ROADS AND TRAFFIC AUTHORITY v LUFF [1996] NSWCA 452

ROADS AND TRAFFIC AUTHORITY v LUFF

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE, MEAGHER and COLE JJA 8 July 1996, 8 July 1996 [1996] NSWCA 452

ADMISSIBILITY OF CONTRACT AND TENDER DOCUMENT FOR HIRING OF TRUCK — WHETHER COURSE OF TRADING DICTATED THAT ORIGINAL CONTRACTUAL TERMS WOULD APPLY TO LATER HIRINGS

Clarke JA This is one of those fairly rare appeals in which the point at issue is the admissibility of a document. On 18 October 1987 the respondent signed a tender for the hire of motor truck with driver to the Department of Main Roads, New South Wales, which it is common ground has been replaced by the Roads and Traffic Authority, the present appellant. In the tender there was a schedule and the tender document itself stated that it applies to all the trucks set out in that schedule. The respondent on the same day signed a document called general conditions and another document described as a contract for the hire of motor truck with drivers. Strangely enough, the department did not sign any document but the case was fought at first instance on the premise that there was, in 1977, a contract between the parties which related to the vehicles included in the schedule.

At the time of signing, there was one vehicle included in the schedule, a Bedford International Dodge. The documents I have mentioned are the only contractual documents in evidence in this case relating to transactions between these parties. However, the respondent hired trucks with drivers regularly to the appellant from 1977 onwards. Obviously enough, in later years he was hiring different trucks from the earlier years.

There was no evidence that any contract was signed by the respondent in respect of later vehicles. Nor that the respondent was ever approached and asked to subject himself to the general conditions in respect of the hire of later vehicles. What, somewhat quaintly, occurred was that officers of the appellant added to the schedule details of trucks later hired by the respondent, but without his knowledge that they were being added to the schedule.