Boutros v Commissioner of the New South Wales Police

[2025] NSWDC 78

District Court

New South Wales

Medium Neutral Citation:

Boutros v Commissioner of the New South Wales Police [2025] NSWDC 78

Hearing dates:

6 March 2025

Decision date:

13 March 2025

Jurisdiction:

Civil

Before:

Wass SC DCJ

Decision:

See [81]

Catchwords:

CIVIL — Appeal against forfeiture of motor vehicle — Statutory construction — Use of a motor vehicle — “is being used on a road”

Legislation Cited:

Commercial Goods Vehicles Act 1958 (VIC)

Crimes Act 1900 (NSW)

Crimes (Appeal and Review) Act 2001 (NSW)

Criminal Procedure Act 1986 (NSW)

Motor Vehicles Taxation Act 1988 (NSW)

Road Transport Act 2013 (NSW)

Cases Cited:

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; [2009] HCA 41

Keybridge Capital Ltd v WAM Active Ltd [2021] NSWCA 203; (2021) 105 NSWLR 278

O'Kane v Boyle [1961] VR 45

Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Industrial Relations Secretary on behalf of the Department of Justice [2015] NSWCA 386

R v A2; R v Magennis; R v Vaziri [2019] HCA 35; (2019) 93 ALJR 1106

Randren House Pty Ltd v Water Administration Ministerial Corporation [2020] NSWCA 14

Re Dingjan; Ex parte Wagner (1995) 183 CLR 323

State Government Insurance Commission of South Australia v Mayne Nickless (1998) 27 VR 527

Synergy Scaffolding Holdings Pty Ltd v Goodman Funds Management Australia Limited as trustee for GAI1 RPF Subtrust of the Hayesbery [2023] NSWSC 538

SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34

Texts Cited:

Randolph Quirk et al, A Comprehensive Grammar of the English Language (Longman, 1985)

Category:

Principal judgment

Parties:

Patrick Boutros (Appellant)
Commissioner of the New South Wales Police (Respondent)

Representation:

Counsel / Solicitor Appearing:
A Radojev (Appellant)
J van Lieven (Solicitor) (Respondent)

Solicitors:
Matthew Lorkin Solicitor (Appellant)
Makinson d’Apice (Respondent)

File Number(s):

2024/00032221

 Decision under appeal 

Court or tribunal:

Local Court of New South Wales

Jurisdiction:

Civil

Date of Decision:

13 June 2024

Before:

Heywood LCJ

File Number(s):

2024/00032221

JUDGMENT

Introduction  

1. By Notice of Appeal dated 10 July 2024, the Appellant, Patrick Boutros, appeals against the order of Magistrate Heywood at Burwood Local Court on 13 June 2024 granting an application made by Senior Constable Anthony Cincotta, on behalf of the New South Wales Police Force, for the forfeiture of a vehicle pursuant to s 79 of the Road Transport Act 2013 (NSW) (‘RTA’).

2. Section 79 of the RTA is in the following terms:

1. A police officer may seize any unregistered registrable vehicle (other than a registrable vehicle exempted from registration under this Act) that is being used on a road. 

2. If any such registrable vehicle has been seized, the Local Court may, on the application of a police officer, make an order declaring the vehicle to be forfeited to the Crown. 

3. If such an application is made, the following provisions have effect—

1. notice of the application is to be given to the person who had the custody of the vehicle at the time of the seizure if the person can be found and to such other persons (if any) as the Local Court may direct, 

2. no order of forfeiture may be made if the owner of the vehicle satisfies the Local Court that there has been no intent to evade registration of the vehicle. 

4. A responsible person for a vehicle who is aggrieved by an order of the Local Court made under this section in relation to the vehicle may appeal against the order to the District Court under Part 3 of the Crimes (Appeal and Review) Act 2001 (NSW) (‘CARA’) as if that order were a sentence arising from a court attendance notice dealt with under Part 2 of Chapter 4 of the Criminal Procedure Act 1986 (NSW).

5. Transport for NSW may waive the forfeiture of a vehicle on payment within such period as Transport for NSW may allow of a fine equivalent to the sum obtained by adding together-- 

1. the fee for the registration or renewal of the registration of the vehicle for each applicable registration period in any part of which the vehicle was used while unregistered, and 

2. the motor vehicle tax imposed under the Motor Vehicles Taxation Act 1988 (NSW) or the registration charges or administration fees imposed under Schedule 2 which would be due on the application for that registration or renewal,

6. together with a further fine of 20 percent of that sum. 

7. If any such fine is not paid within the period so allowed, Transport for NSW may dispose of the vehicle in the manner prescribed by the statutory rules. 

8. If a vehicle is sold under subsection (6), Transport for NSW is to apply the proceeds of the sale as prescribed by the statutory rules. 

3. The appeal is an appeal pursuant to s 17 of the CARA, by way of a rehearing of the evidence given in the Local Court proceedings.

4. Relevantly for the forfeiture application to succeed, the Respondent was required to establish the following: 

1. That the vehicle was an “unregistered registerable vehicle”: s 79(1) of the RTA;

2. That it was seized by a police officer “being used on a road”: s 79(1) of the RTA; and

3. Once legal seizure has taken place, the Local Court may on the application of a police officer make a declaration of forfeiture: s 79(2) of the RTA.

5. However, no order for forfeiture may be made by the Court if the owner of the vehicle satisfies the Local Court that there has been no intent to evade registration of the vehicle: s 79(3)(b) of the RTA.

6. The appeal against an order for forfeiture was brought by Mr Boutros as the responsible person for the vehicle who is aggrieved by an order of the Local Court to the District Court as if that order was a sentence.

Issue of Leave 

7. The Notice of Appeal was submitted to Burwood Local Court on 10 July 2024, within the 28-day appeal period provided for by s 11(2)(a) of the CARA. However, the Notice of Appeal is not sealed to indicate that its filing was accepted by the Court.

8. The Appeal Listing Notice records that the appeal was listed on 17 July 2024. If the Notice of Appeal was accepted for filing on this date, the appeal is out of time and requires leave. 

9. There was no objection to leave being granted, and to the extent necessary, I grant leave for Mr Boutros to bring his appeal.  

Was the Motorcycle an Unregistered Registerable Vehicle? 

10. Police conceded that the vehicle, a motorcycle (“the Motorcycle”), was not capable of registration as it did not comply with Australian Standards.   

11. In Orwellian language however, even where the Motorcycle is described accurately by police as “unregistrable”, it nonetheless meets the definition under the RTA as an “unregistered registerable vehicle”.  

12. This is because s 4(1) of the RTA relevantly provides that a “registrable” vehicle means any motor vehicle, which in turn is defined as a vehicle that is built to be propelled by a motor that forms part of the vehicle.  A vehicle is defined as any description of a vehicle on wheels. 

13. There is no issue that the Motorcycle was unregistered. 

14. Accordingly, I find that the Motorcycle was an “unregistered registerable vehicle” as required by s 79 of the RTA.

Was the Motorcycle Seized by a Police Officer Being Used on a Road?

15. According to the Application by police, and about which no evidence was given, but where I have assumed that this was not in issue: 

1. On 19 January 2024 the Motorcycle was observed riding on the road.    

2. It was seen leaving the road and entering a garage in Neich Parade in Burwood.   

3. The Motorcycle was later seized from the owner, Mr Boutros at that address. 

16. There was an unresolved dispute as to whether it was Mr Boutros riding the Motorcycle at the time it was seen by police.    

17. It is not in dispute that the Motorcycle was not on the road when it was seized, but was in a garage on private property.   

The Appellant’s Submissions that the Motorcycle was Seized Whilst Not Being Used on the Road 

18. The Appellant submits that the Motorcycle was not being used on a road at the time that it was seized. The Appellant relies on the words "is being used" in aid of a submission that the section requires the Motorcycle to be used (that is ridden or standing on the road) at the time of seizure. 

19. The Appellant submits that police have no power to enter onto private land to seize a vehicle on private property without warrant or appropriate Order and that as a result, the Motorcycle was illegally seized. I have not had to resolve the issue as to whether or not the police were invited onto the land to inspect the Motorcycle. The question is whether police have power to seize the Motorcycle which is on such private land.     

20. It is not controversial that the Motorcycle was not being used on a road when it was seized. It was parked on private land. 

The Respondent’s Submissions that the Motorcycle was Seized Whilst Being Used on the Road 

21. The Respondent submits that the use of a verb in the present tense need not connote a temporal element; it may merely indicate a state of affairs that has arisen.

22. If it does involve a temporal element, it is important to identify the time at which that condition must be satisfied. In some circumstances, use of the present tense indicates a continuing state of affairs, so that it will apply from time to time as required. 

23. The Respondent argues that the use of a present participle with the auxiliary verb "to be" can create a continuing tense, such as, "I am reading this book every day". Accordingly, on the argument the book “is being read” despite there being particular times when the book is not in fact opened.

24. There is no doubt that this is so.    

25. The Respondent relies on what was said in Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Industrial Relations Secretary on behalf of the Department of Justice [2015] NSWCA 386 at [9]. Cf. Gaudron J in Re Dingjan; Ex parte Wagner (1995) 183 CLR 323 at 362; [1995] HCA 16:

"The present tense may be used descriptively or it may be used to signify contemporaneity. Although there is no fixed rule, the use in a statute of the present tense, simpliciter, indicates that it is being used descriptively (the "simple present"), whereas "is" followed by a present participle (the "continuous" or "progressive" present) usually indicates contemporaneity [See Quirk et al, A Comprehensive Grammar of the English Language (1985) pp 179-180, 197-198]." 

26. In Public Service Association v Industrial Relations Secretary, the Court was asked to decide whether a person who had obtained work injury damages was thereafter precluded from seeking reinstatement. The sole issue turned on whether, at the date of his application for reinstatement, the person was an “injured worker” as defined.  The employer argued, that when the person made an application for reinstatement three months after the payment of damages, he was no longer an “injured worker” because he was no longer entitled to receive compensation under the Act. 

27. As to whether the person “is” [still] an injured worker, the Court noted that context was important and held that “[i]n that context the use of the verb in the present tense need not connote a temporal element; it may merely indicate a state of affairs that has arisen,” and indeed a continuing state of affairs.  Reliance on context is also found in the judgment, where the Court notes that “[i]n some circumstances” use of the present tense indicates a continuing state of affairs, so that it will apply from time to time as required. 

28. The context, including by reference to other words elsewhere in the legislation, led to a conclusion by the Court that the “is” meant a continuing present tense and a characteristic of a worker which continues over time; that it cannot be understood to refer to the worker only at the point in time when he or she suffers the injury.  

29. Basten JA observed,

“Read in context, it is not sensibly understood as referring to a worker who receives an injury, for so long as the worker is entitled to receive compensation… It is not consistent with the apparent legislative policy underlying Pt 8 for a worker who receives an injury resulting in him or her being unfit for employment, and who is dismissed on that basis, to be disentitled from seeking reinstatement when, in a matter of weeks or months, the effect of the injury has passed and the worker is again fully fit for employment.”… “To exclude that case on the basis that reinstatement cannot be sought once the worker is no longer entitled to receive compensation would seriously undermine the apparent legislative policy of Pt 8.” 

30. Emmett J similarly relied on the scheme for context.  His Honour held for example, that unless the definition was ongoing, a worker who deferred settlement of a claim for common law damages until he had made an application for reinstatement would be entitled to do so, but a worker who settled his claim for damages would cease to be entitled to do so simply because he had recovered damages.   His honour was of the view that there did not appear to be any rationale for such a distinction.  His Honour concerned himself with the significant anomalies that would occur within the legislation if the “point in time” construction was adopted, which as his Honour observed, “[t]hat distinction also appears to be quite anomalous and arbitrary” and that those distinctions do not occur where the definition of “injured worker” is understood as describing the type of injury that is the criterion for a worker becoming an “injured worker”, rather than its being understood as having a temporal operation. 

31. His honour, in that context observed,

“although the word “is” generally denotes present tense, that is not universally so. It is by no means an uncommon use of the present tense of the verb “to be” as specifying the character of something – in the present case, the character of an injury. In an appropriate context, the word “is” can be used without any temporal significance such that, in other words, the use of the present tense does not relate to time.” 

32. It was a question in that case of finding the “more natural meaning” from the two alternative constructions and one which voided ambiguity and removed any anomalous arbitrariness, such as that identified, which might be inconsistent with the scheme of the legislation. 

33. The Respondent also relied on O'Kane v Boyle [1961] VR 45. In that matter, the Defendant left Melbourne with his vehicle loaded with goods which he intended to carry to New South Wales, and which he was contracted to do. Whilst still in Victoria, he off­loaded the goods to permit them to be carried to New South Wales on another vehicle. The question was whether the vehicle was “being used exclusively in the course of interstate trade commerce or intercourse". Sholl J held that there was no point on the journey where the vehicle was not in the course of interstate trade. Since the Defendant was a party to a contract for interstate trade, the mere fact that the goods had not been transported to New South Wales did not deprive the journey of its interstate characterisation.

34. The Respondent argued that applying this reasoning to the facts of the instant case, it could be said that the Motorcycle "is being used on a road” when it had been seen to be so used immediately contemporaneously to the seizure. 

35. The Respondent also relied on State Government Insurance Commission of South Australia v Mayne Nickless (1998) 27 VR 527. The Plaintiff collided with a parked trailer. It was submitted that the issue was whether the parked trailer was being used when the collision occurred. It was held that the trailer was being used because there was “a sufficient non­coincidental nexus between the past use of the vehicle, which had been parked for a day or two and had been parked for the purpose of being unloaded (and perhaps loaded again), and the injury.”

36. The Respondent argued that, applying such an analysis to these facts, the fact that the Motorcycle was parked is immaterial to whether or not it was being used.  It was submitted that there was a direct nexus between the Motorcycle being driven, being pursued by police, and then being garaged on the Appellant's premises. In the Respondent's submission, on this analysis, the Motorcycle was being used at the time that it was seized. 

37. The Respondent relies on context within the RTA as follows:

1. That a "Road” as defined in s 5 of the RTA includes a road related area, which is also defined in s 4 of the RTA to mean "an area that is open to or used by the public and is developed for, or has as one of its main uses, the driving or riding of motor vehicles". "Road related area" is defined in s 4 of the RTA to mean a footpath or nature strip adjacent to a road. It is accepted that the Motorcycle had been earlier in the day on a road and that when seized it was no longer on a road or a road related area.

2. The "Use" in relation to a motor vehicle is given an inclusive definition in s 5 of the RTA as "use of a vehicle includes standing the vehicle on a road or road related area". It was not contended by the Appellant that the Motorcycle had not been in “use” earlier in the day.

38. On the issue of context, the Respondent submits the Appellant's interpretation of the words would lead to an “absurd” result in that a driver or rider of an unregistered motor vehicle could simply stop on private property (whether or not that property is owned by the driver) and alight from the vehicle. The vehicle would then not be "used" because it is not stood on a road or road related area, and so the police would be powerless to seize the vehicle, regardless of any power to enter the property on which the vehicle was then located. 

39. Whether or not that is in fact an “absurd” result is considered in the context of the legislation.  

40. The Respondent submits that “an interpretation which promotes the purpose of the section” should be preferred and further submits that the words "is being used" requires proof of use at a time proximate to the exercise of the seizure power.   

41. It is noted in that regard, that there is no evidence as to the purpose of the section. Searches by the Court and by the parties did not reveal a relevant Second Reading Speech.   

Resolution of the Issue as to Whether the Motorcycle was Seized Being Used on the Road 

Construing the Provision 

42. The principles which govern the task of construing statutes were usefully set out by Bathurst CJ (with whom White JA agreed) in Keybridge Capital Ltd v WAM Active Ltd [2021] NSWCA 203; (2021) 105 NSWLR 278 at 298-299 (and cited with approval by Peden J in a case that involved forfeiture under a lease, Synergy Scaffolding Holdings Pty Ltd v Goodman Funds Management Australia Limited as trustee for GAI1 RPF Subtrust of the Hayesbery [2023] NSWSC 538) as follows:

1. In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; [2009] HCA 41, the plurality stated at [47] that the task of statutory construction must begin with a consideration of the text itself, although the meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it seeks to remedy.

2. It has been subsequently emphasised that context in its widest sense should be considered at the first stage of the construction process and not at some later stage. The principles were stated by the plurality in SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 in the following terms (at [14]):

The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.” 

3. In R v A2; R v Magennis; R v Vaziri [2019] HCA 35; (2019) 93 ALJR 1106, Kiefel CJ and Keane J emphasised the importance of considering context at the first stage of the process, stating that “[a] literal approach to construction, which requires the courts to obey the ordinary meaning or usage of the words of a provision, even if the result is improbable, has long been eschewed by this Court”: [2019] HCA 35; 93 ALJR 1106 at [31] - [34] (footnotes omitted); see also Bell and Gageler JJ at [124].

43. The joint judgment of Kiefel CJ and Keane J in R v A2 at [52] is also apposite, 

“A statutory offence provision is to be construed by reference to the ordinary rules of construction. The old rule, that statutes creating offences should be strictly construed, has lost much of its importance. It is nevertheless accepted that offence provisions may have serious consequences. This suggests the need for caution in accepting any "loose" construction of an offence provision. The language of a penal provision should not be unduly stretched or extended. Any real ambiguity as to meaning is to be resolved in favour of an accused. An ambiguity which calls for such resolution is, however, one which persists after the application of the ordinary rules of construction.” (footnotes omitted). 

44. Whilst this is not a statutory offence provision, but one, which upon proof of certain circumstances gives power to a police officer to seize for forfeiture what might be a significant asset, the same principles apply. I have not construed the provision in favour of the Appellant as a whole or as a starting point. I have considered the context of the section within the RTA and the purpose which can be gleaned from the provision in that context, without the assistance of a Second Reading Speech. I have been cautious not to unduly stretch language beyond its meaning and to dispose of any real ambiguity in favour of the Appellant.

45. Public Service Association and Professional Officers’ Association Amalgamated Union of New South Wales v Industrial Relations Secretary on behalf of the Department of Justice has been, with respect, useful in guiding my approach to the determination of the issue.  I have considered the following matters: 

1. “Is being used” (similar to “is an injured worker”) can have two interpretations; first a temporal one which looks only at the point in time that the Motorcycle was seized and whether or not it was at that time in use on the road (including being at a standstill or parked); and second a state of affairs, that the Motorcycle is being used on the road and for that purpose more generally, although not all the time.    

2. Context is important when determining which interpretation is the correct one, having regard to other legislative provisions and the purpose of the RTA.

Consideration of the RTA – Context

46. I have considered the following provisions of the RTA:

1. Section 79(5)(a) of the RTA provides that Transport for NSW may waive the forfeiture of a vehicle on payment an equivalent sum to “the fee for the registration or renewal of the registration of the vehicle for each applicable registration period in any part of which the vehicle was used while unregistered.” That distinction, in tense within the same section, makes it more likely that “is used” has its temporary meaning.   

2. Section 68 of the RTA provides for a complete prohibition on using an unregistered registerable vehicle on a road (other than if it is left standing for a period of less than 15 days after registration has expired or otherwise if they have consent of the relevant road authority). Accordingly, whether or not the vehicle is in use at any particular time, on proof that a person has used such a vehicle on the road (or road related area including when parked), they can be prosecuted and receive a maximum fine of 20 penalty units. It is a “fine only” offence which does not provide for forfeiture of the vehicle. If the Respondent’s contention is correct, s 79 provides a very different outcome (forfeiture) to s 68 (a conviction and maximum fine of $2,000) for precisely the same conduct within the same Act.

3. Section 238 of the RTA provides that “additional sanctions” (set out in s 239) may be imposed if the police officer reasonably believes that a motor vehicle is being used in very particular circumstances, in many cases during a defined time period. Those circumstances include that the vehicle is being operated for a sanctionable offence, during a number-plate confiscation period, by an operator who has committed other offences or where the vehicle that is already the subject of a forfeiture order, or is being operated on a road by an offending operator who is disqualified from holding or obtaining a driver licence so as to commit an offence (not being a camera recorded offence) of driving a vehicle at a speed more than 30 kilometres per hour over the designated speed limit applying to the driver for the length of road at the time the offence is committed, or is being operated on a road by a person disqualified from holding or obtaining a driver licence, or who has never been licensed, and who has been convicted of an offence against ss 53(3) or 54(1) of the RTA on two or more previous occasions within the past five years.

4. A sanctionable offence is defined by s 237(1) of the RTA as:

1. a high range speed offence (driving more than 45km/hover the speed limit): RTA s 237(1);

2. the “street racing” offence provided for by s 115 of the RTA;

3. the “burnout” offence provided for by s 116 of the RTA;

4. engaging in a police pursuit contrary to s 51B of the Crimes Act 1900 (NSW); and

5. any other offence prescribed by statutory rules.  

5. Section 239 provides that in those circumstances, well beyond the mere driving of an unregistered vehicle, an additional sanction of seizing the vehicle, and the number plates are confiscated with a resulting three-month prohibition on driving.

6. In some situations, the vehicle is not seized for forfeiture, but only impounded (s 242 of the RTA) or the plates are seized.

7. Significantly, if the interpretation contended for by the Respondent is adopted, it may result in our citizens being dealt with more harshly under s 79 of the RTA for less serious conduct than a person dealt with under s 239 of the RTA.

8. Further, the time limits set out in other provisions in the RTA, but not present here, mean that if the Respondent’s argument is correct, a police officer could, at any time in the future, on proof of the vehicle having been used on a road, seize the vehicle for any reason, within their discretion.

47. The Respondent seeks to deal with that difficulty by reading words into the provision and submits that the words "is being used" requires proof of use at a time “proximate to” the exercise of the seizure power.   

48. It is important that a police power to seize a person’s significant possession, particularly where it is discretionary, can be consistently implemented and where both police and the community know precisely the basis upon which rights are being exercised or impinged. It must, in my view, be clear as to what legal rule has been breached. Such precise laws allow our citizens to know their legal obligations. The law is there to protect our citizens from arbitrary government, not to encourage it; particularly where the laws may significantly affect the property rights of individuals. The exercise of power under the RTA regarding ownership of a significant asset cannot, in my view, be dependent on an officer’s view about what is, for example, “proximate”. If a law is expressed in a way that is unacceptably vague or uncertain in its demands, it lacks cogency, legitimacy and efficacy. For a simple factual enquiry such as this, clear rules provide greater certainty. They require, in my view, “crisply stated rules which could either be obeyed or disobeyed”: as discussed in Randren House Pty Ltd v Water Administration Ministerial Corporation [2020] NSWCA 14 at [69].

49. I reject the Respondent’s submission that the word “proximate” ought be read into the legislation.  

50. I also reject the Respondent’s submission that it would be an “absurd” result if a rider of an unregistered motor vehicle could simply stop on private property and alight from the vehicle and assert that the vehicle is not being used, and avoid liability such that police would be powerless to seize the vehicle. In my view, it would be sufficient for the police to charge the rider with an offence pursuant to s 68 of the RTA. If the purpose of s 79 is to protect the community from the danger that comes from vehicles that are not registered (and thus may be unroadworthy and dangerous) being ridden on the roads by seizing them and thus removing them from the roads, there will be no danger to protect once the vehicle is situated on private property.

Consideration of the Inquest into the Death of Corey Kramer 

51. I have been referred to the decision in the Inquest into the death of Corey Kramer delivered on 9 April 2018 by the Harriet Grahame, Deputy State Coroner. In that matter, her Honour noted the provisions of s 79(1) of the RTA. In that matter the police submitted, as I have found, that the intention of the provision is to “get dangerous vehicles… off the road”. Police sought recommendations be made for broader confiscation rules regarding “dangerous bikes”.

52. The Deputy State Coroner noted that she intended to urge the Minister of Roads, Maritime and Freight to review current confiscation powers in an attempt to see if they can be streamlined and improved. The Commissioner of Police endorsed that approach. 

53. There is no evidence before me that this occurred or if it did, that any changes were made. Accordingly, the limitations of s 79 of the RTA remain.

Consideration of the Personal Injury Cases  

54. O'Kane v Boyle is a decision of a single judge of the Supreme Court of Victoria and is therefore persuasive, although not binding.  

55. The matter involved an alleged breach of s 22(2) of the Commercial Goods Vehicles Act 1958 (VIC) (‘CGVA’), which provided that, "The driver and the owner of any commercial goods vehicle licensed under this Part which operates otherwise than in accordance with this Part or any licence or permit or regulation thereunder shall be severally guilty of an offence against this Part". 

56. At the material time, the Defendant did not hold a licence to carry superphosphate and or the permitted classes of goods being 50 miles from Nyah West in Victoria.   

57. The Defendant was seen being driven into a shed at Nyah West, where subsequently about two tons of superphosphate was unloaded from it. The Defendant admitted to the Informant that he had brought the superphosphate from Melbourne.  He was to offload it in Nyah West to another to take it to New South New South Wales.  The Defendant had been employed to take it to New South Wales but an arrangement was made when he reached Nyah West for another carrier to do so, thus saving him some of the cost.   

58. The question was whether the vehicle was being “used exclusively in the course of interstate trade commerce or intercourse". 

59. The Informant argued that the Magistrate should have held that by carrying the goods from Melbourne to Nyah West and leaving them at Nyah West, the Defendant did operate his commercial goods vehicle in contravention of s 22(2) of the CGVA, notwithstanding that until his arrival in Nyah West he intended to carry the goods on into New South Wales and deliver to the consignee in that State. There was evidence that it was only after his truck had become stationary at the co-operative company's premises that the Defendant abandoned further performance of the contract and unloaded the goods at Nyah West. 

60. The case was decided on the factual basis that at all times during the carriage of the goods from Melbourne to Nyah West, that is up to and including the moment when the vehicle became stationary prior to the actual unloading of the goods, they were being carried in the course of a contract for the interstate carriage of the goods, and with the intention of carrying them, in a single journey from Melbourne across the border into New South Wales.  It was only after its arrival at Nyah West that the superphosphate ceased to be carried in the course of such a contract. 

61. It was held that if the Defendant had been stopped at any point on the journey, he could have established that he was carrying lawfully in accordance with s 4, and it followed that there was no point on the journey between Melbourne and Nyah West at which it could there and then have been said that he was carrying contrary to the Act.

62. The Informant argued that once the Defendant abandoned or terminated the contract of carriage in relation to the superphosphate before reaching the border, the carriage of those goods lost the interstate character for the whole journey.   

63. It was held to the contrary that if for any reason (break down, or illness of the driver for example), the interstate carrier transferred the goods to another vehicle who carried them on across the border, it would still remain true that the original vehicle, though it stopped and remained at a point short of the border, had been used exclusively in the course and for the purpose of interstate trade, commerce or intercourse. 

64. The case was decided on the basis unrelated to the words of the Act relevant to this case; the Court was not prepared to construe the statute “as to convert into an offence ex post facto an operation of the vehicle which during such operation, and right up to the time that it ceased, was lawful.”    

65. Indeed, a close reading of the decision makes clear, to the extent it had any bearing on the decision, a temporal element was said to be required.  His Honour observed, “…. by reference to the existence of a genuine purpose of exclusive use for interstate trade, commerce, or intercourse, at the time of the use which is said to be exclusively in the course thereof” [emphasis added].  His Honour observed “it is the real purpose of the use which is material” and not in that case, whether the use was temporal. 

66. The Respondent’s submission that applying this reasoning to the facts of the instant case, it could be said that the Motorcycle "is being used on a road” when it had been seen to be so used immediately contemporaneously to the seizure, in my view, does not bear close scrutiny and I reject the submission. 

67. In State Government Insurance Commission v Nickless, the Plaintiff collided with a parked trailer. The Appellant argued that the trailer was “not involved in any way in the causation of the injuries sustained.” The Respondent submitted that the injuries arose out of the use of the trailer.

68. The trial judge held that “the bodily injury of the plaintiff arose out of the use of the motor vehicle being the consequences of a collision with the vehicle (the trailer) which was stationary.”

69. It was noted on appeal that, “his Honour was inferentially accepting, seemingly without argument to the contrary, the submission on behalf of the Respondent … if bodily injury is a consequence of a collision with a vehicle when stationary it is to be regarded as arising out of use of that vehicle”. Importantly, the case at trial was decided on other issues and notwithstanding that there had been general discussion in the trial about the meaning of the phrase “arising out of the use of that vehicle” (and pertinent cases provided) on it, the case ultimately concentrated on other matters and the trial judge did not seek to apply the cases cited to the facts”.

70. The principal grounds of appeal were that the trial judge did not properly interpret the Act, that the judge had erred in finding there had been a collision with the trailer, and that his Honour should have found that because there was no causative connection between the injury and the parked trailer.

71. The relevant term for consideration was Clause 1, which provided relevantly that “[t]he insurer insures …. in respect of all liability that may be incurred by the owner or other person in respect of … bodily injury … caused by, or arising out of the use of the vehicle”.

72. Contrary to the Respondent’s submission, the issue on appeal was not whether the parked trailer was being used when the collision occurred, but rather whether the injury “was caused by or arose out of the use of the trailer.” The Court held that the second of the tests (arose out of) was wider than the first and that a direct or proximate causal relationship was not required and therefore it was only necessary to direct its attention to the second alternative.

73. It was held that injuries may “arise out of the use of a vehicle even though they do not occur or arise when the vehicle is in fact being used.” So long as there is a non-coincidental nexus between past use and the injury, that will be sufficient. For example, where a vehicle was brought to an unlit place and illegally parked, and that but for that use occurring, the injuries would not have been sustained, then that was sufficient, to “arise out of” the vehicle’s use.

74. The Court held that the injury arose out of the past use of the trailer, by parking it in the Respondent’s yard. The injury was a consequence of that past use, and there was a sufficient non-coincidental nexus between that use and the injury to conclude that it arose out of the use.

75. The reliance by the Respondent on the decision is, in my view, misconceived. It is a case that explores what it means to have injuries that “arise out of” past use and does not inform the Court on whether “use” per se has to be temporal in the provision under consideration.

Conclusion as to the Statutory Interpretation

76. I am of the view that the provision requires a temporal nexus between seizure and the vehicle being used on the road. 

77. Given the evidence that at the time the Motorcycle was seized, it was parked on private property and not on a road or road related area, I am not satisfied that the police have established that the police officer seized the motor vehicle at a time it was being used on a road.   

Has the Appellant Satisfied the Burden of Establishing that he Did Not Intend to Evade Registration? 

78. In those circumstances, I do not strictly need to consider whether or not the Appellant established that he did not intend to evade registration. However, in the event that I am found wrong about that, I make the following findings:  

1. The onus is on the Appellant to satisfy the Court that there had been no intent to evade registration of the vehicle. 

2. There is no direct evidence of the Appellant's subjective intention in relation to the registration. 

3. There is no evidence from which I could draw the inference that the Appellant did not intend to evade registration where there is an equally available inference that he was avoiding his obligation to do so.     

79. On a matter where the Appellant bears the burden of satisfying me, the evidence is essentially neutral.   

80. Accordingly, the Appellant has failed to satisfy me that he did not intend to evade registration.   

Orders

81. I make the following orders:

1. I grant leave for the Appellant to bring the Appeal.

2. I allow the appeal.   

3. The orders of the Magistrate are quashed. 

4. The Motorcycle is to be returned to the Appellant.  

5. The Respondent is to pay the Appellant’s costs in the Local Court and on Appeal.    

6. The parties have liberty to apply in respect of the Costs order within seven days.  

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Decision last updated: 21 March 2025