Roads and Traffic Authority of NSW v Frank Trinci

[2011] NSWSC 211

Supreme Court

New South Wales

Medium Neutral Citation:	Roads & Traffic Authority of NSW v Frank Trinci [2011] NSWSC 211
Hearing dates:	20 September 2010
Decision date:	28 March 2011
Before:	Hidden J
Decision:	Appeal allowed, proceedings remitted to Local Court.
Catchwords:	ROAD TRANSPORT -- appeal from Local Court - regulatory offence - driver of heavy vehicle failing to take prescribed period of continuous rest during 24 hour work period - determination of the time at which the 24 hour period began - meaning of "major rest break" in Road Transport (General) Regulation
Legislation Cited:	Road Transport (General) Regulation 2005 Crimes (Appeal and Review) Act 2001 Road Transport (General) Act 2005
Category:	Principal judgment
Parties:	Roads & Traffic Authority of NSW (plaintiff) Frank Trinci (defendant)
Representation:	Counsel: T Lynch (plaintiff) submitting appearance (defendant) Solicitors: Brett Kenneth Hearnden, Hunt & Hunt (plaintiff) Rodney Peter Boyd, Manfred Dougall & Company (defendant)
File Number(s):	2010/251278

Judgment

1. The defendant in these proceedings, Frank Trinci, is a truck driver. The plaintiff, Roads and Traffic Authority of NSW (RTA), prosecuted him in the Local Court for failing to take a prescribed period of continuous rest from driving during a 24 hour period, an offence under cl 68 of the Road Transport (General) Regulation 2005. The proceedings were commenced by court attendance notice. The matter was heard at Goulburn Local Court on 28 May 2010 and the court attendance notice was dismissed.

1. The RTA has appealed to this Court, alleging error of law by the magistrate who heard the matter, pursuant to s 56(1)(c) of the Crimes (Appeal and Review) Act 2001. Mr Trinci has entered an appearance submitting to any order except as to costs. The RTA does not seek costs.

1. Before turning to the facts of the matter, it is necessary to examine the relevant statutory framework. Mr Trinci was the driver of a heavy vehicle, as that expression is defined in s 3 of the Road Transport (General) Act 2005. Section 11B of that Act provides that regulations may be made in relation to "the management and prevention of driver fatigue in connection with the driving of heavy vehicles ..." Subsection (2) of that section sets out a number of specific matters which might be the subject of such regulations, including "the periods that drivers of heavy vehicles ... spend working and resting": subs (2)(d). These provisions are the source of cl 68 of the Regulation.

1. At the relevant time Mr Trinci drove alone and, having no-one to relieve him, was a "solo driver" as that expression is defined in cl 39 of the Regulation. He was subject to a regime known as Basic Fatigue Management (BFM). Clause 68 is concerned with solo drivers under that regime.

1. By that clause, he was bound to take minimum rest breaks within specified work periods. These are set out in a table, comprising four columns. Column 1 sets out a series of time periods. Column 2 sets out the maximum length of time a driver may work within each of those periods. Column 3 sets out minimum rest breaks which must be taken during each period. Column 4 is concerned with offences constituted by breaches of the requirements of the table, and is not relevant for present purposes.

1. It is sufficient to set out cl 68(2), and the first three columns in the table for the periods 6 hours, 9 hours, 12 hours and 24 hours:

"(2) In any period mentioned in Column 1 of the Table to this clause, the solo driver:

(a) must not work for more than the work time mentioned in Column 2 of that Table, and

(b) must have the rest of that period off work, with at least the rest time mentioned in Column 3 of that Table."

...

BFM hours - solo drivers of a regulated heavy vehicle

Column 1	Column 2	Column 3
Total period	Maximum work time	Minimum rest time
In any period of ...	A driver must not work for more than ...	And must have the rest of that period off work, with at least ...
6 hrs	6 hrs work time	15 continuous mins rest time
9 hrs	8 hrs work time	30 mins rest time, in blocks of 15 continuous mins
12 hrs	11 hrs work time	60 mins rest time, in blocks of 15 continuous mins
24 hrs	14 hrs work time	7 continuous hrs stationary rest time

...

1. The table goes on to deal with periods of 7 days and 14 days, which need not be set out. Put shortly, their effect is to add a requirement of 24 hours continuous rest time after 6 days work. The definition in cl 39 of "stationary rest time" also need not concern us. It is the entry for 24 hours, with the requirement of 7 continuous hours rest time, which is relevant here.

1. It is convenient at this point to refer to the terms of the charge (as amended) in the court attendance notice and the facts of the matter. The charge was that Mr Trinci failed to have 7 hours continuous rest in the 24 hours between 10.00am on 22 October 2009 and 10.00am on 23 October 2009. Before the magistrate the facts were not in dispute. The only issue was when, for the purpose of the Regulation, the 24 hours should have commenced. That remains the only issue in this Court.

1. Mr Trinci's work diary reveals that at 2.30am on 21 October 2009 he stopped driving at Erskine Park, New South Wales and rested until 10.00am that day, a period of 7 hours. Between 10.00am that day and 10.00am the next day, 22 October, he worked and rested as follows:

1. 21 October 2009

10.00am - 11.30am	drove from Erskine Park to Wetherill Park
11.30am - 5.00pm	rested (5 hours)
5.00pm - 7.00pm	drove from Wetherill Park to Marulen
7.00pm - 8.30pm	rested (1 hours)
8.30pm - 11.30pm	drove from Marulan to Wagga
11.30pm - midnight	rested ( hour)

22 October 2009

midnight - 3.00am	drove from Wagga to Hay
3.00am - 6.30am	rested (3 hours)
6.30am - 9.30am	drove from Hay to Buronga
9.30am to 10.00am	rested ( hour) and for a further 14 hours thereafter

1. It will be seen that, in those diary entries up to 10.00am on 22 October, the longest rest period was 5 hours, between 11.30am and 5.00pm on 21 October. The RTA submitted that the 24 hour period started at 10.00am that day, following the 7 hour rest break at Erskine Park. For Mr Trinci it was submitted that it started at 5.00pm, after the 5 hour break at Wetherill Park. Had the period started at 10.00am, it was not disputed that he would not have had 7 hours continuous rest. Had it started at 5.00pm, it was common ground that he would have had the required rest in the ensuing 24 hours, because of the very long rest break taken from 9.30am on 22 October.

1. Obviously, truck drivers do not work the same hours every day. Clause 68 is silent as to the time at which any 24 hour period might begin. It is cl 60(3), in conjunction with one of the definitions in cl 39, which bears on this question.

1. Clause 60(3) provides:

"When counting time in a period, the time must not be counted from within rest time, but instead must be counted forward:

(a) if one or more major rest breaks are relevant to the period, from the end of a relevant major rest break, or

(b) in any other case, from the end of a relevant period of rest time."

In cl 39, "major rest break" is defined as "a rest break of at least 5 continuous hours".

1. The issue in the present case was the identification of the relevant major rest break. The RTA's case was that it was the 7 hour rest period prior to 10.00am on 21 October. Mr Trinci's case was that it was the 5 hour break from 11.30am that day. The decision turned on what is meant by " relevant major rest break" in cl 60(3)(a). That expression is not defined in the Regulation. Nor is there any reference to "major rest break", relevant or otherwise, in cl 68.

1. It was this which led the magistrate to conclude that there was ambiguity in the Regulation, so that the charge was not made out. Her Honour noted that, while the 7 hour rest break relied upon by the RTA was capable of meeting the definition of major rest break in cl 39, so was the 5 hour break relied upon by Mr Trinci. Both were rest breaks of at least 5 continuous hours. She expressed her conclusion in her judgment as follows:

"This ambiguity as to whether major rest break, from which time is calculated in clause 60 is the clause 39 definition or the clause 68 and there's no definition of what relevant major rest break is. If I were then to apply general principles of interpretation, that ambiguity has to be resolved in the defendant's favour which means time starts at the end of a major rest break, as per clause 39, that is for a period of at least five hours is at least required, which therefore means for the purposes of the matter before the Court was starting at 5 am (sic) on the 21 st of October and not at 11.30 am (sic), which therefore means there's no case made out in the matter before the Court."

Clearly, her Honour's references at the end of that passage to 5.00am and 11.30am were meant to be 5.00pm and 10.00am respectively.

1. Counsel for the RTA in this Court, Mr Lynch, submitted that her Honour fell into error in that conclusion and that, in fact, there is no ambiguity. He pointed out that cl 60(3)(a) has to be understood in its context within the relevant Part of the Regulation. He dealt with that issue only briefly, and it is not necessary to consider these provisions in detail.

1. Part 6 of the Regulation is entitled "Heavy vehicle driver fatigue." It begins with cl 39, which contains the definitions to which I have referred. Division 3 is entitled, "Duties relating to work and rest times." Subdivision 1 sets out "key concepts" for the Division. In particular, s 56 refers to the regimes which might govern a driver's work and rest hours, including "standard hours", "BFM hours", and "AFM hours". As I understand it, AFM stands for "Accredited Fatigue Management".

1. Exactly what these expressions mean was not developed in argument and need not be examined for present purposes. It is sufficient to say that for each regime there is imposed the requirement of certain minimum periods of rest during specified work periods. These are set out in tables similar to that to be found under cl 68. The requirements for the Standard hours regime are to be found in Subdivision 2, and for the AFM hours regime in Subdivision 4. BFM hours are dealt with in Subdivision 3, in which cl 68 is to be found.

1. There is some variation in the specified work periods and the required minimum rest times between these three regimes. Moreover, in respect of Standard hours and BFM hours the Regulation deals separately with the requirements of solo drivers and those of "two-up drivers", an expression also defined in cl 39. It refers to an arrangement whereby two drivers share the driving of a vehicle which has a sleeping berth. There is variation between the minimum rest requirements of drivers in those two categories.

1. Notably, for two-up drivers under the Standard hours regime the minimum rest time during a 24 hour work period is 5 continuous hours: cl 66. Otherwise, under the Standard hours and BFM regimes, where 24 hours is one of the specified work periods the minimum rest time is 7 continuous hours. This issue is pursued somewhat differently in the AFM regime. However, for a 24 hour work period the required rest time is 6 continuous hours (or 8 hours in two blocks): cl 72. Like cl 68, all these clauses go on to make provision for longer work periods, for the most part 7 and 14 days. It will be seen, then, that for work periods of 24 hours the shortest minimum rest break is the period of 5 continuous hours imposed by cl 66.

1. It is against this background, as Mr Lynch pointed out, that the expression "major rest break" in cl 39, and the requirement in cl 60(3)(a) that time be counted from the end of a relevant major rest break, should be understood. "Major rest break" is defined flexibly in cl 39 because it is intended to apply to each of the clauses dealing with minimum rest periods for the different regimes and the different categories of driver. It is defined as " at least 5 continuous hours" in recognition of the fact that for a 24 work period cl 66 requires a break of 5 continuous hours but other clauses require longer periods.

1. In any given case it is necessary to identify the clause of the Regulation which governs the situation, which will depend on the category of the driver and the regime under which he works. Any rest break under that clause of 5 continuous hours or more will be a major rest break for the purpose of the clause. This is what is meant by "relevant major rest break" in cl 60(3)(a).

1. In the present case, Mr Trinci's position was governed by cl 68 because he was a solo driver under the BFM regime. The table to that clause prescribes short minimum rest breaks for work periods of 6 hours, 9 hours and 12 hours. It is the 24 hour period which is the first to require a major rest break, in this case a break of 7 continuous hours. For Mr Trinci, that was the relevant major rest break, within the meaning of cl 60(3)(a).

1. I must say that this aspect of the Regulation could have been more clearly expressed, but its meaning emerges clearly enough. That being so, on the undisputed facts before her Honour the only conclusion available was that the relevant major rest break was the period of 7 hours between 2.30am and 10.00am on 21 October 2009. It was from 10.00am that day that the 24 hour period was to be counted. I am satisfied that her Honour fell into error of law in finding, in effect, that there was no case to answer.

1. Accordingly, the appeal is allowed, the order of the Local Court that the court attendance notice be dismissed is set aside, and the proceedings are remitted to the Local Court to be determined according to law. I make no order as to costs.

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Decision last updated: 28 March 2011