RTA v Hayek - [2004] NSWSC 575

CITATION: RTA v Hayek & Anor [2004] NSWSC 575

HEARING DATE(S): 16 June 2004

JUDGMENT DATE:
2 July 2004

JURISDICTION:
Common Law Division

JUDGMENT OF: Studdert J

DECISION: 1. The orders made in the Local Court on 28 May 2004 staying the suspensions of: (i) the first defendant's "Examiner's Authority" EOO746, (ii) the first and second defendant's "Proprietor's Authority" S00796, be set aside. 2. Costs of the summons are reserved.

LEGISLATION CITED: Road Traffic (Vehicle Registration) Regulation
Local Courts Act, s 57
Road Transport (General) Regulation
Justices Act, s 41
District Court Act, s 46

CASES CITED: Grassby v The Queen (1989) 168 CLR 1
Pelechowski v The Registrar, Court of Appeal (1999) 198 CLR 435
DPP v Boykin (unreported, Wood J, 21 June 1994)

PARTIES :
Roads and Traffic Authority of New South Wales (Plaintiff)
Mamdouh Hayek (1st Defendant)
Mamdouh Hayek and Moustafa Osayan (2nd Defendant)

FILE NUMBER(S): SC 11589/04

COUNSEL: T. Lynch (Plaintiff)
R.J. Bartley (Defendants)

SOLICITORS: Hunt & Hunt (Plaintiff)
R.J. Bartley & Associates (Defendants)

LOWER COURTJURISDICTION: Local Court

LOWER COURT FILE NUMBER(S): 99080/04/03

LOWER COURT
JUDICIAL OFFICER :

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

STUDDERT J

Friday 2 July 2004

11589/04 ROADS AND TRAFFIC AUTHORITY OF NEW SOUTH WALES v MAMDOUH HAYEK & ANOR
JUDGMENT

1 HIS HONOUR: It is necessary at the outset to record what occurred to prompt the issue of the notice of motion presently before the Court.

2 The defendants are motor mechanics who, prior to 3 May 2004, were authorised inter alia to issue vehicle inspection reports. However, on that date the plaintiff, Roads and Traffic Authority, served two notices:

(a) the first defendant was notified that his “Examiner’s Authority” issued under reg 63 of the Road Traffic (Vehicle Registration) Regulation had been suspended pursuant to reg 67(3), with immediate effect;

Road Traffic (Vehicle Registration) Regulation

3 On 4 May 2004 the first defendant filed an application in the Local Court appealing against the suspension of the “Examiner’s Authority” and the suspension of the “Proprietor’s Authority”.

4 On 28 May 2004 the Local Court at Parramatta adjourned the first defendant’s application to the Downing Centre Local Court (where other proceedings between the parties were pending), for hearing on 16 August 2004. On 28 May 2004 the Local Court ordered a stay of the suspension pending the hearing to take place in August, and it is that stay order which has prompted the present application.

5 On 2 June 2004 Smart AJ granted leave to the plaintiff to appeal against the magistrate’s orders staying the suspension of the authorities.

6 Two issues arise on this appeal:

(i) Did the magistrate have the power which he purported to exercise in staying the suspensions pending the hearing to take place in August?

7 Whilst there…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading RTA v Hayek

Details

AGLC: RTA v Hayek [2004] NSWSC 575
Case: [2004] NSWSC 575
Decision Date: 2 July 2004

CaseChat Overview and Summary

In the Supreme Court of New South Wales, the Roads and Traffic Authority (RTA) brought an appeal against the decision of the Local Court, which had stayed the suspension of the "Examiner's Authority" and "Proprietor's Authority" of Mamdouh Hayek and Moustafa Osayan. The RTA had suspended the authorities based on allegations of serious breaches of vehicle inspection rules. The Local Court had stayed the suspension pending the hearing of an appeal against the RTA's decision. The RTA argued that the Local Court lacked the power to stay the suspension, and even if it had such power, the discretion was improperly exercised. The court had to decide whether the Local Court had the power to stay the suspension and whether the discretion was correctly exercised.

The court examined the relevant statutes and regulations, including the Road Transport (General) Regulation and the Local Courts Act. It found that the Local Court did not have the power to stay the suspension under the Local Courts Act as it did not confer the necessary power. The court also considered whether the Local Court had an incidental power to make such an order but concluded that such a power was not reasonably necessary for the exercise of the powers expressly conferred by statute. The court held that the Local Court did not have the power to stay the suspension, and the appeal had to succeed. Even if the court had such power, the discretion was not properly exercised as there was insufficient evidence before the court to weigh the public safety considerations against the potential hardship to the defendants. The court set aside the Local Court's orders staying the suspension and reserved the costs of the summons.

Orders