Roads and Maritime Services v Mainey
[2012] NSWSC 442
•03 May 2012
Supreme Court
New South Wales
Medium Neutral Citation: Roads and Maritime Services v Mainey [2012] NSWSC 442 Hearing dates: 03/05/2012 Decision date: 03 May 2012 Before: Garling J Decision: 1. Order that the decision of the Local Court of New South Wales at Gosford on 3 November 2011 to dismiss proceedings in respect of Court Attendance Notice numbered 1118863 issued by Tina Whyte to Richard Mainey on 6 July 2011 alleging a contravention of s 136 of the Road Transport (General) Act 2005 be set aside.
2. The decision of the Local Court of New South Wales at Gosford on 3 November 2011 ordering the prosecutor to pay the defendant's costs be set aside.
3. Order that the proceedings be remitted to the Local Court of New South Wales to be determined in accordance with law.
4. No order for costs of the proceedings in this Court.
Catchwords: TRAFFIC LAW – Section 136 Road Transport (General) Act 2005 - Traffic sign – Whether sign to enter heavy vehicle weighing station constituted direction to stop - Similar to “divert to†in regulation – Regulation valid – Allow appeal from magistrate’s decision to dismiss charge Legislation Cited: Crimes (Appeals and Review) Act 2001
Road Transport (General) Act 2005
Road Transport (Mass, Loading and Access) Regulation 2005Category: Principal judgment Parties: Roads and Maritime Services (plaintiff)
Richard Mainey (defendant)Representation: T Lynch (plaintiff)
Submitting appearance (defendant)
Hunt & Hunt (plaintiff)
Spencer Lawyers (defendant)
File Number(s): 2011/362835
EX TEMPORE Judgment
This is the hearing of a summons filed on 14 November 2011. In that summons, the Roads and Maritime Services, ("RMS"), seeks an order pursuant to s 56 of the Crimes (Appeals and Review) Act 2001 setting aside orders made by Magistrate Railton sitting in the Local Court at Gosford on 3 November 2011.
On that day, Railton LCM ordered that:
(a) a Court Attendance Notice issued by Tina Whyte, an officer of the Roads and Traffic Authority of New South Wales, now the RMS, to the defendant Richard Mainey be dismissed; and,
(b) the prosecutor pay the defendant's costs of the proceedings amounting to $1,980.
For the reasons which follow, I have decided that Railton LCM erred and that this Court should set aside those orders which were made on 3 November 2011.
Facts
There is little dispute about the facts before the Magistrate and this Court.
At about 2.12pm on 4 January 2011 the defendant was driving an Isuzu truck north along the F3 Sydney to Newcastle freeway. The gross vehicle mass (GVM) of the truck was 9300 kilograms, that is 9.3 tonnes.
Prior to reaching the Mount White North Heavy Vehicle Checking Station, the defendant was confronted by a number of signs which, in order as he drove north, were:
HEAVY VEHICLE
CHECKING STATION
1 km
VEHICLES OVER 8 TONNES GVM
MUST ENTER
VEHICLES OVER 6m WIDE
DO NOT ENTER
HEAVY VEHICLES
ONLY
USE
LEFT LANE
HEAVY VEHICLES
CHECKING STATION
400m
HEAVY
VEHICLES
KEEP
30m
SPACING
The defendant did not enter the Mount White North Checking Station, which was open at the time.
Procedural history
On 13 July 2011, Ms Whyte, an officer of the Roads and Traffic Authority of New South Wales, issued a Court Attendance Notice alleging that the defendant was in breach of s 136(5) of the Road Transport (General) Act 2005 because, as a driver of a vehicle over 8 tonnes GVM, he had failed to comply with a direction to stop his vehicle, which direction was given under s 136(1) of the Act.
When the matter was heard in the Local Court there was no dispute about the facts to which I have just made reference. The defendant himself did not give evidence.
The sole issue with which the Magistrate was confronted was whether the first of the signs, the contents of which I have set out above, constituted a direction to stop a vehicle for the purposes of s 136(1) of the Act.
His Honour held that it did not and, accordingly, dismissed the CAN.
The summons in this Court is confined to a determination of whether that decision was correct. It is necessary to refer to the legislation.
Applicable Legislation
Section 136 of the Road Transport (General) Act is in the following relevant terms:
"(1) An authorised officer may ... direct:
(a) the driver of a vehicle or combination to stop the vehicle or combination ...
(2) A direction to stop a vehicle or combination may require that it be stopped without delay, or that it be stopped at the nearest place for it to be safely stopped as indicated by the officer.
...
(5) A person is guilty of an offence if:
(a) the person is subject to an operative direction under subsection (1), and
(b) the person engages in conduct that results in a contravention of the direction.
(6) In this section:
stop a vehicle or combination means to stop the vehicle or combination and keep it stationary."
The terms of s 140 of the Act permit a direction of the kind contained in s 136 to be given to a driver orally; by means of a sign or signal, whether electronic or otherwise; or in any other manner.
In addition, the provisions of the Road Transport (Mass, Loading and Access) Regulation 2005 are relevant. This Regulation is made pursuant to the regulation making powers set out in s 10(1) of the Act.
Regulation 63 of those regulations refers to the exercise of functions or powers by an authorised officer, which are set out in Division 2 of Part 4.2 of the Act. Section 136 and s 140 fall within that Division.
Regulation 63(4) is in the following terms:
"An authorised officer may also direct the driver of a vehicle to stop by clearly displaying a notice displaying the words 'DIVERT TO HEAVY VEHICLE CHECKING STATION', 'DIVERT TO CHECKING STATION' or similar words."
Regulation 63(5) notes that a direction of the kind to which I have just referred is taken not to have been given if there is displayed in or in the vicinity of such a notice the word "closed". There is no suggestion in this case that the word "closed" was displayed.
For completeness, I note that reg 63(6) permits a notice to indicate a GVM mass limit of vehicles to which the notice applies. The notice in this case applied to vehicles over 8 tonnes GVM.
Discernment
In this Court, the RMS argues that the words set out on the sign to which I have earlier made reference, namely "HEAVY VEHICLE CHECKING STATION 1 km. VEHICLES OVER 8 TONNES GVM MUST ENTER", are words which are similar words to the specific words set out in reg 63(4), which is set out at [17] above.
It is to be observed that the effect of the words in reg 63(4) is to require a vehicle to leave the road upon which it is travelling and enter a checking station. That is the plain English meaning of the words "divert to". The sign in this case indicated the presence at a distance of 1 kilometre of a Heavy Vehicle Checking Station and then used the phrase "VEHICLES OVER 8 TONNES GVM MUST ENTER".
It seems to me in accordance with the ordinary English usage that a direction that vehicles are to enter a Heavy Vehicle Checking Station which is situated adjacent to the traffic lanes of the F3 freeway, is no different from a sign which reads "DIVERT TO HEAVY VEHICLE CHECKING STATION".
Both require the vehicle to leave the traffic lanes and enter the station. Put differently, both expressions are designed to, and do actually, achieve the same object.
Accordingly, I am satisfied that the sign displayed on the F3 was in "similar words" to those set out in reg 63(4) and therefore constituted, in accordance with that regulation, a direction to stop for the purposes of s 136(1) of the Act.
Validity of Regulation 63(4)
However, it is necessary to consider whether the regulation is itself a lawful or valid regulation.
The regulation making power in s 10 of the Act is in the following terms:
"The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act."
Although the balance of that section refers to some specific examples, they are not apt to apply in this case.
The first question which needs to be determined, is whether the regulation is inconsistent with the Act. RMS accepts that a regulation may be inconsistent with its parent Act otherwise than because of a direct conflict of words; here, there is no question of a direct conflict.
The Act requires that a direction be given, namely a direction to stop. The Act does not prescribe the words to be used in the giving of that direction.
I note that the Act itself in s 136(2) provides that a direction to stop may require that the vehicle be stopped at the nearest place for it to be safely stopped as indicated by an authorised officer. Clearly the Act does not contemplate that the only direction that can be given is a direction with the word "Stop" on it. That may be, but it is not the only, lawful direction that this Act contemplates.
A moment's reflection on the reality of heavy vehicle traffic on main roads supports that conclusion. If a sign was directed to a heavy vehicle travelling along the F3 freeway in one of the traffic lanes requiring it to stop and using the word "Stop" that may, without more, create a very real safety hazard. Hence in s 136(2), the provision of the Act that enables a direction to stop a vehicle includes that it be stopped at the nearest place for it to be safely stopped.
A Heavy Vehicle Checking Station, which is not on the traffic lane but is adjacent to it is, to my way of thinking, a place within the description in s 136(2), namely the nearest place for a vehicle to be stopped safely while travelling on the F3.
Looked at in that way, a direction using the words contemplated in the regulation, "DIVERT TO HEAVY VEHICLE CHECKING STATION ... or similar words", is a provision entirely consonant with the section of the Act. It does not expand the power in the Act. It is not inconsistent with the power in the Act. On the contrary, it complements it. I am satisfied then that there is no inconsistency between the regulation and the Act.
Is reg 63(4) necessary or convenient?
The second question is whether I am satisfied that the regulation is necessary or convenient to be prescribed for carrying out or giving effect to the Act.
The RMS submits that this regulation was convenient to be prescribed for the carrying out or giving effect to this Act. Counsel for the RMS, in his helpful submissions, draws attention to the test of inconvenience set out by the High Court of Australia in Shanahan v Scott (1957) 96 CLR 245 at 250 where the court says:
"... such a power does not enable the authority by regulations to extend the scope or general operation of the enactment but is strictly ancillary. It will authorise the provision of subsidiary means of carrying into effect what is enacted in the statute itself and will cover what is incidental to the execution of its specific provisions. But such a power will not support attempts to widen the purposes of the Act, to add new and different means of carrying them out or to depart from or vary the plan which the legislature has adopted to attain its ends."
I am satisfied that the terms of the regulation which provide an acceptable set of words for the purposes of a direction given under s 136 of the Act, are not an extension of the scope or general operation of the enactment but are truly ancillary to it. The Act provides that a direction to stop may be given. The regulation provides that the words of that direction may be as prescribed. There is no room for an argument, in my view, that the regulation widens the purposes of the Act, adds a new or different means of carrying out or departing from the Act, or in any other way is repugnant to the terms of the Act.
Indeed, as I have earlier identified, having regard to the specific terms of s 136(2) of the Act, namely a direction to stop is entitled to identify the nearest place for a vehicle to be safely stopped, then there is no reason to read down or in any way derogate from the terms of the regulation.
Conclusion
In all of the circumstances, I am satisfied that the sign which I have described properly constitutes a direction to stop under s 136(1) of the Road Transport (General) Act and that the Local Court was in error in holding otherwise. Accordingly, I am satisfied that it is appropriate for this Court to set aside the order dismissing the proceedings made by the Local Court on 3 November 2011.
The summons also seeks relief in this Court with respect to the order made in the Local Court that the prosecutor there pay the defendant's legal costs of the proceedings in the Local Court. The basis for the Local Court to make that order was that the CAN was dismissed. Since I have concluded that the Local Court was in error in dismissing the CAN, it follows that it was an error for it to order the prosecution to pay the defendant's costs. I am satisfied that I should also set aside that order.
Orders
In light of my conclusion it is appropriate that I determine the appeal before me by allowing it and making the following orders:
(1) Order that the decision of the Local Court of New South Wales at Gosford on 3 November 2011 to dismiss proceedings in respect of Court Attendant Notice numbered 1118863 issued by Tina Whyte to Richard Mainey on 6 July 2011 alleging a contravention of s 136 of the Road Transport (General) Act 2005 be set aside.
(2) The decision of the Local Court of New South Wales at Gosford on 3 November 2011 ordering the prosecutor to pay the defendant's costs be set aside.
(3) I order that the proceedings be remitted to the Local Court of New South Wales to be determined in accordance with law.
(4) I make no order for costs of the proceedings in this Court.
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Decision last updated: 15 May 2012
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