Commissioner for Railways (NSW) v Quinn [1946] HCA 12

Commissioner for Railways (NSW) v Quinn [1946] HCA 12 - HCA 1946 case summary — Zoe

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any power, duty, or authority of the Commissioners under this or any other Act." Section 65 provides that such by-laws shall (i) if approved by the Governor be published in the Gazette; (ii) take effect from three clear days after the date of publication or fro a later date to be specified in such by-laws ; and (iii) be laid before both Houses of Parliament as therein mentioned, and if either House passes a resolution within fifteen sitting days disallowing am by-law or part thereof, such by-law or part thereof shall therefror cease to have effect. Section 66 requires the substance of the by-laws and a list of tolls, fares and charges to be painted upon or printed and affixed to boards and such boards to be exhibited on stations . . . or other places where such tolls, fares or charges, or any of them, are payable so as to give public notice there: Section 67 (1) provides that such exhibiting shall be deemed to have | been complied with if it is proved that, at the time of any allege breach, a board was exhibited at the station &c. nearest to the place _ where such breach took place. Section 67 (2) provides that the pr duction of the Gazette containing such by-law shall be evidence that such by-law has been duly made and confirmed and that it is still in force. The Government Railways (Amendment) Act 1943 (N.S.W.) provides that a by-law made in relation to any of the matters - referred to in s. 64 of the Act may adopt and incorporate by refer- _ ence a handbook issued by the Commissioner setting out in detail the particular matters which were regulated, prescribed, fixed or otherwise dealt with by such by-law. By-law No. 1,002, which was approved by the Governor in Council on 22nd December 1943 and was published in the Gazette two days later, is headed " Merchandise and Live Stock Rates &c." and provides that : - " From the first day of January 1944, the several Rates and Charges for the carriage of Merchandise and Live Stock by Goods and Mixed Trains over the . . railways and the Classification, Conditions and Regulations _ sinter which such Goods and Live Stock will be conveyed will be those set out in detail in the handbook issued by the Commissioner z entitled 'Merchandise and Live Stock Rates. To take effect from Ist January 1944,' and from the said day all previous - By-laws, Charges, Classifications, Conditions and Regulations cot flicting therewith are hereby repealed." One of the conditions referred to in the by-law is Condition No. 27, which is included in - the "General Conditions for the Carriage of Merchandise" and - reads : - '' Claims. Claims for detention or loss of, or damage to : Goods and Parcels Traffic, Live-stock, Passengers' Luggage tendered - for conveyance by rail, will not be allowed unless lodged in writing with the Commissioner within fourteen days after the date when

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Jordan C.J. and it may be that in the primitive form of the regula- _ tion some such consequence as is contended for did ensue from it. But now we have this explicit provision by s. 65 requiring publica- tion in the Gazette and stating that by-laws shall take effect three clear days after the date of publication, or from a later date if specified

insuch by-laws. We also have s. 136, which says that a penalty shall not be recoverable for an offence imposed by the Act or by-laws unless short particulars are published and painted on a board or printed upon paper posted upon a board and such board is hung up or affixed in some conspicuous part of the principal place of business of the Commissioner. There is also the amendment of ss. 64 and 65 by the Act No. 43 of 1943 allowing the incorporation of a handbook or pamphlet by mere reference in a by-law and dispensing with the publication of the handbook or publication in the Gazette. The legis- lation does not contain any express provision requiring proof that the by-law has been displayed at railways &c. and on the whole I do not think that such display is a condition precedent to its operation or continued operation. (4) Next it is said that the clause is void for uncertainty. Substantially this is based on the difficulty of saying when delivery should have been given of goods in fact lost. No doubt the words do set a problem, but I agree in the conclusion of Jordan C.J. : - " It might in a particular case be difficult for the consignor or the consignee to ascertain this date in time to admit of a claim being made within the 14 days, but whatever effect this may have upon the reasonableness of the condition it has none upon its clarity." (5) The plaintiff endeavoured to escape from the operation of the clause by limiting its construction. It was sought to impose upon the clause a limitation of its meaning which would exclude from its operation any case where the loss or damage is attributable to the negligence of the Commissioner or his servants. The principle upon which this contention rests is expressed by Atkin L.J., as he then was, in Rutter v. Palmer (1) : - ' There is a class of contracts in which words purporting in general terms to exempt a party from ' any loss' or to provide that ' any loss' shall be borne by the other party, have been held insufficient to exempt from liability for negligence. Those are contracts of carriage by sea or land. The liability of the carrier is not confined to his acts of negligence or those of his servants ; it extends beyond liability for negligence ; therefore, when a clause in the contract exempts the carrier from any loss, it may have a reasonable meaning even though

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H.C. or A. the exemption falls short of conferring immunity for acts of negli- ees gence. That is the reason at the root of the shipping cases. The Comns- same reason does not so often apply to the railway cases because, veel Ars, when acting as carriers, railways generally come under special . legislation. But where in the circumstances a railway company is exposed to one kind of liability only, and that is a liability for negli- gence, there if the parties agree that the risk of loss or damage is to be borne by the passenger or the owner of goods they must intend to exempt the company from liability in the only event which i likely to expose them to liability; that is the negligence of their servants." I think, however, the principle is not applicable to a clause in its present form having for its object not the demarcation of liability but the imposition of a time bar and a requirement of notice. (6) Finally the plaintiff contends that the clause is not just and reasonable and therefore does not come within the exception or proviso contained in par. (a) of s. 9 of the Common Carriers Act 1902. If it does not qualify under the proviso as just and reason- able, then the main provision stands and leaves the Commission "liable for the loss of . . . goods or things in the receiv forwarding or delivering thereof occasioned by the neglect or default of such carrier or his servants." Upon this matter, Jordan C.J. found it unnecessary to express an opinion, although some of his' observations appear to tell against the justness or reasonableness of the clause. There is a long and confused line of authority dealing - with analogous clauses. Mr. Leslie, in his book on the Law of Transport by Railway, 2nd ed. (1928), at pp. 170, 171, distinguishes - between the provision for notifying damage after delivering the chattel and the provision for notifying loss where there has been 20 delivery. The former case he regards as outside s. 9 - a view that has not been universally accepted. But, however that may be, his. book contains a useful and succinct statement of the effect of the cases in a passage which concludes with some observations apposite to the present controversy : - ''* With regard to conditions which limit the time within which claims may be made after delivery, the authorities are in a most confused state. Such a condition was" held to be reasonable in the absence of an alternative in several cases - (e.g. Lewis v. Great Western Railway Co. (1); Simons vy. Great Western Railway Co. (2)). These decisions were prior to that of the House of Lords in Peek v. North Staffordshire Railway Co. (3), and the latter decision invalidates most of the grounds on which |

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law." This seems to me to bring the matter to the point wheth the Commissioner has offered a reasonable alternative. Now, the present case, the consignment was at the Commissioner's ris so that we are dealing with the alternative " owner's risk rates, In most of the cases, including Wade's Case (1), where the questi might have been but was not raised, the clause in question form: part of an owner's risk contract. To my mind the unreasonable of the clause before us is illustrated by the facts of the case. A lad consigning her luggage from the country loses it altogether. Sh has paid the higher rate in order to get the maximum protection. She knows nothing about the clause which is hidden away in pamphlet. She makes prompt application and complaint, a1 the matter out with stationmaster and porter and presses her cla Then she finds it is refused because her expostulations have bi oral and not in writing. These facts are hard enough, but in case she did know the date when the goods arrived and o to have been delivered. But in many cases it would be q impossible for the consignee to predicate when goods ought ¢ arrive. Even if the consignee were notified by the consignor o their despatch, floods, drought, fires, strikes, the over-burdening 0 transport, troop-carrying and all "the moving accidents by flood and field" would leave him with no idea if and when his fourteen - days would begin to run. The clause contains no symptom of any intention to give notice on the part of the railway authorities of the arrival or non-arrival of the goods. In these circumstances, I am not convinced that the clause is just and reasonable. The Commis- sioner, however, tried to save the clause on the particular facts of - the case by a claim that he had ceased to hold the articles as a common carrier when the son left with the first carload of articles. At moment, says the Commissioner, his custody of the three suit ca left behind ceased to be that of a carrier and was converted into common bailment of safe keeping. As an ordinary bailee, he woul not be governed by the Common Carriers Act and could make what contract he liked. I cannot agree with this view of the facts. The Commissioner was under an obligation to deliver the goods to the consignee who, in her turn, was obliged to take possession of them - in a reasonable manner. There was nothing unreasonable in taking - delivery piecemeal and making two calls for them. % For these reasons, I am of opinion that the appeal should be - dismissed and the order of the Supreme Court varied by entering judgment for the plaintiff in lieu of ordering a new trial.

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or matters of administration (cf. Perth General Station Committee vy. Ross (2) ). The matter is not of vital importance in the present case, for the by-laws, regulations and conditions published by the Commis- sioner in his handbook are incorporated in the consignment note a8 contractual stipulations. But the by-laws, regulations and conditions, whether binding as Jaw or as contractual stipulations upon which the Commissioner relies, must be lawfully made or imposed. The provisions must be repugnant to any Act of Parliament, whether the Government Railways Act, the Common Carriers Act or other Act. A condition wholly exempting the Commissioner from liability for neglect or default would be repugnant to the provisions of the Government Railways Act, s. 33, and the Common Carriers Act 1902 and therefore bad (Peek v. North Staffordshire Railway Co. (3); Weir v. Victorian Railways Commissioners (4)). A condition that was not just and reasonable would be repugnant to the Common Carriers Act and how fore bad. But the Government Railways Act confers wide powers for regula ing the carriage of goods upon the railways. The duties imposed upon the Commissioner as a "common carrier " are subject to his power to make by-laws and contracts. The power to prescribe any matter or thing not inconsistent with the Act necessary or con- venient to be prescribed to give effect to the power, duty or authority of the Commissioner under the Government Railways Act or any other Act does not authorize a condition exempting him from all liability _ for neglect or default but this and other powers which I have referred to, do, I think, authorize just and reasonable conditions, limiting, but not excluding, his liability (cf. Sutcliffe v. Great Western Railway Co. (5) ). There is no fixed criterion of what is just and reasonable: the extent and nature of the condition must be considered and all the surrounding circumstances. It is not intrinsically unjust nor unreasonable that claims for loss or damage to goods carried by the Commissioner should not be allowed unless lodged in writing - within a fixed period of time. Such a condition enables the Commis- sioner to investigate the claims before evidence is lost or records are mislaid or the claims are stale (see and cf. Simons v. Great Western

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does not guarantee arrival of goods at any particular time and does _ not undertake to advise consignees of the arrival of their goods or _ consignors that delivery had not been taken. _ The consignment note itself may fix the day of delivery and, if _ not, the Commissioner must deliver within a reasonable time having regard to the means at his disposal for forwarding goods (Hales v. London & North Western Railway Co. (6)). Prima facie a con- signee knows the accustomed route and the time ordinarily required _ in forwarding goods on that route. But the special terms of the Commissioner's contract in this case that he does not guarantee under any circumstances the arrival or delivery of any goods at any _ particular time or for any particular market and that he does not _ undertake to advise consignees of the arrival of goods appears to me an unjust and unreasonable stipulation. It may be that a condition exonerating the Commissioner from the consequence of a loss of _ market would not be unreasonable (White v. Great Western Railway
Co. (7); Beal v. South Devon Railway Co. (8) ; Lord v. Midland Rail- way Co. (9)). But to exclude an implied liability to deliver goods carried by the Commissioner within a reasonable time is unjust and unreasonable (cf. Hughes v. Great Western Railway Co. (10) ) and so, I think, is the stipulation that the Commissioner does not undertake to advise consignees of the arrival of goods (cf. Bourne v. Gatliffe (11) ). These stipulations react upon the clause requiring claims to be lodged in writing within fourteen days after the date when delivery was given or should have been given. And the onus is upon the Com- missioner to show that the stipulations of the consignment note are just and reasonable (Peek v. North Staffordshire Railway Co. (12)); _ not, I suppose, in the abstract but in relation to the particular con- __ tract of carriage or consignment which has been made. It is true in _ this case that the consignee might have given notice of claim within

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The purpose of s. 65 is, to my mind, to define with particularity period of time (namely three days after its publication in the when a by-law comes into force, and the period of time (namely wl it is disallowed by either House) when it ceases to have eff Section 66 requires the substance of by-laws and a list of tolls, fa and charges to be painted upon or be printed and affixed to boa and such boards to be exhibited on stations, piers, jetties, wha or other places where such tolls, fares or charges or any of them payable, so as to give public notice thereof ; and s. 67 (1) pro that such exhibiting shall be deemed to have been complied with is proved that, at the time of any alleged breach, a board exhibited at the station &c. nearest to the place where such bre: took place. Part X. of the Act creates certain offences for wh penalties are recoverable. Section 136, which is contained in Part, provides that the appellant shall publish short particulars of the several offences for which any penalty is imposed by the Act o1 any by-law affecting other persons than officers, and of the amount of every such penalty, and shall cause the board containing such particulars to be placed in some conspicuous part of the principal place of business of the appellant, and where any such penalties of local application, in the neighbourhood to which such penalties are applicable, and that no such penalty shall be recoverable the requirements of this section have been complied with. See 64 provides that the appellant may impose penalties not exceeding £20 for the breach of by-laws. The means prescribed by the Act for enforcing compliance with a by-law is therefore a prosecution and recovery of a penalty for its breach: Cf. Chilton v. London Croydon Railway Co. (1); London and Brighton Railway Co. V. Watson (2). The purpose of s. 66 and s. 67 (1), especially when 1 in conjunction with s. 136, is to require that the prescribed pul notice shall be given as a condition precedent to a prosecution. s. 64 confers a very wide by-law-making power, and such paragra] as (1), (la), (1b), (4), (12), (13), and (16) relate to matters other than conduct which could be enforced in this manner. The purpose of s. 66 is to ensure that the public shall be notified of the substance of all

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missioner failed to comply with its provisions. But the validity of by-laws, apart from their enforcement by way of penalty, would not be affected by such failure, so that the omission to exhibit Condition 27 in the manner provided by the section is not an objection to its validity. Section 33 of the Act provides that the appellant shall carry per- sons, animals and goods without negligence or delay, and that in respect of the carriage of persons, animals and goods he shall be a common carrier. At common law the duty of a common carrier of 'persons is to carry them without negligence, whereas a common carrier of goods is liable for all loss or damage to the goods, the act of God, the King's public enemies, and " inherent vice" alone excepted, so that he is liable for loss of the goods by theft, whether by strangers or by his own servants: Halsbury's Laws of England, 2nd ed., Vol. 4, pp. 12, 13; Gregory v. Commonwealth Railways Commissioner (1). 'The first part of s. 33 standing by itself would have imposed upon the Commissioner the same duty in respect of the carriage of persons and goods, that is to say, the duty to carry them without negligence or delay, but the reference to common carriers in the second part of the section would appear to subject the appellant as a carrier of goods to the common and statute law relating to such carriers. At common Jawa common carrier could by " contracts or notices" when "' brought home" protect himself from everything except wilful acts, such as _ the conversion of the goods by the carrier himself or by his agents for that purpose, or wilful misdelivery amounting to a renunciation of the character of bailee: See the authorities cited in Gregory's Case (2). Mr. Fuller contended that the making of Condition 27 as a by-law was authorized by par. (la) or, alternatively, by par. (35) of s. 64. Paragraph (la) provides that by-laws may be made for regulating the _ terms and conditions upon which goods will be collected or received or delivered, and for fixing charges for the collection and delivery thereof. _ But Condition 27 relates to claims for detention or loss of or damage to goods during the whole of the carriage, and is therefore wider than _ the authority conferred by this paragraph. Paragraph (35) authorizes the making of by-laws prescribing any matter or thing not incon- _ sistent with the Act which is necessary or convenient to be prescribed to give effect to any power, duty or authority of the Commissioner under the Act or any other Act. The relevant provisions of s. 33, ipart from the inclusion of animals, are the same in substance as _ the provisions of ss. 34 and 36 of the Commonwealth Railways Act 1917-1925, which were discussed in Gregory's Case (1). But there is (J) (1941) 66 C.L.R. 50. (2) (1941) 66 C.LR., at p. 74. Vou. EXXxI. 25

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Scottish Railway Co. (1) ). Condition 27 has been approved by the Governor as a by-law and _ published in the Gazette. It has also been made a condition of the contract signed by the respondent. It does not relieve the appellant _ from any neglect or default on his part or that of his servants. Its

effect is to limit the time within which claims may be made for the
detention or loss of or damage to goods howsoever caused. In deciding whether a by-law is valid it is necessary for the court to consider the ambit of the by-law-making power and then to consider whether the by-law is within that power. A by-law must be certain in the sense that it must contain adequate information as to the duties _ of those who are to obey it, and it must not be unreasonable in the sense that it must not involve such oppressive or gratuitous inter- _ ference with the rights of those who are subject to it as could find no _ justification in the minds of reasonable men (Brunswick Corporation ~_y. Stewart (2) ). Tt was contended on behalf of the respondent that Condition 27 _ was uncertain in the meaning of the words " within 14 days after _ delivery should have been given " and that this period was too short to be reasonable so that on either of these grounds the condition was beyond the by-law-making power conferred by s. 64 of the Government Railways Act. It was also contended that the condition 'was not just and reasonable within the meaning of s. 9 of the Common Carriers Act. It was also contended that the Supreme Court was tight in holding that the condition did not apply to claims arising out of negligence. There are several conditions in by-law 1,002 _ relating to the delivery of goods included in the General Conditions for the Carriage of Merchandise. Condition 6 provides that the Commissioner does not guarantee the arrival or delivery of goods at any particular time, by any particular train, or for any particular market ; neither does he undertake to advise consignees of the arrival of goods, or consignors that delivery has not been taken. Condition 10 fixes the hours for the receipt and delivery of goods. Condition 30 allows free storage for certain periods after goods are available for delivery at their destination, and then provides for storage charges. There is, in addition, the principle of the common. law that the liability of a common carrier continues until he has notified the consignee that the goods are ready for delivery, and the consignee, having delayed in taking delivery, has become in mora (Mitchell v. Lancashire and Yorkshire Railway Co. (3) ). There is no uncertainty in Condition 27 where the consignee takes delivery of the

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goods. He has fourteen days after that date to make a cla although he may have been notified that the goods were available for delivery at an earlier date and have delayed in taking delivery. I am of opinion that there is also no uncertainty in the meaning of the words " when delivery should have been given," and that they relate to a demand for delivery by the consignee and a failure deliver goods which should have been available for delivery had they not miscarried. I am also of opinion that such a period of fourteen days is not unreasonable. It is essential that the appellant should be notified _ of claims at an early date in order that he should have a proper opportunity of investigating them. This period should be ample to allow a consignee who takes delivery himself to inspect the goods and make a claim. Even if he takes delivery by an agent, it should still be sufficient to allow the agent to inspect the goods and communicate - with the consignee in time to enable him to make a claim. The question whether the condition is just and reasonable as a condition of the contract between the appellant and the respondent within the meaning of s. 9 of the Common Carriers Act must be determined by the court or judge alone and it is not a question proper to be left to a jury, even though questions of fact be necessarily involved in its determination. It must be looked at as a matter of business (Great Western Railway Co. v. McCarthy (1) ; Williams v. Midland Railway Co, (2); Sutcliffe v. Great Western Railway Co. (3) ). Similar but - somewhat more stringent conditions have been held to be reasonable in England (Lewis v. Great Western Railway Co. (4); O'Keefe Great Western Railway Co. (5); Wade & Co. Ltd. v. London & No Western Railway Co. (6) ). I can see no sufficient difference between what counsel for the respondent termed the topographical and social conditions existing in England and in New South Wales to nullify the application of these authorities to s.9. In my opinion, therefore, ~ Condition 27 as a by-law is certain and reasonable and as a condition - of the contract between the appellant and respondent is just and _ reasonable within the meaning of s. 9 of the Common Carriers Act. The sole remaining question is whether the condition applies to the detention or loss of or damage to goods due to negligence. The - respondent's goods were being carried at the risk of the appellant. - The condition does not expressly refer to negligence but, as Serutfon - L.J. pointed out in Rutter v. Palmer (7), (and cf. Beawmont-Thomas v. Blue Star Line Ltd. (8); Alderslade v. Hendon Laundry Ltd. (9)) -

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