Stapley v Towing Masters Pty Ltd (trading as Dynamic Towing) [2009] NSWCA 382

New South Wales Court of Appeal

CITATION: Stapley v Towing Masters Pty Ltd (trading as Dynamic Towing) [2009] NSWCA 382

HEARING DATE(S): 7 October 2009

JUDGMENT DATE: 26 November 2009

JUDGMENT OF: Allsop P at 1; Campbell JA at 5; Handley AJA at 120

DECISION: Leave to appeal granted. Orders below set aside. Declaration that Respondent not entitled to any lien. Money in court paid out as agreed. Respondent to pay costs in Court of Appeal and below.

CATCHWORDS: CARRIERS – carriage of goods – common carriers – whether a tow truck driver arriving at an accident scene is a common carrier – characteristics of a common carrier – common callings – public nature of the role of a common carrier – APPEAL AND NEW TRIAL – whether an argument that a tow truck driver had a common carrier's lien was litigated at trial – determining case put at trial when there were no pleadings – whether trial judge was entitled to find the existence of a lien when there was no evidence as to a holding out to the public – APPEAL AND NEW TRIAL – whether parties can be taken to have consensually litigated a question when invited to make submissions on the topic by the trial judge – ONUS OF PROOF – onus of proving a negative proposition

Civil Procedure Act 2005 LEGISLATION CITED: Tow Truck Industry Act 1998 Tow Truck Industry Regulation 1999

CATEGORY: Principal judgment

Batson v Donovan (1820) 4 B & Ald 21; 106 ER 849 Baxendale v London and South Western Railway Co (1866) LR 1 Ex 137 Belfast Ropework Co Ltd v Bushell [1918] 1 KB 210 Blanch v British American Tobacco Australia Services Ltd [2005] NSWSC 241; (2005) 62 NSWLR 653 Boson v Sandford (1690) 1 Show KB 101 Branley v South Eastern Railway Co (1862) 12 CB NS 63; ER 1066 Crouch v Great Northern Railway Co (1856) 11 Exch 742; 156 ER 1031 Crouch v London and North Western Railway Co (1854) 14 CB 255; 139 ER 105 Great Western Railway Co v Sutton (1869) LR 4 HL 226 Gregory v Commonwealth Railways Commissioner (1941) 66 CLR 50 CASES CITED: Harris v Packwood (1810) 3 Taunt 264; 128 ER 105 Jackson v Rogers (1683) 2 Show KB 327; 89 ER 968 James v Commonwealth (1939) 62 CLR 339 Lumley v Gye (1853) 2 E & B 216; 118 ER 749 Majeau Carrying Co Pty Ltd v Coastal Rutile Ltd (1973) 129 CLR 48 Naylor v Mangles (1794) 1 Esp 109; 170 ER 295 Pozzi v Shipton (1838) 1 Per & Dav 4 Sanpine v Koompahtoo Aboriginal Land Council [2005] NSWSC 365 Stapley v Towing Master Pty Ltd [2007] NSWSC 720 Stapley v Towing Master Pty Ltd [2009] NSWSC 139; (2009) 52 MVR 249 Wyld v Pickford (1841) 8 M & W 443; 151 ER 1113