Plaintiff v Defendant

1 In a proceeding in this Court Michelle Zealley, as plaintiff, claimed damages against Liquorland Australia Pty Ltd ('Liquorland') and the plaintiff in this proceeding, Linfox Australia Pty Ltd ('Linfox Australia'), as defendants for injuries she alleged she sustained in the course of her employment with Liquorland on 22 July 2008 ('the Zealley proceeding'). In the Zealley proceeding, as against Linfox Australia, Ms Zealley alleged that:

(a) on 22 July 2008, there was a delivery of drinks and bottles to a Liquorland store in Cranbourne West, at which she was engaged;

(b) during the course of that delivery, Ms Zealley was on the back of a truck ('the Linfox truck') assisting a servant or agent of Linfox Australia;

(c) whilst the delivery was being made, a cage filled with slabs of beer began to roll on the Linfox truck. Ms Zealley grabbed it to stop it falling off the truck ('the incident');

(d) in consequence Ms Zealley suffered injury, loss and damage; and

(e) the incident was caused by the negligence of Linfox Australia.

2 In a separate proceeding, Wesfarmers Limited made a claim against Linfox Australia seeking an order under s 138 of the Accident Compensation Act 1985 relating to the claim for statutory benefits under that Act which had been made by Ms Zealley, in respect of the injuries she alleged she sustained in the incident ('the recovery proceeding').

3 Ms Zealley's claim in the Zealley proceeding was compromised on certain terms as against both Liquorland and Linfox Australia. The contribution claim between Liquorland and Linfox Australia in the Zealley proceeding ('the contribution claim') and the recovery proceeding were heard and determined by J Forrest J.[1] In this proceeding, Linfox Australia claims entitlement to a statutory indemnity from the defendant pursuant to s 94(1) of the Transport Accident Act 1986 ('the TA Act') in respect of amounts it was ordered to pay in the two proceedings. The quantum of the plaintiff's claim has been agreed by the parties at $1,446,724, together with statutory interest.

4 The parties identify as the single question to be resolved in this proceeding whether Linfox Australia has established that it was the 'owner' of the Linfox truck within the meaning of s 94(1)(a) of the TA Act on 22 July 2008, when Ms Zealley suffered injury arising out of the use of the truck.

5 It is agreed that Linfox Australia and Linfox Asset Management Pty Ltd ('Linfox Asset Management') were at relevant times part of a related group of companies conducting a logistics and supply chain business ('the Linfox Group'). The following further facts are agreed, or are established by documents tendered in this proceeding:

(a) a tax invoice dated 24 January 2005 was issued for the Linfox truck by Daimler Chrysler to Linfox Asset Management;

(b) on about 8 February 2005, payment for the Linfox truck was made by Linfox Australia to Daimler Chrysler;

(c) on 15 July 2008 the Linfox truck was registered by the Roads Corporation as a motor vehicle in the State of Victoria for a 12-month period that expired on 15 July 2009;

(d) the Linfox truck was registered in the name of Linfox Asset Management;

(e) payment of the registration fee of $1,600 received by the Roads Corporation on 15 July 2008 was made by Linfox Australia. That payment included the transport accident charge required to be paid by the owner of the motor vehicle in accordance with s 109(1) of the TA Act;

(f) a certificate as to whether a vehicle is registered, issued by the Roads Corporation and dated 18 October 2012, establishes that the Linfox truck was last registered in the name of Linfox Asset Management, with registration expiring when the plates were returned and registration cancelled on 10 January 2011;

(g) at all times from and including 15 July 2008, Linfox Australia paid motor fleet insurance for the Linfox truck;

(h) the Linfox truck did not at any time sit as an asset on the balance sheet of Linfox Australia, and was never depreciated to the account of Linfox Australia; and

(i) at all relevant times Linfox Australia paid maintenance costs for the Linfox truck.

6 The defendant tendered various insurance and finance documents relevant to the period from around May 2006 through to 2009, which it was submitted related to motor vehicle insurance for the Linfox Group over that period. The defendant relies on the insurance documents to establish that the Linfox Group involved not just the plaintiff and Linfox Asset Management but also Linfox Pty Ltd and Fox Group Holdings Pty Ltd; that the arrangements between these companies included obtaining and funding insurance of motor vehicles as a group; and that the nature of the interrelationships between the Linfox Group companies in respect of ownership of assets and payment of accounts was unexplained by any evidence led in this proceeding.

7 The defendant tendered a letter from the plaintiff's then solicitors HWL Ebsworth dated 19 August 2014, which included the following:

First, you have asked for a copy of financial statements evidencing which entity has the vehicle listed as an asset.

Linfox Asset Management Pty Ltd lists the vehicle as an asset.

This is of course as would be expected, as it is the registered owner of the vehicle.

Second you have also asked for a copy of financial statements evidencing which entity is claiming the depreciation cost of the vehicle.

Linfox Asset Management Pty Ltd expenses depreciation in respect of the vehicle.

Of course, there is no controversy at all that Linfox Asset Management Pty Ltd is the registered owner of the vehicle, and as identified above, this is recorded in the company's books.

I accept the submission of counsel for the defendant that the contents of the letter establish that the Linfox truck was listed in the accounts of Linfox Asset Management as an asset and that Linfox Asset Management claimed as an expense depreciation on the Linfox truck.

The Commission is liable to indemnify -

(a) the owner or driver of a registered motor vehicle in respect of any liability in respect of an injury or death of a person caused by or arising out of the use of the motor vehicle in Victoria or in another State or in a Territory;

9 The indemnity provided by s 94(1) is qualified in s 94(2) as follows:

Subsection (1) does not apply -

(a) in respect of any period in respect of which the transport accident charge applicable to the motor vehicle for that period has not been paid; or

(aa) in respect of the period commencing when the transport accident charge applicable to the motor vehicle was due to be paid and ending when that transport accident charge was paid;

10 The requirement to pay the transport accident charge is dealt with in s 109(1), which provides:

The owner of a registered motor vehicle must in respect of each prescribed period pay to the Commission the transport accident charge applicable to that motor vehicle for that period.

11 The definition of owner contained in s 3 of the TA Act is:

owner -

...

(b) in relation to a motor vehicle, has the same meaning as in section 3(1) of the Road Safety Act 1986;

The definition of owner in s 3(1) of the Road Safety Act 1986 ('RSA') is as follows:

owner, in relation to a motor vehicle or trailer, includes a part owner and also -

(a) includes a person who has the possession and use of it under or subject to a hire-purchase agreement or a bill of sale or like instrument or under or subject to a written hiring agreement (not being a hire-purchase agreement) which requires that person to register the motor vehicle or trailer in that person's name; but

(b) does not include a person in whom the property in the motor vehicle or trailer or any absolute or conditional right or licence to take possession of the motor vehicle or trailer is vested under or subject to a hire-purchase agreement or a bill of sale or like instrument or written hiring agreement which requires another person to register the motor vehicle or trailer in the name of that other person but who has not for the time being the possession and use of the motor vehicle or trailer...

12 The indemnity in s 94(1)(a) of the TA Act is provided in respect of injury or death caused by or arising out of the use of a registered motor vehicle. The plaintiff contends that 'owner' as it appears in s 94(1)(a) does not mean 'registered owner'. The defendant agrees.

13 In support of an allegation that Linfox Australia was the 'owner' of the Linfox truck at the time of Ms Zealley's injury, counsel for the plaintiff advanced two arguments. First, that the scheme of s 94(1) and (2) and s 109 of the TA Act, involving as they do the provision of statutory indemnity consequent upon the payment of the transport accident charge, means that these sections of the TA Act really deal with the provision of an indemnity which is akin to insurance. This leads to the conclusion that the controversy in this case should be framed as an insurance question - that is, whether or not an entity receives the benefit of the statutory cover. Linfox Australia paid the transport accident charge. The quid pro quo for payment of the charge is the benefit of the statutory indemnity ('the insurance construction').

14 The insurance construction was advanced in this fashion:

(a) Section 94(1)(a) provides a statutory indemnity which is akin to the indemnity provided by private insurance.

(b) As with private insurance, there is a statutory link between the provision of the indemnity and the payment of the transport accident charge. That link commences with s 94(2) of the TA Act, which in effect makes provision of the indemnity conditional upon payment of the transport accident charge for the relevant period.

(c) The link is completed by s 109(1) of the TA Act, which provides that the owner of a registered motor vehicle must pay the transport accident charge applicable to the motor vehicle.

(d) Linfox Australia paid the transport accident charge in respect of the Linfox truck for the period in which Ms Zealley alleged she suffered injury.

(e) The quid pro quo for payment of the charge in accordance with s 109(1) was provision of the indemnity in accordance with s 94.

(f) Focusing, as the defendant does, on property law conceptions of ownership causes tension with the insurance characteristics of s 94 and would disjoin payment of the charge from the benefit of the indemnity.

15 Second, relying on historical context, counsel for the plaintiff argued that 'owner' as it appears in s 94(1)(a) includes the person in control of the use of a motor vehicle. That is because the indemnity provided by s 94(1)(a) was intended to respond to the circumstances in which a person in control of a motor vehicle is liable for injury, loss and damage suffered by a third person arising out of the use of the motor vehicle. The indemnity thus provided benefits both the injured third person and the person in control of the motor vehicle ('the control argument').

16 The control argument was really only advanced by counsel for the plaintiff in oral submissions. The argument was developed as follows:

(a) Linfox Australia assumed responsibility for the cost of insurance and maintenance of the Linfox truck, and the registration fee which incorporated the transport accident charge. This amounted to an assumption of responsibility for operating expenses.

(b) At the relevant time - that is, on 22 July 2008 - Linfox Australia had control of the Linfox truck. Counsel for the plaintiff relied on findings in the judgment of J Forrest J in Zealley v Liquorland as the evidence establishing control.[2]

(c) The statutory indemnity was enacted to respond to the doctrine defining circumstances in which a person might be found to be liable for injury or death caused by or arising out of the use of a motor vehicle. By doing so, the indemnity confers a benefit on both the indemnified party and on the injured person who will, by reason of the indemnity, be able to recover damages for the injury sustained.

(d) As is made plain in a series of cases commencing with Soblusky v Egan,[3] and concluding for the purposes of this argument with Lloyd v Borg,[4] liability caused by or arising from the use of a motor vehicle is broader than narrow property law conceptions of ownership and extends to a person in control of the motor vehicle.

(e) Given the historical context, the conception of 'owner' in s 94(1)(a) extends to Linfox Australia as the person in control at the relevant time of the Linfox truck.

17 Counsel for the defendant took a more conventional approach to the task of construction of s 94(1)(a) of the TA Act and the word 'owner' as it appears in that section. Unsurprisingly, counsel first argued that 'owner' was to be given its ordinary and natural meaning,[5] which was, as explained in Raymond Lyons & Co Ltd v Metropolitan Police Commissioner,[6] as follows:

The popular meaning of "owner" is a person who is entitled to the goods in question, a person whose goods they are, not simply the person who happens to have them in his hands at any given moment. I have little doubt that in section 1 "owner" is to be given that ordinary popular meaning ...

As to the distinction between 'possession' and 'ownership', counsel for the defendant relied on the following statement of Jordan CJ in Gatward v Alley:[7]

A good title to property, in the sense of such ownership as the law allows, consists in having the legal right to exercise with respect to it all such rights, as against all such persons, as by law are capable of being exercised with respect to property of the class in question. A person who has possession of property but not ownership has, as a general rule, the same legal rights as the owner, save to the extent to which those rights are qualified as against the owner.

18 Second, counsel for the defendant relied on the context of the TA Act as a whole which, it was argued, supported the construction of applying the ordinary meaning to the word 'owner'. Third, it was argued this meaning of 'owner' was also supported by legislative history and purpose. Fourth, the insurance construction advanced by Linfox in written submissions offended textual and contextual statutory construction principles, was contrary to the purpose of the provision, impermissibly required that words be read into the provision and gave rise to an unreasonable, irrational and capricious result.

19 Finally, in relation to the control argument advanced by counsel for the plaintiff in oral submissions, it was argued that this new case was inconsistent with the plaintiff's pleadings, would open up a whole new area of enquiry, and in consequence should not now be allowed to run; that findings of fact on the contribution claims in Zealley v Liquorland could not, by reason of s 91 of the Evidence Act, be relied on as evidence in this proceeding and as a result there was no or insufficient evidence of control for the plaintiff to make out the factual aspect of this case; that the argument made for the plaintiff is not in fact supported by the decision in Lloyd;[8] and that even if some degree of control of the Linfox truck were established, that would not make Linfox Australia the 'owner' or an 'owner' for the purposes of s 94(1)(a).

20 First I will deal with the insurance construction case advanced by the plaintiff. At a factual level, this argument depends only on payment of the transport accident charge by Linfox Australia. That fact is admitted by the defendant.

21 For a number of reasons I consider the insurance construction is strained and artificial and should be rejected. First, there was no attempt by counsel for the plaintiff to apply the usual principles of statutory construction when advancing this argument. In fact, the argument did not seem to proceed as an exercise in statutory construction at all. Rather, it was an attempt to treat the relationship between the payer of the transport accident charge and the defendant as equivalent to the contractual relationship between insured and insurer. In essence the argument ran as follows: because the plaintiff paid the transport accident charge (the 'insurance premium') it was (contractually) entitled (as the insured) to the provision of the indemnity by the defendant (for this purpose, the insurer). The argument is not advanced by reference to any particular meaning attributed to the word 'owner', or by any textual or contextual argument arising from s 94(1) or the TA Act as a whole. It was not explained, by reference to the meaning of 'owner' in s 94(1)(a), how it was that the plaintiff was the owner of the Linfox truck. In my view the insurance construction is inconsistent with the principles of statutory construction, and on that basis alone the argument fails.

22 Second, the construction would lead to an outcome which is unreasonable, irrational or capricious. I conclude, for reasons contained elsewhere in this judgment, that Linfox Asset Management is, applying the natural and ordinary meaning of the word, an 'owner' of the Linfox truck. The insurance construction would not seem to allow for the benefit of the indemnity to extend to an owner such as Linfox Asset Management in circumstances in which the transport accident charge has, for whatever reason, been paid by another entity, in this case Linfox Australia (or if it did, it was not explained how). Why an owner of a motor vehicle should not receive the benefit of the indemnity provided by s 94(1)(a) was unclear. Payment of the transport accident charge might be made by a person by or on behalf of an owner, yet on the insurance construction it is the payer, not the owner, who receives the benefit of the indemnity. If different persons paid the charge for different periods this would result in there being different 'owners' receiving the benefit of the indemnity for the purposes of s 94(1)(a), even though the proprietary ownership of the vehicle did not change. In my view, the insurance construction would lead to outcomes which are unreasonable, irrational and capricious, and should for that reason be rejected.

23 Third, the insurance construction requires that words be read into s 94(1)(a) in order that 'owner' can be understood to mean 'payer of the transport accident charge'. There is no need for words to be read into s 94(1)(a) in order for that provision to make sense. I agree with the submission of counsel for the defendant that there is no justification for doing so.

24 To establish control, counsel for the plaintiff rely on the following findings in the judgment Zealley v Liquorland:[9]

Ms Zealley, Mr Field and Mr Ord gave evidence as the circumstances of the accident and its aftermath. An incident report prepared by Mr Ord and Mr Field a few hours after the accident and an investigation into the accident completed by Ms Polak were also tendered.

In the early morning of 22 July 2008, David Loran, an employee of Linfox, conveyed a delivery in a Linfox covered tray truck to Casey Central from the Somerton Distribution Centre. The truck, which contained approximately 18 roll cages stacked with liquor cartons, arrived at Casey Central at about 8.00am. It was conceded by Linfox that Mr Loran was:

• inexperienced and incompetent;
• did not know how to operate the device which lowered the tailgate off the truck;
• was not prepared to use the EPJ to effect the removal of the roll cages from the truck; and

• was of no real use in relation to the unloading of the truck.

It was also accepted that the truck driven by Mr Loran containing the roll cages did not have a lip on the tailgate which would prevent a roll cage from moving off the tailgate.

In addition the following was not in issue:

• The unloading process was underway when Ms Zealley was injured.
• Ms Zealley was on the truck with the purpose of assisting Mr Loran.
• Ms Zealley suffered her injury when she was handling a roll cage whilst on the rear of the truck.
• Mr Ord was present at the store that morning.
• No instruction was given by either Mr Ord or Mr Field (her two superiors) that she was not to assist in the unloading of the truck.

Counsel for the defendant, relying on s 91 of the Evidence Act 2008, argued that the factual findings in Zealley v Liquorland are not admissible as evidence of those facts. Section 91 provides:

Exclusion of evidence of judgments and convictions

(1) Evidence of the decision, or of a finding of fact, in an Australian or overseas proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding.

(2) Evidence that, under this Part, is not admissible to prove the existence of a fact may not be used to prove that fact even if it is relevant for another purpose.

25 In my view, the effect of s 91 of the Evidence Act is as contended by counsel for the defendant. The plaintiff cannot rely on findings of fact which were in issue in Zealley v Liquorland as evidence of those facts in this proceeding.[10]

26 There is no other evidence which establishes control of the Linfox truck by Linfox Australia. Counsel for the plaintiff did not rely on payment by Linfox Australia of the purchase price, registration fee including the transport accident charge, insurance premium or maintenance costs as evidence of control of the Linfox truck by Linfox Australia. In any event, that evidence does nothing to establish control.

27 If I am wrong and, despite s 91 of the Evidence Act, the findings of fact in Zealley v Liquorland are evidence in this proceeding, I conclude that those findings relevantly establish the following:

(a) on 22 July 2008 the Linfox truck was used by an employee of Linfox Australia for the purposes of a delivery of goods by Linfox Australia to Liquorland;

(b) the Linfox truck contained roll cages of goods to be delivered to Liquorland;

(c) the tailgate of the Linfox truck did not have a lip to prevent a roll cage moving off the tailgate; and

(d) Ms Zealley was on the Linfox truck assisting with the unloading of goods and suffered injury when she was handling a roll cage while near the rear of the truck.

28 All that is established by that evidence in relation to control is that on 22 July 2008 the Linfox truck was being used by Linfox Australia for the purposes of the delivery of goods to Liquorland. In other words, there is very limited evidence of control upon which to base an argument that Linfox Australia, as the person in control on 22 July 2008, was the owner for the purposes of s 94(1)(a).

29 For the following reasons I conclude that the control argument advanced by counsel for the plaintiff fails. First, the findings of fact in Zealley v Liquorland cannot be used as evidence of those facts in this proceeding. Therefore there is no evidence of control of the Linfox truck by Linfox Australia, and the plaintiff fails at this evidentiary level. Second, if I am wrong on this point, the degree of control established by the Zealley v Liquorland findings could not on any view justify a conclusion that Linfox Australia had such control of the Linfox truck as to bring it within the meaning of 'owner' as it appears in s 94(1)(a) of the TA Act. The degree of control established by the Zealley v Liquorland finding is control which might change between entities from day to day. To treat a person with control of a motor vehicle for one day as an 'owner' of the vehicle is in my view an unreasonable, irrational and capricious approach to take to the construction of s 94(1)(a).

30 Third, the argument is advanced without reference to or reliance upon the usual principles of statutory construction. As with the insurance construction, the argument was not advanced on the basis of the ordinary and natural meaning of 'owner', or by any textual or contextual argument arising from s 94(1) or the TA Act as a whole. Fourth, the argument is advanced on the premise of a legislative intent to respond to every circumstance in which liability might attach to a person who had control of a motor vehicle at a point in time at which injury was sustained by a third person arising out of the use of the motor vehicle. Cases such as Soblusky[11] and Lloyd[12] establish that the person in control of a motor vehicle in the sense of having 'full legal authority to direct what is done with it',[13] may be liable for injury sustained by a third person arising out of the use of the motor vehicle. If it was truly the legislative intent to respond to that broader potential liability, one would have expected to see in s 94(1)(a) a very differently defined class of persons who were to receive the benefit of the indemnity from the defendant. Counsel for the plaintiff did not direct me to any extraneous or historical material, such as previous Acts in the legislative history or parliamentary debates, which establish that the object to which s 94 was directed was the provision of indemnity to a person who had control of a motor vehicle at a time when injury to a third person arose from the use of the motor vehicle. The apparent legislative purpose of the insurance and indemnity provisions in the current Act, and of the first Act in the legislative history, the Motor Car (Third-Party Insurance) Act 1939,[14] was to respond to the potential liability of owners and drivers of motor vehicles for injuries caused by or arising out of the use of a motor vehicle, and not to the potential liability for such injury of persons otherwise in control of a motor vehicle at a point in time.

31 Counsel for the defendant submit that the control argument is not the case pleaded against the defendant, and is not the case the defendant came to court to meet. It is submitted that the plaintiff should not be permitted to run the control case because to do so would open up a whole new area of enquiry.

32 The material facts said to establish control of the Linfox truck by the plaintiff should have been pleaded if the control case was to be advanced. This was not done. The control case was not articulated in written submissions filed for the plaintiff. The defendant had no opportunity to test what evidence there was supporting the case, or to lead relevant evidence itself. I have determined that the control case has little merit. In my view the overarching purpose of the Civil Procedure Act 2010 is not advanced by allowing the plaintiff to pursue the control case at the trial of the proceeding.[15] Whilst I have rejected the control case on its merits, I also conclude that the plaintiff is not entitled to run that case at trial.

33 The plaintiff bears the onus of establishing that it was at the relevant time the owner of the Linfox truck for the purposes of s 94(1)(a). I have found against the plaintiff on the two arguments advanced for it. On that basis the plaintiff's case fails. For completeness, I will consider the arguments advanced by counsel for the defendant that Linfox Asset Management was at all relevant times an owner of the Linfox truck, and as to the proper construction of s 94(1)(a).

34 Counsel for the defendant submitted, relevant to the construction of owner which they advance, that:

(a) The evidence supports the conclusion that Linfox Asset Management was at all relevant times, including 22 July 2008, an owner of the Linfox truck.

(b) There was no evidence led on which it could be concluded that Linfox Australia was, at the relevant times, an owner of the truck. Evidence of payment of the purchase price, registration fee including transport accident charge, insurance premiums and maintenance costs is neutral.

(c) If it were concluded that some or all of the payments were evidence which bore upon the issue of ownership, little weight should be attached to that evidence. The basis upon which the payments were made by Linfox Australia was unexplained. The plaintiff had in its power the production of evidence explaining the basis on which the payments were made by it, and evidence explaining the interrelationships between companies in the Linfox Group. The plaintiff chose not to lead such evidence. In the circumstances, an inference should be drawn that the production of the evidence would not assist the plaintiff's case, and further, that evidence that Linfox Asset Management was an owner of the Linfox truck should be given greater weight.[16]

(d) The pleaded case of the plaintiff in relation to ownership is as follows:

For the purposes of s 94(1) of the TA Act, at all relevant times, including at the time of the subject incident, Linfox Australia has been the owner of the Linfox truck.

Counsel for the defendant argued this pleading should be understood as an allegation that Linfox Australia was at all relevant times the sole owner of the truck. Accordingly, proof that Linfox Asset Management was at relevant times an owner of the Linfox truck must result in the plaintiff's case failing.

35 The evidence on which the defendant relies to establish ownership of the Linfox truck by Linfox Asset Management is:

(a) the tax invoice dated 24 January 2005 evidencing sale of the Linfox truck by Daimler Chrysler to Linfox Asset Management;

(b) the Linfox truck was registered in the name of Linfox Asset Management. There is an inference, particularly by reason of ss 5 and 7 of the Road Safety Act, that by registering the vehicle in its name Linfox Asset Management is the company responsible for the Linfox truck. One of the incidents of ownership is the ability to control, and being the person responsible points to control. In this way registration adds to the weight of other evidence in relation to ownership;

(c) the Linfox truck appeared as an asset in the accounts of Linfox Asset Management, and that company claimed as an expense depreciation in respect of the vehicle. Counsel for the defendant relied on those two facts as further circumstantial evidence supporting a finding that Linfox Asset Management was at all relevant times an owner of the Linfox truck. This argument was said to be strengthened by s 135(1) of the Corporations Act 2001, which provides:

A book kept by a body corporate under a requirement of this Act is admissible in evidence in any proceeding and is prima facie evidence of any matter stated or recorded in the book.

The evidence by admission in the letter from HWL Ebsworth, referred to at [7] above, was secondary evidence of the content of the relevant book of account. The provisions in the Corporations Act added weight to the circumstantial evidence of ownership.

I accept the submission of counsel for the defendant that the three pieces of evidence, taken together, lead to the conclusion that Linfox Asset Management was at relevant times a proprietary owner of the Linfox truck. This factual aspect of the case put by the defendant was not subject to serious challenge by the plaintiff.

36 I accept the argument of counsel for the defendant that evidence of payment by Linfox Australia of the purchase price, insurance fees, registration fee and maintenance costs is neutral in relation to the question of ownership. This is because the basis upon which those payments were made must depend upon the relationship between companies in the Linfox Group, in particular Linfox Australia and Linfox Asset Management. In the absence of evidence explaining those relationships and the basis upon which the payments were made, the fact of the payments does not lead to the conclusion that Linfox Australia was at any relevant time an owner of the Linfox truck. The evidence does not establish that Linfox Australia was at relevant times a proprietary owner of the Linfox truck.

37 It is not necessary for me to express a view as to the limits of the application of s 94(1)(a), or as to the meaning of 'owner' as it appears in that section. However, I do conclude, for a number of reasons, that 'owner' as it appears in s 94(1)(a) includes a proprietary owner of a motor vehicle such as Linfox Asset Management. First, as a principle of statutory construction the word' owner' as it appears in s 94(1)(a) of the TA Act and in s 3(1) of the RSA should be given its ordinary and natural meaning. That ordinary and natural meaning of 'owner' includes a proprietary owner such as Linfox Asset Management.[17] Second, I accept the submission by counsel for the defendant that the context of the TA Act as a whole supports such a construction. For instance, I accept that the reference in s 41B(1) to 'owner of an uninsured motor vehicle' must be a reference to the proprietary concept of ownership, rather than to the payer of a transport accident charge, because in the case of an uninsured motor vehicle that charge has not been paid for at least 12 months. Further, there is consistent use made of 'owner' where it appears in Part 5 of the TA Act in relation to trailers, and in Part 6 of the Act in relation to railway trains or trams. There is the distinction that 'owner' in relation to a motor vehicle has the specific definition given in s 3(1) of the RSA. However, the point remains that wherever it appears in the TA Act, 'owner' includes the concept of proprietary ownership.

38 Third, the context provided by the legislative history supports the conclusion. The relevant legislative history commences with the Motor Car (Third-Party Insurance) Act 1939 (Vic). The definition of 'owner' in s 3(1) of that Act reads:

"Owner" includes every person who is the owner or joint owner or part owner of a motor car and any person who has the use of any motor car under a hire purchase agreement but does not include an unpaid vendor of a motor car under a hire purchase agreement.

Pursuant to s 5(1), every owner was obliged to insure against liability in respect of death or bodily injury to any person arising out of the use of a motor car. Section 14 provided an entitlement to recover from the nominal defendant the amount of a judgment entered against the owner or driver of an uninsured motor car. There was a clear legislative intent that the potential liability of an owner of a motor car in respect of injury caused by or arising from the use of that motor car would be covered by insurance. That purpose carried through to the current legislation. The word 'owner', as used in the earlier Act, again appears to carry the ordinary and natural meaning.

39 The conclusion that Linfox Asset Management was an owner of the Linfox truck for the purposes of s 94(1)(a) of the TA Act is a further basis of rejecting the plaintiff's case that it was the owner of the Linfox truck at all relevant times.

40 I have concluded that the plaintiff was not the owner of the Linfox truck within the meaning of s 94(1)(a) of the TA Act on 22 July 2008. Accordingly, the plaintiff is not entitled to an indemnity from the defendant for amounts paid by the plaintiff as a consequence of injuries sustained by Ms Zealley on 22 July 2008 arising out of the use of the Linfox truck. The proceeding will be dismissed. I will hear from the parties as to appropriate orders, in particular as to costs.

[1] Zealley v Liquorland (Aust) Pty Ltd & Anor [2015] VSC 62 ('Zealley v Liquorland'); Wesfarmers Limited v Linfox Australia Pty Ltd [2015] VSC 63.

[2] [2015] VSC 62, [37]-[40].

[3] [1960] HCA 9; (1960) 103 CLR 215 ('Soblusky').

[4] [2013] NSWCA 245; (2013) 84 NSWLR 652 ('Lloyd').

[5] Relying on Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297, 305 (Gibbs J), 320-1 (Mason and Wilson JJ); Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389, 398 (Brennan CJ, Dawson, Toohey, Gaudron and McHugh JJ).

[6] [1975] QB 321 ('Raymond Lyons & Co'), 325.

[7] [1940] NSWStRp 12; (1940) 40 SR (NSW) 174, 178 (citations omitted).

[8] [2013] NSWCA 245; (2013) 84 NSWLR 652.

[9] [2015] VSC 62, [37]-[40] (citations omitted).

[10] Ainsworth v Burden [2005] NSWCA 174, [109] (Hunt AJA, Handley and McColl JJA agreeing); Daunt v Daunt [2015] VSCA 58, [59].

[11] [1960] HCA 9; (1960) 103 CLR 215.

[12] [2013] NSWCA 245; (2013) 84 NSWLR 652.

[13] Soblusky [1960] HCA 9; (1960) 103 CLR 215, 231 (Dixon CJ, Kitto and Windeyer JJ).

[14] See particularly s 3(1), which defines 'owner'; s 5(1), which provides for the requirement that an owner insure; s 11(1), which provides for recovery from an insurer of the amount of a judgment against an owner or driver; and s 14, which provides for recovery from a nominal defendant in respect of liability for an owner or driver in the case of an uninsured motor car.

[15] Civil Procedure Act 2010 (Vic) ss 7, 8, 9; Eaton v ISS Catering Pty Ltd (2013) 42 VR 635, 645-8 [45]-[49].

[16] Blatch v Archer [1774] EngR 2; (1774) 98 E.R. 969.

[17] Raymond Lyons & Co [1975] QB 321, 325; Gatward v Alley [1940] NSWStRp 12; (1940) 40 SR (NSW) 174, 178.