Thomas National Transport (Melbourne) Pty Ltd v May & Baker (Australia) Pty Ltd [1966] HCA 46

High Court of Australia Barwick C.J. McTiernan, Taylor, Windeyer and Owen JJ. Thomas National Transport (Melbourne) Pty Ltd v May & Baker (Australia) Pty Ltd [1966] HCA 46

ORDER Order of Supreme Court varied by setting aside the judgment entered for the respondent against the appellant Pay and substituting therefor judgment for that appellant with costs. Respondent to pay the costs of the appellant Pay of this appeal. Otherwise appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Aug. 10 Barwick C.J.

The facts and circumstances of this case which were found by the Supreme Court of Victoria are fully set out in the judgment of that Court and summarized in the joint reasons which are about to be delivered. I agree with the conclusion that radical to the contract of carriage between the appellant Thomas National Transport (T.N.T.) and the respondent was an engagement implicit in it to take the respondent's goods from its premises to T.N.T.'s depot for marshalling into vehicles for the continuation of their journey inter-State to the agreed destinations.

The contract of carriage allowed of the pick-up system employed by T.N.T. to the extent that the respondent's goods could be carried on the "round" before reaching that depot: but the depot was the contemplated terminus of the pick-up round. The respondent's goods were not taken to the depot but to Pay's home where they were damaged.

What in fact occurred was, in my opinion, such a departure from the promised carriage that T.N.T. was not entitled to rely upon the exemptions of the written contract. Therefore, upon the findings made by the Supreme Court, T.N.T. was liable for the failure safely to deliver the goods: see Halsbury's Laws of England, 3rd ed, vol. 4, par. 412, p. 155 and cases there cited. I concur in the reasoning by which my brothers have arrived at this conclusion. The appeal of T.N.T. thus fails.