Police v Ayres - [2013] SASC 40

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
POLICE v AYRES
[2013] SASC 40
Judgment of The Honourable Justice Blue
28 March 2013
TRAFFIC LAW - OFFENCES
TRAFFIC LAW - DEFINITIONS - VEHICLE
Mr Ayres was charged by the Police on complaint in the Magistrates Court with driving a towtruck within the declared area in contravention of section 98D(1) of the Motor Vehicles Act 1959 (SA) (“the Act”). The principal issue in contention was whether the truck was a “towtruck” as defined by section 5 of the Act.
The Magistrate concluded that Mr Ayres’ truck was not a “towtruck” because it was not proved to “lift” a motor vehicle off its wheels into the air. She dismissed the complaint.
The Police appeal, contending that the word “lift” in the definition does not require that the vehicle’s wheels leave the ground or the bearing surfaces of the truck.
Mr Ayres makes an alternative contention that section 98D(1) does not prohibit a non-certificate holder driving a vehicle which would otherwise be a towtruck unless it is used to convey a motor vehicle damaged in an accident occurring within the declared area.
Held:
1. The Magistrate erred in her construction of the word “lift” in the definition of “towtruck”. It is sufficient that the motor vehicle is elevated from the ground on to the bed of the truck by the truck’s winch. It is not necessary that any of the wheels of the motor vehicle are lifted into the air and are not supported by load bearing surfaces during the lifting process (at [33]-[35]).
2. The Magistrate erred in finding that Mr Ayres’ truck was not proved to be a “towtruck” within the meaning of the Act (at [36]).
3. Section 98D(1) prohibits non-certificate holders from driving a towtruck within the declared area. It is not confined to the use of a towtruck to convey motor vehicles damaged in accidents within the declared area (at [41]-[45]).
4. Appeal allowed. The Magistrate’s orders set aside (at [47]).
Motor Vehicles Act 1959 (SA) ss 5, 74a, 83a, 83d, 98D, 98F, 98i, 98j, 98ME.; Motor Vehicles Amendment Act (No 2) 1966 (SA); Motor Vehicles Amendment Act 1976 (SA); Motor Vehicles Amendment Act (No 5) 1981 (SA), referred to.

WORDS AND PHRASES CONSIDERED/DEFINED
"lift, "towtruck"

POLICE v AYRES
[2013] SASC 40
Magistrates Appeal:
Blue J:

The respondent, Mr Ayres, was charged by the appellant, the Police, on complaint in the Magistrates Court with driving a towtruck within the declared area at Paralowie on 3 June 2012 whilst not the holder of a towtruck certificate.[1]
[1] Motor Vehicles Act 1959 (SA) s 98D.
Mr Ayres pleaded not guilty. The trial proceeded on 4 January 2013. At trial, it was common ground that Mr Ayres drove a truck on 3 June 2012 at Paralowie, that he was not the holder of a towtruck certificate and that Paralowie falls within the “declared area” within the meaning of section 5 of the Act. The principal issue in contention was whether the truck was a “towtruck” as defined by section 5 of the Motor Vehicles Act 1959 (SA) (“the Act”).
On 4 January 2013, the Magistrate delivered ex tempore reasons for judgment. She concluded that Mr Ayres’ truck was not proved to be a “towtruck” within the meaning of the Act because it was not designed, adapted or intended to lift and carry a motor vehicle within the meaning of the definition. She concluded that it was not proved that Mr Ayres’ vehicle did lift a motor vehicle because it was possible to haul a motor vehicle up onto the flat bed of the truck via ramps without any of its wheels being suspended at any point in the air. The Magistrate dismissed the complaint.
The Police appeal against the dismissal, contending that Mr Ayres’ truck was a “towtruck” within the meaning of the Act.
Background facts
On 3 June 2012, Mr Ayres drove a purple truck along Whites Road and Blaess Drive at Paralowie. He was stopped by a police constable for a licence and permit check. He informed the constable that he did not have a towtruck certificate and did not believe that he needed one to drive the truck.
Mr Ayres purchased the truck in September 2008. It was registered in the name of his wife. Before September 2008, it had been used since 1990 in Victoria to convey damaged motor vehicles from accident scenes.
Mr Ayres’ truck has a flat bed, the rear portion of which (behind the rear wheels) is angled downwards. It has ramps capable of being attached to the rear of the tray and leading down to the ground. It has a winch at the front of the tray with a cable attached at the rear end to a chain with hooks. When the ramps are attached to the end of the tray top and the chain is attached to a motor vehicle, the winch is capable of pulling the motor vehicle up the ramps over the rear end of the tray to the front horizontal portion of the tray top. In the course of doing so, the wheels of the motor vehicle would typically be supported successively by the roadway, the ramps and then the tray top.
It is common ground that there are or have been at least three basic types of trucks used to convey damaged or malfunctioning motor vehicles which cannot be operated properly under their own motive power.
The first type of truck uses a chain and hook (or other apparatus) suspended from a boom to elevate the front or rear wheels of the motor vehicle off the ground. The motor vehicle is then pulled along with its other pair of wheels rolling on the road.
The second type is a truck such as Mr Ayres’ truck.
The third type of truck is a flat bed truck where the entire bed is hydraulically inclined down to ground level, the motor vehicle is pulled by a winch onto the inclined bed and the bed is then hydraulically elevated to its normal horizontal position. The truck is then driven with the motor vehicle sitting on the flat bed.
Relevant provisions
Section 98D of the Act provides:
(1) Subject to subsection (2), a person who is not the holder of a towtruck certificate or temporary towtruck certificate must not drive or operate the equipment of a towtruck within the declared area.
Maximum penalty: $1 250.
(2) Subsection (1) does not prevent a person who does not hold a towtruck certificate or temporary towtruck certificate from driving or operating the equipment of a towtruck within the declared area in the course of a business conducted from a place of business outside the declared area, provided that the towtruck is not used for the purpose of towing a motor vehicle damaged in an accident occurring within the declared area.
The term “towtruck” is defined by section 5(1) to mean:
… a motor vehicle (including a trailer attached to a motor vehicle) designed, adapted or intended to lift and carry or partially lift and tow a motor vehicle that cannot, because of damage or malfunction, be operated properly under its own motive power …
It is common ground that, in order to fall within the definition, a motor vehicle must be designed, adapted or intended either:
(a) to lift and carry; or
(b) to partially lift and tow;
a motor vehicle that cannot, because of damage or malfunction, be operated properly under its own motive power.
It is common ground that Mr Ayres’ truck is a motor vehicle and that it is designed, adapted or intended to carry a motor vehicle that cannot, because of damage or malfunction, be operated properly under its own motive power. The issue is whether it is designed, adapted or intended to lift a motor vehicle.
The phrase “partially lift and tow” is apposite to describe a truck of the first type described at [9] above in which two wheels of a motor vehicle are lifted off the ground by the truck and then the motor vehicle is towed in a partially lifted position.
The phrase “lift and carry” is apposite to describe a truck of the third type described at [11] above in which a motor vehicle is lifted by the hydraulic mechanism and then carried with all of its wheels off the ground.
The Magistrate held that a truck of the second type described at [10] above is not designed, adapted or intended to “lift” a motor vehicle because the wheels of a motor vehicle pulled by the winch onto the truck would not typically be (and were not proved to be) raised into the air above the ground, the ramps or the bed of the truck. The Magistrate referred to the definition of “lift” in the Concise Oxford Dictionary and Macquarie Dictionary as:
to raise to a higher position, take up, to hoist.
and
to move or bring something upwards from the ground or other support to some higher position, hoist, to raise or direct upwards.
The Magistrate concluded:
The winch line is fixed to the winch; the winch would be attached to a vehicle and once the winch is activated, it would pull the vehicle up onto the truck using the ramp. The evidence before the court does not, in my view, establish that such a manoeuvre would involve a partial lift or a lift. … if the tension on the winch line caused the motor vehicle to be raised, even though minutely or even to a small extent, then a lift or partial lift would be involved, but there is no such evidence before the court.
Towtruck regulation regime
Before 1966, the Act did not specifically address towtrucks. Since 1966, it has regulated towtrucks in two ways. It has required a person to hold a towtruck certificate in order to drive or operate a towtruck. It has required those who charge for, or carry on business, towing damaged vehicles from accident scenes to have a specific authority to do so (initially from the owner/driver and later also from the police under an accident towing roster scheme). Both sets of provisions have been confined to what is essentially the greater Adelaide metropolitan area.
The Motor Vehicles Act Amendment Act (No 2) 1966 (SA) amended the Act in two principal ways. First, new sections 74a to 74c introduced a regime for the issue by the Registrar of certificates authorising a person to drive and operate a tow-truck within 20 miles (later 32 kilometres) of the Adelaide general post office (“the area”). New section 74a(2) provided:
A person shall not drive or operate a tow-truck on a road within the area unless he is in possession of a valid certificate in the prescribed form issued by the Registrar authorising him to drive and operate a tow-truck.
and a new definition of “tow-truck” inserted in section 5 defined it to mean:
… a motor vehicle designed or intended to be used for the lifting, carrying or towing of motor vehicles damaged in an accident …
Secondly, new sections 83a to 83d regulated taking away by towtrucks of damaged vehicles from the scene of an accident and contracts for the repair of vehicles damaged in accidents. Those provisions were confined to accidents within the area. The central provision was section 83a which required a towtruck driver to hold an authority signed by the owner or driver of a damaged vehicle (or in their absence a police officer) before lifting, carrying or towing the vehicle from the scene of the accident.
There was a general exemption under section 83d(g) from both section 74a and section 83a for towtrucks lifting, carrying or towing vehicles damaged outside the area into the area for repair, storage or safe custody. There was a general exemption under section 83d(h) for towing services whose place of business was outside the area driving towtrucks within the area for a purpose other than lifting, carrying or towing a damaged vehicle in the area.
The Motor Vehicles Act Amendment Act 1976 (SA) repealed those sections and replaced them with a new Part IIIc entitled Towtrucks. It contained essentially two sets of provisions. Sections 98d to 98i provided for the issue by the Registrar of towtruck certificates in terms similar to the 1966 regime. The central provision was new section 98i which provided:
(1) Subject to this Act, a person shall not drive or operate a towtruck on a road within the area unless he is in possession of, and is actually carrying with him, a valid towtruck certificate authorising him to drive and operate a towtruck.
…
(2) This section does not prevent a person who does not hold a towtruck certificate from driving or operating a towtruck within the area in the course of a business conducted from a place of business outside the area provided that the towtruck is not used for the purpose of carrying or towing a vehicle damaged in an accident occurring within the area.
The term “the area” was now defined to mean an area declared by proclamation. The term “towtruck” was now defined to mean:
… a motor vehicle designed, adapted or intended to lift and carry, or to lift partially and tow, a motor vehicle that is incapable, by reason of damage or malfunction, of being operated properly under its own motive power …
Sections 98j to 98n regulated the removal of damaged vehicles from the scene of an accident within the area and contracts for the repair of vehicles damaged in accidents within the area. The central provision was section 98j, which prohibited a person for fee or reward or in the course of a business from removing a damaged motor vehicle from the scene of an accident within the area by any vehicle (whether or not a towtruck) without holding both a valid towtruck certificate and an authority by the owner or driver of the damaged vehicle or a police officer.
The Motor Vehicles Act Amendment Act (No 5) 1981 (SA) repealed sections 98c to 98m and substituted new sections 98c to 98ml. It contained essentially two sets of provisions. Sections 98d to 98mb provided for the issue of towtruck certificates and temporary towtruck certificates. The central provision was section 98d[2] which provided:
(1)    Subject to subsection (2), no person shall drive or operate the equipment of a towtruck within the declared area unless he is the holder of a towtruck certificate or temporary towtruck certificate.
…
(2)    Subsection (1) does not prevent a person who does not hold a towtruck certificate or temporary towtruck certificate from driving or operating the equipment of a towtruck within the declared area in the course of a business conducted from a place of business outside the declared area, provided that the towtruck is not used for the purpose of towing a motor vehicle damaged in an accident occurring within the declared area.
[2]    Renumbered subsequently as 98D.
The “declared area” was defined by section 5 to comprise various council districts together with any other part of the State declared by regulation.
The term “towtruck” was now defined to mean:
… a motor vehicle (including a trailer attached to a motor vehicle) designed, adapted or intended to lift and carry or partially lift and tow a motor vehicle that is incapable, by reason of damage or malfunction, of being operated properly under its own motive power.
Sections 98mc to 98ml introduced a new and extensive regime for an accident towing roster scheme. Section 98me[3] prohibited a person for fee or benefit or in the course of a business removing from the scene of an accident within the declared area a damaged vehicle without being the holder of a towtruck certificate, a valid authority to tow from the owner or driver or a police officer and an accident towing direction issued by a police officer to a towtruck operator in accordance with the accident towing roster scheme issued.
[3] Renumbered subsequently as 98ME.
This regime has essentially been in place since it came into operation in 1984.
Lift and carry
As observed above, the Magistrate held that the word “lift” in the definition of “towtruck” requires that the damaged or malfunctioning motor vehicle be raised (albeit minutely or transiently) into the air. Accordingly, if the motor vehicle’s tyres maintain continuous contact with the roadway, the ramps and the tray top, the vehicle is not “lifted” within the meaning of the definition.
The ordinary meaning of the word “lift” is not confined to an object being lifted into the air such that it does not maintain continuous contact with load bearing surfaces. For example, when a forklift elevates a pallet containing book cartons, the pallet remains in continuous contact with the tynes of the forklift. In ordinary parlance, the pallet is “lifted” by the forklift. Similarly, an elevator (or lift) raises persons or goods who remain in continuous contact with the floor of the elevator. In ordinary parlance, they are “lifted” by the elevator (or lift).
Nor is the concept of “lift” in ordinary parlance confined to a purely vertical lift (ie at an angle of 90 degrees to the ground). Just as a helicopter might lift persons or goods vertically, so also a helicopter or a plane can “lift” persons or goods diagonally to a higher altitude. A space shuttle would “lift” cargo into space whether it took off vertically from a launch pad or diagonally from a runway.
Each of the types of truck referred to at [9] to [11] above has in common that a damaged motor vehicle is raised by the truck’s equipment (and not the damaged motor vehicle’s own motive power) to a higher level for the purpose of being carried or towed elsewhere. The fact that the wheels of the damaged motor vehicle are continuously supported by the roadway and then by the truck itself does not preclude the damaged vehicle being “lifted” within the meaning of the definition of “towtruck”. This construction accords with the evident purpose of regulating such trucks.
Accordingly, the Magistrate erred in her construction of “lift” and in her conclusion that Mr Ayres’ truck was not proved to have been designed, adapted or intended to “lift” and carry a damaged or malfunctioning motor vehicle.
To drive or operate equipment of a towtruck
Before the Magistrate, Mr Ayres made an alternative contention, which he reiterates on appeal.
Mr Ayres contends that, on its proper construction, section 98D(1) of the Act does not prohibit a non-certificate holder driving or operating the equipment of what would otherwise be a towtruck unless it is used to convey a motor vehicle damaged in an accident occurring within the declared area.
Mr Ayres contends that section 98D is subsidiary to the regime enacted by sections 98MC to 98MK which regulates the conveying of motor vehicles damaged in accidents within the declared area. Mr Ayres points out that section 98D(1) does not regulate the driving or operation of a towtruck outside the declared area. Section 98D(2) permits the driving or operation of a towtruck within the declared area (in the course of a business conducted from outside the declared area) provided that it is not being used for the purpose of towing a motor vehicle damaged in an accident within the declared area. As he does not use his truck to tow damaged motor vehicles from accident scenes within the declared area, Mr Ayres contends that section 98D(1) does not require him to hold a towtruck certificate in order to drive or operate his truck within the declared area.
It is important to note that Mr Ayres does not contend that he is exempted by section 98D(2) from holding a towtruck certificate. This is because he accepts that, when he drove his truck on 3 June 2012 at Paralowie, he was not driving it in the course of any business and hence section 98D(2) does not apply. Rather, Mr Ayres relies upon the existence of section 98D(2) as suggesting a limiting construction of section 98D(1).
I reject Mr Ayres’ contention. It is evident that Part 3C of the Act regulates the driving and operation of towtrucks at two different levels in two different ways. First, it requires, subject to two qualifications, all drivers or operators of towtrucks to hold a towtruck certificate. In order to hold such a certificate, a person must be proficient in driving and operating the towtruck and must have adequate knowledge of the provisions of the Act relating thereto (section 98F). Subject to demonstrating such proficiency and knowledge (and being of the requisite age, holding the requisite driver’s licence and being a fit and proper person), a person is entitled to the grant of a towtruck certificate. This is regardless of whether they participate in the towing industry insofar as damaged vehicles are removed from accident scenes within the declared area.

The two qualifications are that no certificate is required to drive a towtruck outside the declared area, and no certificate is required to drive a towtruck within the declared area if it is being driven in the course of a business conducted from a place outside the declared area and it is not being used to tow a motor vehicle damaged in an accident within the declared area.
By contrast, section 98ME and related provisions of the Act address a more circumscribed set of circumstances, namely removal of damaged vehicles from the scene of an accident for a charge or in the course of a business. Section 98D has a broader purpose and broader scope than section 98ME.
While it might be argued that the rationale for exempting towtruck drivers and operators from the requirement to hold a towtruck certificate if they are not towing a motor vehicle damaged in an accident within the declared area provided that they are driving a towtruck in the course of a business conducted from a place outside the declared area might equally apply to drivers and operators who are not driving in the course of a business at all, Parliament has chosen to confine the exemption in section 98D(2) to the former situation. That is a matter for Parliament.
Accordingly, section 98D(1) is not confined to the use of a towtruck to convey motor vehicles damaged in accidents within the declared area.
Conclusion
The Magistrate erred in finding that Mr Ayres’ truck was not a “towtruck” within the meaning of the Act. The Magistrate erred in dismissing the complaint.
I allow the appeal. I set aside the Magistrate’s orders. I will hear the parties as to the appropriate orders to be made on appeal in the circumstances.