Clickcar Australia Pty Ltd v Secretary, Department of Customer Service

Civil and Administrative Tribunal Rules 2014 (NSW), r 27

Interpretation Act 1987 (NSW), ss 7, 11, 33, 34, 49

Payroll Tax Act 2007 (NSW)

Road Transport Act 2013 (NSW), s 4

Tow Truck Industry Act 1998 (NSW), Pt 3 Div 1, Div 2, Pt 4 Div 1, Pt 5 Div 1, ss 3, 4, 15, 20, 23, 45, 56, 84, 85, 93, 94

Tow Truck Industry Regulation 2020 (NSW), cll 3, 4

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33

Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126

Bark N Purr Pets Pty Ltd v Moussad [2024] NSWCATAP 201

Clickcar Australia Pty Ltd v Commissioner for Fair Trading [2024] NSWCATOD 130

Collins v Urban [2014] NSWCATAP 17

Commissioner of Fair Trading v PSMG Pty Ltd [2025] NSWCATAP 34

Cross v Barnes Towing and Salvage (Qld) Pty Ltd (2005) 65 NSWLR 331; [2005] NSWCA 273

Day v SAS Trustee Corporation [2021] NSWCA 71

Dixonbuild Pty Ltd v Adams [2020] NSWCATAP 190

FVA v Commissioner of Police, NSW Police Force [2024] NSWCATAP 127

FZK v Department of Customer Service [2024] NSWCATAP 185

Giddings v Australian Information Commissioner [2017] FCA 677; (2017) 156 ALD 601

Imbree v Chief Commissioner of State Revenue [2024] NSWCATAP 158

Impala Kitchens Pty Ltd v O'Donoghue [2025] NSWCATAP 49

Jeray v Information and Privacy Commission [2024] NSWCATAP 239

Kelly v R (2004) 218 CLR 216; [2004] HCA 12

Kelly v Watson (1985) 10 FCR 305

L & B Linings Pty Ltd v WorkCover Authority of New South Wales [2012] NSWCA 15

Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305

MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17

Narraport Woollahra Holdings Pty Ltd v Ice Box Liquor Pty Ltd [2024] NSWCATAP 240

Newcastle Airport Pty Ltd v Chief Commissioner of State Revenue [2014] NSWSC 1501; (2014) 99 ATR 748

NSW Self Insurance Corporation v EEH [2023] NSWCATAP 181

Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39

Shielsar v Aghabekian [2021] NSWCATAP 336

South Western Sydney Local Health District v Gould (2018) 97 NSWLR 513; [2018] NSWCA 69

Sunaust Properties Pty Ltd t/as Central Sydney Realty v The Owners - Strata Plan No 64807 [2023] NSWCA 188

Sydney Seaplanes Pty Ltd v Page (2021) 106 NSWLR 1; [2021] NSWCA 204

Taylor v The Owners - Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9

Tubie v Commissioner of Fair Trading [2020] NSWCATOD 8

Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204

Wojciechowska v Secretary, Department of Communities and Justice; Wojciechowska v Registrar, Civil and Administrative Tribunal [2023] NSWCA 191

New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 14 October 1998

[2024] NSWCATOD 130

1. This is an appeal by Clickcar Australia Pty Ltd (the Appellant), which carries on business under the name "Carma", against a decision made by the Tribunal (the Tribunal below) on an application for an administrative review (the Administrative Review Application). The Tribunal below gave its reasons in Clickcar Australia Pty Ltd v Commissioner for Fair Trading [2024] NSWCATOD 130 (the Tribunal Reasons).
2. The Administrative Review Application sought a review of a decision to give a direction (the Direction) under s 84 of the Tow Truck Industry Act 1998 (NSW) (TTI Act). The Direction directed the Appellant to immediately cease using or operating any unlicensed tow truck for the purposes of towing or carrying motor vehicles. The Tribunal below affirmed the decision to give the Direction.
3. The Commissioner for Fair Trading (the Commissioner) is the respondent on the record for both the Administrative Review Application and this appeal. A threshold issue, which the Appeal Panel raised with the Appellant and the Commissioner, is whether the Commissioner is the proper respondent for both proceedings. In our view, the proper respondent is the Secretary of the Department of Customer Service (the DCS Secretary) rather than the Commissioner. We will make orders to correct the record.
4. The central issue in this appeal is whether the motor vehicles that the Appellant owns and operates in connection with its business (the Appellant's trucks) are tow trucks for the purposes of the TTI Act. We find that the Appellant's trucks are tow trucks and that a direction can be given under s 84 of the TTI Act with respect to their use or operation.
5. Subject to the orders correcting the name of the respondent on the record, the appeal will otherwise be dismissed.

1. The Appellant operates a digital car dealership business. The business involves buying and selling pre-owned vehicles at fixed prices. The motor vehicles provided to purchasers come with warranties and a 7-day returns policy.
2. The Appellant uses a template written contract for its customers: see Appeal Book lodged on 17 January 2024 (the Appeal Book), Tab K, at pp 275-281. The template contract includes the following provisions:

(1) For completion to occur on the delivery of a purchased motor vehicle, cl 4 requires the Appellant, among other things, to provide the purchaser with any necessary documentation (if any) required in order to transfer the ownership and registration of the vehicle to the purchaser.

(2) Clause 6 provides that title in a purchased motor vehicles does not pass to the purchaser until the Appellant has received the full and cleared payment for the vehicle.

(3) Clause 12 provides that upon delivery of the motor vehicle, the purchaser will be asked to confirm to the delivery provider both receipt of the vehicle and that it conforms to the details set out in the contract. It also provides that the purchaser will be asked to sign a confirmation that the purchaser has received and accepted that the "Car Risk in the Car will pass to the Purchaser on Delivery". The term "Car Risk" is not defined.

1. The Tribunal below found that ownership of a motor vehicle does not transfer to the purchaser until after handover of the vehicle: Tribunal Reasons at [53]. The Tribunal also found at [54]:

"The [Appellant'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."

1. The Appellant delivers purchased motor vehicles to its customers using its trucks. The Direction applies to those trucks.
2. The Tribunal below made the following findings concerning the use of the Appellant's trucks at [56]-[60]:

"56 The [Appellant] generally uses its trucks to move its own stock of vehicles - either to the [Appellant'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.

57 There are limited circumstances where the [Appellant] transports a vehicle that it does not own the vehicle. In these situations, the customer owns the vehicle.

58 In limited situations, ('escalations') where there is an issue with a purchased car post delivery, the [Appellant] 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 [Appellant] 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.

...

60 The [Appellant] 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."

1. We do not understand there to be any dispute about these findings.
2. The Direction, which was dated 26 July 2023, was given to the Appellant by Mr Sean O'Connell. Mr O'Connell described himself in the Direction and its covering letter as a Manager of the Tow Truck Investigation Unit at the New South Wales Fair Trading. A line at the bottom of the Direction and each page of the covering letter refers to "A division of the Department of Customer Service". Both the Direction and covering letter state that the Direction is given under s 84 of the TTI Act. However, Mr O'Connell does not expressly indicate that he is giving the Direction as a delegate or the name of the delegator.
3. The Direction required the Appellant to immediately cease using or operating any unlicensed tow truck, including but not limited to the tow truck with a specified registration number, for the purpose of towing or carrying motor vehicles.
4. The Administrative Review Application was lodged with the Tribunal on 23 August 2023. The Application sought to have the Direction set aside. The original respondent named in the Application was "Department of Customer Service t/a NSW Fair Trading". However, following a directions hearing on 12 September 2023 at which a stay of the Direction was granted, the Tribunal below made an order that "[t]he name of the respondent is corrected to: The Commissioner for Fair Trading NSW". No written reasons explaining the correction were given.
5. On 21 August 2024, the Tribunal below (differently constituted) handed down the Tribunal Reasons in which it affirmed the decision to give the Direction. Significantly, the Tribunal affirmed the decision on the basis that the respondent was the Commissioner and that the Direction was given by a delegate of the Commissioner: Tribunal Reasons at [1].
6. This appeal was lodged on 18 September 2024. A Reply to Appeal was lodged by the Commissioner on 4 October 2024.
7. A differently constituted Appeal Panel made orders on 5 November 2024 staying both the decision of the Tribunal below and the Direction to the extent it remains operative until further order of the Tribunal or finalisation of the appeal, whichever is earlier in time.

1. The long title for the TTI Act states that the purpose of the Act is to provide for a licensing and certification scheme for tow truck operators and drivers and to regulate other matters relating to the tow truck industry.
2. The TTI Act was enacted to address various dangerous and illegal practices in the tow truck industry identified in a report by Mr Peter Anderson (the Anderson Report) commissioned by the then Government: New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 14 October 1998 at p 8362 (TTI Act Second Reading Speech). We note that the version of the TTI Act Second Reading Speech to which we refer was given in the Legislative Assembly of the NSW Parliament where the Bill for the Act was first introduced by the responsible Minister. The Appellant has referred us to the speech subsequently given in the Legislative Council on 27 October 1998. The speeches appear to be identical.
3. Key components of the regulatory scheme created by the TTI Act to address these practices include requiring a person conducting business as a tow truck operator to be licensed and drivers to hold drivers certificates for certain work: TTI Act, Pt 3, Divs 1 and 2. Another key component is requiring tow truck drivers to obtain a towing authorisation for accident towing work: TTI Act, Pt 4, Div 1.
4. The TTI Act confers or imposes functions on the Secretary in relation to the issuing of licences and certificates, disciplinary matters and other matters concerning the regulation of the tow truck industry. Section 3(1) of the TTI Act defines "Secretary_"_ to mean the Secretary of the Department and "Department_"_ is in turn defined to mean the Department of Customer Service. It follows that references in the Act to the Secretary are to be read as references to the DCS Secretary.
5. Section 84 confers power on the DCS Secretary to give directions. The section 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.

1. Section 85(1) makes it an offence for person, without lawful excuse, to neglect or fail to comply with any requirement made of the person under Pt 5, Div 1. As s 84 is located in Pt 5, Div 1, it is an offence for a person to neglect or fail to comply with a requirement of a direction given under s 84 if the person does not have a lawful excuse.
2. Section 93 of the TTI Act enables the DCS Secretary to delegate the Secretary's functions under the Act to a person employed in the Secretary's Department and to give written authorisation for the delegate to sub-delegate to another person so employed.
3. Section 3(1) of the TTI Act also defines "tow" as follows:

(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.

1. Section 4 defines "tow truck" in the following terms:

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.

(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.

1. The term "motor vehicle" is defined to mean a motor vehicle (other than a light rail vehicle) or trailer within the meaning of the Road Transport Act 2013 (NSW) (RT Act): TTI Act, s 3(1).
2. It is also necessary for present purposes to refer to cl 4 of the Tow Truck Industry Regulation 2020 (NSW) (TTI Regulation), which provides as follows:

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.

1. The term "lifting device" used in cl 4(3) is defined to mean a device or apparatus that is capable of elevating a motor vehicle to a higher position or level: TTI Regulation, cl 3(1). The term is also used in the definition of "tow truck" in s 4(1)(a) of the TTI Act. However, the Act does not define the term.
2. Although the TTI Act uses the concept of a licensed tow truck, it is not the truck that is directly licensed; it is the tow truck operator. This follows from the definition of the term "licensed tow truck" in s 3(1). The term is defined to mean a tow truck that is used or operated under the authority of a licence, with "licence" in turn defined to mean a tow truck operators licence.
3. Section 45(1) of the TTI Act enables a person to apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 (NSW) (ADR Act) of various decisions, include a decision to give a direction under s 84 to the person.

1. We have already mentioned some of the factual findings made by the Tribunal below concerning the Applicant's business practices that do not appear to be in dispute. There is no need to repeat them.
2. In the Tribunal Reasons at [23], the Tribunal below identified the following 4 issues for determination:

(1) Whether the Appellant's trucks are "tow trucks" within the meaning of s 4 of the TTI Act.

(2) Whether the trucks are used or operated by the Appellant for the purposes of "towing" motor vehicles.

(3) Whether the trucks are "car carriers".

(4) Whether the Appellant is a "tow truck operator" within the meaning of s 15 and the definition of that term in s 3 of the TTI Act.

1. In the Tribunal Reasons at [95], the Tribunal below summarised its findings as follows:

● 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."

1. The Tribunal below held that its finding that the Appellant's trucks were motor vehicles equipped with a lifting device capable of elevating a motor vehicle to a higher position or level meant that they fell within s 4(1)(a) of the TTI Act of the definition of "tow truck": Tribunal Reasons at [84].
2. The Tribunal concluded that the correct and preferable decision is to issue the Direction and, accordingly, the decision under review should be affirmed: Tribunal Reasons at [96].

1. Section 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) allows a party to proceedings in which the Tribunal makes an internally appealable decision to appeal the decision to an Appeal Panel. An administrative review decision is an internally appealable decision: NCAT Act, s 32(1)(a) and (4). The decision of the Tribunal was an administrative review decision under s 30(5) of the NCAT Act and is therefore appealable to an Appeal Panel.
2. However, an appeal is not simply an opportunity for a losing party to rerun its case at first instance: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]. Section 80(2) limits a party's right to appeal to questions of law, with leave required for an appeal on any other questions.
3. The Appeal Panel in Narraport Woollahra Holdings Pty Ltd v Ice Box Liquor Pty Ltd [2024] NSWCATAP 240 at [34] provided the following useful summary of what constitutes a question of law for the purposes of s 80(2) of the NCAT Act:

"34 Without attempting to be exhaustive:

(1) A question of law means a pure question of law: Wilson v Chan & Naylor Parramatta Pty Ltd atf Chan & Naylor Paramatta Trust [2020] NSWCA 62 at [4] and [11].

(2) A 'pure question of law' and 'a question of law alone' have been said to be synonymous: Orr v Hunter Quarries Pty Ltd [2022] NSWCCA 39 at [12] and [14], summarising Orr v Cobar Management Pty Ltd (2020) 103 NSWLR 36; [2020] NSWCCA 220 (Orr v Cobar).

(3) A mixed question of fact and law is not a pure question of law: Orr v Cobar at [60].

(4) A question of law must be articulated with precision, as (absent leave to appeal) it is the subject matter of the appeal: Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378 at [22]; Medical Council of New South Wales v Mooney [2024] NSWCA 180 at [97].

(5) It should be possible to discern the question of law from the notice of appeal; the question must be discernible on the face of the ground and not depend upon disputed facts: Orr v Cobar at [48] and [109]; Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCA 40 (Thomas and Naaz) at [71].

(6) Care must be taken even where the question is couched in terms of facts fully found; because whether there is a question of law should not depend on the answer to the question, such as whether something was 'open to find'. Such a question might lend itself to the answer 'yes', it was open (even though minds might differ), which would not raise a question of law: Orr v Cobar at [58]-[59]. Further, even irrational findings raise questions of fact: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at pp 156-57; Thomas and Naaz at [53].

(7) A ground of appeal may disclose an error of law, yet not raise a question of law: Kudrynski v Orange City Council [2024] NSWCA 33 at [42]; Orr v Cobar at [52]-[54].

(8) As an appeal is 'on' any question of law, the question must not be arid: albeit in a different context, see Liu v Director of Public Prosecutions (NSW) [2024] NSWSC 382 at [90]; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at pp 353-54; [1990] HCA 33. Further, an appeal is against orders: AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 26 at [34], Property Investors Alliance Pty Ltd v C88 Project Pty Ltd (in liq) [2023] NSWCA 291 at [217], Kramer v Stone [2023] NSWCA 270 at [259]. This suggests that an appeal on a question of law should be capable of affecting the orders at first instance, in a meaningful way. The Appeal Panel notes, without expressing a view, the earlier decision of the Appeal Panel in Secretary, Department of Communities and Justice v Feeney [2021] NSWCATAP 139, that it is sufficient for there to be some practical utility."

1. The categories for questions of law are not closed: Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 (United Commercial Group) at [33]. Relevantly for this appeal, a question of law includes the following:

(1) A question concerning statutory construction that does not depend on the resolution of disputed facts for its answer: FZK v Department of Customer Service [2024] NSWCATAP 185 at [66].

(2) A question concerning whether the Tribunal has applied a wrong principle of law (as opposed to wrongly applying a correct legal principle): United Commercial Group at [34](1).

(3) A question concerning whether there has been a denial of procedural fairness by the Tribunal: FVA v Commissioner of Police, NSW Police Force [2024] NSWCATAP 127 (FVA) at [83]-[84].

(4) A question concerning whether there has been a constructive failure by the Tribunal to exercise jurisdiction: Commissioner of Fair Trading v PSMG Pty Ltd [2025] NSWCATAP 34 at [19](2). This can occur if there has been a failure to address central or critical elements of the case or claim: Day v SAS Trustee Corporation [2021] NSWCA 71 at [37].

(5) A question concerning whether the Tribunal has exceeded its authority by determining a matter irrationally or capriciously because there is no evidence to justify its conclusion: United Commercial Group at [76]; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 367-368; [1990] HCA 33; Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126 at 138.

1. If leave to appeal is required under s 80(2) of the NCAT Act, it is ordinarily appropriate to grant leave only if the case involves a point of principle or question of public importance, an unorthodox approach to the fact finding, a finding arrived at unreasonably or a clear injustice: FVA at [33]; Collins v Urban [2014] NSWCATAP 17 at [82]-[84]. There must also be utility in granting leave: Imbree v Chief Commissioner of State Revenue [2024] NSWCATAP 158 at [86].
2. In determining an appeal, s 81(1) of the NCAT Act enables the Appeal Panel to make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following:

(1) the appeal to be allowed or dismissed;

(2) the decision under appeal to be confirmed, affirmed or varied;

(3) the decision under appeal to be quashed or set aside;

(4) the decision under appeal to be quashed or set aside and for another decision to be substituted for it;

(5) the whole or any part of the case to be reconsidered by the Tribunal, either with or without further evidence, in accordance with the directions of the Appeal Panel.

1. In addition to the Tribunal Reasons, the Appeal Panel has had regard to the following material in deciding this appeal:

(1) An amended notice of appeal lodged on 24 January 2024 pursuant to leave granted by the Appeal Panel at the hearing of the appeal.

(2) The Appeal Book. At the hearing of the appeal, we were informed that the Appeal Book was a joint appeal book replacing document bundles previously lodged by each party.

(3) The Appellant's written submissions dated 19 November 2024.

(4) The Commissioner's written submissions dated 8 December 2024.

(5) The Appellant's written submissions dated 17 December 2024 in reply to the Commissioner's written submissions.

(6) The written submissions of the Appellant and the Commissioner concerning the proper respondent that were lodged pursuant to an order made by the Appeal Panel on 29 January 2024.

(7) A video posted by the Appellant on social media entitled "Ever wondered how we load our cars onto the Carma trucks?" referred to in the Tribunal Reasons at [75]-[76], [80] and [83]-[84] (the Truck Loading Video). The Truck Loading Video, which was viewed by the Tribunal below and several witnesses before it, depicts one of the Appellant's trucks loading a motor vehicle for transportation.

1. At the hearing of the appeal, the Appeal Panel asked counsel for the Commissioner why the Commissioner was named as the respondent in the proceedings in the Tribunal below given that s 84 of the TTI Act empowers the DCS Secretary to give directions. In an email sent to the Appeal Registry after the hearing, the solicitor for the Appellant stated that the joint position of the Appellant and the Commissioner was as follows:

"The parties' joint position is:

1. The Secretary can delegate functions to members of NSW Fair Trading under section 93 of the TTI Act;

2. The Commissioner's evidence from the original proceedings establishes that the 'Direction was signed by the manager of the Tow Truck Investigation unit' of NSW Fair Trading, 'who holds the required delegation under the Tow Truck Industry Act 1998' (see statement of Robert Ross, paragraph [25], Appeal Book Tab P page 377);

3. The parties have proceeded on the basis that the Secretary had validly delegated functions to the decision-maker (Sean O'Connell), who was a staff member of NSW Fair Trading; and

4. Within NSW Fair Trading, a Division of the NSW Department of Customer Service, the Commissioner is responsible for exercising regulatory oversight."

1. Following receipt of the email, the Appeal Panel made orders on 29 January 2025 for the Appellant and the Commissioner to provide written submissions about the following questions (the proper respondent questions):

(1) Question 1: Was the Commissioner the proper respondent for the administrative review application?

(2) Question 2: If the Commissioner was not the proper respondent, did the Tribunal at first instance have jurisdiction to review the impugned direction dated 26 July 2023?

(3) Question 3: Assuming the incorrect respondent has been named, does the Appeal Panel have jurisdiction and/or power to determine the appeal and make orders to remedy the misnaming of the respondent both at first instance and on appeal?

1. The Appeal Panel considered that it was necessary for the orders to be made because the joint position of the Appellant and the Commissioner did not address the question of whether the Commissioner or the DCS Secretary was the proper respondent. It is arguable that the Tribunal below did not have jurisdiction to conduct an administrative review of a decision to give a direction under s 84 of the TTI Act that was made by or on behalf of the Commissioner rather than the DCS Secretary. As noted above, the Tribunal below proceeded on the assumption that the decision-maker who issued the Direction was a delegate of the Commissioner: Tribunal Reasons at [1].
2. Although the question of jurisdiction was not raised by the Appellant or the Commissioner, the Appeal Panel on an internal appeal may nevertheless reopen a case involving a jurisdictional issue even if it was not raised as an appeal ground because of an implied power flowing from the duty imposed on the Tribunal by the guiding principle in s 36(1) of the NCAT Act: Jeray v Information and Privacy Commission [2024] NSWCATAP 239 (Jeray) at [47], citing Basten JA (with whom Meagher JA agreed) in Sunaust Properties Pty Ltd t/as Central Sydney Realty v The Owners - Strata Plan No 64807 [2023] NSWCA 188 at [162].

Submissions of the Appellant and the Commissioner

1. The Appellant submits the following in relation to the proper respondent questions:

The Commissioner was a proper respondent for the Administrative Review Application (and consequently for the appeal) because the Secretary delegated the Secretary's functions under the TTI Act to the Commissioner. Alternatively, the Appellant was entitled to proceed on the assumption that the Commissioner was the proper respondent to the proceedings, and it would be procedurally unfair for the Appeal Panel to fail to determine the proceedings on the basis of a misdescription of the respondent.

Neither the Tribunal below nor the Appeal Panel is deprived of jurisdiction even if the Commissioner is not the proper respondent. This is because the Tribunal's administrative review jurisdiction is over a "decision" and is not conditioned by the correct description of the decision-maker. In addition, if the respondent has been misdescribed, it is an error as to form that makes no material difference to the constitution or the conduct of the proceedings.

If required, the Tribunal has power to join the DCS Secretary to the appeal proceedings and to vary the decision in the Administrative Review Application to name the DCS Secretary as the respondent. If the Tribunal determines that the Secretary is a necessary party, it should exercise those powers (and, if considered appropriate, also exercise the power to remove the Commissioner as a party) consistently with the guiding principle in s 36 of the NCAT Act.

1. The Commissioner submits the following in relation to the proper respondent questions:

The Commissioner is the proper respondent because the power exercised by the Commissioner was delegated to the Commissioner by the DCS Secretary. In turn, the Commissioner validly sub-delegated this power to a Manager within the Department.

The Tribunal would still have jurisdiction even if the Commissioner were not the proper respondent. This is because there is no indication in the TTI Act (and neither party has suggested) that the Direction issued to the Appellant is not an administratively reviewable decision or that its status as such depends on the correct identification of the administrator. In addition, there is no indication in the ADR Act or the NCAT Act that the Tribunal would not continue to enjoy its jurisdiction over the Direction even if the administrator was incorrectly identified.

The Appeal Panel has power to change the name of the respondent because s 81(2) of the NCAT Act gives the Panel all the functions that were conferred on the Tribunal at first instance. These functions include the making of ancillary and interlocutory decisions in the administrative review proceedings, which extends to changing the name of a party: NCAT Act, s 31(2)(a).

1. The text of s 45 of the TTI Act is the appropriate starting point for considering who is the proper respondent. This is because the Tribunal has administrative review jurisdiction over a decision of an administrator only if enabling legislation provides that an application may be made to the Tribunal for an administrative review under the ADR Act of the decision: ADR Act, s 9(1); NCAT Act, s 30(1).
2. Section 45(1)(f) of the TTI Act allows a person to make an application to the Tribunal for an administrative review of "the giving of a direction under section 84 to the person". It is true that the provision does not expressly identify the administrator. This may be contrasted with s 45(1)(a) and (b) where the DCS Secretary is expressly identified as the administrator. Nevertheless, s 45(1)(f) does expressly refer to a direction given under s 84. Section 84 clearly confers the power to give directions on the DCS Secretary. In our view, this operates to identify the DCS Secretary as the administrator, albeit indirectly.
3. This is not to say that the Tribunal would have jurisdiction only if the DCS Secretary personally gave the direction. It would be sufficient to engage the jurisdiction of the Tribunal if a direction is purportedly given under s 84 of the TTI Act. In this regard, we note that s 6(2) of the ADR Act provides that a decision is made under enabling legislation if it is made in the exercise (or purported exercise) of a function conferred or imposed by or under the enabling legislation. Section 6(3) of the ADR Act also makes it clear a decision includes a purported decision even if it a decision that is made beyond the power. Both s 6(2) and (3) of the ADR Act are mirrored by s 5(2)(a) and (b) of the NCAT Act.
4. That said, the focus of the Tribunal when conducting an administrative review of a direction under s 84 will differ depending on who purports to give the direction. If a direction is given by the DCS Secretary or a delegate of the Secretary in accordance with their delegation, the focus of the review will ordinarily be on whether the direction is with respect to one of the matters referred to in s 84(1) and, if so, whether it is the correct and preferable decision to give it. However, the focus of the Tribunal will ordinarily be narrower if the direction is given by a person other than the DCS Secretary or a duly authorised delegate of the Secretary. This is because such a direction will likely be beyond power. Consequently, there will typically be no need to consider whether the direction should be given having regard to the substantial merits.
5. There is no doubt that the Direction purports to have been given under s 84. It follows that the Tribunal has administrative review jurisdiction over the decision regardless of who gave it. However, it is important not to conflate the issue of jurisdiction with the issue of who is the proper respondent. It is possible for the Tribunal to be seized of jurisdiction even though the wrong respondent has been named.
6. Rule 27 of the Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules) provides as follows concerning the parties to proceedings for a general decision or administrative review decision:

27 Parties to proceedings for general decision or administrative review decision

The parties to proceedings for a general decision or administrative review decision are -

(a) the applicant, and

(b) if an order or other decision is sought from the Tribunal in respect of a person or body (other than the applicant) - the person or body in respect of whom the order or other decision is sought, and

(c) if the Attorney General or another Minister intervenes in the proceedings under section 44 of the Act - the Attorney General or Minister, and

(d) any other person who is made a party to the proceedings by the Tribunal under section 44 of the Act, and

(e) any other person required to be joined or treated as a party to the proceedings by a Division Schedule for a Division of the Tribunal, enabling legislation or the procedural rules.

**Note - **

In proceedings for an administrative review decision, the administrator who made (or is taken to have made) the administratively reviewable decision concerned would be the person or body referred to in paragraph (b).

1. The note in r 27 of NCAT Rules mirrors the language of s 8(1) of the ADR Act, which defines an administrator to be the person or body that makes (or is taken to have made) the decision under enabling legislation that is administratively reviewable. The note therefore recognises that the proper respondent in proceedings for an administrative review can, at least in some cases, be a person or body that is taken to have made the decision concerned rather than the person or body that actually made the decision. This scenario routinely arises where a decision is made by a delegate of the repository of the power to make the decision.
2. As mentioned above, s 93 of the TTI Act enables the DCS Secretary to delegate the Secretary's functions under the Act to a person employed in the Secretary's Department. It also enables the Secretary to give written authorisation for a delegate to sub-delegate those functions to another employee of the Department. However, s 93 merely confers the powers to delegate and sub-sub-delegate. It is necessary to turn to s 49 of the Interpretation Act 1987 (NSW) (Interpretation Act) to understand the process for, and the effect of, a delegation or sub-delegation. Section 49 provides as follows:

49 Delegation of functions

(1) If an Act or instrument confers a power on any person or body to delegate a function, the person or body may, in accordance with the Act or instrument, delegate the function to a person or body by name or to a particular officer or the holder of a particular office by reference to the title of the office concerned.

(2) A delegation -

(a) may be general or limited,

(b) shall be in, or be evidenced by, writing signed by the delegator or, if the delegator is a body, by a person authorised by the body for that purpose, and

(c) may be revoked, wholly or partly, by the delegator.

(3) A delegated function may be exercised only in accordance with any conditions to which the delegation is subject.

(4) A delegate may, in the exercise of a delegated function, exercise any other function that is incidental to the delegated function.

(5) A delegated function that purports to have been exercised by a delegate shall, until the contrary is proved, be taken to have been duly exercised by the delegate.

(6) A delegated function that is duly exercised by a delegate shall be taken to have been exercised by the delegator.

(7) If -

(a) the exercise of a function by a person or body is, by virtue of an Act or instrument, dependent on the opinion, belief or state of mind of the person or body in relation to any matter, and

(b) the person or body has delegated the function to some other person or body,

the function may be exercised by the delegate on the opinion, belief or state of mind of the delegate in relation to any such matter.

(8) If a function is delegated by or to a particular officer or the holder of a particular office -

(a) the delegation does not cease to have effect merely because the person who was the particular officer or the holder of the particular office when the function was delegated ceases to be that officer or the holder of that office, and

(b) the person for the time being occupying or acting in the office concerned is taken to be the delegator or delegate (as the case requires).

(9) A function that has been delegated may, notwithstanding the delegation, be exercised by the delegator.

(10) This section applies to a sub-delegation of a function in the same way as it applies to a delegation of a function, but only in so far as the Act or instrument that authorises the delegation of the function also authorises the sub-delegation of the function.

1. The Appellant and the Commissioner both agree that the Commissioner holds a valid delegation authorising the Commissioner to exercise the DCS Secretary's function under the TTI Act. The Commissioner's written submissions concerning the proper respondent, which we do not understand the Appellant to challenge, usefully summarises how the delegation originally came into existence and then transmogrified over time into a delegation of the DCS Commissioner's functions:

"5 It is useful to begin with an Instrument of Delegation and Authorisation that was signed by Martin Hoffman, Secretary of the Department of Finance, Services and Innovation, on 17 August 2018 (2018 instrument). Clause 2 of this instrument delegated all of the Secretary's functions under the TTI Act, the Tow Truck Industry Regulation 2008 (TTI Regulation) and the Administrative Decisions Review Act 1997 (NSW) to the Commissioner for Fair Trading. Clause 4 authorised the Commissioner to sub-delegate any function delegated to her under the instrument. It is perhaps worth noting that clause 3 (read with schedule 1) also delegated more specific functions under the TTI Act to other office-holders within the Department. These delegations sat alongside the more general or comprehensive delegation of power to the Commissioner for Fair Trading, and did not interfere with this delegation.

6 The Department of Finance, Services and Innovation was abolished on 1 July 2019 by clause 7(2) of the Administrative Arrangements (Administrative Changes-Public Service Agencies) Order 2019 (NSW). Clause 7(1) of this Order provided that employees of the abolished Department were transferred to the Department of Customer Service. Critically, the clause 7(3) of the Order provided that a reference in any 'document' to the Department of Finance, Services and Innovations is to be construed as a reference to the Department of Customer Service. Of course, the TTI Act and TTI Regulation were amended to explicitly refer to the Department of Customer Service. The complementary effect of clause 7(3) is to ensure that the reference in the 2018 instrument (itself of course a 'document') to the Secretary of the Department of Finance, Services and Innovation must be construed as a reference to the Secretary of the Department of Customer Service. Accordingly, the practical result of the 2018 instrument is that the Secretary of the Department of Customer Service delegated all of their functions under the TTI Act, including the power to issue directions under section 84, to the Commissioner for Fair Trading.

7 On 29 June 2020, the Secretary of the Department of Customer Service issued another instrument of delegation, effective from 1 July 2020 (2020 instrument). At this time, the Secretary, Rosemary Ann Webb, was herself also the Commissioner for Fair Trading. (At the present time, the Commissioner is a Deputy Secretary of the Department.) The 2020 instrument revoked some but not all of the 2018 instrument. Clause 1 of the instrument says that the previous delegations are revoked only 'in so far as Schedules 1 and 2 of that instrument deal with the same matters as this instrument'. For present purposes, the 2020 instrument has two important features. One is that it does not interfere with the general or comprehensive delegation of power under section 93(1) of the TTI Act by the Secretary to the Commissioner for Fair Trading, such that the Commissioner remains a delegate of the Secretary in respect of the power to issue directions under section 84 (alongside other powers conferred by the Act). The other feature of the 2020 instrument is that it authorises persons to be sub-delegates of the Commissioner under section 93(2) of the Act.

8. The persons authorised to be sub-delegates in respect of the specific power to issue directions under section 84 of the TTI Act are specified as the following employees or office-holders of the Department: Executive Director ('A'); Director ('B') Manager, 11/2, Principal Enforcement Officer or Principal Disciplinary Officer ('C') Co-ordinator ('D') and Licensing Advisor, Licensing and Funds, Senior Engagement & Complaints Officer, Issues Resolution and Advisory Services ('F'). The practical result is that the Commissioner for Fair Trading may herself delegate the power to issue directions to one of these office-holders. The Secretary has clearly authorised the Commissioner to do so in writing. The TTI Act does not require the Commissioner to issue any separate instrument in order to sub-delegate her power under section 84 (or under any other section of the TTI Act) to one of these authorised officeholders.

9 The original notice or direction in this matter, dated 26 July 2023, is described as having been issued by 'Sean O'Connell, Manager at the New South Wales Fair Trading'. Mr. O'Connell is also identified in the notice as a Manager within the Tow Truck Investigation Unit. The respondent understands that Mr O'Connell's position equates with the position of 'Manager, 11 /12' or level 'C' as described in the 2020 instrument. Accordingly, Mr. O'Connell was authorised in writing by the Secretary to be the sub-delegate of the Commissioner in exercising the power under section 84 in this particular matter. By virtue of the notice dated 26 July 2023, the Appeal Panel can take notice of the fact that the Commissioner sub-delegated to Mr O'Connell."

1. The Appellant and the Commissioner also agree that it does not matter whether the named respondent is the DCS Secretary or the Commissioner. In this regard, the Commissioner points to ss 8(2) and 9(3)(a) of the ADR Act. Section 8(2) provides that the person or body specified by enabling legislation as a person or body whose decisions are administratively reviewable decisions is taken to be the only administrator in relation to the making of an administratively reviewable decision even if some other person or body also had a role in the making of the decision. Section 9(3)(a) provides that a provision of enabling legislation that provides for a decision of an administrator to be administratively reviewable by the Tribunal under this Act extends to a decision made by a person to whom the function of making the decision has been delegated.
2. The Appellant and the Commissioner also agree that although Mr O'Connell could have been the named respondent, it is generally inappropriate to name a delegate who is not an officeholder as the respondent. In support of this proposition, the Appellant cites Giddings v Australian Information Commissioner [2017] FCA 677; (2017) 156 ALD 601 (Giddings) at [7] where Tracey J said:

"In my view, it is better that the statutory office holder be named as the respondent in such circumstances. This renders less personal the litigation ... It is also generally consistent with the view that, when naming a party, it is appropriate to refer to a person's office, rather than the name of the person who held that office at the time the decision was made ... It also facilitates the easier recognition, from the title of the case, of the general class of case to which the litigation relates."

1. The Appellant also points to common law principles concerning delegations to the effect that a delegate can act in their own name and is not as an agent of the delegator: Giddings at [3]; Kelly v Watson (1985) 10 FCR 305 at 318.
2. In our view, the submissions of the Appellant and the Commissioner do not pay sufficient attention to the effect of s 49(6) of the Interpretation Act. Section 49(6) provides that a delegated function that purports to have been exercised by a delegate shall, until the contrary is proved, be taken to have been duly exercised by the delegate. It is important to appreciate that s 49(6) altered the common law principles to which the Appellant refers.
3. In Newcastle Airport Pty Ltd v Chief Commissioner of State Revenue [2014] NSWSC 1501; (2014) 99 ATR 748 at [57]-[58], White J said "[t]he purpose of s 49(6) is clearly to modify what would otherwise be the position that a delegate is taken to be exercising himself, herself or itself the statutory function that by reason of the delegation is entrusted to the delegate personally" and "s 49(6) is to be given its literal meaning". In that case, it required a council to be taken to have exercised employment and payment functions for the purposes of the Payroll Tax Act 2007 (NSW) that were exercised by its delegate.
4. Applying this reasoning, a direction given under s 84 of TTI Act by the Commissioner as a delegate of the DCS Secretary is taken to be a direction given by the Secretary rather than the Commissioner. The fact that the Direction was given by Mr O'Connell as a sub-delegate of the Commissioner does not alter this because s 49(10) of the Interpretation Act provides that s 49 applies to a sub-delegation of a function in the same way as it applies to a delegation of a function. Accordingly, Mr O'Connell's decision to give the Direction is taken to be the decision of the Commissioner and the Commissioner's deemed decision is in turn taken to be the decision of the DCS Secretary.
5. It is true, as the Commissioner submits, that s 9(3)(a) of the ADR Act provides that s 45 of the TTI Act extends to decisions to give directions made by delegates of the Secretary. However, this does not make a delegate the administrator. It merely confirms that a delegate's decision is caught by s 45. Also, s 8(2) does not assist the Commissioner. If anything, s 8(2) reinforces the view that there is a single administrator for the purposes of an administrative review application under s 45 even if others are involved in making the impugned decision.
6. It follows that the Secretary, and not the Commissioner or Mr O'Connell, is the administrator contemplated by r 27 of the NCAT Rules as the opposing party to the proceedings for the Administrative Review Application.
7. We therefore propose to make orders to amend the name of respondent for the proceedings for the Administrative Review Application so that it is the DCS Secretary rather than the Commissioner. We will do so by setting aside the order made by the Tribunal on 12 September 2023 to correct the name of the respondent to the Commissioner and then substituting an order amending the name to be the DCS Secretary.
8. In our view, the Tribunal below had power under s 63 of the NCAT Act to correct the name of the respondent having regard to the principles stated in Dixonbuild Pty Ltd v Adams [2020] NSWCATAP 190 (Dixonbuild) at [94]-[96]: see also Shielsar v Aghabekian [2021] NSWCATAP 336 at [24]. It may be that s 53(1), which enables the Tribunal to make amendments in any document (for example, an application or appeal) if it is in the interests of justice to do so, might also have provided the necessary power. However, we do not need to decide this.
9. As the Commissioner submits, the Appeal Panel may exercise all the functions that are conferred or imposed by the NCAT Act on the Tribunal below and may exercise those functions on grounds other than those relied upon at first instance: NCAT Act, s 81(2). In addition, s 81(1) enables the Appeal Panel to make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) those set out in the s 81(1)(a)-(d). We therefore consider that the combination of s 81(1) and (2) enables the Appeal Panel to make orders under s 63 to amend the name of the respondent in the proceedings for the Administrative Review Application. In addition, we will for consistency make an order to amend the name of the respondent in this appeal: cf Jeray at [79].
10. We note that the principles to be applied in ordering amendments under s 63 of the NCAT Act include that: (1) correcting the error does not involve redetermination of the real issues in dispute; and (2) the amendment will not give rise to any injustice on the party affected: Dixonbuild at [94]. We do not consider the amendments we propose to have either of these effects.
11. The submissions of the Appellant and the Commissioner on the substantive issues made in Tribunal below and in this appeal have been focused on issues concerning the meaning and application of provisions of the TTI Act and TTI Regulation. The identity of the respondent is irrelevant to the resolution of these issues.
12. We also consider that making the orders (instead of, for example, dismissing the appeal because the wrong person was named by the Tribunal as a party) is consistent with the duty of the Tribunal to give effect to the guiding principle in s 36(1) of the NCAT Act to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

1. At the hearing of the appeal, the Appeal Panel raised the issue of whether the original notice of appeal sufficiently identified which appeal grounds involved questions of law and which grounds required leave.
2. In addition, a question arose during submissions as to whether it was necessary for the Appellant to challenge the Direction to the extent that it could be said to rely on s 84(1)(b) of the TTI Act. Section 84(1)(b) confers a power to give a direction with respect to the business of a tow truck operator. The Appellant contended that it was not operating such a business. Counsel for the Commissioner conceded at the hearing that the Commissioner was relying only on s 84(1)(a) in support of the Direction. That provision enables a direction to be given with respect to the use or operation of any tow truck.
3. Given this context, the Appeal Panel granted leave for the Appellant to lodge an amended notice of appeal that more clearly articulated the grounds of appeal having regard to the Commissioner's concession about s 84(1)(a) of the TTI Act. The Commissioner did not object to leave being granted provided the grounds of appeal stated in the amended notice raised substantially the same issues as the original notice of appeal.
4. The amended notice of appeal, which was lodged on 24 January 2024, contains 8 appeal grounds.
5. The appeal grounds raise 2 central issues for consideration in this appeal:

(1) Are the Appellant's trucks tow trucks within the meaning of the definition of "tow truck" in s 4(1) of the TTI Act?

(2) If so, are the trucks nevertheless excluded from this definition by cl 4(2) of the TTI Regulation because they are car carriers?

1. In addition, the appeal grounds raise issues concerning the use by the Tribunal below of expert evidence and whether there was no evidence to support some of the Tribunal's findings. They also raise the issue of whether the Appellant is a tow truck operator despite the Commissioner's concession concerning the statutory support for the Direction.
2. The Appellant contends that each appeal ground raises a question of law. However, to the extent that a ground does not raise a question of law, the Appellant seeks leave to appeal for that ground. We will address whether or not leave is required when considering each appeal ground.
3. We will first consider the appeal grounds concerning the 2 central issues of this appeal we have identified before considering the other appeal grounds.

1. Appeal grounds 2, 3 and 5, which are interrelated, raise the first central issue for consideration in this appeal that we have identified, that is, are the Appellant's trucks tow trucks within the meaning of s 4(1) of the TTI Act?

1. Appeal ground 2 is that the Tribunal below erred in law in its construction of s 4(1) of the TTI Act, including by:

(1) failing to take into account legislative context and extrinsic material; and

(2) adopting an erroneous understanding of the purpose of the legislative regime reflected in the TTI Act; and

(3) failing to apply the limitation in s 4(1) of the TTI Act that a tow truck must be "used or operated for the purposes of towing motor vehicles".

1. Appeal ground 3 is that the Tribunal below erred in law in its application of s 4(1) of the TTI Act to the facts as found.
2. Appeal ground 5 is that the Tribunal below erred in law by mistakenly applying the definition of "lifting device" in cl 3(1) of the TTI Regulation to s 4(1) of the TTI Act.

1. Appeal grounds 2, 3 and 5 raise questions of statutory construction concerning s 4(1) of the TTI Act that do not depend on the resolution of disputed facts for their answer. In addition, they raise questions concerning whether the Tribunal below applied wrong principles of law. These are all questions of law for which leave to appeal is not required.

1. The Appellant's submissions on the appeal grounds can be summarised as follows:

(1) Appeal grounds 2 and 3

(a) The Tribunal below overlooked the criteria in the chapeau to s 4(1) (the s 4(1) chapeau) when considering whether the Appellant's trucks are tow trucks.

(b) The expression "used or operated for the purposes of towing motor vehicles" in the chapeau has two important purposive limitations: (1) a service provision aspect; and (2) a physical aspect.

(c) The service provision aspect is that the operator's business is to provide towing services to customers (that is, moving a customer's vehicle from point A to point B, usually because the vehicle is in need of repair). The physical aspect is that a vehicle is used for the physical act of towing a motor vehicle.

(d) The general words of the s 4(1) chapeau need to be read down to limit their operation having regard the purpose of the TTI Act and extrinsic material shedding light on that purpose. When pressed at the hearing of this appeal about how the limitations should be expressed, counsel for the Appellant proffered several variants. Ultimately, it was submitted that the chapeau should be limited to scenarios where a person provides a towing service to a customer for reward.

(e) The Appellant also points to provisions in the template contract of sale in support of the proposition that the motor vehicles belong to the Appellant until they are delivered to their purchasers so that the Appellant is effectively moving its own vehicles up until the delivery is accepted by the customer.

(2) Appeal ground 5

(a) Among other things, the Tribunal below was wrong to apply the definition of "lifting device" in the TTI Regulation to construe the term "lifting device" used in s 4(1)(a) of the TTI Act. The Act does not define the term and a definition from delegated legislation cannot be used to give it a meaning.

1. The Commissioner's submissions on the appeal grounds can be summarised as follows:

(1) Appeal grounds 2 and 3

(a) The meaning of "tow" and "towing" in s 3(1) of the TTI Act and the s 4(1) chapeau are deliberately broad. Towing involves many activities that form just one part of the transportation of a vehicle from one place to another. The meaning is not to be limited by reference to the purpose or "end-goal" for which the towed vehicle is being transported. The inclusive nature of the definition of "tow" in s 3(1) makes it easy to conclude that "towing" includes the "placing" as well as the "carrying" of a vehicle on a tilt-tray. Accordingly, the Appellant's trucks are being "used or operated for the purposes of towing motor vehicles" as required by the chapeau.

(b) If the limitations for which the Appellant contends had been intended, it would have been easy for s 4(1) to have been drafted to include them. There is nothing in the extrinsic material to justify reading down the chapeau by reference the undefined concept of "the tow truck industry".

(c) The potentially wide operation of the definition of "tow truck" in s 4(1) can be addressed by excluding motor vehicles using the exclusionary regulation-making power conferred by s 4(2).

(2) Appeal ground 5

(a) It does not matter whether the Tribunal was wrong to find that the Appellant's trucks were fitted with lifting devices. The vehicles are nevertheless tow trucks because they are fitted with tilt-tables.

What needs to be decided for the Appellant to succeed

1. The s 4(1) chapeau provides that "a tow truck means any of the following motor vehicles that are used or operated for the purposes of towing motor vehicles". Five classes of motor vehicles are then listed in s 4(1) of the TTI Act. Among these are:

(1) a motor vehicle that is equipped with a lifting device (s 4(1)(a)); and

(2) a motor vehicle that is fitted with a tilt table-top, or with a tilt table-top and winch (s 4(1)(c)).

1. As noted above, the Tribunal below found that the Appellant's trucks are tilt tray trucks fitted with hoists. However, the Tribunal did not expressly hold that this meant the vehicles fell into the class of motor vehicles mentioned in s 4(1)(c) of the TTI Act. Instead, the Tribunal held that the vehicles fell into the class of motor vehicles mentioned in s 4(1)(a), that is, motor vehicles fitted with a lifting device: Tribunal Reasons at [84]. This is because the hoists of the vehicles were capable of elevating a motor vehicle to a higher position or level regardless of whether they were in fact used to do so: Tribunal Reasons at [83].
2. As noted above, the Appellant now concedes that the Applicant's vehicles are fitted with tilt table-tops for the purposes of s 4(1)(c). Accordingly, it is not necessary for us to determine whether the Tribunal below was correct to decide that the Appellant's trucks were fitted with lifting devices for the purposes of s 4(1)(a). This is the question raised by appeal ground 5.
3. It is clear from the way in which s 4(1) is structured that the chapeau operates to limit the motor vehicles caught by the definition of "tow truck". A motor vehicle is not a tow truck simply because it falls within one or more of the listed classes of motor vehicles. It must, in addition, be "used or operated for the purposes of towing of motor vehicles". Consequently, the Appellant's concession that its trucks are fitted with tilt table-tops does not of itself mean that they are tow trucks. For appeal grounds 2 and 3 to succeed, it is also necessary for the Appellant to show that its trucks are not used or operated for the purposes of towing motor vehicles within the meaning of the s 4(1) chapeau.
4. On our reading of the Tribunal Reasons, the Tribunal below did not give a construction to the chapeau even though the Tribunal identified it in the Tribunal Reasons at [23] as one of the issues in the Administrative Review Application. Instead, the Tribunal appeared to conclude that the Appellant's trucks were tow trucks merely because they were fitted with lifting devices and therefore fell into the class of motor vehicles mentioned in s 4(1)(a): Tribunal Reasons at [84]. With respect, we consider that the Tribunal fell into error by failing to address whether the chapeau operated as a limitation even if the Appellant's trucks otherwise fell within a class of motor vehicle listed in s 4(1)(a), (b), (c), (d) or (e). However, this is insufficient on its own to allow the appeal unless the chapeau, when properly construed, operates to exclude the Appellant's trucks from the ambit of the definition of "tow truck".

1. The modern approach to statutory interpretation is now well-settled. It was usefully summarised by Bell P (as the Chief Justice then was) in Sydney Seaplanes Pty Ltd v Page (2021) 106 NSWLR 1; [2021] NSWCA 204 (Sydney Seaplanes) at [27]-[31]:

"27 The modern approach to statutory interpretation, as Sir Anthony Mason observed more than 35 years ago in K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd [1985] HCA 48; (1985) 157 CLR 309 at 315; [1985] HCA 48, 'insists that the context be considered in the first instance, especially in the case of general words, and not merely at some later stage when ambiguity might be thought to arise' (emphasis added). The importance of context has routinely been emphasised by the High Court in cases concerned with statutory interpretation ...

28 More recent statements to the effect that the process of statutory interpretation must start and end with a consideration of the text of the statute ... were not intended to and did not demote or relegate the importance of context in the process of statutory interpretation ...

...

30 It has also been emphasised that 'context' is to be understood in a broad sense and not confined to the immediate context supplied by other provisions in a statute of which one or more provisions are the subject of the immediate inquiry by the Court. Context extends to include the existing state of the law, legislative purpose and any mischief which the statute was intended to remedy ...

31 It has also been emphasised that 'context' is to be understood in a broad sense and not confined to the immediate context supplied by other provisions in a statute of which one or more provisions are the subject of the immediate inquiry by the Court. Context extends to include the existing state of the law, legislative purpose and any mischief which the statute was intended to remedy ...

32 Words, whether used in a statute or more generally, always exist in and take their meaning from the particular context in which they are used. That context may expose any mischief which a statute is directed towards redressing and may reveal the purpose underpinning the enactment. That purpose, in turn, guides the preferred meaning to be given to the words being construed. The process of statutory interpretation may thus be seen as a holistic one or, as Campbell JA has identified both judicially and extra-judicially, as one involving something akin to hermeneutic reasoning."

1. In addition, s 33 of the Interpretation Act requires an Act to be given a construction that would promote the purpose or object underlying the Act, whether or not that purpose or object is expressly stated in the Act. Section 33 therefore recognises that the purpose or object of an Act is sometimes not expressly stated. In such cases, it will often be necessary to have regard to relevant material apart from the text of the Act (that is, extrinsic material) to discern the object or purpose of the Act. The use of extrinsic material for the purposes of statutory interpretation is sanctioned both by statute and the common law: Interpretation Act, s 34; Sydney Seaplanes at [41] (Bell P). Extrinsic material that is commonly considered relevant is the second reading speech of the Minister who introduced the Bill for an Act into Parliament.
2. It is not necessarily inconsistent with the modern approach to statutory interpretation to depart from the literal meaning of a statutory provision, including by reading words into the provision. As French CJ, Crennan and Bell JJ noted in Taylor v The Owners - Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9 (Taylor) at [37]-[38]:

"37 Consistently with this Court's rejection of the adoption of rigid rules in statutory construction, it should not be accepted that purposive construction may never allow of reading a provision as if it contained additional words (or omitted words) with the effect of expanding its field of operation. As the review of the authorities in Leys demonstrates, it is possible to point to decisions in which courts have adopted a purposive construction having that effect. And as their Honours observed by reference to the legislation considered in Carr v Western Australia, the question of whether a construction 'reads up' a provision, giving it an extended operation, or 'reads down' a provision, confining its operation, may be moot.

38 The question whether the court is justified in reading a statutory provision as if it contained additional words or omitted words involves a judgment of matters of degree. That judgment is readily answered in favour of addition or omission in the case of simple, grammatical, drafting errors which if uncorrected would defeat the object of the provision. It is answered against a construction that fills 'gaps disclosed in legislation' or makes an insertion which is 'too big, or too much at variance with the language in fact used by the legislature'."

1. In a similar vein, Gageler (as the Chief Justice then was) and Keane JJ said in Taylor at [64]-[65]:

"64 Statutory construction involves attribution of legal meaning to statutory text, read in context. 'Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning ... But not always.' Context sometimes favours an ungrammatical legal meaning. Ungrammatical legal meaning sometimes involves reading statutory text as containing implicit words. Implicit words are sometimes words of limitation. They are sometimes words of extension. But they are always words of explanation. The constructional task remains throughout to expound the meaning of the statutory text, not to divine unexpressed legislative intention or to remedy perceived legislative inattention. Construction is not speculation, and it is not repair.

65 Context more often reveals statutory text to be capable of a range of potential meanings, some of which may be less immediately obvious or more awkward than others, but none of which is wholly ungrammatical or unnatural. The choice between alternative meanings then turns less on linguistic fit than on evaluation of the relative coherence of the alternatives with identified statutory objects or policies."

1. However, as the quoted passages from Taylor make plain, courts (and, by extension, tribunals) should not depart from the literal meaning of a statutory provision if to do so is too much at variance with the language actually employed or seeks to remedy perceived legislative inattention.

What does the s 4(1) chapeau mean?

1. There are two limbs to the Appellant's submissions concerning the construction that it says should be placed on the s 4(1) chapeau.
2. The first limb focuses on what the Appellant describes as the "service provision aspect" of the chapeau. The Appellant submits that the mischief to which the TTI Act is directed justifies reading words of limitation into the s 4(1) chapeau to the effect that a motor vehicle will not be a tow truck unless the motor vehicle is providing a towing service to a customer for reward.
3. The second limb focuses on what the Appellant describes as the "physical aspect" of the chapeau. The Appellant submits that its trucks do not "tow" motor vehicles within the meaning of the TTI Act.
4. We will consider each of these aspects in turn.

1. The Appellant points to the following in support of reading in the service provision aspect:

(1) Statements in the TTI Act Second Reading Speech indicating that the mischief to which the ACT was directed included regulation of those involved in the "tow truck industry". The focus on an industry is said to be significant.

(2) Provisions in the TTI Act that support the construction of the s 4(1) chapeau "through the prism of the business activities of the operator".

1. Several cases have recognised that the principal impetus for the enactment of the TTI Act was to address concerns about unscrupulous and dangerous business practices in the tow truck industry at the time: Cross v Barnes Towing and Salvage (Qld) Pty Ltd (2005) 65 NSWLR 331; [2005] NSWCA 273 (Cross) at [32]; Tubie v Commissioner of Fair Trading [2020] NSWCATOD 8 at [14]-[15]. This is reflected in the TTI Act Second Reading Speech, where the Minister introducing the Bill for the Act said at p 8362:

"The Tow Truck Industry Bill provides for a comprehensive restructure of the tow truck industry, an industry that is in urgent need of reform. This bill will 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."

1. Later on, after referring to the Anderson Report, the Minister said at p 8362:

"The findings of the report were disturbing. Mr Anderson described an industry infiltrated by criminal elements and pervaded by fear of intimidation, physical harm and property damage. It was clear that the existing regulatory system was not providing the community and honest tow truck drivers adequate protection from thugs and that the Tow Truck Act 1989 was not able to discourage dangerous and illegal practices. The most significant incentive that has given rise to unscrupulous and dangerous practices is the high proportion of tow truck operators paid 'drop fees' by smash repairers. Drop fees are secret commissions that smash repairers pay to tow truck operators for bringing in smash repair work. These drop fees are then loaded into vehicle repair costs. That means that motorists are paying higher insurance premiums than would be the case in an industry that is better regulated."

1. Much of the TTI Act Second Reading Speech is directed to concerns about the then current practices at accident scenes. Indeed, as we have seen, the TTI Act now requires a certified driver to obtain a towing authorisation to carry out accident towing work. However, there can be little doubt that the TTI Act was intended to extend to towing work beyond accidents. For instance, the TTI Act regulates "towing work" in several places without defining the term: see, for example, ss 15, 23 and 56. Where a provision is intended to be confined to accidents, the term "accident towing work" (which is defined in s 3(1)) is used instead: see, for example, s 49. An obvious example of towing work resulting from an event other than an accident is the towing of a broken-down motor vehicle.
2. It is true that both the TTI Act Second Reading Speech and the long title and name of the TTI Act refer to the "tow truck industry". The use of the term "industry" suggests a focus on a large-scale commercial activity. This focus is reflected elsewhere in the TTI Act.
3. The most obvious example to which the Appellant points is s 15. That section makes it an offence for a person to 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. The term "tow truck operator" is itself defined in terms of business. Section 3(1) defines it to mean a person who conducts a business involving the operation of any tow truck for the purposes of towing motor vehicles.
4. The Appellant also points to s 20(2)(d1) and (d2). These provisions impose conditions on tow truck operator licences regulating a licensee's use of holding yards. A holding yard is defined by s 3(1) to mean a place used for the purposes of the safekeeping of towed motor vehicles. The Appellant says that these conditions indicate that the TTI Act assumes that a towed vehicle belongs to the customer rather than the tow truck operator and the customer being required to pay fees for storage in the holding yard. The Appellant submits that it is transporting its own motor vehicles until they are delivered to their customers.
5. As we have mentioned, reading words into a statutory provision is not necessarily inconsistent with the modern approach to statutory interpretation. However, Taylor indicates that this does not confer a licence on a court or tribunal to rewrite a statutory provision to give effect to a perceived statutory deficiency where its words do not support such a construction.
6. We consider there are several reasons why adopting the construction that the Appellant seeks to place on the s 4(1) chapeau would result in the Appeal Panel rewriting the chapeau rather than expounding its true meaning.
7. Firstly, the construction is inconsistent with s 23 of the TTI Act. Section 23(1)(c) makes it an offence for a person who does not hold a tow truck drivers certificate to drive or stand a tow truck (other than a licensed tow truck) on a road or road related area at any time for the purposes of towing a motor vehicle for fee or reward. The offence presupposes an alternative scenario of driving or standing a tow truck other than for a fee or reward. The Appellant's construction of the chapeau would result in a motor vehicle being a tow truck only if it is used or operated to provide a towing service for reward. The reference to fee or reward in s 23(1)(c) would have been unnecessary if this was the true construction of the chapeau.
8. Secondly, we consider it significant that s 4(2) of the TTI Act confers a regulation-making power to exclude motor vehicles from the definition of "tow truck". The presence of the power indicates that Parliament appreciated that the definition was broad and could require adjustment from time to time to confine its operation in appropriate cases.
9. Thirdly, as McHugh J noted in Kelly v R (2004) 218 CLR 216; [2004] HCA 12 at [103]:

"As I earlier pointed out, the function of a definition is not to enact substantive law. It is to provide aid in construing the statute. Nothing is more likely to defeat the intention of the legislature than to give a definition a narrow, literal meaning and then use that meaning to negate the evident policy or purpose of a substantive enactment."

1. The Appellant's construction is an attempt to impose substantive constraints on the operation of the TTI Act by means of a definition. Constraints of this kind, if they were intended, would be unlikely to be secreted in a definition.
2. Fourthly (and related to the third reason above), the TTI Act already makes substantive provision elsewhere for regulating the use of tow trucks. Section 15, as mentioned above, makes it offence to conduct the business of a tow truck operator without a licence. As we have also mentioned, s 23 makes it an offence for a person who does not hold a tow truck drivers certificate (uncertified drivers) to drive or stand a tow truck for the purposes of towing for fee or reward. In addition, s 23 makes it an offence for uncertified drivers to drive or stand licensed tow trucks. In our view, the use of implied limitations of the kind for which the Appellant contends in a definition is not consistent with Parliament's use of substantive provisions elsewhere.
3. Fifthly, we do not accept that reading the s 4(1) chapeau without the limitations for which the Appellant contends results in s 84 of the TTI Act having a broader application than Parliament intended. It is important to recall that s 84 confers a discretion to give a direction. Because it is a discretion, it must be exercised having regard to relevant considerations. A relevant consideration is the purpose of the TTI Act, which is to regulate tow trucks and tow truck operators in the context of an industry. An exercise of the direction power is administratively reviewable by the Tribunal and, when it is reviewed, the Tribunal must decide the correct and preferable decision for itself. In this regard, we note that the Appellant has not argued that even if its trucks are tow trucks, the correct and preferable decision is not to give the Direction.
4. Sixthly and finally, we do not consider the question of who owns a motor vehicle being towed to be decisive in the interpretation of the s 4(1) chapeau. As mentioned above, the Tribunal below found that ownership of a motor vehicle purchased from the Appellant does not transfer to the purchaser until after handover of the vehicle: Tribunal Reasons at [53]. In our view, the question of ownership of towed motor vehicles may be relevant to deciding whether a person is conducting the business of a tow truck operator for the purposes of s 15 of the TTI Act. A person who is only (or at least principally) towing motor vehicles that they own is arguably not conducting the business of a tow truck operator. However, this does not mean that a motor vehicle ceases to be a tow truck whenever it tows a motor vehicle belonging to the owner of the tow truck. In this regard, it is also important to recall that the Appellant's trucks are not only used to transport purchased motor vehicles to purchasers. The trucks are also used for so-called "escalations", that is, to collect motor vehicles for the purposes of inspection and repair where those vehicles have already been handed over to purchasers.
5. For all these reasons, we find that there is no warrant for reading the service provision aspect into the s 4(1) chapeau.

1. In relation to the physical aspect of the s 4(1) chapeau, the Appellant submits the definition of "tow" in s 3(1) of the TTI Act requires both lifting and carrying and not just carrying. It submits that the Appellant's trucks only carry other motor vehicles because they are loaded onto the Appellant's trucks by self-propulsion. The Appellant's submissions necessarily invite attention to the actual text of the chapeau and the definitions it invokes.
2. The s 4(1) chapeau invokes 2 terms that are defined by the TTI Act. Firstly, the definition of "tow" in s 3(1) is invoked by the use of "towing", which is another grammatical form of "tow" and therefore has a corresponding meaning: Interpretation Act, s 7. Secondly, and for the same reason, the definition of "motor vehicle" in s 3(1) is also invoked by the use of its plural "motor vehicles". The first step in understanding the s 4(1) chapeau is to consider each of these definitions.
3. The definition of "motor vehicle" is relatively straightforward. As we noted above, s 3(1) of the TTI Act defines "motor vehicle" to mean a motor vehicle (other than a light rail vehicle) or trailer within the meaning of the RT Act. Section 4(1) of the RT Act defines "motor vehicle" to mean a vehicle that is built to be propelled by a motor that forms part of the vehicle, while "trailer" is defined as follows:

(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, but does not include -

(c) a motor vehicle being towed, or

(d) anything declared by the statutory rules to be excluded from this definition.

1. The inclusion of trailers in the definition of "motor vehicle" in s 3 (1) of the TTI Act makes the definition broader than the ordinary meaning of motor vehicle. Also, the definition of "trailer" in the RT Act makes it clear that a towed motor vehicle is not a trailer.
2. The definition of "tow", which was set out in full earlier, is less straightforward. The definition does not define what the term "means". Rather, it indicates what the term "includes". It is useful to set out again the listed inclusions in the definition in paragraphs (a)-(d): They are as follows:

(1) lift and tow, or lift and carry (paragraph (a));

(2) lift for the purpose of towing or carrying (paragraph (b))

(3) carry on a trailer (paragraph (c));

(4) place onto a trailer for the purpose of carrying (paragraph (d)).

1. Paragraph (e) of the definition enables regulations to prescribe actions into the definition. Clause 4(1) of the TTI Regulation uses this power to prescribe in "tow by use of a rigid frame, rigid bar or similar device".
2. The inclusionary, rather of exhaustive, nature of the definition of "tow" suggests that the ordinary meaning of "tow" has been augmented rather than displaced: Cross at [74] (Handley JA). This leads to a further question: what is the ordinary meaning of "tow"?
3. In Cross at [76], Handley JA noted that the dictionary meaning of "tow" is focused on drawing, pulling or dragging something. However, care should be taken when deploying dictionaries as a tool for statutory interpretation. As Leeming JA warned in South Western Sydney Local Health District v Gould (2018) 97 NSWLR 513; [2018] NSWCA 69 (Gould) at [79]:

"A dictionary will give a range of meanings of a word. The task of a court is to identify, from text, context and purpose, the particular meaning that a statutory provision bears. The function of a dictionary and the function performed by a court construing a statute are utterly different. It must be borne in mind that the meaning of any word used in a statute depends on the context and purpose of the legislation in which it appears."

1. The inclusions in the definition of "tow" in s 3(1) of the TTI Act provide some relevant context. There are 2 categories of inclusions.
2. The first category of inclusions appears aimed at ensuring preliminary or preparatory steps to moving a motor vehicle are caught, whether in combination with its actual movement or in anticipation of doing so: Cross at [75] (Handley JA). Hence, the inclusion of "lift and tow", "lift and carry" and "lift for the purpose of towing or carrying".
3. The second category of inclusions appears aimed at ensuring that the use by a motor vehicle of a trailer to carry another motor vehicle is caught. Hence, the inclusion of "carry on a trailer" and "place on a trailer for the purpose of carrying".
4. Both categories of inclusions suggest that the framers of the TTI Act considered that the actions in each category were either not caught by the ordinary meaning of "tow" or there was doubt as to whether they were caught. This suggests that the ordinary meaning of "tow" that is presupposed by the definition of "tow" is confined to providing propulsion directly to another motor vehicle (for example, by means of a rope, chain, hook or the like). This is consistent with the dictionary meaning of the term to which we have referred.
5. In the Tribunal Reasons at [61]-[62], the Tribunal below made the following findings concerning the way in which motor vehicles are loaded onto the Appellant's trucks:

"61 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.

62 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."

1. The Appellant cites these findings in its written submissions in support of its submission that its trucks do not "lift and carry" but merely "carry". We do not understand the Commissioner to cavil with these findings.
2. Based on these findings, it is clear that the Appellant's trucks do not provide direct propulsion to the motor vehicles they transport in the sense to which we have referred. Indeed, the evidence is that the motor vehicles are driven onto the trucks by means of self-propulsion. Accordingly, we do not consider that the actions taken by the Appellant's trucks when transporting motor vehicles fall within the ordinary meaning of "tow". Consequently, those actions must fall within one of the inclusions to constitute towing under the TTI Act.
3. In our view, the actions taken by the Appellant's trucks constitute the lifting and carrying of motor vehicles within the meaning of paragraph (a) of the definition of "tow". This is so even assuming that the Appellant's trucks are not fitted with lifting devices within the meaning of s 4(1)(a) of the TTI Act. It is important to appreciate that the definition refers only to "lift and carry" and not to "lift by means of a lifting device and carry". The word "lift" should be given its ordinary meaning of raising something to a higher level or position.
4. We have viewed the Truck Loading Video. Consistently with the findings of the Tribunal below, it is clear from the Video that even though a motor vehicle must be driven onto the tilt-tray when it is positioned on an incline to provide a ramp, the subsequent retraction of the tilt-tray alters the position of the vehicle from an incline to a horizontal position so as to enable its transportation. This position alteration falls within the ordinary meaning of lift. There is no dispute that the Appellant's trucks then carry the motor vehicles. Accordingly, we consider that this constitutes lifting and carrying a motor vehicle for the purposes of the definition of "tow".

1. It follows that the Appellant's are tow trucks within the meaning of s 4(1) of the TTI Act. Accordingly, appeal grounds 2 and 3 fail.
2. It is unnecessary for us to decide appeal ground 5 because of the Appellant's concession that its trucks are fitted with tilt table-tops for the purposes of s 4(1)(c) of the TTI Act.

Appeal grounds 6 and 7 - Are the Appellant's trucks carrier carriers for the purposes of cl 4 of TTI Regulation?

1. Appeal grounds 6 and 7 are interrelated because they concern whether the Tribunal misconstrued or misapplied cl 4 of the TTI Regulation when deciding whether the Appellant's trucks were car carriers for the purposes of that clause. They raise the second central issue for consideration in this appeal to which we have referred, that is, are the Appellant's trucks excluded from s 4(1) of the TTI Act because they are car carriers?

1. Appeal ground 6 is that the Tribunal below erred in law:

(1) by misconstruing the definition of "car carrier" in cl 4(3) of the TTI Regulation;

(2) if, properly understood, the Tribunal reasoned that "combination" as used in the definition of "car carrier" in cl 4(3) meant "the result of two or more things being combined", by failing to apply that definition to the facts as found; and/ or

(3) by failing to apply the limitation in para (a) of the definition that the lifting device must be "for the purpose of loading the motor vehicles to be transported onto a car deck".

1. Appeal ground 7 is that the Tribunal below erred in law in misapplying the definition of car carrier in cl 4(3) of the TTI Regulation to the facts as found.

1. Clause 4(2) of the TTI Regulation purports to be a declaration in accordance with s 4(2)(a) of the TTI Act. Section 4(2)(a) of the TTI Act enables the regulations to exclude a motor vehicle (or class of motor vehicles) from the definition of "tow truck" in s 4(1) by declaration. The effect of cl 4(2) of the TTI Regulation is therefore to exclude car carriers as defined by cl 4(3) from the definition of "tow truck" in s 4(1) of the TTI Act.
2. We note that the Commissioner has conceded that, for the purposes of argument, the Appellant's trucks satisfy all the conditions specified in paragraphs (a)-(c) of the definition of "car carrier" in cl 4(3). Consequently, the only question arising for determination is whether the Appellant's trucks fall within the introductory words of the definition, that is, is each truck "a motor vehicle combination ... that is designed or adapted for use for the transport of motor vehicles".
3. We do not understand there to be any dispute between the Appellant and the Commissioner that the Appellant's trucks are designed or adapted for use for the transport of motor vehicles. The dispute is focused on whether the Applicant's vehicles are motor vehicle combinations. In our view, this raises a question of law because it involves a question of statutory interpretation concerning the meaning of "motor vehicle combination" in circumstances where the term is not defined by the TTI Regulation.
4. The Appellant submits that its trucks are car carriers because they are motor vehicle combinations. It submits that a motor vehicle combination can include a motor vehicle that is made up of elements of several different motor vehicles. In the case of the Appellant's trucks, the elements are a cab body and chassis with tilt-trays as found by the Tribunal below. The Appellant points to the definition of "car carrier" referring to "motor vehicle combination (including a multi-deck combination)". It submits that the inclusive reference to a multi-deck combination indicates that a motor vehicle combination should be read as including a motor vehicle comprised of different elements of other motor vehicles.
5. The Commissioner submits that the reading of the term "motor vehicle combination" of the Tribunal below is the correct reading. The Tribunal below considered that the term bears its natural meaning of a combination of 2 or motor vehicles: Tribunal Reasons at [89]. On this basis, the Appellant's trucks would not be motor vehicle combinations because they are single vehicles.
6. As we noted above, s 3(1) of the TTI Act defines "motor vehicle" to mean a motor vehicle (other than a light rail vehicle) or trailer within the meaning of the RT Act. The term "motor vehicle" in the TTI Regulation has the same meaning as it has in the TTI Act: Interpretation Act, s 11.
7. We note as well that s 4(1) of the RT Act defines "combination" to mean a group consisting of a motor vehicle connected to one or more other vehicles. At the hearing, counsel for the Appellant was asked whether this definition could assist in fixing a meaning for "motor vehicle combination" either on the basis that the TTI Act was in pari materia with the RT Act or the definition captured the ordinary meaning of a motor vehicle combination. The Appellant submitted that it would be inappropriate to rely on the definition because when the TTI Act sought to rely on definitions in the RT Act, it did so expressly. We agree with the Appellant's submission.
8. As the Tribunal below pointed out in the Tribunal Reasons at [13], the Macquarie Dictionary defines the noun "combination" to mean:

"1. the act of combining.

2. the state of being combined.

3. a number of things combined.

4. something formed by combining."

1. Bearing in mind the warning given by Leeming JA in Gould about relying on dictionary definitions without having regard to context, we consider the fourth meaning provided by the Macquarie Dictionary to be the relevant meaning in the TTI Regulation context. The term "motor vehicle combination" is clearly a reference to something that is formed by combining. The natural meaning of the term is, in our view, 2 or more motor vehicles that are operated in combination. This could, for example, include a motor vehicle in its strict sense to which a trailer is attached (because the term "motor vehicle" includes a trailer).
2. We do not consider the Appellant's reading of the term to be tenable. It gives the term an artificial, rather than a natural, meaning. We do not think that expressly providing that a motor vehicle combination includes a multi-deck combination supports the Appellant's reading. If anything, it suggests that a single vehicle like a multi-deck combination was considered not to be caught by the general term "motor vehicle combination" because if it had been caught, then the express inclusion would have been unnecessary.
3. It follows that the Appellant's trucks are not motor vehicle combinations because they are comprised of single motor vehicles. As a result, they do not fall within the definition of "car carrier" in cl 4(3) of the TTI Regulation or, consequently, the exclusion given to car carriers by cl 4(2). Accordingly, appeal grounds 6 and 7 fail.

Appeal Ground 1 - Improper reliance on witness evidence

1. Appeal ground 1 is that the Tribunal below erred in law by relying upon the evidence of Mr Robert Ross and Mr Hernan Ratto because:

(1) parts of their evidence relied on by the Tribunal had been the subject of agreed evidentiary limitations by the Appellant and the Commissioner (which were handed up to the Tribunal at the beginning of the hearing) requiring their evidence to be limited to evidence of the witness's state of mind and not of the truth of the facts asserted; and/or

(2) their evidence was used to determine the proper construction of terms used in the TTI Act and TTI Regulation.

1. We consider that these two questions involve questions of law. The first question raises whether the alleged failure by the Tribunal below to abide by agreed limitations on the use of the expert evidence resulted in the denial of procedural fairness to the Appellant. The second question raises whether the use of expert evidence to determine the construction of a statute resulted in the Tribunal below constructively failing to discharge its duty to determine the meaning of statutory provisions for itself.
2. Mr Ross is a Senior Investigator with the Commissioner while Mr Ratto is a Manager Vehicle Standards with Transport for New South Wales. The Tribunal below found that they both had relevant expertise: Tribunal Reasons at [39]. In doing so, the Tribunal relied on cases such Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 to assess their expertise: Tribunal Reasons at [33]-[38].
3. Although the Tribunal is not bound by the rules of evidence, the Tribunal applies well-established principles in proceedings before it by analogy with the rules of evidence concerning the use of expert evidence: Bark N Purr Pets Pty Ltd v Moussad [2024] NSWCATAP 201 at [54]. We do not understand the Appellant to contend that Mr Ross and Mr Ratto do not have relevant expertise. Rather, the Appellant challenges the way in which the Tribunal used their evidence.
4. The Appellant points to a list of agreed limitations handed up to the Tribunal below at the beginning of the hearing before it. A copy of the list is contained in Annexure JP-6 to the Affidavit of Jonathon William Parkin sworn on 18 November 2024 for use in this appeal: Appeal Book at pp 360−362. Counsel for the Commissioner indicated at the hearing that the Commissioner did not object to the use of the Affidavit in this appeal. One of the limitations stated in the list is that the evidence of Mr Ross and Mr Ratto was to be used only as evidence of the witnesses' state of mind and not of the truth of the facts asserted.
5. The Appellant submits that, despite this limitation, the Tribunal below:

(1) referred to the evidence of Mr Ross as support for findings that the Appellant's Truck depicted in the Truck Loading Video was a rigid tow truck and not a combination of a truck and trailer and that it had a tilt tray: Tribunal Reasons at [75]-[76]; and

(2) referred to the evidence of Mr Ratto as support for findings that the vehicle is a tow truck and not a combination and his opinion that a cab chassis and a body is not a vehicle combination: Tribunal Reasons at [80]-[81].

1. The Commissioner submits that nowhere in the Tribunal's reasoning is there an indication that the experts' opinions controlled the meaning of the relevant statutory terms. The Commissioner submits that the bulk of the Tribunal's decision is concerned with arriving at the meaning by its own process of statutory construction.
2. In the Tribunal Reasons at [39], the Tribunal below said:

"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."

1. The last sentence of this passage, in addition to the passage at [82] (where the Tribunal says the experts' views "largely align" with its views), indicates that the Tribunal below treated the evidence as confirming findings that the Tribunal had arrived at itself.
2. That being the case, we do not consider that the use of the expert evidence was dispositive concerning the issues for which the Tribunal below invoked it. A fair reading of the Tribunal Reasons indicates that the Tribunal itself engaged in the process of determining what, as a matter of statutory interpretation, was meant by the various concepts it had to construe: see particularly Tribunal Reasons at [40]-[51] and [83]-[91]. It also viewed and assessed the Truck Loading Video for itself: Tribunal Reasons at [83].
3. A denial of procedural fairness does not vitiate a decision unless it is "material" in the sense of there being a realistic possibility of a different outcome had procedural fairness been observed: MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17 at [2]-[3]. In Impala Kitchens Pty Ltd v O'Donoghue [2025] NSWCATAP 49 at [77], the Appeal Panel observed that a ground must be material for it to be upheld.
4. Even accepting that the Appellant was denied procedural fairness because the Tribunal used the expert evidence in contravention of the agreed limitations on its use, we do not consider that a fair reading of the Tribunal Reasons indicates there was a realistic possibility that this error resulted in the Tribunal making findings it would otherwise not have made. We also consider that a fair reading of the Tribunal Reasons indicates that the Tribunal undertook for itself the process of statutory interpretation. Accordingly, appeal ground 1 fails.

Appeal ground 4 - Misconstruing and/or misapplying definition of "tow truck operator"

1. Appeal ground 4 is that the Tribunal below erred in law by misconstruing, and/or misapplying to the circumstances of the Appellant's operations, the definition of "tow truck operator" in s 3(1) of the TTI Act, including by:

(1) asking whether the Appellant "conduct[ed] a business 'for the purposes of towing motor vehicles'" rather than whether the Appellant "conduct[ed] a business involving the operation of any tow truck for the purposes of towing motor vehicles";

(2) finding that the Appellant conducted its business "for the purposes of towing motor vehicles"; and/or

(3) finding that the Appellant was carrying on business as a "tow truck operator".

1. The Appellant submits the Tribunal below asked itself the wrong question when deciding whether the Appellant was a "tow truck operator" for the purposes of the definition of that term in s 3(1) of the TTI Act. It should have asked itself whether the Appellant "conducts a business involving the operation of any tow truck for the purposes of towing motor vehicles" rather than whether the Appellant "conducts a business 'for the purposes of towing motor vehicles'": Tribunal Reasons at [90] and [93].
2. As noted above, one of the bases on which the Commissioner originally sought to support the giving of the Direction was that it was given pursuant to s 84(1)(b) of the TTI Act with respect to the business of a tow truck operator. However, the Commissioner has now disclaimed reliance on this basis as support for the Direction. The Commissioner now relies exclusively on s 84(1)(a).
3. Accordingly, the questions of whether the Tribunal below misconstrued the definition of "tow truck operator" or whether the Appellant was conducting the business of a tow truck operator no longer arise. Accordingly, it is unnecessary for us to decide appeal ground 4.

Appeal Ground 8 - No evidence to support findings about weight and elevating capabilities of Appellant's trucks

1. Appeal ground 8 is that the Tribunal below erred in finding that the hoists fitted to the tilt trays on the Appellant's trucks are "capable of supporting the weight of a motor vehicle and elevating a vehicle to a higher position or level" because:

(1) the Tribunal found that the Appellant's trucks had "no way of loading vehicles except under the vehicle's own power"; and

(2) the hoists elevate the tilt tray and not the motor vehicle that is driven onto the tilt tray by its own propulsion.

1. The Appellant contends that this ground raises a question of law because there was no evidence for the findings.
2. Generally speaking, where a decision of the Tribunal is challenged on an evidentiary ground, leave is required for an appeal on that ground. This is subject to an exception. As previously mentioned, a question of law includes where the Tribunal has exceeded its authority by determining a matter irrationally or capriciously because there is no evidence to justify its conclusion.
3. A "no evidence" ground is difficult to make out and must be approached with due caution. In L & B Linings Pty Ltd v WorkCover Authority of New South Wales [2012] NSWCA 15 at [33]-[34], Basten JA said:

"33 The respondent relied upon the discussion of the 'no evidence' ground, under the general law, in the judgment of Mason CJ in Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321 at 356. Mason CJ noted that there was 'no error of law simply in making a wrong finding of fact' - referring to Waterford v The Commonwealth [1987] HCA 25; 163 CLR 54 at 77 (Brennan J); noting that 'want of logic is not synonymous with error of law', he continued:

'So long as there is some basis for an inference - in other words, the particular inference is reasonably open - even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.'

34 Four points of caution should be made. First, this passage indicates that the 'no evidence' ground of judicial review depends not on the reasoning of the decision-maker, but on a comparison between the material available to the decision-maker and the conclusion reached. Secondly, care must be taken with the term 'no evidence', as an administrative decision-maker is usually entitled to take into account material which would not count as 'evidence' in a judicial context. In what is essentially an inquisitorial inquiry, that material is not necessarily limited to the material placed before the decision-maker by the applicant for review. Thirdly, it is important to bear in mind that the decision-maker may be entitled to seek support for a particular inference from the absence of material supportive of a contrary view. Fourthly, where an evaluative judgment is to be formed on the basis of conflicting indicators, it will be difficult if not impossible to establish a 'no evidence' ground of review."

1. The points of caution made by Basten JA are applicable to the Tribunal below because it was not required to apply the rules of evidence in relation to the material it relied on and it stood in the shoes of the original decision-maker when conducting its administrative review: NCAT Act, s 38(2); Wojciechowska v Secretary, Department of Communities and Justice; Wojciechowska v Registrar, Civil and Administrative Tribunal [2023] NSWCA 191 at [98]; NSW Self Insurance Corporation v EEH [2023] NSWCATAP 181 at [86]. With this in mind, we are not satisfied that there was no material before the Tribunal below to support the impugned findings. Even assuming it was inappropriate for the Tribunal to use the evidence of Mr Ross and Mr Ratto as evidence of facts rather than just states of mind, there was other material before the Tribunal, including the Truck Loading Video. It does not matter whether the Tribunal's findings were based on incorrectly drawn inferences if there was material before the Tribunal from which it was reasonably open to draw the inferences. We consider that this was the case here.
2. The Appellant indicated that it sought leave to appeal for any appeal ground that did not raise a question of law. However, we would refuse leave to appeal ground 8 because it would be of no utility. The impugned findings were principally relevant to the question of whether the Appellant's trucks were fitted with a lifting device for the purposes of s 4(1)(a) of the TTI Act. As mentioned, the Appellant concedes that its trucks are fitted with tilt table-tops within the meaning of s 4(1)(c). There would therefore be no utility in deciding whether the trucks fell into another class of motor vehicles listed in s 4(1).

1. The only basis on which the Commissioner now relies to support the Direction is that it was given pursuant to s 84(1)(a) of the TTI Act because the Appellant's trucks are tow trucks. It is not necessary for us to decide whether, alternatively, the Appellant is conducting the business of a tow truck operator for the purposes of s 84(1)(b).
2. In addition, as we noted above, there has been no appeal against the decision of the Tribunal below on the basis that, as a matter of discretion, the giving of the Direction under s 84(1) of the TTI Act was not the correct and preferable decision in the event that the Appeal Panel decided that the Appellant's trucks were tow trucks. As we have decided that the Appellant's trucks are tow trucks within the meaning of the TTI Act, this is sufficient on its own to support the giving of the Direction.
3. We have also decided that the proper respondent in the proceedings before the Tribunal below and in this appeal is the DCS Secretary rather than the Commissioner. Consequently, we will make an order to set aside the decision of the Tribunal below to amend the name of the Respondent in the proceedings before it to that of the Commissioner. A substitute order will be made to amend the name to that of the DCS Secretary. A corresponding order will also be made to amend the name of the Respondent to this appeal to that of the Secretary.
4. As we have decided that none of the Appellant's appeal grounds have been successful, it follows that the appeal must otherwise be dismissed.

(1) Order 1 of the orders made by the Tribunal on 12 September 2023 in proceedings 2023/00268422 is set aside and, in substitution, order that the name of the Respondent is amended to "Secretary, Department of Customer Service".

(2) The name of the Respondent in this appeal is amended to "Secretary, Department of Customer Service".

(3) The appeal is otherwise dismissed.

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.