Kevin James Fogarty v Director of Public Prosecutions (NSW)
[2014] NSWSC 1245
•09 September 2014
Supreme Court
New South Wales
Medium Neutral Citation: Kevin James Fogarty v Director of Public Prosecutions (NSW) [2014] NSWSC 1245 Hearing dates: 13 August 2014 Decision date: 09 September 2014 Before: Rothman J Decision: 1. To the extent necessary, leave to appeal granted;
2. Pursuant to the terms of s 55(1) of the Crimes (Appeal and Review) Act 2001, the conviction of the plaintiff entered on 22 November 2013 in the Local Court at Coonabarabran for the offences of:
(a) Driving a motor vehicle, namely a Peterbilt heavy vehicle tow truck, in a Class 2 vehicle combination, on a road, without being licensed for that purpose or exempted by the Regulations from being licensed for that purpose, contrary to s 25(1)(a) of the Road Transport (Driver Licensing) Act 1998; and
(b) Driving a Class 2 vehicle, namely a Peterbilt heavy vehicle tow truck, on a road, at the time was operating as a Class 2 road train in an area not permitted for use by road trains, contrary to Clause 19 of the Road Transport (Mass, Loading and Access) Regulation 2005;
are hereby set aside;
3. In accordance with s 70 of the Crimes (Appeal and Review) Act 2001, no order for costs;
4. The applicant Kevin James Fogarty be granted a certificate under s 6 of the Suitors' Fund Act 1951 if otherwise eligible.
Catchwords: APPEALS AND REVIEWS - appeal on question of law alone - leave to appeal on question of mixed law and fact - statutory construction - discussion
STATUTORY CONSTRUCTION - several overlapping statutes of one legislature - harmonious goals - context essential
TRAFFIC LAW - Regulation of Tow Truck drivers - definition of B-double and road train - distinction between motor vehicle and trailer, trailer and semi-trailer, towing and drivingLegislation Cited: Crimes (Appeal and Review) Act 2001
Road Transport (Driver Licensing) Act 1998
Road Transport (Driver Licensing) Regulation 2008
Road Transport (Mass, Loading and Access) Regulations 2005
Road Transport (Safety and Traffic Management) Act 1999
Road Transport (Vehicle Registration) Regulation 2007
Tow Truck industry Act 1998Cases Cited: Assadourian v Roads and Traffic Authority of New South Wales (Northern Region) [2011] NSWSC 1052
Australian Gas Light Company v Valuer-General (1940) 40 SR (NSW) 126
Collector of Customs v Agfa-Gevaert [1996] HCA 36; (1996) 186 CLR 389
Collector of Customs v Pressure Tankers Pty Ltd and Pozzolanic Enterprises Pty Ltd [1993] FCA 322; (1993) 43 FCR 280
Commissioner of Police v Eaton [2013] HCA 2; (2013) 87 ALJR 267
Hayes v Federal Commissioner of Taxation [1956] HCA 21; (1956) 96 CLR 47
L&B Linings Pty Ltd v WorkCover Authority of New South Wales [2011] NSWSC 474
L&B Linings Pty Ltd v Work Cover Authority of New South Wales [2012] NSWCA 15
Plaintiff M150 of 2013 v Minister for Immigration and Border Protection [2014] HCA 25; (2014) 88 ALJR 735
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
QBE Insurance (Australia) Ltd v Motor Accidents Authority of New South Wales [2013] NSWSC 549; (2013) 63 MVR 470
Semaan v Poidevin [2013] NSWSC 226; (2013) 228 A Crim R 363Category: Principal judgment Parties: Kevin James Fogarty (Applicant)
Director of Public Prosecutions (NSW) (Respondent)Representation: Counsel:
D Jordan SC/Ann Bonnor (Applicant)
D Kell/with G Hazlitt (Respondent)
Solicitors:
Creevey Russell Lawyers (Applicant)
Office of the Director of Public Prosecutions (Respondent)
File Number(s): 2013/00379973 Publication restriction: None
Judgment
HIS HONOUR: By summons filed 18 September 2013 and amended summons filed 14 April 2014, the plaintiff appeals his conviction in the Local Court at Coonabarabran for two offences involving the driving of a road train in circumstances where the plaintiff was driving a heavy duty tow truck that, in turn, was drawing a prime mover and semi-trailer together with a trailer.
The issues in the appeal concern the proper construction of the Road Transport (Driver Licensing) Act 1998 (the Act) and the Road Transport (Mass, Loading and Access) Regulations 2005 (the Regulations) in so far as they relevantly deal with "driving" and "trailer". As is not unusual, the issues are complicated and involve the interrelationship between various statutes and different pieces of subsidiary legislation, together with an assessment of the conduct of the plaintiff.
In the alternative to his appeal under s 52 of the Crimes (Appeal and Review) Act 2001 (the Appeal and Review Act), the plaintiff applies for leave to appeal under s 53 of the Appeal and Review Act.
The Impugned Convictions and Grounds of Appeal
The plaintiff was relevantly convicted of the following two offences:
1. Driving a motor vehicle, namely a Peterbilt Heavy Vehicle Tow Truck, in a Class 2 Vehicle Combination, on a road, without being licensed for that purpose or exempted by the regulations from being licensed for that purpose, contrary to s 25(1)(a) of the Act (Count 1); and
2. Driving a Class 2 Vehicle, namely, a Peterbilt Heavy Vehicle Tow Truck, on a road, and at the time was operating as a Class 2 road train in an area not permitted for use by road trains, contrary to clause 19 of the Regulations (Count 2).
The further amended statement of grounds of appeal, while more discursive than necessary, raises two grounds of appeal, in the following terms:
"Ground 1
[7] The plaintiff was driving his tow truck to tow, or draw, the B Double Combination. He was not 'driving' a road train, comprising the tow truck together with the B Double Combination under tow, as alleged by the defendant.
[8] It was not open to the Magistrate to find that the plaintiff was 'driving' a motor vehicle, being a road train comprising the tow truck together with the B Double Combination under tow.
Ground 2
[9] The Regulation relevantly defines a 'road train' to consist of 'a motor vehicle towing at least two trailers'. By definition in the Road Transport (General) Act 2005, 'a motor vehicle being towed' cannot be a 'trailer'.
[10] The combination alleged by the defendant could only fall within the definition of 'road train' if each of the vehicles being towed behind the tow truck was a 'trailer'.
[11] It was not open to the Magistrate to find that the combination being driven by the plaintiff was a 'road train', because one of the vehicles being towed was a motor vehicle, being the prime mover."
The plaintiff does not precisely identify that which is said to be the question of law alone involved in the foregoing grounds, which would give rise to a right of appeal under s 52 of the Appeal and Review Act. If the appeal were on grounds that were broader than a question of law alone, then the jurisdiction of the Court depends on s 53 of the Appeal and Review Act and requires leave of the Court.
Involving a Question of Law Alone
The traditional analysis of the distinction between a question of law and otherwise commences with the taxonomy suggested by Sir Frederick Jordan CJ in Australian Gas Light Company v Valuer-General (1940) 40 SR (NSW) 126, in which the Court said:
"In cases in which an appellate tribunal has jurisdiction to determine only questions of law, the following rules appear to be established by the authorities:
(1) The question what is the meaning of an ordinary English word or phrase as used in the Statute is one of fact, not of law. This question is to be resolved by the relevant tribunal itself, by considering the word in its context with the assistance of dictionaries and other books, and not by expert evidence; although evidence is receivable as to the meaning of technical terms; and the meaning of a technical legal term is a question of law: Commissioners for Special Purposes of Income Tax v Pemsel.
(2) The question whether a particular set of facts comes within the description of such a word or phrase is one of fact.
(3) A finding of fact by a tribunal of fact cannot be disturbed if the facts inferred by the tribunal, upon which the finding is based, are capable of supporting its finding, and there is evidence capable of supporting its inferences.
(4) Such a finding can be disturbed only (a) if there is no evidence to support its inferences, or (b) if the facts inferred by it and supported by evidence are incapable of justifying the finding of fact based upon those inferences. Thus, if the facts inferred by the tribunal from the evidence before it are necessarily within the description of a word or phrase in a statute or necessarily outside that description, a contrary decision is wrong in law. If, however, the facts so inferred are capable of being regarded as either within or without the description, according to the relative significance attached to them, a decision either way by a tribunal of fact cannot be disturbed by a superior Court which can determine only questions of law." (Citations omitted.)
The classic taxonomy described by Sir Frederick Jordan, above, has been adopted and applied in many cases, sometimes in slightly different terms. The modern delineation between errors of law and errors of fact or mixed fact and law found expression in the judgment of the High Court in Collector of Customs v Agfa-Gevaert [1996] HCA 36; (1996) 186 CLR 389, which in turn adopted the taxonomy of the Federal Court in the Collector of Customs v Pressure Tankers Pty Ltd andPozzolanic Enterprises Pty Ltd [1993] FCA 322; (1993) 43 FCR 280. The Full Court of the Federal Court in Pozzolanic (at 287 of the FCR report), cited, as earlier stated, with approval by the High Court in Agfa-Gevaert (at 395), was said:
"[23] The principles according to which the jurisdiction conferred by s 44 is limited are not always easy of application. Distinctions between a question of fact and a question of law can be elusive. The proper interpretation, construction and application of a statute to a given case raise issues which may be or involve questions of fact or law or mixed fact and law. Nevertheless there are five general propositions which emerge from the cases:
1. The question whether a word or phrase in a statute is to be given its ordinary meaning or some technical or other meaning is a question of law: Jedko Game Co Pty Ltd v Collector of Customs (NSW) 1987 12 ALD 491; Brutus v. Cozens [1973] AC 854.
2. The ordinary meaning of a word or its non-legal technical meaning is a question of fact: Jedko Game Co Pty Ltd v Collector of Customs (supra); New South Wales Associated Blue Metal Quarries Ltd v Commissioner of Taxation (Cth) (1956) 94 CLR 509 at 512; Life Insurance Co of Australia Ltd v Phillips (1925) 36 CLR 60 at 78; Neal v Department of Transport (1980) 3 ALD 97 at 107-108.
3. The meaning of a technical legal term is a question of law: Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126 at 137-8; Lombardo v Commissioner of Taxation (Cth) (1979) 40 FLR 208 at 215.
4. The effect or construction of a term whose meaning or interpretation is established is a question of law: Life Insurance Co of Australia v Phillips (supra) at 79.
5. The question whether facts fully found fall within the provision of a statutory enactment properly construed is generally a question of law: Hope v Bathurst City Council (1980) 144 CLR 1 at 7 per Mason J with whom Gibbs, Stephen, Murphy and Aickin JJ agreed; Australian National Railways Commission v Collector of Customs (SA) at 379 (Sheppard and Burchett JJ).
[24] The fifth proposition as stated by the High Court in Hope v Bathurst City Council (supra) was elaborated by reference to the remarks of Fullagar J in Hayes v Federal Commissioner of Taxation:
'Where the factum probandum involves a term used in a statute, the question whether the accepted facta probantia establish that factum probandum will generally - so far as I can see, always - be a question of law.'
[25] This principle is qualified when a statute uses words according to their ordinary meaning and the question is whether the facts as found fall within those words. Where it is reasonably open to hold that they do, then the question whether they do or not is one of fact: Hope v Bathurst City Council at 8. Mason J there cited the observation of Kitto J in New South Wales Associated Blue Metal Quarries Ltd v Commissioner of Taxation (Cth) (supra) at 512:
'The next question must be whether the material before the Court reasonably admits of different conclusions as to whether the ... operations fall within the ordinary meaning of the words as so determined; and that is a question of law ... If different conclusions are reasonably possible, it is necessary to decide which is the correct conclusion; and that is a question of fact ...'."
The question whether a statutory description applies to a particular set of facts (found or agreed) can be either a question of law or a question of mixed law and fact. If there were only one answer available, on the facts before the Court, the question would be a question of law. If, on the other hand, there could be different answers depending upon the significance or evaluation of particular facts, then the question is one of mixed law and fact: see QBE Insurance (Australia) Ltd v Motor Accidents Authority of New South Wales [2013] NSWSC 549; (2013) 63 MVR 470; L&B Linings Pty Ltd v WorkCover Authority of New South Wales [2011] NSWSC 474 at [79]; Assadourian v Roads and Traffic Authority of New South Wales (Northern Region) [2011] NSWSC 1052 at [31]; Semaan v Poidevin [2013] NSWSC 226; (2013) 228 A Crim R 363 at [93].
Where a proposition to be established under a statute is the determinant of the issue in a proceeding, the question whether the evidentiary or primary facts establish the proposition to be proved is usually, if not always, a question of law: Hayes v Federal Commissioner of Taxation [1956] HCA 21; (1956) 96 CLR 47; Agfa-Gevaert at 394-395; L&B Linings Pty Ltd v WorkCover Authority of New South Wales [2012] NSWCA 15 at [66] per Basten JA with whom McColl and Whealy JJ agreed.
Each of the grounds of appeal depends upon a determination of whether a word or phrase should be given a particular legal meaning and involves the interpretation of a number of statutes to determine, as a matter of law, whether the facts (not generally in dispute) come within the terms used in the Act and the Regulations. As a consequence, and bearing in mind the discussion of the High Court in Agfa-Gevaert (particularly at 397) it seems to me the grounds each raise a question of law. Whether it is a question of law "alone" is a difficult issue. It seems to me that the answer is that it does raise a question of law alone, but, as a matter of abundant caution, if it be a question of mixed law and fact, I would grant leave.
Legislative Framework
The plaintiff submits that the legislation giving rise to the offences is part of a scheme of statutes that draws a distinction between "driving" and "towing", such that towing a vehicle is not driving that vehicle (even though it may be driving the tow truck). In order to understand the submission and lay the framework for the later analysis, it is necessary to set out some of the legislative provisions.
The plaintiff and defendant have referred to a number of statutes. It is most convenient to recite the analysis of some of the legislation that is contained in the Outline of Submissions for the Plaintiff, which now follows:
"Legislation
[6] Count 1 was brought pursuant to s 25(1)(a) of the Road Transport (Driver Licensing) Act 1998 (the Licensing Act). At the time the offence was alleged to have been committed, in December 2012, s 25(1) of the Licensing Act applied as follows:
(1) A person must not, unless exempted by the regulations:
(a) drive a motor vehicle on any road or road related area without being licensed for that purpose, or
(b) employ or permit any person not so licensed to drive a motor vehicle on any road related area.
Maximum penalty: 20 penalty units.
[7] By s 4 of the Licensing Act and the Dictionary, the following definitions applied in relation to Count 1:
drive includes having control over the steering, movement or propulsion of a vehicle and also includes ride a vehicle.
driver licence means:
(a) a licence (including a conditional licence, a provisional licence and a learner licence) issued in accordance with the regulations authorising the holder to drive one or more classes of motor vehicle on a road or a road related area...
motor vehicle means a vehicle that is built to be propelled by a motor that forms part of the vehicle.
road means 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.
[8] Count 2 was charged pursuant to clause 19 of the Road Transport (Mass, Loading and Access) Regulation 2005 (the Regulation), which is set out below:
A person must not drive or operate a Class 2 vehicle except in accordance with a notice issued, or a permit granted, under this Division.
Maximum penalty: 30 penalty units.
[9] Clause 19 fell within Division 4 of Part 2 of the Regulation. The application of this Division, and the definition of 'Class 2 vehicle', was set out in clause 18, which relevantly provided:
This Division applies only to a restricted access vehicle that complies with the mass and dimension limits prescribed in the Road Transport (Vehicle Registration) Regulation 2007 and Schedule 1 (except as provided in paragraph (b) of the definition of restricted access vehicle) (a Class 2 vehicle) and is:
(a) a B-double, or
(b) a road train,...
[10] By clause 3 of the Regulation, definitions were set out in the Dictionary. Relevant definitions are set below:
B-double means a combination consisting of a prime mover towing 2 semi-trailers.
drive includes to stand or allow or cause to stand.
driver means the person driving or in control of a motor vehicle.
prime mover means a motor vehicle built to tow a semi-tailer.
road train means a combination, other than a B-double, consisting of a motor vehicle towing at least 2 trailers (counting as one trailer a converter dolly supporting a semi-trailer).
semi-trailer means a trailer that has:
(a) one axle group or single axle towards the rear, and
(b) a means of attachment to a prime mover that would result in some of the load being imposed on the prime mover.
[11] The meaning of some of the terms used in the Regulation was also informed by the definition of those terms in the Road Transport (General) Act 2005 (the General Act). This is confirmed by a note to that effect immediately below clause 3 of the Regulation: Relevant definitions in s 3 of the General Act are as follows:
combination means a group consisting of a motor vehicle connected to one or more other vehicles.
drive includes the following:
(a) be in control of the steering, movement or propulsion of a vehicle,
(b) in relation to a trailer, draw or tow the trailer,
(c) ride a vehicle.
driver means any person driving a vehicle, and includes any person riding a cycle.
motor vehicle means a vehicle that is built to be propelled by a motor that forms part of the vehicle.
road means 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.
trailer means a vehicle that:
(a) is built to be towed, or is towed, by a motor vehicle, and
(b) is not capable of being propelled in the course of normal use on roads without being towed by a motor vehicle,
whether or not its movement is aided by some other power source, but does not include:
(c) a motor vehicle being towed, or
(d) anything declared by the regulations to be excluded from this definition.
[12] Division 6 of Part 2 of the Regulation dealt with towing restrictions for vehicles other than 'restricted access vehicles'. Division 6 of Part 2 did not apply because the plaintiff's vehicle was a 'restricted access vehicle'. However, the specific reference in this Division to towing vehicles is relevant in construing the meaning of 'drive'. In particular, clause 30 of the Regulation described towing as 'drawing' a vehicle, as distinct from driving a vehicle:
This Division applies in respect of a combination consisting of:
(a) an articulated vehicle drawing any other vehicle, or
(b) any other motor vehicle drawing more than one other vehicle,
being a combination that (alone or together with its load) does not constitute a restricted access vehicle.
[13] The difference between driving a vehicle, and towing a vehicle, was also reflected in s 141(1) and s 141(2) of the General Act, which provided for moving unattended vehicles:
(1) This section applies where are authorised officer:
(a) believes on reasonable grounds that a vehicle or combination is unattended on a road, and
(b) is seeking to exercise other functions under an applicable road law, and
(c) believes on reasonable grounds that the vehicle or combination should be moved to enable or to facilitate the exercise of those functions.
(2) The officer may:
(a) move the vehicle or combination (by driving or towing it or otherwise), or
(b) authorise another person to move it (by driving or towing it or otherwise),
to the extent reasonable necessary to enable or to facilitate the exercise of the functions concerned."
The foregoing are not the only relevant provisions. First, attention should be drawn to the Objects recited in Clause 4 of the Regulations, which include an object to make provision with respect to matters intended to be applied uniformly within Australia for the regulation of "the conditions for access to roads of vehicles and combinations that are too large or too heavy to be allowed general road access".
It also should borne in mind that the Regulations refer to heavy vehicles having a certain gross vehicle mass (GVM), or maximum loaded mass of the vehicle, or a combination having a gross combination mass (GCM), or greatest possible sum of the maximum loaded mass of the vehicle and of any vehicles that may be towed by it at the one time, greater than the prescribed weight or any combination with a GVM exceeding that limit. Thus, the heaviness or size of the vehicle was regulated and applied to single vehicles or a combination of vehicle and trailer without distinction.
Further, a Class 2 vehicle, a term used in Clause 19 of the Regulations, is defined in the dictionary to the Regulations in terms that reflect the provisions of Clause 18 recited above.
The Dictionary also defines a "restricted access vehicle" to mean "a single motor vehicle or a combination which alone, or together with any load" exceeds a mass limit or dimension limit that is prescribed by the Regulations.
As can be seen from the above, the determination of whether a tow truck towing a prime mover with a semi-trailer attached to it and another trailer attached to that is a Class 2 Vehicle Combination requires the construction of interrelated legislation in which there is a tension between the definitions and use of the terms necessary for the purpose of the construction.
Construction of a Statute - Principles
The principles of statutory construction are now well established. The modern approach is derived from the principles outlined by the High Court in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355. Legislative instruments should be construed on the prima facie basis that the provisions are intended to give effect to harmonious goals and where conflict appears to arise it should be alleviated, to the extent possible, by the adjustment of the meaning of the competing provisions to achieve such a goal: Project Blue Sky at [70] per McHugh, Gummow, Kirby and Hayne JJ. See also Plaintiff M150 of 2013 v Minister for Immigration and Border Protection [2014] HCA 25; (2014) 88 ALJR 735, particularly at [68] per Hayne and Kiefel JJ.
The foregoing approach to particular legislation applies, to the extent possible, to different pieces of legislation promulgated by the same legislature. If the modern approach to statutory construction were the achievement of harmonious goals, it must be expected that harmonious goals will be achieved by the promulgation of different statutes by the same legislature and a construction that achieves such harmonious goals should be preferred. The law presumes that statutes do no contradict one another, inconsistency being at the core of implied repeal: see Commissioner of Police v Eaton [2013] HCA 2; (2013) 87 ALJR 267 at [48] and [78]. At [78], Crennan, Kiefel and Bell JJ in Eaton said:
"[78] In accordance with ordinary rules of construction concerning the internal operation of a statute, the Police Act should be construed in a way which best achieves a harmonious result. The same principle of consistency informs the construction of two statutes which may share a field of operation."
Judgment Below
As is obvious from the foregoing, the primary facts before the Local Court were not, relevantly, in dispute. The judgment of the learned Magistrate is, in the relevant aspects, concise and concludes in the following manner:
"In my view the facts show that the defendant was in fact driving a tow truck which was drawing or towing a B-double which was itself being driven by the defendant, and by virtue of the configuration of these vehicles (including the trailers comprising the B-double) the combination constituted a class 2 vehicle combination which was being driven by the defendant.
I therefore find that [Count 1] is proved and for the same reason I am satisfied that this was a road train and the driver was driving a road train on a road not approved for that purpose and that [Count 2] is likewise proved."
There are significant factual anomalies associated with the contention of either the plaintiff or the defendant. The practical effect of the judgment of the learned magistrate is that a road train that has broken down would, ordinarily, be required to be dismantled, the prime mover then towed by a tow truck and the semi-tailer and adjoining trailer connected to a different (and working) prime mover.
Alternatively, if the plaintiff's contention were accepted, a relevantly unlicensed tow truck driver could tow two trailers thereby circumventing the regulations associated with the class of licence necessary for such a vehicle and the nature of the roads upon which such vehicles can travel.
Consideration
One of the issues of tension between the various statutory provisions is the breadth of the definitions in each of the statutes. The difficulty with utilising definitions in the broadest possible way, particularly where there are numerous different definitions, is that the tension is created by the definition itself. Definitions are an extremely useful tool but a poor master. Definitions in a statute must always give way to the context in which the word that is defined has been used.
In the provisions that are required to be considered in the current matter, a prime example of a term defined broadly and used differently is "drive". For obvious reasons, the legislature has defined the term "drive" broadly so as to ensure driving, in all its forms, is covered. Yet, there is a slight distinction between the term "drive" and the term "towing".
The difference between "towing" and "driving" is understandable. The tension is also explicable. An obvious example will suffice. A driver driving a car and towing a trailer is driving the car and the trailer. Yet, if one is required to differentiate between the car and the trailer, then the driver is driving the car and towing the trailer. In some contexts, the term driving will include the trailer. In another context, it may not.
Thus, when one must consider the circumstances currently before the Court, the tow truck driver is driving the tow truck and is driving the tow truck, prime mover, semi-trailer and trailer. Yet, if one is required to ask the question, separately, is the tow truck driver driving the prime mover, then the answer is no; the driver is towing the prime mover. The foregoing distinction is crucial in dealing with the issue of whether that which was being driven by the plaintiff was a B-double.
The extract from the General Act, above, recites the definition of "drive" to include drawing or towing, but only in relation to a trailer. The same Act defines a "trailer", as is also set out above, as being a vehicle not capable of, in effect, being driven. As a consequence, the inclusive definition of "drive" that brings in towing does not bring in the towing of a motor vehicle. That distinction must be the leading provision in order for the harmonious goals to which the statutes and regulations are directed to be achieved.
The terms of s 25 of the Act could have been more felicitously expressed. Nevertheless, given the definition of "driver licence" it seems that the term "for that purpose" does not relate to the driving of any motor vehicle but rather the driving of a motor vehicle of a particular class. As a consequence, it is an offence under s 25 of the Act to drive a motor vehicle on a public road or road related area without being licensed for the class of motor vehicle being driven.
Importantly, as earlier recited, a motor vehicle is a vehicle that is built to be propelled by a motor that forms part of the vehicle. Such a definition would not include a trailer. Lastly, in terms of the Act, it is necessary to reiterate that the objects of the Act are the establishment of a driver licensing system in accordance with uniform national codes, the regulation of the driving of motor vehicles, the enforcing of safety standards and the like.
Further, the plaintiff was charged and convicted of a breach of Regulation 19 of the Regulations in that the learned Magistrate found that the plaintiff was driving a Class 2 vehicle, which is defined to include a B-double or a road train of a particular weight. The weight is irrelevant for present purposes.
The Regulations also deal (in Division 6) with towing restrictions for vehicles other than restricted access vehicles and by Clause 30 establishes the application of Division 6 to a combination consisting of an articulated vehicle drawing any other vehicle or any other motor vehicle drawing more than one other vehicle. Clause 33 refers to a tractor and implement combination "towing" a fuel trailer or an "articulated low-loader consisting of a prime mover towing a converter dolly and a semi-trailer".
I have already cited the definition of a B-double in the Regulations and the definition of Class 2 vehicle, which is contained in both the Dictionary and implicitly in Clause 18 of the Regulations. The term "drive" is defined in the Regulations as including "to stand or allow or cause to stand".
It is probably necessary for the Court to set out the definition of converter dolly, which, under the Regulations, is defined as meaning "a trailer with one axle group or single axle and a fifth wheel coupling designed to convert a semi-trailer into a dog trailer". It is also appropriate to set out the definition of "dog trailer" which is defined to mean "a trailer (including a trailer consisting of a semi-trailer and converter dolly) with: (a) one axle group or single axle at the front that is steered by connection to the towing vehicle by a draw bar, and (b) one axle group or single axle at the rear". As already recited a prime-mover means "a motor vehicle built to tow a semi-trailer".
In the foregoing, it is significant that a trailer is defined to include a semi-trailer only when attached to a converter dolly. A semi-trailer has only one axle (or set of wheels) and requires support at the front (by attachment either to a prime mover or converter dolly) to be "towed" or "driven". Also of significance is that a prime mover and semi-trailer is not included in the definition of trailer.
The Road Transport (General) Act 2005 (the General Act) contains a number of definitions overlapping with the definitions contained in the Act and the Regulations. First the term "combination" is defined to mean a group consisting of a motor vehicle connected to one or more other vehicles. In that context a motor vehicle is defined to mean "a vehicle that is built to be propelled by a motor that forms part of a vehicle" and a "vehicle" is not separately defined. However, a "trailer" is defined as meaning "a vehicle that is built to be towed, or is towed, by a motor vehicle, and is not capable of being propelled in the course of normal use on roads without being towed by a motor vehicle...but does not include a motor vehicle being towed".
In the General Act "drive" includes "be in control of the steering, movement or propulsion of a vehicle, or, in relation to a trailer, draw or tow the trailer". Again, of significance that "towing" is included in "driving" only in relation to a "trailer": see [33] infra.
There are other provisions that distinguish between driving and towing: see, for example, s 141 of the General Act; s 142 of the General Act; and s 218C of the General Act. On the other side of that equation, there exists a Tow Truck Industry Act 1998 (the Tow Truck Act) which defines "certified driver", "drivers certificate" (sic), a "licensed tow truck", "motor vehicle", "operate" and "tow". The term "tow truck" is defined by s 4 of the Tow Truck Act to mean a number of specified vehicles, being vehicles equipped with a lifting device or equipped with a trailer, towing attachment or other similar device and some other equipment.
It is appropriate to set out the definitions in the Tow Truck Act of "motor vehicle", and "tow". A "motor vehicle" is defined to mean "a motor vehicle or trailer within the meaning of the [General Act]". The term "tow" is defined to include "lift and tow, or lift and carry, lift for the purpose of towing or carrying, carry on a trailer, place onto a trailer for the purpose of carrying, and any other prescribed action".
Tow truck drivers are separately licensed and it is an offence to drive or operate or stand a licensed tow truck without being the holder of a drivers' certificate for a tow truck: see s 23 of the Tow Truck Act. There are classes of tow truck drivers' certificates, a pre-condition for the holding of which being the holding of a full drivers' licence or its equivalent in another State.
It is also an offence to charge a fee for accident towing work involving a heavy motor vehicle unless one has an approved tow truck licence: Clause 40H of the regulations issued pursuant to the Tow Truck Act (the Tow Truck Regulations). It should be noted that Clause 55 of the Tow Truck Regulations permits the holder of a tow truck licence in another State to operate or drive a tow truck in New South Wales.
Next it is necessary to refer, briefly, to the Road Rules 2008 issued under the Road Transport (Safety and Traffic Management) Act 1999. The Road Rules consolidate rules governing traffic and road signs in New South Wales and coordinate those rules with those applying in other States. By Clause 294-3, particular restrictions are imposed in relation to towing vehicles and they prohibit a driver from driving a motor vehicle which has another vehicle attached to its rear that is not a trailer, except under certain conditions. One of those conditions is that the towing vehicle is a tow truck or, otherwise, if the towed vehicle is a motor vehicle a person is in charge of that towed vehicle.
There are a couple of other matters to which some attention ought be directed. The Road Transport (Driving Licensing) Regulation 2008 prescribes a hierarchy of licence classes (Clause 6) which, in order, refer penultimately and ultimately to a heavy combination vehicle licence and, lastly, a multi-combination vehicle licence. By Clause 7 of the Road Transport (Driver Licensing) Regulation 2008, the holder of a heavy combination vehicle licence may drive "a prime mover to which is attached a single semi-trailer plus any unladen converter dolly or a rigid motor vehicle to which is attached a trailer that has a GVM greater than 9 tonnes plus any unladen converter dolly". On the other hand, a holder of a multi-combination vehicle licence may drive "any motor vehicle or combination of vehicles other than a motor bike". I do not repeat, but refer to the authorisations to tow trailers and semi-trailers prescribed by Clause 8 of the Road Transport (Driver Licensing) Regulation 2008.
Lastly, it is necessary to point out that "converter dolly" means a trailer with a fifth wheel coupling destined to support a semi-trailer for holding purposes: see Schedule 4 Clause 1 to the Road Transport (Vehicle Registration) Regulation 2007. Otherwise it has been defined to mean a "trailer with one axle group or single axle and a fifth wheel coupling, designed to convert a semi-trailer into a dog trailer" (the Regulations, Dictionary, see above).
As a consequence of the foregoing, and as earlier stated, a trailer, being defined relevantly as a vehicle built to be towed would not ordinarily include a semi-trailer, which cannot be towed other than by attaching it to a prime mover or in conjunction with a converter dolly. Interestingly, a semi-trailer attached to another semi-trailer by the use of a converter dolly becomes a dog trailer and as a consequence a trailer, i.e. a vehicle designed to be towed, as distinct from attached to another vehicle.
While one reading of the various statutes may lead one to take the view that there are inconsistencies between them in this particular area, in my view, a careful reading of the provisions and an understanding of the terms "converter dolly", "dog trailer", "semi-trailer" and "trailer" resolves the inconsistencies in a manner slightly different from the submission for which each of the plaintiff and defendant agitate.
First, I note that there is no controversy in these proceedings, or below, that the prime mover with semi-trailer attached together with a trailer was, as a unit, a B-double combination when the prime mover was being driven and not towed.
There is clearly a legislative scheme that treats tow trucks differently from general driving, at least in relation to that which may be attached to the vehicle. Nevertheless, there is a degree of overlap. In relation to the particular facts before the Court, the combination that was the subject of a charge was a tow truck (heavy duty) towing a prime mover to which was attached a semi-trailer and behind which was towed either a dog trailer (a combination of a converter dolly and semi-trailer) or a trailer, intended to be towed without use of a prime mover or converter dolly.
A proper construction of the scheme of legislation, in my view, requires a semi-trailer, of itself, not to be treated as a trailer for the purpose of current issues. A semi-trailer, when attached to a prime mover becomes, together with the prime mover, a motor vehicle. A semi-trailer attached to a converter dolly (of any description) is treated as a trailer (i.e. the semi-trailer and converter dolly together are a trailer, within the meaning of various statutes).
The foregoing conclusion derives from the definition and use of the term motor vehicle, prime mover, dog trailer, converter dolly, semi-trailer and trailer, to which reference has been made, in the context of each of the statutes as a whole and all of the statutes together.
As a consequence of the foregoing, the tow truck was towing a motor vehicle, being the prime mover and semi-trailer, to which was attached a trailer (being the attached trailer or, if that be the configuration, further semi-trailer and converter dolly). The plaintiff was not driving the prime mover. What is the consequence of the foregoing to the offences with which the plaintiff was charged?
A semi-trailer is incapable of being towed except when attached to a prime mover or "converted" to a trailer by use of a converter dolly. The foregoing resolution of the different definitions requires a construction that a prime mover to which a semi-trailer is attached is a motor vehicle and not a trailer. More importantly, for present purposes, a semi-trailer is not, in the ordinary sense of the term, being towed by a prime mover. Nevertheless, the definition of a B-double in the Act and Regulations refers to a B-double as "towing" two semi-trailers, the second, presumably, by use of a converter dolly. Other than for the purpose of a definition of a B-double, it seems that the necessary construction is that a semi-trailer is not, when attached to a prime mover, being towed in the sense otherwise used in the Act and Regulations.
Count 1 requires the prosecution to prove that the plaintiff was driving a motor vehicle in a Class 2 vehicle combination. Plainly, the plaintiff was driving a motor vehicle, namely, the tow truck. Was it a Class 2 vehicle combination?
As earlier recited, a Class 2 vehicle combination means a restricted access vehicle complying with the mass and dimension limits (all of which can be assumed) and, relevantly, is either a B-double or a road train.
A B-double is defined quite specifically and exclusively as "a combination consisting of a prime mover towing two semi-trailers". The plaintiff was not driving, in any sense used in the Act or Regulations, the prime mover. A tow truck does not fit the definition of prime mover.
Further, the prime mover is not a "trailer" being "towed" and cannot be counted for the purposes of any definition or offence. So much is conceded by the defendant. However, that means that the plaintiff was not driving a combination consisting of a prime mover towing two semi-trailers. The plaintiff was driving a tow truck that was in turn towing a prime mover with two semi-trailers (the second of which was, by definition, a trailer because of its connection to a converter dolly). The plaintiff was not driving a B-double combination.
As a consequence of the immediately proceeding paragraph, in order for the plaintiff to be driving a Class 2 vehicle it was necessary for him to be driving a road train, other than a B-double combination. However, a road train is defined as a combination, other than a B-double, of a motor vehicle towing at least two trailers (counting as one trailer a converter dolly supporting a semi trailer).
If the motor vehicle that is there referred to were the tow truck, then the tow truck, on the foregoing explanation, was towing the prime mover and semi-trailer and one trailer, being either a trailer or a converter dolly supporting a semi-trailer. The prime mover and semi-trailer, together, are one vehicle and the vehicle is not a trailer. It is a motor vehicle, capable of being propelled in the course of normal use on roads without being towed by another motor vehicle. Thus, the plaintiff was driving a tow truck that was towing a motor vehicle (the prime mover and semi-trailer) and one other trailer. This was not a road train within the meaning of the Regulations as the tow truck was not towing "at least two trailers", excluding motor vehicles.
That which the defendant submitted as the road train in its case below (and on appeal) was the B-double combination towed by the tow truck. A road train excludes a B-double combination. The tow truck could never be described as a prime mover as it is not a motor vehicle built to tow a semi-trailer (see Regulations).
The necessary effect of the foregoing is that the plaintiff was not driving a prime mover that was towing two trailers. The plaintiff was driving a tow truck that was towing a prime mover, with semi-trailer attached, and one trailer. Given that the plaintiff was not driving a prime mover, the plaintiff could never have been held to be driving a B-double combination.
There is little doubt that the prime mover and those trailers or semi-trailers attached to it were a B-double combination. But the plaintiff was not driving the B-double combination because he was not driving a prime mover.
Further, the two "vehicles" attached to the tow truck were, in reverse order, a trailer (being either a trailer as defined or a dog trailer consisting of a semi-trailer and converter dolly) and a prime mover and semi-trailer. The last mentioned is not a trailer. It is a combination of a prime mover and a semi-trailer. In the absence of a converter dolly or semi-trailer, to which it is attached, a semi-trailer is not, of itself a trailer, because it is not, by itself, built to be towed by a motor vehicle. A semi-trailer has insufficient axles to be towed in its own right. Confusion is caused by the definition of "semi-trailer" utilising the word "trailer" in other than its defined sense.
As a consequence of the foregoing, and given that the only way that the plaintiff could have been driving a Class 2 vehicle was for him to have been driving either a B-double combination or a road train and he was driving neither, on a proper construction of the statutes and regulations, the plaintiff could not have been driving a Class 2 vehicle combination and could not have been convicted of either Count 1 or Count 2.
In the circumstances, the Court makes the following orders:
(1) To the extent necessary, leave to appeal granted;
(2) Pursuant to the terms of s 55(1) of the Crimes (Appeal and Review) Act 2001, the conviction of the plaintiff entered on 22 November 2013 in the Local Court at Coonabarabran for the offences of:
(a) Driving a motor vehicle, namely a Peterbilt heavy vehicle tow truck, in a Class 2 vehicle combination, on a road, without being licensed for that purpose or exempted by the Regulations from being licensed for that purpose, contrary to s 25(1)(a) of the Road Transport (Driver Licensing) Act 1998; and
(b) Driving a Class 2 vehicle, namely a Peterbilt heavy vehicle tow truck, on a road, at the time was operating as a Class 2 road train in an area not permitted for use by road trains, contrary to Clause 19 of the Road Transport (Mass, Loading and Access) Regulation 2005;
are hereby set aside;
(3) In accordance with s 70 of the Crimes (Appeal and Review) Act 2001, no order for costs;
(4) The applicant Kevin James Fogarty be granted a certificate under s 6 of the Suitors' Fund Act 1951 if otherwise eligible.
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Decision last updated: 09 September 2014
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