Cudby v Cockinos
[2014] WASC 254
•22 JULY 2014
CUDBY -v- COCKINOS [2014] WASC 254
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 254 | |
| Case No: | SJA:1018/2014 | 2 JULY 2014 | |
| Coram: | ALLANSON J | 22/07/14 | |
| 16 | Judgment Part: | 1 of 1 | |
| Result: | Leave granted on grounds 1, 2, 3 and 5 Leave not granted on ground 4 Appeals dismissed | ||
| B | |||
| PDF Version |
| Parties: | KAIN WILLIAM CUDBY MICHAEL COCKINOS IAN ANGUS LANCE KEVIN BENYON |
Catchwords: | Appeal Traffic offence Reckless driving Statutory interpretation Road Traffic Code 2000 (WA) Definition of heavy vehicle Literal meaning Statutory interpretation Whether sign invalid Compliance with definition Purpose of legislation |
Legislation: | Interpretation Act 1984 (WA), s 18 Road Traffic (Vehicle Standards) Regulations 1977 (WA) (repealed), reg 104, pt 14 Road Traffic (Vehicle Standards) Regulations 2002 (WA), Glossary, reg 70, sch 1 div 1 cl 4 Road Traffic (Vehicle Standards) Rules 2002 (WA) Road Traffic Act 1974 (WA), s 60(1b) Road Traffic Code 2000 (WA), reg 3, reg 13, reg 14, reg 17, reg 191, reg 192, reg 301, reg 302(1), reg 302(4), pt 13 div 4, sch 2, sch 3 |
Case References: | Australian Finance Direct Ltd v Director of Consumer Affairs Victoria [2007] HCA 57; (2007) 234 CLR 96 Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55 Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297 Hall v Jones (1942) 42 SR (NSW) 203 Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216 Mostert v Durban Roodepoort Deep Ltd [2004] WASCA 309 Pemble v The Queen [1971] HCA 20; (1971) 124 CLR 107 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 R v Galambos (1980) 2 A Crim R 388 R v Lawson and Forsythe [1986] VR 515 R v Stokes and Difford (1990) 51 A Crim R 25 Roads and Traffic Authority of NSW v Birchfield; Roads and Traffic Authority of NSW v Dunlop [2010] NSWSC 1253; (2010) 79 NSWLR 217 Stevens v Kabushiki Kaisha Sony Computer Entertainment [2005] HCA 58; (2005) 224 CLR 193 Taylor v The Owners - Strata Plan No 11564 [2014] HCA 9 Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
MICHAEL COCKINOS
Respondent
- Appellant
AND
LANCE KEVIN BENYON
Respondent
ON APPEAL FROM:
For File No : SJA 1018 of 2014
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE M E PONTIFEX
File No : BU 4384 of 2013
For File No : SJA 1020 of 2014
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE M E PONTIFEX
File No : BU 4714 of 2013
Catchwords:
Appeal - Traffic offence - Reckless driving
Statutory interpretation - Road Traffic Code 2000 (WA) - Definition of heavy vehicle - Literal meaning
Statutory interpretation - Whether sign invalid - Compliance with definition - Purpose of legislation
Legislation:
Interpretation Act 1984 (WA), s 18
Road Traffic (Vehicle Standards) Regulations 1977 (WA)(repealed), reg 104, pt 14
Road Traffic (Vehicle Standards) Regulations 2002 (WA), Glossary, reg 70, sch 1 div 1 cl 4
Road Traffic (Vehicle Standards) Rules 2002 (WA)
Road Traffic Act 1974 (WA), s 60(1b)
Road Traffic Code 2000 (WA), reg 3, reg 13, reg 14, reg 17, reg 191, reg 192, reg 301, reg 302(1), reg 302(4), pt 13 div 4, sch 2, sch 3
Result:
Leave granted on grounds 1, 2, 3 and 5
Leave not granted on ground 4
Appeals dismissed
Category: B
Representation:
SJA 1018 of 2014
Counsel:
Appellant : Mr M J Joubert
Respondent : Ms A B Preston-Samson
Solicitors:
Appellant : Emeris Lawyers Pty Ltd
Respondent : State Solicitor for Western Australia
SJA 1020 of 2014
Counsel:
Appellant : Mr M J Joubert
Respondent : Ms A B Preston-Samson
Solicitors:
Appellant : Emeris Lawyers Pty Ltd
Respondent : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Australian Finance Direct Ltd v Director of Consumer Affairs Victoria [2007] HCA 57; (2007) 234 CLR 96
Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297
Hall v Jones (1942) 42 SR (NSW) 203
Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216
Mostert v Durban Roodepoort Deep Ltd [2004] WASCA 309
Pemble v The Queen [1971] HCA 20; (1971) 124 CLR 107
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
R v Galambos (1980) 2 A Crim R 388
R v Lawson and Forsythe [1986] VR 515
R v Stokes and Difford (1990) 51 A Crim R 25
Roads and Traffic Authority of NSW v Birchfield; Roads and Traffic Authority of NSW v Dunlop [2010] NSWSC 1253; (2010) 79 NSWLR 217
Stevens v Kabushiki Kaisha Sony Computer Entertainment [2005] HCA 58; (2005) 224 CLR 193
Taylor v The Owners - Strata Plan No 11564 [2014] HCA 9
Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491
1 ALLANSON J: It is an offence to drive a motor vehicle at a speed exceeding the speed limit set for that vehicle or the place where the driving occurred by 45 km/h or more: Road Traffic Act 1974 (WA) s 60(1b). Each appellant was alleged to have committed that offence while driving a heavy vehicle in a speed zone where the speed for heavy vehicles was limited to 40 km/h. The charges were heard together, although the offences were unrelated.
2 The appellants seek leave to appeal against their convictions. The applications for leave to appeal were ordered to be heard at the same time as the appeals, and the two appeals were ordered to be heard together.
Grounds of appeal
3 Both appellants rely on the same grounds:
1. The Learned Magistrate erred in fact and in law by finding that the Appellants had breached section 60(1) of the Road Traffic Act 1974.
2. The Learned Magistrate erred in fact and in law by finding that the vehicles driven by the Appellants were 'heavy vehicles' as defined in the Road Traffic Code 2000.
3. The Learned Magistrate found correctly that the definition of 'GCM' imported from the Road Traffic Standards Regulations 2002 created an anomaly in the definition of 'heavy vehicle' in the Road Traffic Code 2000 and failed to give the words 'gross combination mass' their literal meaning so as to accord with the legislative intention of the Road Traffic Code 2000.
4. The learned Magistrate failed to take into account the mechanical modifications on the vehicle driven by the appellant Cudby which modifications rendered the GCM of that vehicle inappropriate and irrelevant to the actual capacity of the vehicle in question and which placed the vehicle in the category of truck rather than heavy vehicle for the purposes of the Road Traffic Code 2000.
5. The Learned Magistrate relied on road signs that had been modified without legislative enactment and which do not comply with the Road Traffic Code.
6. The decision of the learned Magistrate has resulted in a miscarriage of justice.
4 Although they rely on identical grounds, the appeal of Mr Cudby raises some different issues. Ground 4 applies only to his appeal.
5 At the commencement of the trial, counsel for Mr Angus and Mr Cudby conceded the statement of material facts, including the speed alleged against each of them. So far as they are relevant in this appeal, the relevant facts are:
1. Mr Cudby was driving a tip truck with a GCM of 42.5 t. The vehicle was carrying a mini excavator, and weighed 14,300 kg. The speed of the vehicle was measured as 95 km/h.
2. Mr Angus was driving a prime mover with a three axle trailer attached. The prime mover had a GCM of 54,000 kg. It was travelling at 100 km/h. The weight of Mr Angus' vehicle was 16.56 t when empty, and the prosecution conceded that the vehicle was empty at the time.
6 It was also conceded on behalf of each appellant at trial that the vehicles were within the heavy vehicle speed zone, indicated by signs, where speed for heavy vehicles was restricted to 40 km/h. The correctness of that concession is in issue in ground 5 of the appeals.
7 The matter proceeded before the magistrate as an argument on the proper interpretation of the legislation, and whether each of the vehicles was a heavy vehicle as defined in the Road Traffic Code 2000 (WA) (the Code).
The relevant legislation
8 The Code provides in reg 14:
A person shall not drive a heavy vehicle in a heavy vehicle speed zone at a speed exceeding the speed limit indicated by numbers shown on the 'heavy vehicle speed zone' sign.
9 Relevant definitions are found in reg 3 of the Code:
heavy vehicle means a vehicle, other than a bus, that has, or together with any attached trailer and its load has, a GCM that is 22.5 t or more;
heavy vehicle speed zone means a length of carriageway, defined at its beginning by means of a 'heavy vehicle speed zone' sign and at its end by means of an 'end of heavy vehicle speed zone' sign.
'heavy vehicle speed zone' sign means a sign, erected near the boundary of a carriageway to face approaching drivers, that is substantially rectangular in shape and consists of -
(a) numerals in black set within a red circle; and
(b) the message 'ALL VEHICLES 22.5 tonnes or more' in black lettering,
upon a white background
10 By reg 3, GCM has the same meaning as 'gross combination mass' has in the Vehicle Standards (that is the Road Traffic (Vehicle Standards) Regulations 2002 (WA) and the Road Traffic (Vehicle Standards) Rules 2002 (WA), which are to be read together as if they form a single law).
11 The Vehicle Standards do not define 'gross combination mass', but also use the term GCM. In the Glossary to the Road Traffic (Vehicle Standards) Regulations, GCM is defined in this way:
GCM (which stands for 'gross combination mass'), in relation to a motor vehicle, means the greatest possible sum of the maximum loaded mass of the motor vehicle and of any vehicles that may lawfully be towed by it at one time -
(a) as specified by the motor vehicle's manufacturer -
(i) on a plate fixed to the vehicle by the manufacturer; or
(ii) if the manufacturer has not specified the sum of the maximum loaded mass on a plate fixed to the vehicle - in another place;
or
(b) as specified by the relevant authority if -
(i) the manufacturer has not specified the sum of the maximum loaded mass;
(ii) the manufacturer cannot be identified; or
(iii) the vehicle has been modified to the extent that the manufacturer's specification is no longer appropriate;
13 'Heavy vehicle' is separately defined in each of reg 191 and reg 192 of the Code, in each case by reference to its mass.
The decision of the magistrate
14 On 13 February 2014, the magistrate gave her decision and provided written reasons, although those reasons were, on their face, in the matter of Mr Cudby only. She expressed the dispute between the parties in this way:
It is not in dispute that at the time of the offence the vehicle being driven by Mr Cudby had a GCM of 42.5 t. It is therefore a vehicle with a GCM of 22.5 t or more. The prosecution's position is simple. It states that once it has been proved that the vehicle's GCM exceeds 22.5 t, then the vehicle is a heavy vehicle within the meaning of the section. It is irrelevant what the actual weight of the vehicle and any trailers, and load were at the time of the alleged offence.
The defence position is that the vehicle driven by Mr Cudby did not fall within the definition of heavy vehicle because its actual weight at the time was less than 22.5 t including its load. Mr Cudby was at the material time driving a truck only and was not towing any trailers. The weight of his truck and its load was 14.3 t [9] - [10].
15 Her Honour followed the conventional approach to statutory interpretation as set out in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [69], [71]. She held:
I do not consider that the defence's proposed construction of the definition of heavy vehicle is open. I consider the statutory text to be clear. The use of the disjunctive 'or' in the definition refers to the vehicle 'or' the vehicle and any attached trailer and its load. That is the required GCM is applicable to either a truck alone or a truck with trailer and load. GCM is then defined in such a way that the GCM of a vehicle is a known value based on the greatest load which a vehicle and any trailers can possibly carry. Specifically the definition makes no reference to the actual weight or mass at the time of the offence but only to the GCM which is the greatest possible loaded mass that can be lawfully towed at one time [15].
16 Her Honour went on to reject the proposition that the construction preferred was absurd or unreasonable. She said:
It has been defined in such a way that every driver will know at the outset of every journey whether he is required to obey the heavy vehicles speed zone limits by reference to the vehicle's GMC [sic] without recourse to first having to weigh the vehicle and any trailers and load. Indeed the converse situation would be onerous and almost unworkable for drivers and enforcement authorities alike [17].
17 As that was the only issue in dispute, she found the charge against Mr Cudby had been proved. There is no separate statement of reasons for Mr Angus but the appellant accepts that he was convicted for the same reasons.
Consideration of the grounds
Grounds 1-4: the construction of reg 14 of the Code
18 The principles applied by her Honour to the task of construction are well accepted, and neither party sought to depart from the conventional approach. But, as Lord Steyn said in 'The Intractable Problem of The Interpretation of Legal Texts' (2003) 25(1) Sydney Law Review 5, 8:
Interpretation is not a science. It is an art. It is an exercise involving the making of choices between feasible interpretations.
19 As a preliminary point, the issue is the proper construction of reg 14. While this requires close attention to the definitions in reg 3 of the Code and the Glossary to the Road Traffic (Vehicle Standards) Regulations, the function of the definition is not to enact substantive law, but to provide aid in construing the legislation. As McHugh J said in Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216:
Nothing is more likely to defeat the intention of the legislature than to give a definition a narrow, literal meaning and then use that meaning to negate the evident policy or purpose of a substantive enactment. There is, of course, always a question whether the definition is expressly or impliedly excluded. But once it is clear that the definition applies, the better - I think the only proper - course is to read the words of the definition into the substantive enactment and then construe the substantive enactment in its extended or confined sense - in its context and bearing in mind its purpose and the mischief that it was designed to overcome. To construe the definition before its text has been inserted into the fabric of the substantive enactment invites error as to the meaning of the substantive enactment [103].
20 The task of statutory construction begins and ends with consideration of the text of the written law: Australian Finance Direct Ltd v Director of Consumer Affairs Victoria [2007] HCA 57; (2007) 234 CLR 96 [34]; Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55 [39]. A construction that promotes the purpose or object underlying a statute is to be preferred to one that would not promote that purpose or object (Interpretation Act 1984 (WA) s 18). But that cannot detract from the fundamental importance of the language used by the legislature. As Gageler and Keane JJ said in Taylor v The Owners - Strata Plan No 11564 [2014] HCA 9 [65]:
The constructional task remains throughout to expound the meaning of the statutory text, not to divine unexpressed legislative intention or to remedy perceived legislative inattention. Construction is not speculation, and it is not repair.
21 The meaning of any statutory provision must be determined 'by reference to the language of the instrument viewed as a whole': Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297 [23]; Project Blue Sky [69]. This requires close consideration of the text and structure of the provision, in the context of the Act as a whole, the general purpose and policy of the provision, and its consistency and fairness. Similar comments were made in Stevens v Kabushiki Kaisha Sony Computer Entertainment [2005] HCA 58; (2005) 224 CLR 193 [30].
22 If conflict appears to arise from the language of the provisions 'the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions': Project Blue Sky [70].
23 The court must strive to give meaning to every word so that 'no clause, sentence or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent': Project Blue Sky [71].
24 The following are, in my opinion, relevant.
25 First, in the definition of 'heavy vehicle', the Code refers only to the GCM, and not the mass or weight of the vehicle. By definition, a vehicle is not a 'heavy vehicle' by reference to its own mass, either actual or the manufacturer's specification, but by reference to the specified maximum sum for a combination. In contrast, a 'vehicle' is defined as a truck by reference to its GVM (the maximum loaded mass of the vehicle).
26 Second, GCM and GVM do not refer to the actual mass of the vehicle at any time, but to the maximum weight, or the greatest possible sum in a combination, specified by the manufacturer of the vehicle. This usage is consistent throughout the regulations. See, for example, Road Traffic (Vehicle Standards) Regulations reg 70 and sch 1 div 1 cl 4. Where the Code pt 13 div 4 defines 'heavy vehicle' by reference to its mass, it does not use either 'GCM' or 'gross combination mass'.
27 Third, there is no definition of 'heavy vehicle' in reg 14 of the Code if the definition in reg 3 does not apply. The alternatives are that it should be given its ordinary or dictionary meaning, or that its meaning is inferred by implication from the wording of the heavy vehicle speed zone sign.
28 Fourth, it may be assumed that the term is used consistently throughout pt 3 of the Code. The scheme of pt 3, with reg 17 prescribing the points and modified penalties for the offences in pt 3 where the offence is committed by the driver of a heavy vehicle, points strongly to a consistent meaning.
29 Fifth, as counsel for the respondent frankly accepted, the words 'or together with any attached trailer and its load' in the definition of 'heavy vehicle' are unnecessary. The GCM is the manufacturer's specification for the vehicle itself. It is a value that is unaffected by the mass of an attached trailer (if any) and its load.
30 There is no obvious explanation for this anomaly. The definitions of 'heavy vehicle' and GCM have been in their present form from when the Code came into operation in 2000. At that time, the reference in the definition of GCM to 'gross combination mass' in the Vehicle Standards was to the Road Traffic (Vehicle Standards) Regulations 1977 (WA) (repealed). Under reg 104 of the 1977 Regulations, there was a definition of 'gross combination mass':
gross combination mass, in relation to a road train or an articulated vehicle or a motor vehicle towing a trailer means the maximum permitted laden mass of the combination vehicle, calculated or determined in accordance with Part 14.
31 It is unnecessary to explore pt 14 of the 1977 Regulations in detail. The definition of 'heavy vehicle', read with the defined term 'gross combination mass', was then, as now, a definition by reference to the maximum permitted mass and not the actual mass of the vehicle or combination.
32 Sixth, counsel for the appellants contended that there are serious practical difficulties which flow from the construction accepted by the magistrate. In the immediate cases, the two appellants have been convicted of offences which carry automatic disqualification and possible impounding of vehicles.
33 Counsel also submitted that the construction accepted by the magistrate causes confusion. I do not accept that submission. If anything, the construction aids certainty for both drivers and those enforcing the regulations. The GCM is a specified value that is independent of the load and other factors. A driver should know whether his or her vehicle is a 'heavy vehicle' or not.
34 Counsel raised the spectre of trucks travelling bumper to bumper down steep grades at 40 km/h, when only some of them would have an actual mass that requires them to observe that speed limit as a matter of safety.
35 Counsel submitted that there has been a change in the enforcement of the regulations. I was told that, as well as these two appellants, there are several other cases waiting to be heard.
36 None of those matters is such as to demonstrate some absurdity, inconsistency or repugnancy that would lead the court to depart from the literal meaning of the legislation.
37 There is, however, a possible internal inconsistency on the face of the regulations. On the respondent's construction, a 'heavy vehicle speed zone' is a zone defined at its beginning by a sign which, read literally, refers to the weight of the vehicle. There was an apparent attempt to reconcile the possible inconsistency between the wording of the prescribed sign and the definition of 'heavy vehicle' by modifying the signs to read 'GCM 22.5t'. The effect of this modification is the subject of ground 5.
38 None of these matters leads to a conclusion that the legislator must have intended that the definition of 'heavy vehicles' should be given a meaning other than its literal meaning when it refers to the GCM of the vehicle. The acronym is itself defined as a technical term. Even if regard is had to the full phrase, 'gross combination mass' is (and was) used to refer to a specified maximum, and not the actual measured mass.
39 It is always possible that a term is used in a substantive provision in another way than its defined sense. In particular, if giving effect to the term, as defined, produces a result which appears to be unjust, unreasonable or even absurd, a court is entitled to assume that the legislature 'intended to enact sense and not nonsense': Hall v Jones (1942) 42 SR (NSW) 203, 208. Applied to the facts of this case, I have considered whether the legislator intended that the term heavy vehicle should be given its ordinary or dictionary meaning, or some other meaning. There are two reasons why I do not believe that can be done in this case. First, that would leave the definition with no work to do: reg 14 and reg 17 of the Code are the only substantive provisions where the term is used and not defined for the purposes of the particular regulation. Second, it would leave the term undefined for the purposes of reg 14. Any attempt to apply an ordinary or dictionary definition would be too imprecise to meet the needs of the legislation, and could not have been intended. Third, there is a consistent use in pt 3 of the Code.
40 The potential inconsistency between the definition of 'heavy vehicle' and the prescribed wording of the sign can be resolved by reading the two together, and recognising that the prescribed 'message' also refers to GCM.
41 In my opinion, grounds 1, 2 and 3 were properly arguable and I would grant leave on each of them, but they should be dismissed.
42 Ground 4 raises a distinct issue regarding the modification of Mr Cudby's vehicle. But, as counsel for the appellants accepted, it cannot affect the result. If I had accepted the appellants' argument on the construction question, the modification would be irrelevant, the vehicle would be a 'heavy vehicle', or not, based upon its actual mass. On the construction I have accepted, the definition of 'heavy vehicle' is based on the manufacturer's specification. The modification does not alter that specification.
43 I would not grant leave for ground 4.
Ground 5 - the sign
44 The sign said to be the 'heavy vehicle speed zone sign' in this case did not say 'ALL VEHICLES 22.5 tonnes or more', the 'message' specified in reg 3 of the Code, but 'ALL VEHICLES 22.5 tonnes GCM or more'. The issue in this ground is shortly stated. Was the sign a 'heavy vehicle speed zone sign'?
45 Because of the concessions made at trial, the magistrate was not required to consider this question. Normally a party is bound by their conduct of the case at trial: see Mostert v Durban Roodepoort Deep Ltd [2004] WASCA 309 [53] - [55], where Le Miere J summarises the principles and relevant authorities. The respondent does not, however, oppose the appellant arguing this ground for two reasons. First, counsel cannot concede a matter of law to the disadvantage of an accused: Pemble v The Queen [1971] HCA 20; (1971) 124 CLR 107 [14]; R v Galambos (1980) 2 A Crim R 388; R v Lawson and Forsythe [1986] VR 515; R v Stokes and Difford (1990) 51 A Crim R 25. Second, there is an issue of public importance concerning the operation of statutory provisions that should be determined. I accept that submission.
46 I am also satisfied that it is purely a matter of construction which would be unaffected by further evidence or the manner in which the respondent could have conducted its case at trial. More generally, the question is whether this court on appeal 'may find it expedient and in the interests of justice to entertain the point': Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491 [13]. Having regard to the nature of the issue and the respondent's position, I am satisfied that I should consider the point and the court should answer the questions raised by ground 5.
47 The first question is whether the 'heavy vehicle speed zone sign' is a 'traffic sign'. A 'traffic sign' need only comply substantially with a description of that kind of traffic sign in the regulations. Regulation 302(1) of the Code permits a 'traffic sign' to:
(a) be a reasonable likeness of any representation of that sign in these regulations or the Schedules to these regulations; or
(b) comply substantially with a description of that kind of traffic sign in these regulations.
48 Specifically, a 'traffic sign' may substantially comply even though it has additional information on or with it: reg 302(4) of the Code.
49 Not all 'road signs' are 'traffic signs', although the distinction between them is sometimes elusive (see, for example, reg 301 of the Code which uses both terms). Regulation 3 defines a 'traffic sign' as 'one of the road signs, marks, structures or devices set out in Schedule 2 or 3 placed, or erected, on or near a road'. Because it is not one of those set out in sch 2 or 3 of the Code, the 'heavy traffic speed zone sign' is not a 'traffic sign' and reg 302 does not apply. There is no other general provision regarding substantial compliance that would apply to a 'road sign'.
50 Counsel for the respondent submitted that the court should then consider two questions, both of which turn on the proper construction of the Code. Does the sign comply with the definition of 'heavy vehicle speed zone sign'? And, if it does not comply, is the intention of the legislation that the sign is to be invalid or ineffective?
51 Questions of this sort are not uncommon, although they are generally in relation to the exercise of a statutory power, or the performance of an act that has some legal effect pursuant to a statute. The question in these cases is 'whether it was a purpose of the legislation that an act done in breach of the provision should be invalid', having regard in particular to 'the language of the relevant provision and the scope and object of the whole statute': Project Blue Sky [93]. It is difficult to apply that kind of analysis to the definition of a 'heavy traffic speed zone sign' in reg 3 of the Code. There is no act which is to be performed pursuant to the regulation. There is simply a description of a sign by stating its shape, and the two parts it is to consist of, including the message.
52 There is no authority that bears directly on this question. Counsel referred me to the decision of Davies J in Roads and Traffic Authority of NSW v Birchfield; Roads and Traffic Authority of NSW v Dunlop [2010] NSWSC 1253; (2010) 79 NSWLR 217. The relevant regulation in that case provided:
If the driver of a truck drives past a trucks must enter sign, the driver must enter the area indicated by the information on or with the sign [4].
- The sign read:
Heavy Vehicle
Checking Station
300m
Vehicles over 8t GVM
MUST ENTER [5].
A motorist should be in the position of being assumed to know the Road Rules. Such a motorist should not be in the position of having to decide whether a non-authorised sign is required to be complied with on the basis that the motorist falls within the class authorised to be directed by the Rule although not clearly identified by the sign. In the present case, for example, the sign wrongly required a bus over 8t gvm to enter the Heavy Vehicle Checking Station. On the other hand, a truck driver driving a truck over 4.5t but under 8t might wonder, if he knew of r 105, whether he was required by this sign to enter the Heavy Vehicle Checking Station. Where a conviction and penalty is likely to follow a breach by the driver of a vehicle, no driver should be placed in the position of having to interpret a sign and read it down by the process contained in s 32 [37].
54 The decision of Davies J should be distinguished. There is no question in this case of the sign, with the addition of GCM, ostensibly applying to a vehicle other than a 'heavy vehicle' as defined in the Code. It calls for no interpretation or reading down.
55 The question must be one of ascertaining the intent of the legislation from its text. The purpose of reg 14 of the Code is to restrict the speed of vehicles with a GCM of 22.5 t or more. The sign has two functions: to define the beginning of the zone and, by the numbers on it, to specify the speed limited. The inclusion of 'GCM' to the prescribed words does not affect the operation of the sign in either of those functions. On that basis, I accept the first submission made on behalf of the respondent. The sign does in fact comply with the regulations because it contains the prescribed words of the message, and the additional three letters do not materially alter its operation.
56 I would grant leave on ground 5, but dismiss the appeal on that ground.
Ground 6
57 Ground 6 requires a finding of error on one of more of the other grounds. It must be dismissed.
58 For these reasons I would grant leave on all but ground 4, but dismiss the appeals in each case.
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