Ballantyne v National Heavy Vehicle Regulator

[2019] SASC 135

Supreme Court of South Australia

(Magistrates Appeals: Criminal)

BALLANTYNE v NATIONAL HEAVY VEHICLE REGULATOR

[2019] SASC 135

Judgment of The Honourable Justice Peek (ex tempore)

5 August 2019

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT

STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - GENERAL APPROACHES TO INTERPRETATION - GENERALLY

CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES

Appeal against conviction.

The appellant truck driver was charged with contravening s 250(1)(a) of the Heavy Vehicle National Law (South Australia) Act 2013 (SA) (the National Law) in that he worked for more than 12 hours, namely 13 and three quarter hours, in a particular 24 hour period commencing at 5.30 pm on 3 June 2018. A Magistrate found the appellant guilty of this offence.

Held, dismissing the appeal:

1. The prosecution was justified in selecting the end of the particular major rest break as being the start of a relevant 24 hour period and that the appellant recorded 13 and three quarter hours during that 24 hour period. That is sufficient to prove the charged offence. Police v Barnes (2017) 129 SASR 575 followed; Roads & Traffic Authority v Trinci [2011] NSWSC 211 referred to.

2.       Although the work diaries issued to truck drivers are not invalid, such work diaries could be more ‘user friendly’. The most obvious improvement might be to expressly state, loudly and clearly, that following the end of a major rest break, there can be two overlapping 24 hour periods each of which might potentially lead to a prosecution.

Heavy Vehicle National Law (South Australia) Act 2013 (SA) s 250(1)(a); Heavy Vehicle (Fatigue Management) National Regulation reg 5, sch 1, referred to.
Police v Barnes (2017) 129 SASR 575; Roads & Traffic Authority (NSW) v Trinci [2011] NSWSC 211, considered.

BALLANTYNE v NATIONAL HEAVY VEHICLE REGULATOR
[2019] SASC 135

Magistrates Appeal:   Criminal

1. PEEK J (ex tempore):       Mr Ballantyne, the appellant in this matter, appeals against conviction only. He was charged and convicted at trial before a Magistrate of an offence contrary to s 250(1)(a) of the Heavy Vehicle National Law (South Australia) Act 2013 (the Act), in that he worked for more than 12 hours in a particular 24 hour period specified by the prosecution.  His work diary indicated that he had worked for 13 and three quarter hours in that particular 24 hour period.

2. The combined effect of regulation 5 and schedule 1 of the Heavy Vehicle (Fatigue Management) National Regulation is that more than 13 and a half hours work time in that period is referred to as a ‘critical risk breach’.  As such it is the highest of the four ascending levels of breach specified in s 250 and now carries a maximum fine of $16,510.

3. The appellant was unrepresented both at trial and on the appeal.  He was brief and to the point on both occasions.  He agreed that the relevant times are accurately recorded and the sole basis of his defence was that the manner in which the prosecution selected or calculated the relevant 24 hour period was erroneous.

4. The position here was very similar to that dealt with by Doyle J in Police v Barnes (Barnes).[1]  I agree with his Honour’s analysis of the legislation and the regulations and with his conclusions in that case.  For that reason I do not consider it necessary to reserve judgment in the present case or to deliver a judgment which would be substantially in the same terms as his Honour’s.  I mention that I have also considered the earlier New South Wales decision in Roads & Traffic Authority (NSW) v Trinci (Trinci),[2] which is to the same effect, but in the context of taking mandatory rest periods in a 24 hour period.

   [1] (2017) 129 SASR 575.

   [2] [2011] NSWSC 211.

5. In short I find that the prosecution was here justified in selecting the end of the particular major rest break as being the start of a relevant 24 hour period, and that the appellant recorded 13 and three quarter hours during that particular 24 hour period.  In the circumstances of this case that is sufficient to prove the charged offence.

6. However, I will say that I consider that the appellant did not intentionally transgress, and nor is he a querulous or vexatious litigant.  I accept that he thought that, on what he considered to be the appropriate approach to the 24 hour period calculation, he had not exceeded the 12 hour limit.  However, on the correct approach as referred to by Doyle J in Barnes, with which I agree, the appellant is mistaken as to the law and unfortunately for him, this mistake, in the present circumstances, clearly does not afford him a defence.

7. I should add that the appellant submits that the Act itself is very long, complex and hard for ordinary people to read or understand; and also that the examples given in the log books issued to truck drivers are not as clear as they might be.  I must say that he does have something of a point here, although I stress that I do not consider that the log books or the examples therein are in any way invalid.  However, I do note that in both of the cases of Barnes and also Trinci, to which I have referred, the Magistrate at first instance largely agreed with the truck driver’s interpretation and acquitted the truck driver, but each decision was overturned on appeal to the Supreme Court. 

8. As to the examples in the log books issued to truck drivers I do consider that they could be more ‘user friendly’, particularly having regard to the audience to which they are addressed.  It seems to me that, without in any way trying to be comprehensive, the single most obvious improvement might be to expressly state, loudly and clearly, that following the end of a major rest break there can be two overlapping 24 hour periods running at the same time.  The first such period is the old 24 hour period that was running prior to the beginning of the major rest break (if it did not conclude during the course of that major rest break). The second period running would be the new 24 hour period that commences at the end of that major rest break.  The trap for the driver in such circumstances is that when he commences the new 24 hour period following the major rest break he may be concentrating only on that new forthcoming 24 hour period and not appreciate fully that for some hours the old period may also still be running.  The result may be in some cases that in working for the first few hours of the new 24 hour period those hours may result in his quota for the old 24 hour period being exceeded, even though he may not exceed his quota for the new 24 hour period.  That is only one example that seems very apparent to me; there may well be others.

9. However, none of this can alter the fact that in the present case no ground of appeal is established and I therefore must dismiss the appeal and I do so.

10. I will hear the parties should there be any application by the prosecution for costs of the appeal.