Clickcar Australia Pty Ltd v Commissioner for Fair Trading

NCAT Occupational|2023-12-12

The Applicant's contentions

The Applicant seeks orders setting aside the Direction on the basis that the Applicant's trucks are not 'tow trucks', within the meaning of section 4 of the TTI Act. The Applicant says: 1. its trucks are not used or operated by the Applicant for the purposes of 'towing' motor vehicles within the meaning of section 4 and the definition of 'tow' in section 3 of the TTI Act. 2. its trucks are fitted with hoists but a hoist is not a 'lifting device' within regulation 3 of the TTI Regulation; and/or 3. the Applicant's trucks are 'car carriers' within the meaning of section 4(2)(a) of the TTI Act and regulation 4 of the TTI Regulation; and 4. the Applicant is not a 'tow truck operator' within the meaning of section 15 and the definition of that term at section 3 of the TTI Act.
The Applicant contends that it does not operate a business for the purposes of towing motor vehicles; its trucks are not regulated as 'tow trucks' under the TTI Act and the Respondent had no power to issue the Direction in respect of its business or trucks.
The Applicant contends that, in order to be a 'tow truck', the following four conditions must be satisfied: 1. the truck must be of a kind set out in sub-sections 4(1)(a)-(e) of the TTI Act. The Applicant accepts that its tilt tray trucks fall within this provision; and 2. the truck must be used or operated "for the purposes of towing motor vehicles"; and 3. the truck must not be "a motor vehicle that is declared by the regulations not to be a tow truck" for the purposes of the TTI Act; and 4. the truck must not be used or operated in circumstances or for a purpose prescribed by the TTI Regulations.

The Respondent's evidence

The Applicant has challenged the Respondent's witnesses with respect to their lack of independence. They are each employed by the Tow Truck Authority or related government positions and they each conceded that they are not independent. However, the Respondent's counsel, Mr Higgins, has referred to the decision in Dasreef Pty Limited v Hawchar (2011) 243 CLR 588 in support of the submission that the Expert Code of Conduct is a rule about admissibility.
In Dasreef Pty Ltd v Hawchar at page 605 the High Court explained (per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ): … [w]hat has been called the basis rule is a rule directed to the facts of the particular case about which an expert is asked to proffer an opinion and the facts upon which the expert relies to form the opinion expressed. The point which is now made is a point about connecting the opinion expressed by a witness with the witness's specialised knowledge based on training, study or experience. … A failure to demonstrate that an opinion expressed by a witness is based on the witness's specialised knowledge based on training, study or experience is a matter that goes to the admissibility of the evidence, not its weight. …
There is no objection to the admissibility of the evidence. Mr Higgins submitted that as long as the witnesses were giving evidence with specialised knowledge due to training and experience, their evidence is admissible and is to be given weight.

Expert Evidence

The law on expert evidence is largely settled.
The relevant principles for the admission of expert reports under section 79 of the Evidence Act 1995 (NSW) were explained by Heydon JA in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 ("Makita") at paragraph [85]: "In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of "specialised knowledge"; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be "wholly or substantially based on the witness's expert knowledge"; so far as the opinion is based on facts "observed" by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on "assumed" or "accepted" facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert's evidence must explain how the field of "specialised knowledge" in which the witness is expert by reason of "training, study or experience", and on which the opinion is "wholly or substantially based", applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert's specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight. And an attempt to make the basis of the opinion explicit may reveal that it is not based on specialised expert knowledge, but, to use Gleeson CJ's characterisation of the evidence in HG v R (1999) 197 CLR 414, on "a combination of speculation, inference, personal and second-hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise" (at [41])."
In the Court of Appeal decision in Southwestern Sydney Area Health Service v Edmonds [2007] NSWCA 16 ("Edmonds") McColl JA (with Giles and Tobias JJA agreeing) explained at paragraphs [130] - [131]: 130 In Hevi Lift (PNG) Ltd v Etherington at [84] I said (Mason P and Beazley JA agreeing) that "[a] court should not act upon an expert opinion the basis for which is not explained by the witness expressing it". In so saying, I referred with approval (inter alia) to Heydon JA's analysis of the admissibility of expert evidence in Makita (Australia) Pty Limited v Sprowles (at [59] - [82]). In that case (at [59]) Heydon JA cited with apparent approval Lord President Cooper's statement in Davie v The Lord Provost, Magistrates and Councillors of the City of Edinburgh (1953) SC 34 at 39-40 that: "… the bare ipse dixit of a scientist, however eminent, upon the issue in controversy, will normally carry little weight, for it cannot be tested by cross-examination nor independently appraised, and the parties have invoked the decision of a judicial tribunal and not an oracular pronouncement by an expert." 131 This statement is apposite in the context of Commission hearings, and, indeed, is implicitly recognised in r 70. … the fact that cross-examination of an expert witness may be permitted indicates the desirability of expert reports conforming as far as possible to common law standards of admissibility designed to ensure they have probative value. … evidence must be "logical and probative" and "unqualified opinions are unacceptable".
It is not in dispute that the rules of evidence do not apply in the Tribunal.
In Hancock v East Coast Timber Products Pty Ltd (2011) 80 NSWLR 43; [2011] NSWCA 11 ("Hancock") at paragraphs [82] - [83], Beazley JA observed (with Giles and Tobias JJA agreeing): 82 Although not bound by the rules of evidence, there can be no doubt that the Commission is required to be satisfied that expert evidence provides a satisfactory basis upon which the Commission can make its findings. For that reason, an expert's report will need to conform, in a sufficiently satisfactory way, with the usual requirements for expert evidence. As the authorities make plain, even in evidence-based jurisdictions, that does not require strict compliance with each and every feature referred to by Heydon JA in Makita to be set out in each and every report . In many cases, certain aspects to which his Honour referred will not be in dispute. A report ought not be rejected for that reason alone. 83 In the case of a non-evidence-based jurisdiction such as here, the question of the acceptability of expert evidence will not be one of admissibility but of weight. This was made apparent in Brambles Industries Limited v Bell [2010] NSWCA 162 at [19] per Hodgson JA. ...
In Shakiri v Holland [2024] NSWCATAP 28 ("Shakiri"), an Appeal Panel of NCAT set out passages from these authorities and concluded at paragraph [98]: 98 It is evident that the legal principles to be applied when considering the admissibility of expert evidence under s 79 of the Evidence Act are similar to those to be applied in non-Evidence proceedings before this Tribunal, where the question is not the admissibility of an expert opinion, but the weight to be given to it. The content of an expert report, its form, the relevance and sufficiency of the expert's demonstrated expertise, the adequacy of the report's explanation of the facts (both demonstrated and assumed), and the clarity of the reasoning leading to its conclusions, will all be central to the ultimate weight given to it by the Tribunal.
In this matter, the expertise and experience of the witnesses are not in question. The assumed facts on which their opinions were based were sufficiently identified. In the circumstances of this matter, I am satisfied as to the relevance and sufficiency of the witnesses' expertise. I am satisfied that the evidence is admissible. It is therefore a question of the weight that is to be given to the evidence. In any event, I am of the view that, insofar as is relevant to this decision, the opinions and evidence align with my assessment of the evidence and the facts of the case.

Statutory Construction

The relevant principles of statutory construction are well-established. In Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, McHugh, Gummow, Kirby and Hayne JJ explained at [69] that: 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 [(1955) 92 CLR 390 at 397], Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed.
In Mills v Meeking & Another (1990) 169 CLR 214 Mason CJ and Toohey J said (at 223): If the language of a statute is ambiguous or uncertain, a risk of injustice will bear upon the construction to be given to words used. But, if the language is not ambiguous or uncertain, a court will apply its ordinary and grammatical meaning unless to do so will give the statute an operation which obviously was not intended
In SZTAL v Minister for Immigration and Border Protection [2017] HCA 34 Kiefel CJ, Nettle and Gordon JJ explained at paragraphs [14] and [24]: 14 The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. (Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381-382 [69]-[71]; [1998] HCA 28; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at 46-47 [47]; [2009] HCA 41.) Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. (CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; [1997] HCA 2.) This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected. … 24 Statutes in pari materia, in the sense that they deal with the same subject matter along the same lines, may form part of the context for the process of construction. Acts of this kind are said to form a kind of code or scheme, which arises from the degree of similarity involved (Jones, Bennion on Statutory Interpretation: A Code, 6th ed (2013) at 553.). Without this feature there is no warrant to transpose the meaning of a word from one statute to another or to assume, where the same words are used in a subsequent statute, that the legislature intended to attach the same meaning to the same words (Lennon v Gibson Howes Ltd (1919) 26 CLR 285 at 287; [1919] AC 709 at 711-712; Coverdale v West Coast Council (2016) 90 ALJR 562 at 570 [43]; 330 ALR 424 at 434; [2016] HCA 15).
An interpretation which best gives effect to the legislative purpose "must" be preferred to any other interpretation: Vincentia MC Pharmacy Pty Ltd v Australian Community Pharmacy Authority [2020] FCAFC 163; (2020) 280 FCR 397 at [48].
In Tubie v Commissioner of Fair Trading [2020] NSWCATOD 8 ("Tubie"), Senior Member Walker observed at paragraphs [14] - [15]: Interpretation of the legislation needs to take account of the industry's history of crime and violence that created a need for the present legislation. A review of the industry commissioned by the then State government found a pervasive culture of violence, unconscionable conduct and dishonesty (Review of the Tow Truck Industry in New South Wales by the Hon. Peter Anderson, Final Report, December 1998). Mr Anderson's interim report provided the basis for the Tow Truck Industry Bill 1998. In his second reading speech, the Minister for Transport said that the report had "described an industry infiltrated by criminal elements and pervaded by fear of intimidation, physical harm and property damage". In his final report, Mr Anderson noted that the reforms adopted in that Bill (now the TTI Act) represented a unanimous commitment on the part of the government, the opposition, other parties and all independent members of the Legislature. The reforms included measures to "Increase the standards for entry to and removal from the industry" (para 1.3) and the second reading speech referred to the Bill's provisions to "tighten fit and proper requirements for those who can be involved in the industry" as being among the legislation's primary objectives: Eskander v Department of Fair Trading [2019] NSWCATOD 49, [38].
Section 33 of the Interpretation Act 1987 provides that regard is to be had to purposes or objects of Acts and statutory rules in the interpretation of a provision. Section 33 states: In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object.
Section 34 of the Interpretation Act provides that consideration may be given to extrinsic material for assistance in ascertaining the meaning of a provision. Section 34 states: 34 Use of extrinsic material in the interpretation of Acts and statutory rules (1) In the interpretation of a provision of an Act or statutory rule, if any material not forming part of the Act or statutory rule 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 Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made), or (b) to determine the meaning of the provision-- (i) if the provision is ambiguous or obscure, or (ii) if the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made) leads to a result that is manifestly absurd or is unreasonable. (2) Without limiting the effect of subsection (1), the material that may be considered in the interpretation of a provision of an Act, or a statutory rule made under the Act, includes-- (a) all matters not forming part of the Act that are set out in the document containing the text of the Act as printed by the Government Printer, (b) any relevant report of a Royal Commission, Law Reform Commission, committee of inquiry or other similar body that was laid before either House of Parliament before the provision was enacted or made, (c) any relevant report of a committee of Parliament or of either House of Parliament before the provision was enacted or made, (d) any treaty or other international agreement that is referred to in the Act, (e) any explanatory note or memorandum relating to the Bill for the Act, or any other relevant document, that was laid before, or furnished to the members of, either House of Parliament by a Minister or other member of Parliament introducing the Bill before the provision was enacted or made, (f) the speech made to a House of Parliament by a Minister or other member of Parliament on the occasion of the moving by that Minister or member of a motion that the Bill for the Act be read a second time in that House, (g) any document (whether or not a document to which a preceding paragraph applies) that is declared by the Act to be a relevant document for the purposes of this section, and (h) any relevant material in the Minutes of Proceedings or the Votes and Proceedings of either House of Parliament or in any official record of debates in Parliament or either House of Parliament. (3) In determining whether consideration should be given to any material, or in considering the weight to be given to any material, regard shall be had, in addition to any other relevant matters, to-- (a) the desirability of persons being able to rely on the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made), and (b) the need to avoid prolonging legal or other proceedings without compensating advantage.
However, as the High Court stated in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 at paragraph [47]: Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention.
In the present matter, the language employed in the legislation is clear. I am satisfied that the ordinary meaning of the expressions that are not defined in the TTI Act or the TTI Regulation is sufficient to allow the issues in dispute to be determined.
I am not satisfied that the "use of extrinsic material" would assist in ascertaining the purpose of the TTI Act and in ascertaining the meaning of a number of expressions. However, I note that it is apparent from the Second Reading of the Tow Truck Industry Bill 1998 was designed to address a number of issues that existed in the tow truck industry by providing for a comprehensive restructure of the industry: see the discussion by Senior Member Walker in Tubie. There is no suggestion that the Applicant has engaged in any of those industry practices.
The purpose underlying the TTI Act was to: "improve regulation of tow truck activities at an accident scene, tighten fit and proper requirements for those who can be involved in the industry, and provide for a stronger regulatory authority with an improved enforcement and policy focus and a more effective and modern disciplinary process".
In my view, a narrow construction of the kind urged by the Applicant is not consistent with the broad emphasis on "a stronger regulatory authority with an improved enforcement and policy focus".

Mr Ricky Isserow

The Applicant relies on the evidence of Mr Ricky Isserow. Mr Isserow's evidence is that the Applicant is a digital used car dealership, buying and selling pre-owned vehicles at fixed prices. The vehicles are provided with warranties and a seven day returns policy. The Applicant requires each of its customers to enter into a written contract with it for the sale of the vehicle. The Contract of Sale is a template contract. It issues the same form of agreement to each customer, populated with the relevant details for that customer.
The Applicant's business model includes handing over the keys to a purchased vehicles to the customer in person. The customer does not take ownership of the vehicle until the hand-over process is completed.
The Applicant's delivery handover specialist delivers the vehicle to the customer, conducts the hand-over process, and hands over the keys. The terms of the delivery arrangement are contained in the contract of sale. At the time of handover, each customer is required to sign a Vehicle Condition Report and a Form 5 Motor Dealer's Notice. A signed Form 5 allows transfer of ownership of the vehicle to the customer and change of ownership registration.
Purchased vehicles that are delivered to customers are delivered by trucks that are owned and operated by the Applicant. The Applicant currently has eight single car carriers. The Applicant's truck is one of those carriers.
The Applicant generally uses its trucks to move its own stock of vehicles - either to the Applicant's reconditioning and storage facility or to the place of delivery nominated by its customers. Alternatively, the trucks may be used to collect and transport customer trade-ins and other private purchases.
There are limited circumstances where the Applicant transports a vehicle that it does not own the vehicle. In these situations, the customer owns the vehicle.
In limited situations, ("escalations") where there is an issue with a purchased car post-delivery, the Applicant may use its carrier to pick up the car from the customer and take it to the Applicant's facility to investigate and, if required, rectify the issue. The Applicant will then return it to the customer. In all escalation instances, the vehicle is still capable of being loaded onto the carrier by being driven under its own propulsion. The customer is not charged any amount in respect of such transport.
The Applicant contends that in escalations situations, the cars are transported by the Applicant in its own interest and for its own purposes, even though the customer owns the vehicle.
The Applicant does not use any of its trucks to provide transport services to members of the public. It does not charge customers any form of a delivery fee or a trade-in collection fee or any form of 'storage' charge.
Mr Isserow provided evidence in relation to the Applicant's trucks. This includes evidence in regard to the purchase of the trucks. With the exception of its first two trucks, the trucks were custom designed for the Applicant. The trucks comprise a cab body and chassis with tilt-trays. The tilt-trays operate on a 'tilt and slide' body. The tilt and slide body both tilts and slides back so that the tilt-tray comes to rest in contact with the ground. When lowered to ground level, the tilt-tray operates as a ramp with and onto which vehicles driven under their own propulsion can be loaded. The body then retracts, sliding forward and returning to a horizontal position. Unloading is done in the same manner, just in reverse.
The Applicant's trucks do not currently have attached to them, and have never had attached to them, any lifting equipment, such as a winch or crane. The trucks have no way of loading vehicles except under the vehicle's own power.
The Applicant contends that: 1. its trucks do not lift; 2. vehicles are driven up an inclined ramp onto the truck; 3. the tilt happens before the vehicle is driven onto the truck i.e. the vehicle is not lifted; 4. vehicles are not towed in the ordinary meaning.

The Respondent's case

The Respondent submits that none of the Applicant's vehicles satisfy the exception provided for in Regulation 4(2) of the TTI Regulation because the vehicle: 1. is equipped or fitted with a lifting device, and 2. is not a motor vehicle combination, and

Fitted with a lifting device

As noted, "lifting device" is defined to mean a device or apparatus that is capable of elevating a motor vehicle to a higher position or level.
The Respondent notes that a Compliance Certificate for one of the Applicant's vehicles states: This vehicle has been fitted with a tilt and slide body. This is constructed on a full-length sub frame which is secured to the chassis using fish plates. ... The body is tilted by twin underbody hoists which are supported by the sub frame and chassis. ...
The Respondent accepts that the vehicle is not fitted with a winch or crane, and it can only carry cars which are loaded under their own power. However, it submits that it is fitted with a lifting device as it is fitted with hoists which capable of elevating a motor vehicle to a higher position or level.

Motor vehicle combination

The Respondent contends that none of the Applicant's vehicles is a 'car carrier' or a 'multi-deck combination' for the purposes of Regulation 4(3)(c) of the TTI Regulation because a "motor vehicle combination" must include a combination of motor vehicles. That is, more than one vehicle joined together. The Respondent accepts that a vehicle equipped with a trailer would satisfy the term, however it requires more than one vehicle and a single vehicle with a tilt tray does not satisfy the term.
The Respondent submits that this follows from a plain reading of the term. Section 3 of the TTI Act defines: motor vehicle means a motor vehicle (other than a light rail vehicle) or trailer within the meaning of the Road Transport Act 2013.
Section 4 of the Road Transport Act 2013 defines: trailer means a vehicle that - (a) is built to be towed, or is towed, by a motor vehicle, and (b) is not capable of being propelled in the course of normal use on roads or road related areas without being towed by a motor vehicle, whether or not its movement is aided by some other power source ...
The Respondent further submits that the natural meaning of "motor vehicle combination" is a combination of vehicles or of a vehicle and a trailer. The general proposition that follows is that a single vehicle can never be a 'combination'.

Robert Ross

Mr Ross is a Senior Investigator who has been attached to the Tow Truck Investigation Unit since 2010. He provided evidence in regard to event leading up to the issue of the Direction. In November 2022 he reviewed Compliance Certificates relating to two of the Applicant's trucks. Both Certificates stated: 1. the bodies fitted to the cab chassis were manufactured to be a "Tilt and Slide" body; and 2. the body is tilted by twin underbody hoists which are supported by the sub frame and chassis.
In his opinion, based on his industry experience, both would be considered a tilt tray under the industry standards. He subsequently requested an inspection of the vehicles. Investigators attached to the Tow Truck Investigation Unit carried out an inspection on 13 December 2022.
In July 2023 an email was received from a police officer, Sergeant Nat Norsa. relating to the interception of one of the Applicant's trucks loaded with a white Toyota Hilux. On 26 July 2023 Mr Ross generated a Direction to the Applicant under section 84 of the TTI Act. The Direction required the Applicant to cease using or operating any unlicensed tow trucks for the purpose of towing motor vehicles. He also issued a penalty notice to the Applicant. The penalty notice related to the operation of an unlicensed tow truck under section 15 of the TTI Act. A further penalty notice was issued to the driver of the truck under section 23(1)(c) of the TTI Act.
In September 2023 Mr Ross viewed a video ("the video") entitled "Ever Wondered how we load our cars on to Carma trucks?" on the Applicant's Facebook page. After viewing the footage, he formed the opinion that a truck shown in the footage was a rigid tow truck and not a combination of a truck and trailer. The vehicle appeared to be the same truck intercepted by Sergeant Norsa in July 2023.
Mr Ross observed that the tray of the vehicle in the video had a mechanical/hydraulic mechanism that tilts and slides rearwards to allow a vehicle to be loaded. He stated that from his industry experience this vehicle can only be described as a tilt tray as described under section 4 of the TTI Act.

Hernan Ratto

Mr Ratto is Manager, Vehicle Standards, attached to the Transport for NSW Vehicle Standards Unit. He has held this position for a period of 13 years, and he has over 25 years work experience as a professional engineer.
He stated that he: 1. investigates, and supplies advice on a wide range of matters associated with the vehicle standards of both heavy and light motor vehicles; 2. reviews vehicle modifications and registration standards in line with the current legislation and Australian Design Rules; 3. deals with vehicle standards as they relate to vehicle registration requirements in NSW; and 4. supplies advice to industry, engineers, Licenced Certifiers and members of the public and investigate when noncompliance of the legislation and standards is detected.
He stated that he is considered to be a subject matter expert in his field when dealing with both heavy and light motor vehicles.
In October 2023 he viewed the video. He observed that the truck in the video was a pink, single steer, single drive with dual tires to rear axle. He saw the rear tray of the rigid vehicle raise and then move backwards and touch the ground, this allowed the driver of the truck to load a vehicle by driving it onto the rear loading area. He then saw the rear tray of the tow truck retract and lower to its original position. He formed the opinion that: 1. the truck displayed in the video is a tilt tray truck by design and manufacture; 2. it is a 'tow truck' as per Transport for New South Wales shape codes for such vehicles. 3. The vehicle is not fitted with a trailer, is a rigid vehicle and not 2 vehicles joined together. Therefore, the vehicle is not a combination.
In his opinion, a cab chassis and a body is not a vehicle 'combination' and that a single vehicle can never be a 'combination' as it does not meet the definition for a 'combination'. Further, in his opinion the vehicle meets the NSW definition of a 'tow truck'.

Discussion

As I have indicated above, I am of the view that the opinions and evidence of the Respondent's witnesses largely align with my assessment of the evidence and the facts of the case. I am satisfied that this evidence should be given reasonable weight.
On the evidence before me I am satisfied that the Applicant's vehicles are tilt tray trucks which are fitted with hoists. Regulation 3 of the TTI Regulation defines a lifting device to mean "a device or apparatus that is capable of elevating a motor vehicle to a higher position or level". It is of no consequence that evidence may not have been presented to show that a vehicle has been lifted to a higher position. The definition does not require that the device has actually lifted a motor vehicle to a higher position; merely that it is capable of doing so. In my view it is apparent from the video that the hoists which are fitted to the truck are capable of supporting the weight of a motor vehicle and elevating a vehicle to a higher position or level.
It follows that the truck in the video is a motor vehicle that is equipped with a lifting device lifting device which is capable of elevating a motor vehicle to a higher position or level. Therefore, it falls within the definition of "tow truck" in section 4(1)(a) of the TTI Act.
However, as also noted above, a vehicle that is equipped with a lifting device for the purposes of section 4(1)(a) of the TTI Act will not be captured by the definition of a tow truck if it is excluded by section 4(2) of the TTI Act.
The Applicant contends that its trucks are car carriers. Regulation 4(2) of the TTI Regulation provides that "car carriers are declared not to be tow trucks for the purposes of the Act". Regulation 4(2) of the TTI Regulation provides that: car carrier means a motor vehicle combination (including a multi-deck combination) that is designed or adapted for use for the transport of motor vehicles, being a combination - (a) that is not equipped or fitted with a lifting device (whether portable or fixed) for the purpose of loading the motor vehicles to be transported onto a car deck, and (b) onto which the motor vehicles to be transported are loaded by travelling along a ramp under their own propulsion, and (c) in the case of a multi-deck combination, may be equipped or fitted with equipment designed only for the purpose of raising and lowering the car decks.
It is not in dispute that the Applicant's trucks are single deck vehicles. Nor is it in dispute that vehicles carried by the Applicant's trucks are loaded by travelling along a ramp under their own propulsion. However, the parties do not agree on the meaning of the expression "motor vehicle combination" for the purposes of Regulation 4(2).
I am satisfied that the Applicant's trucks comprise a cab body and chassis with tilt-trays. The Applicant contends that each of its trucks is a motor vehicle combination for the purposes of the TTI Act. The Respondent contends that a single vehicle can never be a 'combination'.
As noted above, the Macquarie Dictionary gives the meaning of the noun "Combination". Each definition suggests that the natural meaning is that a combination is the result of two or more things being combined. I do not agree that the Applicant's truck meets the definition for a "motor vehicle combination" for the purposes of the TTI Act. In my view, the Applicant's truck meets the definition of a 'tow truck'.
The TTI Act requires tow truck operators to be licensed. Section 3 of the TTI Act defines a tow truck operator as "a person who conducts a business involving the operation of any tow truck for the purposes of towing motor vehicles". The Applicant contends that it is not a tow truck operator as it does not conduct a business "for the purposes of towing motor vehicles".
The definition of the term "tow" is inclusive. I agree with the Respondent that that the meaning is expansive enough to capture the activity of moving or carrying vehicles by means of a tow truck.
I accept that for the majority of its operations, the motor vehicles that the Applicant moves are its own vehicles. Ownership of the vehicles does not transfer to the purchaser until after handover of the vehicle. However, there is an aspect of the Applicant's business that involves the moving or carrying vehicles that it does not own, by means of its trucks. Mr Isserow referred to those situations as escalations. Escalations involve the use of one of the Applicant's trucks to transport a customer's vehicle to the Applicant's facility to investigate and, if required, rectify an issue.
The Applicant's business model is based on ensuring an outstanding customer experience. In my view, an escalation is an aspect of the Applicant's business model directed towards the customer experience. As it is a component of its service to the customer it can be viewed as differentiating the Applicant's business model from that of some competitors. As such, it is undertaken for the benefit of the Applicant, not merely for the customer's benefit. In those circumstances, the Applicant conducts its business "for the purposes of towing motor vehicles" and it is carrying on business as a tow truck operator.
It follows that the Respondent had the power to issue the Direction in respect of the Applicant's business or the Applicant's truck.

In Summary

On the evidence before me I am satisfied that:

the Applicant's truck (i.e. Truck registration number XO63GD) is a tilt tray truck which is fitted with hoists.
the hoists which are fitted to the Applicant's truck are capable of supporting the weight of a motor vehicle and elevating a vehicle to a higher position or level.
the Applicant's truck is fitted with a lifting device for the purposes of the TTI Act.
the Applicant's truck is not a motor vehicle combination for the purposes of the TTI Act.
the Applicant's truck is a tow truck for the purposes of the TTI Act.
the term "tow" is expansive enough to capture the activity of moving or carrying vehicles by means of a tow truck.
the Applicant conducts its business for the purposes of towing motor vehicles, and it is carrying on business as a tow truck operator.
the Respondent had the power to issue the Direction.

In my view, it follows that the correct and preferable decision is to issue the Direction. Accordingly, the decision under review should be affirmed.

Order 1. The decision by the Respondent to issue a Direction under section 84(1)(a) of the Tow Truck Industry Act 1998 (NSW) to Clickcar Australia Pty Ltd is affirmed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 August 2024

Introduction

This is an application by Clickcar Australia Pty Ltd t/a Carma ("the Applicant") for review of a decision by a delegate of the Commissioner for Fair Trading ("the Respondent"). The decision under review is the issue of a Notice of Direction ("the Direction") by the Respondent. The Direction was issued on 26 July 2023 under section 84(1)(a) of the Tow Truck Industry Act 1998 (NSW) ("the TTI Act"). The Respondent directed the Applicant to immediately cease using or operating any unlicensed tow truck for the purposes of towing or carrying motor vehicles. The Direction specifically identified truck registration number XO63GD ("the Applicant's truck").
The TTI Act requires tow truck operators to be licensed. Section 15 of the TTI Act provides: 15 Requirement for tow truck operators to be licensed A person must not carry on business as a tow truck operator unless the person holds a tow truck operators licence that authorises the kind of towing work carried on by the person in the course of that business. Maximum penalty - 100 penalty units or imprisonment for 12 months, or both.
Section 3 of the TTI Act provides the following definitions: operate a tow truck includes tow a motor vehicle by means of the tow truck. … tow includes - (a) lift and tow, or lift and carry, and (b) lift for the purpose of towing or carrying, and (c) carry on a trailer, and (d) place onto a trailer for the purpose of carrying, and (e) any other action prescribed by the regulations for the purposes of this definition, but does not include any activity declared by the regulations not to be towing for the purposes of this Act. … tow truck operator means a person who conducts a business involving the operation of any tow truck for the purposes of towing motor vehicles.
"Tow" is defined in the Macquarie Dictionary as: 1. to drag or pull (a boat, car, etc.) by means of a rope or chain. 2. the act of towing.
The central issue in this matter is whether the Applicant's truck, and by extension the other trucks operated by the Applicant, are "tow trucks" within the meaning of section 4(1)(c) of the TTI Act. Even more specifically, the issue is whether these trucks are "motor vehicle combinations" and therefore capable of being "car carriers" within the meaning of regulation 4(3) of the Tow Truck Industry Regulation 2020 (NSW) ("the TTI Regulation").
Section 4 of the TTI Act provides: 4 Meaning of "tow truck" (1) In this Act, a tow truck means any of the following motor vehicles that are used or operated for the purposes of towing motor vehicles - (a) a motor vehicle that is equipped with a lifting device, (b) a motor vehicle that is equipped with a trailer, towing attachment or other similar device, (c) a motor vehicle that is fitted with a tilt table-top, or with a tilt table-top and winch, (d) a motor vehicle that is fitted with a self-loading table-top that is capable of being detached from the motor vehicle for the purpose of loading or unloading another vehicle, (e) any other motor vehicle prescribed by the regulations for the purposes of this definition. (2) A tow truck does not include - (a) a motor vehicle that is declared by the regulations not to be a tow truck for the purposes of this Act (any such motor vehicle may be described by reference to a particular class of motor vehicle), or (b) a motor vehicle referred to in subsection (1) if it is used or operated in such circumstances, or for such purposes, as may be prescribed by the regulations for the purposes of this subsection.
Regulation 4 of the TTI Regulation provides: 4 Meaning of "tow" and "tow truck" (1) In accordance with paragraph (e) of the definition of tow in section 3(1) of the Act, tow includes tow by use of a rigid frame, rigid bar or similar device. (2) In accordance with section 4(2)(a) of the Act, car carriers are declared not to be tow trucks for the purposes of the Act. (3) In subclause (2) - car carrier means a motor vehicle combination (including a multi-deck combination) that is designed or adapted for use for the transport of motor vehicles, being a combination - (a) that is not equipped or fitted with a lifting device (whether portable or fixed) for the purpose of loading the motor vehicles to be transported onto a car deck, and (b) onto which the motor vehicles to be transported are loaded by travelling along a ramp under their own propulsion, and (c) in the case of a multi-deck combination, may be equipped or fitted with equipment designed only for the purpose of raising and lowering the car decks.
Regulation 4(2) declares that car carriers are not tow trucks for the purposes of the TTI Act. The August 2019 Regulatory Impact Statement for the proposed TTI Regulation explained: Clause 4 of the current Regulation sets out the meaning of "tow" and "tow truck." The proposed Regulation would be amended to prevent multi deck car carriers from unintentionally falling within the definition of a "tow truck." It is not appropriate that they fall under the requirements of tow truck operators as the multi deck car carriers do not provide towing services to consumers or for the benefit of others. Multi deck car carriers use lifting devices to raise and lower the decks to increase vehicle capacity on the trailer. These devices are not used to move the vehicles onto the carrier, but they are still captured, technically, in the definition of a tow truck. By changing the definition multi-deck car carriers would be excluded from being a tow truck.
In Cross v Barnes Towing And Salvage (Qld) Pty Ltd & Ors [2005] NSWCA 273 the NSW Court of Appeal dealt with the question of whether the defendant had contravened the TTI Act and the TTI Regulation. The defendant was appropriately licensed to carry on a towing business in Queensland but did not hold a licence under the TTI Act. Handley JA stated: 73 "Towing work" is not defined in the Act or the Regulation but the Act (s 3) defines "tow", "tow truck", "operate" and "tow truck operator". These definitions also apply to the Regulation (Interpretation Act s 11). "Tow" is defined as including: "(a) lift and tow, or lift and carry, and (b) lift for the purpose of towing or carrying, and (c) carry on a trailer, and (d) place on a trailer for the purpose of carrying, and (e) any other action prescribed by the regulations for the purposes of this definition, but does not include any activity declared by the regulations not to be towing for the purposes of this Act." … 75 Section 7 of the Interpretation Act provides that where there is a statutory definition "other parts of speech and grammatical forms have corresponding meanings". Towing is another grammatical form of "tow" and therefore has a corresponding meaning. The statutory definition of "tow" includes the preliminary activities at the accident site of lifting and placing for the purpose of towing, but not travelling to the accident site. 76 The defendants did not "tow" the overturned semi-trailer within the statutory definition while the recovery vehicle was travelling to the accident site and there was no towing, as defined, during that journey. This leaves for consideration the ordinary meaning of towing and the meaning of the composite expression "towing work". The Shorter Oxford Dictionary gives the meanings of tow, as a verb, as to draw by force, pull, drag, to drag by a line, to proceed by towing or being towed. The Macquarie Dictionary gives the meanings as to drag or pull, the act of towing. It is clear that travelling for the purpose of towing is not towing. "Towing work" does not have a wider meaning because "towing" itself involves work. 77 Although the recovery vehicle was travelling under contract for fee or reward as soon as it left Rocklea on its journey to the accident site it seems to me, as a matter of ordinary meaning, it was not then towing anything or doing towing work.
Section 4(1) of the TTI Act provides that the definition of "tow truck" includes a motor vehicle that is equipped with a lifting device. Regulation 3 of the TTI Regulation provides: 3 Definitions (1) In this Regulation - ... lifting device means a device or apparatus that is capable of elevating a motor vehicle to a higher position or level.
"Lift" is defined in the Macquarie Dictionary as: 1. to move or bring (something) upwards from the ground or other support to some higher position; hoist. 2. to raise or direct upwards: to lift the hand; to lift the head; to lift the eyes.

The Tribunal's jurisdiction

The power to give a direction is under section 84 of the TTI Act. Section 84 provides: 84 Power to give directions (1) The Secretary may, for the purposes of ensuring compliance with this Act or the regulations or in taking disciplinary action under Division 4 of Part 3, give directions with respect to any of the following matters - (a) the use or operation of any tow truck, (b) the business of a tow truck operator, (c) any matter connected with towing work. (2) Any such direction must be in writing. (3) A direction may require a person to do any specified thing, or to refrain from doing any specified thing.
Section 9 of the Administrative Decisions Review Act 1997 ("the ADR Act,") provides that the Tribunal has jurisdiction in regard to an application for review of a decision of an administrator if enabling legislation provides that applications may be made to the Tribunal for administrative review.
Section 45 of the TTI Act provides that this Tribunal may review a direction. Section 45 provides: 45 Application to Civil and Administrative Tribunal for administrative review (1) A person may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of any of the following decisions - … (f) the giving of a direction under section 84 to the person. ...
Section 63 of the ADR Act provides that in determining an application, the Tribunal is to determine what is the "correct and preferable decision" having regard to the material before it. In reaching the correct and preferable decision, the Tribunal may: 1. exercise all of the functions that are conferred or imposed on the Respondent by the TTI Act; and 2. affirm the Decision, vary the Decision, set aside the Decision, and make a decision in substitution of the Decision, or set aside the Decision and remit the matter for reconsideration by the Respondent.
There is no formal onus of proof. In considering the Application, the Tribunal may have regard to any relevant material before it at the time of its review. Its consideration is not limited to material that was before the Respondent at the time it made the decision which is under review.
The Tribunal is to make its own decision and there is no presumption that the Respondent's decision is correct. The Tribunal should consider all relevant materials and ignore all irrelevant materials.
The requirements for proof of questions of fact in administrative review proceedings generally were summarised by an Appeal Panel in Meacham v Commissioner of Police [2020] NSWCATAP 107 at paragraphs [54] and [83]: "[54] Despite not being bound by the rules of evidence, the Tribunal is required to base its findings of fact on "logically probative material", and not on "mere suspicion or speculation", as a corollary of its obligation to act reasonably: Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 ("Pochi") at 62, 68 (Deane J); [1980] FCA 85; Sullivan v Civil Aviation Authority (2014) 22 FCR 555; [2014] FCAFC 93 ("Sullivan") at [5]-[8], [15]-[17] (Logan J). It is an error of law for the Tribunal to make a finding of fact with no evidence, or no probative evidence, to support it. … [83] Proof of matters which are asserted is required in a practical sense, and a party asserting a fact is generally required to provide evidence to substantiate it. As noted above, the Tribunal is required to base its findings of fact on "logically probative material": Pochi at 62, 68; Sullivan at [5]-[8], [15]-[17]."

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