, did not require the use of a heavy vehicle: (ts pp 45-46).

104    He also said that he used his personal four-wheel drive to carry out these deliveries and it was to help the respondent ‘out of a pickle’. David did not dispute that he did not use a heavy vehicle on these occasions, however he went on to say that he did not believe these jobs were covered by the services agreement (ts 46-47).

105    When questioned about this, David said that to his knowledge, the respondent’s Wangara branch, is the only branch of the respondent’s business in Western Australia that has its own employee to cart smaller items for which a heavy vehicle is not required (ts 50).

106    David gave evidence to the effect that the only time the applicant carted any small items was when the respondent’s employee was not available to carry out this work (ts 50). During his cross examination, David went through the day sheet and explained how he was able to identify the vehicles that were used for each job and the items carted.

107    David said the applicant was occasionally paid for jobs he performed in his private vehicle, which he accepted was not a ‘heavy vehicle’. He said the applicant was paid an agreed rate for to use a light vehicle instead of a ‘heavy vehicle’: (ts pp 57-58).

108    He explained the applicant was hired to cart those items for which a ‘tilt tray’, ‘HIAB’ or ‘Semi’ was needed, which he said included ‘portable buildings’, ‘large gen sets’, ‘plant and equipment’ and scissor lifts (ts 50).

The respondent’s first outline of submissions

109    The respondent, in the two outlines of submissions on the jurisdictional objection that were respectively filed on 3 July 2025 and 19 August 2025, placed a significant emphasis on the services agreement and the absence of a provision that specifically mentions that a heavy vehicle must be used to provide transport services.

110    The Respondent’s Outline of Submissions (respondent’s first outline) had overlooked the decision of the Full Bench in the Deliver2U-2. 

111    Relying upon the decision in Deliver2U-1 the respondent had initially argued that because the services agreement did not expressly state that a heavy vehicle is to be used, the services agreement was not an owner-driver contract for the purposes of the OD Act and was therefore not amenable to the Tribunal’s jurisdiction.

112    Lending further weight to its argument, the respondent submitted the size or tonnage of the vehicles required to deliver the respondent’s goods is not specified in the services agreement.

113    The respondent argued that on a proper construction, there was no express term in the services agreement that required the applicant to use a heavy vehicle to transport the goods it had to move, under its contract with the respondent.

114    Further, it was submitted that not only was there no express term requiring the applicant to use heavy vehicles, but clause 7 of the service agreement also allows the applicant to subcontract its obligations to provide the transport services to other providers.

115    To lend weight to this submission, the respondent referred to Mr Sergeant’s evidence that confirmed the applicant had used some subcontractors.

116    It was submitted that if the respondent issued an order requiring the applicant to deliver goods that did not require the use of a heavy vehicle, the applicant was, under the terms of the service agreement, allowed to:

1.        perform those services using one of its heavy vehicles;
2.        perform those services in a light vehicle if it wished to do so; or
3.        could engage a subcontractor to perform those services in any appropriate vehicle.

117    The respondent submitted there was nothing in clause 7.1 of the services agreement which prevented the applicant from engaging subcontractors to transport goods in light vehicles, if it wanted to. 

118    It was further submitted however that if the applicant subcontracted any of the work it was engaged to perform under the services agreement, the applicant would cease to be an ‘owner-driver’ because s 4(2) of the OD Act requires that an officer of the body corporate (whether solely or with the use of other operators) whose principal occupation is the operation of those vehicles, to be involved in the provision of the transport services: (respondent’s first outline para 25). 

119    It was submitted that a subcontractor would be neither an officer of the applicant, nor an operator of its heavy vehicles.  Put differently, the applicant could not be both an ‘owner-driver’ under the services agreement, and a ‘hirer’ under a subcontract with another ‘owner-driver’ that is engaged to carry out some of the work the applicant is required to perform under the services agreement. 

120    The respondent submitted the applicant had conceded that some of the goods it was required to transport under the services agreement could have been carried using vehicles with a GVM of less than 4.5 tonnes (i.e. light vehicles) and that it mainly provided transport services using its own heavy vehicles. 

121    It was submitted that a decision on the type and the size of the vehicle the applicant used to transport goods for the respondent was a matter for the applicant to determine (respondent’s first outline para 26).

122    While this submission in the respondent’s first outline, appeared to have been directed at illustrating the circumstances in which the applicant could choose to engage a subcontractor, it was maintained in the Respondent’s Supplementary Outline of Submissions (respondent’s second outline) for a whole other purpose.

The respondent’s second outline of submissions

123    Upon becoming aware of the Full Bench decision Deliver2U-2, the respondent filed the Respondent’s Supplementatry Outline of Submissions (respondent’s second outline).

124    It was submitted that despite the decision in the Deliver2U-2 the Tribunal did not have the jurisdiction to hear the application, because the contract between the applicant and respondent, did not contain an implied term that the goods the subject of the contract are to be transported in a heavy vehicle.

125    The respondent submitted the services agreement does not contain an implied term that the goods the subject of the contract are to be transported in a heavy vehicle because:

1. the services agreement is for the ‘transport of goods simpliciter’. That is, there are no goods specified for carriage in the services agreement. Under the services agreement, the respondent could require the applicant to carry goods that did not require the use of a vehicle or no goods at all, for which no vehicle would be needed;
2. it is not a necessary incident for the performance of the service agreement for the ‘goods’ (being any goods that the respondent requires the applicant to carry from time to time, which were not identified at the time of the formation of the service agreement) to be carried in a heavy vehicle; and
3. the implications of a term that the goods, that may become the subject of the services agreement are to be transported in a heavy vehicle, would be inconsistent with the express terms of the contract that allows:

1. the respondent to require the applicant to carry goods that do not require the use of a heavy vehicle (or to not require the applicant to carry any goods at all); and
2. the applicant to exercise its discretion to carry goods in vehicles that are fit for their intended purpose, and that satisfy the other requirements for vehicles as warranted by the applicant under service agreement (ie. that they are regularly maintained).

126    It was submitted the bargain between the applicant and the respondent was for the carriage of goods, generally, as and when required by the respondent.  The respondent contended that in these circumstances, the implication of a term requiring the use of a heavy vehicle was not a necessary incident for the effective performance of the contract. 

127    The respondent argued that if a term requiring the use of a heavy was implied and the respondent required goods to be carried that did not require the use of a heavy vehicle, the implied term would not only be unnecessary, but also unjust and oppressive.

128    The respondent submitted an implied term requiring the use of a heavy vehicle would be impermissibly inconsistent with the bargain struck between the parties and the discretion the applicant has under the services agreement to choose the vehicle to be used.

129    It was submitted that the use of the word ‘for’ in s 5(1) of the OD Act must be understood as denoting the relevant purpose or subject matter of the contract, being the transport of goods “in a heavy vehicle” by the owner-driver.  The respondent submitted that when read with its long title, it is clear the OD Act is only concerned with contracts of this specified kind. It is not concerned with other types of transport contract.

130    The respondent submitted that determining whether a contract is ‘for’ a particular object or purpose (in this case, ‘for the transport of goods in a heavy vehicle’) involves an inquiry into ‘substance of the contract’. 

131    It was submitted an approach based on the “substance of the contract” emphasises that a contract cannot properly be characterised in a particular way when the essentials of the contract (in this case, the use of a heavy vehicle) are ‘only ancillary’ or incidental to the contract’s primary purpose.

132    The respondent contended the ‘substance’ of the service agreement was transporting goods of any kind as required by the respondent.  It was submitted the use of heavy vehicles was an ‘incident of’ rather than the entire contract between the parties.

133    It was submitted that an implied term the goods were to be transported in a heavy vehicle would contradict the express terms of the service agreement; including that goods of any description nominated by the respondent were to be carried in a vehicle that was ‘fit for purpose’ as set out in clause 2.2(e).

134    The respondent submitted the goods the applicant was required to transport under the service agreement could (and did in fact) include light goods.  It was submitted that if a requirement to transport goods of this type with a heavy vehicle, regardless of whether one was necessary, would mean all deliveries performed by the applicant in light vehicles would have been transported in breach of the service agreement.

135    The respondent submitted that such an outcome would not reflect the intention of the parties, or the bargain they struck, as expressed in the service agreement and is inconsistent with it.

136    It was submitted the fact the respondent may have required the applicant to cart goods which required the use of a heavy vehicle, did not turn the written contract (as reflected in the services agreement) into a contract that attracts the jurisdiction of the Tribunal (ts 14).

The applicant’s submissions

137    The Applicant’s Outline of Submissions (applicant’s first outline) was filed on 26 June 2025, before the respondent had lodged its first outline. At this stage of the proceedings the applicant regarded the services agreement alone, as an  ‘owner-driver contract’ within the meaning of s 5 of the OD Act

138    After the respondent’s first outline was filed, and the parties became aware of the decision in Deliver2U-2, the applicant and the respondent each filed further submissions. The Applicant’s Outline of Supplementary Submissions was filed on 2 September 2025 following the respondent’s second outline (applicant’s second outline).

139    The applicant submitted that when the contract is considered as a whole, together with the circumstances surrounding the parties’ contractual relationship and the arrangements that were in place at the start of the contract period, there was an implied term that a heavy vehicle would be used for transporting the respondent’s goods.

140    It was also submitted the applicant and the respondent were, in addition to the services agreement, subject to an ‘oral owner-driver contract’.

141    Regarding the circumstances in which the contract between the parties was reached, the applicant submitted that both parties were aware the applicant only owned heavy vehicles.  It was submitted that at the start of the parties’ contractual relationship, the respondent had asked the applicant to provide transport services in specific vehicles, each of which were heavy vehicles.

142    The applicant said there was no feasible way for it to transport goods in anything other than a heavy vehicle. This is despite the respondent’s submission to the contrary and the fact the respondent was aware of this when the agreement with the applicant was made. 

143    It was submitted the applicant and the respondent, had made an ‘owner-driver contract’, even though the services agreement did not contain an express term for the use of heavy vehicles.

144    The applicant contended the issue of whether there was an implied term requiring the use of a heavy vehicle should be determined by reference to the nature of the goods the applicant had to cart, rather than solely being guided by what the respondent says the contract requires.

145    On this basis, the applicant submitted that the respondent in its second outline, had sought to brush aside the central point Acting President Smith had made in paragraphs [60] – [61] of Deliver2U-2.

146    The applicant submitted that it would be illogical for the respondent to have engaged a company which it knew:

1.        was solely in the business of providing transport services;
2.        whose transport services were provided by an owner-driver whose sole occupation was driving for the company; and
3.        only provided transport services in heavy vehicles;

if the respondent did not want the company to transport it’s goods in those vehicles, regardless of what was expressly contained in the written contract.

147    The applicant submitted that it was relevant, the applicant had taken over from, Gecko Logistics; the respondent’s previous transport services provider, that had been engaged to transport of equipment and other items including portable buildings, toilets, machinery, Gensets, and shipping containers.

148    It was submitted that despite the respondent’s submission that some goods were transported in a light vehicle, there was evidence the applicant only used heavy vehicles to provide transport services for the respondent.

149    The applicant submitted the respondent’s own evidence showed, that most of the items the applicant carted, could only have been carried by a heavy vehicle.  This was because of the size and length of the items carted.  

150    It was submitted that by using its heavy vehicles to transport the respondent’s goods, the applicant was using vehicles that were fit for purpose, in line with Clause 2.2(e) of the services agreement.

151    Referring to the day sheet, the applicant submitted the greater percentage of the goods the applicant carried could only be moved by a heavy vehicle. On this basis, the applicant submitted that it was necessary for the applicant to use its heavy vehicles to fulfil the terms of the contract.

152    The applicant submitted a further reason a term requiring the use of heavy vehicles was implied, is because of other conditions that are contained in the service agreement. It was submitted that there are terms in the service agreement that only apply to heavy vehicle drivers including references to:

1.        sustainable rates;
2.        Chain of Responsibility (CoR) Laws;
3.        driving hours regulations (including time spent driving and working pursuant to legislative requirements);
4.        required rest breaks;
5.        recording driving hours; and
6.        adequate training in relation to fatigue, mass, dimension, load restraint, and speed requirements.

153    The applicant submitted the clauses referred to in the preceding paragraph are only relevant to drivers who work in the heavy vehicle industry. For example, there is no legislative requirement for the drivers of light vehicles, to record their driving hours or to comply with driving hours regulations. 

154    It was submitted that by including such clauses in the service agreement when it was drafted, the respondent had indicated a clear intention the transport services would be undertaken by the applicant in heavy vehicles, even though the service agreement does not contain an express term to this effect.

155    While the applicant in its second outline submitted that other categories of implied terms beyond a term implied in law were relevant, the submission was not developed further.

Consideration

156    In reaching a decision in this matter, I have, apart from Ms Gillespie’s statement, considered all of the material the parties filed and presented to the Tribunal, for the jurisdictional hearing.

157    There was no significant conflict between the parties over their evidence that needed to be resolved. To the extent there was a conflict over the number of times the applicant subcontracted services, I have preferred David and Peter’s evidence. This is because the two of them were involved at a ‘hands on level’ at the respondent’s Wangara branch and in delivering the respondent’s goods.

158    Peter and David were the only two witnesses who gave evidence in the jurisdictional hearing that touched upon the circumstances in which the contract between the parties was formed and the context in which the applicant adopted the services agreement.

159    In this matter, there is no dispute the applicant, at the time the parties first established an arrangement to provide transport services for the respondent, was an owner-driver within the meaning of s 4 of the OD Act.

160    It is not disputed the applicant had a fleet of heavy vehicles and the respondent was in the business of hiring out items that could only be moved with heavy vehicles, such as portable buildings, toilets, machinery, Gensets, and shipping containers.

161    There is no dispute the parties entered into a written contract which I have described throughout these reasons as the services agreement. However, I consider that the resolution of the jurisdictional issue in this matter, involves more than just interpreting the terms of the services agreement.

Construction of s 5 of the OD Act

162    When interpreting a provision in the OD Act, the Tribunal is obliged to construe the relevant provision so that it is consistent with the language and purpose of all the provisions in the statute: Project Blue Sky Inc & Others v Australian Broadcasting Authority (1998) 153 ALR 490 (Project Blue Sky) at [69].

163    The exercise of statutory construction was explained and summarised in Project Blue Sky in the following way;

The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole”. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that “the context, the general purpose of a provision and its consistency and fairness are surer guides to its meaning that the logic with which it is construed”. Thus, the process of construction must always begin by examining the context of the provision that is being construed.

164    In view of these principles, I consider the Tribunal when applying the definition in s 5 of the OD Act, is required to examine the entire contract between parties. In the present case, this would include the services agreement, alongside other aspects of their commercial relationship.

165    This is because the OD Act, provides for the adoption of and compliance with minimum statutory standards, each time a hirer engages an owner-driver to transport goods in a heavy vehicle.

Course of business

166    The definition of an owner driver contract under s 5 of the OD Act includes the words ‘entered into in the course of business’.

167    When interpreting the definition of an owner driver that appears in s 5 of the OD Act, the Tribunal is required to give meaning to every word used in the provision; Project Blue Sky at [71].

168    In Goddard v Collins [1984] VR 919 Justice Nathan of the Supreme Court of Victoria (albeit in a case that does not relate to the application of the OD Act), sought to explain what is meant by the term ‘course of business’. 

169    His Honour Nathan J held at [10]-[25]

…I consider that the expression “course of his business” does carry with it the necessary intent that the business must be of a commercial character, that is, “business” implies a necessary expectation of commercial reward. However, that reward need not necessary be for the specific acts or work then and there done. The expression “course of business” implies a continuum or a type of conduct for which an ultimate reward of a commercial character is expected. It includes the generation of goodwill, or doing a particular piece of work at less than market rates in order to generate the expectation of further work or further reward. There are many types of conduct and procedures which business men undertaken in their day to day activities for which an immediate financial benefit is not expected. However. There must be an element, that in the longer term, and during the entire course of a business a financial benefit might ultimately ensure. A course of business is established if it can be proved that a person is engaged in a commercial activity, albeit of an intermittent kind, where there is an ultimate expectation of financial or material gain.

170    I consider the inclusion of the term ‘entered into in the course of business’ in the definition of an owner-driver contract under s 5 of the OD Act requires the Tribunal to consider if the parties’ contract, not only involves an examination of their written instrument but whether there are other aspects of their commercial relationship, that are relevant to determining if the parties have entered an owner driver contract.

Principles that apply when interpreting the services agreement

171    When interpreting contracts, the rights and liabilities of the parties to a contract are to be determined objectively: Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 at 350.

172    The principles to be applied on this analysis were described by Quinlan CJ in Mak Industrial Water Solutions Pty Ltd v Doherty (No 2) [2023] WASC 279 who at [53] said;

They relevantly include by way of summary:

(a)      The construction of a contract involves a determination of the meaning of the words of the contract by reference to its text, context and purpose. The starting point for the proper construction of a clause is the language used in the clause. In particular, one starts by identifying the possible meanings that the words chosen by the parties can bear.

(b)     Ascertaining the meaning of terms in an instrument requires a determination of what a reasonable person would have understood those terms to mean. That inquiry will require consideration of the language used by the parties in the contract, the circumstances addressed by the contract, and the commercial purpose or objects to be secured by the contract. The instrument must be read as a whole.

173    Construing the instrument, as a whole, in the present case, necessarily requires Tribunal to read the contract schedule, together with the terms of the services agreement. It is also relevant to look to the context in which the parties made their contract.

Context in which the contract was made

174    If the services agreement in this matter is viewed in isolation and is seen as giving rise to the entire agreement between the parties, then perhaps the use of a heavy vehicle may be seen as an ancillary purpose. I do not however, particularly in the context of the s 5 definition of an owner driver contract, view the services agreement in this light.

175    It is of significance the parties knew, at the inception of their contractual relationship, the commercial purpose of their arrangement, was carting items that could only be carried by heavy vehicles.

176    There is also the problem in the circumstances of this case, that if the services agreement is regarded as a comprehensive contract, it not only does not reflect the reality of the parties commercial relationship, but there is the potential for the services agreement to be used as a device to contract out of the parties’ obligations under the OD Act, contrary to s 7.

Evidence on the services agreement

177    David and Peter both gave evidence (which was unchallenged), that the applicant did not enter the services agreement until a month or two after it first started providing transport services for the respondent. Although the service agreement is undated, David and Peter both said he did not sign the document until April 2023.

178    David also gave evidence that the applicant was engaged to take over the work Gecko Logistics previously performed, which involved transporting items that could only be moved with a heavy vehicle. To this end, both Peter and David said the applicant purchased trucks from Gecko Logistics.

179    There is in my view, ample evidence to conclude that before the services agreement was signed, the parties had already made an owner-driver contract.

180    Both David and Peter gave evidence the applicant first commenced providing transport services in February 2023. It is reasonable to find the contract between the parties at this stage was ‘oral’, which the parties had ‘entered into in the course of business’.

181    Any such relationship at the initial stage I have described, would need to have been underpinned by the provisions of and contain terms as required by the OD Act. The services agreement, to which I will return, is something that came later.

182    The significance of this finding when viewed together with s 7, is that any subsequent written contract to provide transport services, made between the parties, that extends to and includes transporting goods with a heavy vehicle, could neither be inconsistent with or purport to oust the provisions of the OD Act.

183    It therefore follows, that if the services agreement contains any terms that may be inconsistent with the OD Act, those terms, because of s 7, will be void.

Framework Agreement

184    A construction of the services agreement that views the services agreement as framework in which further terms are to be worked out, is relevant to my consideration what the parties entered into in their course of business.

185    It is reasonable to view services agreement, as comprising of two parts, the first of which is the contract schedule.

186    The Contract Schedule precedes the body of the main agreement. Both the contract schedule and Clause 3 of the services agreement (Order for Services) describe the document as a ‘Framework Agreement’.

187    The ordinary meaning of the word ‘framework’ as expressed in the Macquarie Dictionary includes the following definition;

‘a structure designed to support or enclose something; a frame or skeleton’

188    The use of the words ‘Framework Agreement’, does not in my view, indicate the parties had intended the services agreement would be comprehensive or complete. On the contrary, it suggests that even with the services agreement, there were some matters that were still to be worked out within the context of the parties ongoing commercial relationship.

189    It is my view that use of the words ‘Framework Agreement’ is suggestive of a situation in which the services agreement is only one part of the contract between the parties. It suggests the services agreement, at the very least, sets out some of the written or ‘express terms’ of the contract between the applicant and the respondent.

190    Put succinctly, it appears that because of its description as a ‘Framework Agreement’ the services agreement only describes a part of the contract between the parties. It follows that I regard the contract between the parties, within the scope of the s5 definition of an owner driver contract as being ‘partly in writing’.

191    Such arrangements are not unusual for owner-driver contracts: see Deliver2U-1 at [35]. As the Explanatory Notes - Owner-Drivers (Contracts and Disputes) Bill 2006 on the meaning of an ‘owner-driver contract’ acknowledges;

An owner driver contract is defined as a contract for the transport of goods in a heavy vehicle. Because agreements between parties are not always formal, a contract may be written or an oral contract, or a combination of a written and an oral contract. Where the parties agree to a range of services and the services to be performed, relate predominately to the transport goods, then an agreement to undertake those services is considered to be an owner driver contract. An owner driver contract is a business agreement between two parties.

Terms of the services agreement

192    When all the terms of the services agreement are viewed together, in the context in which it was made, I consider that its function was for provision of standard mandatory requirements the applicant was required to comply with in its contractual relationship with the respondent

193    I do not accept the services agreement allows the applicant alone, to choose the vehicles it will use to cart the respondent’s goods or to decide if it will subcontract its services. This in my view is something which the parties under the terms of the services agreement are required to work through in the process under Clause 3.1 which I further discuss below.

194    In addition, the respondent under the terms of the services agreement, exercises and retains a significant level of control over the way in which the applicant is to transport goods for the respondent and the mandatory requirements the applicant must comply with.

195    The mandatory requirements in the services agreement, include but are not limited to compliance with applicable legislation, how the services are to be provided, compliance with the respondent’s generic transport and delivery specifications, invoicing, insurances and the like (by way of examples see Clause 2 - Services and Clause 4 - Collection and Delivery).

196    Some of these matters are requirements of and consistent with, the minimum statutory standards that must be met under the provisions of the OD Act. The inclusion of these items in the services agreement also lends weight to the suggestion the respondent was aware, the use of heavy vehicles, would be a feature of its commercial relationship with the applicant.

Orders for services

197    In my view, Clause 3.1 of the services agreement (Order for Services) that I earlier referred to in paragraph [53] when read together with Clause 8 (Rates), in the context of a ‘Framework Agreement’, provides a mechanism to determine what the applicant will be paid for each individual job.

198    Clause 3.1 appears to impose the requirement that each job must be the subject of a quotation, which would presumably include the rates to be paid, the goods to be carted and information on the vehicle to be used. Under this clause, the respondent accepts a quote by generating and issuing an order to the carrier.

199    I consider that this clause of the services agreement establishes a process, by which the applicant (who the respondent accepts is an owner-driver) would in the course of business, agree with the respondent on the further terms that will apply, for the services the applicant provides.

200    Objectively, it seems entirely plausible that during this process, the parties will turn their minds to the issue of whether a heavy vehicle is required, particularly in circumstances where the object to be carted, cannot moved in any other way.

201    In addition, I am inclined to the view that because of the process under Clause 3.1, there could be circumstances where a heavy vehicle may not have been needed, but the parties as a part of their bargain, agreed to use one any way.

202    It is my view that even in these circumstances, so long as the parties agree that a heavy vehicle is to be used as a part their bargain, whether one is required or not, an owner-driver contract within the s 5 definition, will have been entered and the provisions of the OD Act will apply.

203    The important consideration which the Senior Commissioner identified in Deliver2U-1 at paragraphs [27] and [35] following his analysis of the OD Act, is that the parties must agree a heavy vehicle will be used as a part of their bargain.

204    Whilst the Senior Commissioner’s finding the parties agreement on the use of a heavy vehicle must be an express term of the contract was not endorsed by the Full Bench, Acting President Smith at paragraphs [45] – [46] of her judgement in Deliver2U-2 did approve his analysis of the OD Act and his assessment that the use of a heavy vehicle must be part of the parties’ bargain in an owner-driver contract. 

205    Deliver2U-2 is not authority for the proposition there is a separate requirement to show that a heavy vehicle is necessary, in addition to each of the elements that must be established to prove that an owner-driver contract within the meaning of s 5 of the OD Act has been made.

206    This requirement only arises as it did in Deliver2U-2 where it is not clear from the contract if the parties had agreed that a heavy vehicle was to be used and a question arises as to whether this term is implied.

207    Imposing a separate pre-condition on every owner-driver contract that a heavy vehicle is necessary in all owner-driver contracts, even where the parties agree to the use of one as part of their bargain, would allow parties to oscillate in and out of scope the OD Act and the jurisdiction of the Tribunal.

208    As the Senior Commissioner noted in Deliver2U-1 at [29], it is unlikely this would have been the intention of the legislature when enacting the OD Act.

209    I therefore find that Clause 3.1 of the services agreement, describes a process by which the applicant, as an owner-driver, would agree on further terms with the respondent, to use the applicant’s heavy vehicles.

210    To this extent, the circumstances in issue Deliver2U-2 are distinguishable from those at issue in the present case.

Reference to heavy vehicles

211    While the services agreement does not expressly state that a heavy vehicle(s) will be required to transport the respondent’s goods, it does appear an attempt was made to confirm that particular vehicles would be used, to provide transport services for the respondent.

212    I accept that the reference to Number of vehicles - 6 in the contract schedule (which I earlier described in the preceding paragraph [55] is ambiguous.

213    Noting David and Peter’s evidence regarding the establishment of the parties’ commercial relationship, (which was unchallenged) it makes sense the reference to Number of Vehicles – 6 could only mean the trucks the applicant had obtained (including those purchased from Gecko Logistics) to provide transport services for the respondent, each of which had a GVM of more than 4.5 tonnes.

214    I accept the requirement that ‘all vehicles are fit for their intended purpose’, as appears in Clause 2.2(e)(i) of the services agreement, is a generic requirement the vehicles to be used, (whether heavy vehicles or not), must be capable of performing the task for which they are hired.

215    In other words, the vehicle to be used, must have both the capacity to move the goods to be transported and meet all the other generic safety requirements, as set out under the Clause of 2.2 (e) of the services agreement.

216    That said, it appears obvious that if the goods to be carted can only be moved with a heavy vehicle, no other vehicle will be fit for purpose. Items such as portable buildings, toilets, machinery, Gensets, and shipping containers, which the applicant frequently moved with its fleet of heavy vehicles, fall easily within this category.

Implied terms

217    In this matter, both parties made submissions, which I have summarised , on whether there was an implied term in the services agreement that required the applicant to use a heavy vehicle to transport the respondent’s goods.

218    The issue of whether the parties’ contract was subject to implied terms did not arise until the parties became aware of the Full Bench decision in Deliver2U-2.

219    In Deliver2U-2, Acting President Smith at [58] quoting from the judgement of Hodgson J in Carlton & United Breweries Ltd v Tooth & Co Ltd (1986) 5 NSWLR 1, listed the following four categories of implied terms:

There is a spectrum of different types of implied terms covering, inter alia, the following:

(i)                  Implications contained in the express words of the contract: see Marcus Clark (Vic) Ltd v Brown (1928) 40 CLR 540 at 553-4.

(ii)               Implications from the ‘nature of the contract itself’ as expressed in the words of the contract: see Liverpool City Council v Irwin [1977] AC 239.

(iii)             Implications from usage (for example, mercantile contracts).

(iv)              Implications from considerations of business efficacy: see BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 52 ALJR 20 at 26l Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337

220    The Acting President concluded that three of the four types of implied terms, Hodgson J described, were inapplicable to owner-driver contracts. At [55] Her Honour specifically excluded categories (i) and (iv) because they could in some circumstances result in parties attempting to contract out of the OD Act contrary to s 7.

221    At [56] Her Honour in Deliver2U-2, also expressed the view that it was unlikely the third category of implied terms from usage or custom, would have application either.

222    In relation to the second category, the Acting President, referring to Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 and Commonwealth Bank of Australia v Barker [2014] HCA 32; (2014) 243 CLR 169 , held that it must be a necessary incident of the contract for a term to be implied.

223    In following the Acting President’s reasoning in Deliver2U-2, I do not accept the applicant’s submission that categories (i), (iii) and (iv) of implied terms as set out, have any potential application in the present case.

224    If in the circumstances of this case, a term regarding the use of heavy vehicle is to be implied, it could only be a term implied by law as a matter of necessity.

225    The Acting President’s ultimate conclusions at [60] and [61] in Deliver2U-2 that I earlier referred to in the preceding paragraph [36] were reached in circumstances where it was not clear if the parties had agreed a heavy vehicle was to be used as a part of their bargain.

Use of heavy vehicles is necessary

226    In this matter, determining whether the parties have agreed to use heavy vehicles, thereby giving rise to the establishment of an owner-driver contract, is much clearer. Unlike the case in Deliver2U-2, the services agreement contemplates a process where a quotation is made and accepted with an order being generated before a job is to be performed and paid for.

227    The commercial purpose of the contract, the context in which the parties’ relationship was established and evidence of the vehicles the applicant purchased at the respondent’s request to provide transport services (including the Number of Vehicles - 6), all lend weight to a finding the parties’ use of heavy vehicles was a part of their bargain.

228    Moreover, there is a large body of evidence as disclosed in the day sheet, that demonstrates the applicant was in the main, required to transport articles that could have only been carried with heavy vehicles.

229    One of the examples I canvassed with Mr Mitsilis, during the jurisdictional hearing, which was typical of the items the applicant delivered, that undoubtedly requires the use of a heavy vehicle, was the delivery of a ‘12m x 3m Donga’ (ts 12-13).

230    Each of the matters, I have referred to in the preceding paragraphs [226]-[229], would support a finding there is a term implied that the parties had made a contract that required the use of heavy vehicles.

Implied term would be binding on the respondent

231    From my review of the services agreement, I do not accept that it contains any terms that are inconsistent with or would override an implied term that brought parties’ contract, within reach of the OD Act.  Afterall, that is the underlying statutory purpose for which the broad definition of an owner-driver contract under s 5 of the OD Act was drafted.

232    Having regard to the s 7 of the OD Act, I also do not consider a finding there is an implied term the parties have agreed to the use of heavy vehicles to transport goods for the respondent is unjust or oppressive. As I indicated earlier in these reasons, the OD Act is beneficial legislation that was enacted to achieve particular goals that are applicable to the present case.

233    The construction of the services agreement being pressed by the respondent and the respondent’s view of the parties’ contractual relationship, respectfully, sits at odds with the objectives underlying the OD Act and the mischief it was drafted to address.

Subcontracting

234    I do not accept the reference to subcontracting in the services agreement and the fact the applicant had on occasions engaged subcontractors, changes the nature of the overall contractual relationship between the parties, which predominately involved the applicant carting goods for the respondent with heavy vehicles.

235    As is evident from the contents of the day sheet, the majority of the work the applicant performed for the respondent, was as a direct contractor. Relief in this matter is confined to this aspect of the applicant’s contractual relationship with the respondent, to which the provisions of the OD Act apply.

236    On this analysis of the parties’ contract, the inclusion of a provision relating to sub-contractors in Clause 2.1 of the services agreement, is ancillary to and not a substantial feature of the parties’ commercial relationship, that I have described in these reasons.

237    In other words, I consider the capacity to subcontract under the services agreement is an ancillary mechanism within the parties’ owner-driver contract, to ensure the applicant is able maintain its commercial relationship with the respondent.

238    I accept that if the majority of or all the applicant’s transport services were to be provided by subcontractors, it would change the complexion of the parties’ contract and it would cease to be an ‘owner-driver contract’ within the meaning of s 5 of the OD Act.

Light vehicles

239    I take a very similar view in relation to the minority of occasions the applicant performed deliveries for the respondent in his own personal light vehicle.

240    The applicant submitted the evidence suggests the applicant and the respondent agreed to a separate price for these jobs, which was different from and outside the scope of their usual contractual relationship.

241    Even if the applicant’s description of the scope of the parties’ contract is not correct and the provision of deliveries in light vehicles falls within their contract, because of the limited number of jobs the applicant performed, that actually fell into this category, it is reasonable to regard them as only forming a small part of the range of services the applicant provided for the respondent.

242    I am therefore not inclined to accept that David’s performance of a handful of jobs in his own light vehicle, altered the usual relationship between the parties, the substance of which predominately involved the applicant carting goods for the respondent with heavy vehicles under an owner-driver contract.

Conclusion

243    For the reasons set out in the preceding paragraphs, I consider that the Tribunal has the jurisdiction to hear the application.

244    I am satisfied that there was an owner driver contract in place, within the meaning of s 5 of the OD Act, for which the services agreement was a part, but not the entire agreement between the parties. I have therefore concluded the owner driver contract which the applicant and the respondent ‘entered into in the course of business’, was ‘partly in writing’, ‘partly oral’ and necessarily required the use of heavy vehicles as a part of their bargain.

245    The contract between the applicant and the respondent, was predominately for the use of the applicant’s heavy vehicles to cart goods for the respondent, which could only be moved with heavy vehicles. The applicant’s limited use of light vehicles and on occasions was not so significant that it altered what was in substance, an owner driver contract.

246    Having made this decision on the respondent’s jurisdictional objection, it is my intention to now list the application before the Tribunal for a conciliation conference.