RTA v Love

[2011] NSWSC 987

Supreme Court

New South Wales

Medium Neutral Citation:

RTA v LOVE [2011] NSWSC 987

Hearing dates:

21 February 2011

Decision date:

31 August 2011

Jurisdiction:

Common Law

Before:

RS Hulme J

Decision:

(i) The Appeals be allowed.

(ii) The determination of Magistrate Prowse on 18 May 2010 in Local Court proceedings 2009/285677 to disallow the decision of the Roads and Traffic Authority to cancel Colin Alexander Love's Examiner's Authority be set aside.

(iii)The determination of Magistrate Prowse on 18 May 2010 in Local Court proceedings 2009/285703 to disallow the decision of the Roads and Traffic Authority to suspend the Authority of Owen Wellington Love, Lloyd Charles Love, Bruce Owen Love and Colin Alexander Love, trading as Quirindi Engineering to operate an Authorised Inspection Station be set aside.

(iv) The order of Magistrate Prowse on 18 May 2010 made in Local Court proceedings 2009/ 285677 and 2009/285703 that the RTA pay Colin Love and Quirindi Engineering the sum of $16,470.50 be set aside.

(v) That the Defendants pay the Plaintiff's costs of the proceedings in this Court.

The fourth of these orders was not expressly sought in the Amended Summons and there was no argument concerning it or the topic of costs. In that situation, I will stay those two orders up to and including 21 October next and give the parties liberty to apply by written notice to the other and to my Associate, returnable before me in the week commencing 17 October 2011 to have those orders vacated.

Subsequent to the making of the above orders and publishing reasons the orders and reasons were supplemented - see paragraphs 42 and 43.

I order that the Local Court differently constituted herein determine the applications the subject of Local Court proceedings 2009/285677 and 2009/285703 according to law

Catchwords:

Administrative Law - error of law - no question of principle

Legislation Cited:

Local Court Act 2007, s 70 - Crimes (Appeal and Review) Act 2001, s 56 - Road Transport (Vehicle Registration) Act 1997 (NSW) - Road Transport (Vehicle Registration) Regulation 2007 - Road Transport (General) Regulation 2005

Category:

Principal judgment

Parties:

Roads & Traffic Authority of New South Wales
Colin Alexander Love

Representation:

T Lynch
PJ O'Connor
Hunt & Hunt
Lyons Barnett Kennedy

File Number(s):

2010/290666

Judgment

1. RS HULME J: By Application to the Local Court 2009/285677 made on 17 December 2009 Colin Love appealed against a decision of the Roads and Traffic Authority seeking that a "decision of the Commissioner for the Roads and Traffic Authority to cancel the Authorised Examiner Colin Alexander Love No E00692 be disallowed".

1. By a second Application to the Local Court 2009/285703 made on 17 December 2009, Owen Wellington Love, Lloyd Charles Love, Bruce Owen Love and Colin Alexander Love, trading as Quirindi Engineering, appealed against a decision of the Roads and Traffic Authority seeking that a "decision of the Commissioner for the Roads and Traffic Authority to suspend the Authorised Inspection Station No: S00259 be disallowed".

1. Those appeals were made pursuant to Regulations 13 and 14 of the Road Transport (General Regulation) 2005. So far as is presently relevant Regulation 13 provides that any person aggrieved by a decision of the Authority to suspend or cancel an examiners authority or proprietor's authority may appeal against such a decision to the Local Court. Regulation 14 provides that the Local Court is to hear and determine such an appeal "and may confirm (with or without variation) or disallow the decision appealed against, or make such other order in the circumstances as to the Court seems just".

1. On 18 May 2010, Magistrate Prowse, sitting in the Local Court at Tamworth disallowed both of the RTA's decisions and on 25 May 2010 ordered the RTA to pay Mr Love and Quirindi Engineering $16,470.50 by way of costs.

1. By Summons filed on 1 September 2010, the RTA appealed to this Court. The summons has been amended and presently seeks that the decisions of Magistrate Prowse to disallow the decisions of the RTA be set aside and that there be an order that the Local Court, differently constituted, hear and determine the two Applications according to law. Costs are also sought.

1. The appeal to this Court is made pursuant to s 70 of the Local Court Act 2007 and s 56 of the Crimes (Appeal and Review) Act 2001. By the terms of s 56, the right of appeal so conferred is only on a ground that involves a question of law alone. The grounds stated in the Amended Summons were:-

1. The Local Court erred in not determining whether the matters

(i) proved by the Plaintiff, and

(ii) admitted by the Defendants

in the hearing of the Love and Quirindi Applications warranted.

(iii) the cancellation of Mr Love's Examiner's authority, and

(iv) The suspension of Quirindi Engineering's authority to operate an authorised inspection station

or some other penalty.

2. The Local Court erred in having regard to irrelevant considerations, viz. the fairness or otherwise of

(i) the statutory regime in clauses 62 and 63 of the Road Traffic (Vehicle Registration) Regulation 2007 and,

(ii) the hearing before the committee of review therein provided for held on 12 November 2009.

1. In written submissions made on behalf of the RTA it was contended that the questions of law arising were:-

1. Whether the Local Court, in the exercise of its jurisdiction to determine the appeals to it was required to, but did not make,

(a) findings about matters of fact in issue between the parties, and

(b) other evaluative judgments in respect of its findings of fact

and thereby failed to conduct a hearing according to law.

2. Whether the Local Court misdirected, or failed to direct, itself as to the legal responsibilities of the Defendants as holders of "authorities".

3. Whether the Local Court decided the appeals to it,

(a) having regard to legally irrelevant considerations, and/or

(b) in disregard of legally relevant considerations.

1. Such a formulation somewhat broadens the grounds beyond those stated in the Amended Summons but counsel for the Defendants raised no objection to that and accordingly I shall not do so.

1. The foundations for the RTA's decisions that were the subject of challenge before Mr Prowse lay in the terms of the Road Transport (Vehicle Registration) Act 1997 (NSW), Regulations thereunder and certain Rules made pursuant to the Regulations. The functions of the Authority under the Act are stated by s 7 to include:-

(a) to administer the registration system established by the regulations, and

(b) to maintain a Register of Registrable Vehicles in accordance with the regulations, and

(e) to administer the system for regulating vehicle standards and inspections established by the regulations.

1. Section 14 of the Act provides for the making of regulations necessary or convenient to be prescribed for carrying out or giving effect to this Act. Section 15 provides that the regulations are to provide a system of registration of registrable vehicles. Section 15A provides that the regulations may make provision for or with respect to vehicle standards, inspection or testing of registrable vehicles and the production of registrable vehicles for inspection and testing.

1. Regulations made pursuant to these powers include the following.

58 Examiner's authorities

(1) The Authority may authorise in writing any person who, in its opinion, is suitably qualified and of suitable character.

(a) to conduct inspections and tests of registrable vehicles at authorised inspection stations for the purposes of determining whether or not the vehicles are suitable for safe use or comply with the requirements of the Act and this Regulation, and

(b) to issue inspection reports relating to those inspections.

59 Proprietor's authorities

(1) A person may be authorised in writing to use premises for the purpose of conducting inspections and tests of registrable vehicles by authorised examiners if the Authority is satisfied that ...

(4) A person must not use premises for the purposes of conducting an inspection or test referred to in subclause (1) unless the person is the holder of a proprietor's authority in force in respect of the premises...

(5) A person who uses premises for the purposes of conducting an inspection or test referred to in subclause (1) must not permit an inspection report to be issued from those premises in relation to any such inspection or test if the person knows, or ought reasonably to suspect, that the report is false or misleading in a material particular...

(7) A proprietor's authority:

(a) applies to the inspection of registrable vehicles generally or to the class or classes of registrable vehicles specified in the authority...

60 Authority may issue rules for the purposes of this Subdivision

(1) The Authority may issue rules, not inconsistent with the Act or this Regulation, relating to all or any of the following:

(a) the inspection and testing of registrable vehicles to determine whether they are suitable for safe use or comply with the Act or this Regulation,

(b) the issue of inspection reports,

(c) ...

(3) It is a condition of an examiner's authority or proprietor's authority that the holder of the authority comply with any rule in force under this clause that is issued to the person.

62 Suspension or cancellation of examiner's authorities and proprietor's authorities.

(1) The Authority may suspect or cancel an examiner's authority or a proprietor's authority... if:

(a) the holder has failed to comply with a condition to which the authority is subject, or

(b) the Authority is, for any reason, of the opinion that the holder is not a fit and proper person to continue to hold the authority.

(3) The Authority cannot suspend or cancel an examiner's authority or proprietor's authority unless:

(a) the Authority by notice in writing requests the person concerned to show cause why the authority should not be suspended or cancelled on the grounds specified in the notice, and

(b) that person replies to the notice or fails to reply within 21 days from the date the notice was issued.

63 Committee of Review

(1) The Authority is to appoint a committee of review to which the Authority may refer for consideration and report to the Authority any case where consideration is being given to the refusal, suspension or cancellation of an examiner's authority or a proprietor's authority.

1. There was in evidence as Exhibit E a 403 page set of rules entitled "Rules for Authorised Inspection Stations Heavy Vehicles". Also in evidence as Exhibit 1 was another document entitled "Rules for Authorised Inspection Stations". The first of these documents said that it was made under the provisions of the Road Transport (Vehicle Registration) Act 1997 and the Road Transport (Vehicle Registration) Regulation 1998. The second document said that it was made under the provisions of the Road Transport (Vehicle Registration) Regulation 2007. On page 4 of this latter document it is said, "This Manual is for the use of Authorised Inspection Station (AIS) personnel responsible for Safety Checks on light vehicles, motorcycles, trailers and caravans".

1. Because Magistrate Prowse made some reference to it in a passage quoted below, I should mention that there was also in evidence a letter written to Mr Love in August 2003 by the Tamworth Field Manager of the RTA in the course of which it was said, "On completion of this review I have determined that you should be commended on the overall running of this Authorised Inspection Station".

1. On 29 September 2009, the RTA wrote to Mr Love and Quirindi Engineering. The letter to Quirindi Engineering invited it to show cause why its authority should not be suspended or cancelled on the ground that in contravention of rule 6.06 of the Rules for Authorised Inspection Stations issued by the RTA inspection reports were issued by Mr Love "when subsequently re-inspected were found not to comply with the standards prescribed." Details were said to be recorded on attached reports.

1. The letter to Mr Love also invited him to show cause why his Licence as an Authorised Examiner "should not be suspended or cancelled as a result of the grounds set out below". The grounds were that in contravention of some 22 specified rules or sub-rules for Authorised Inspection Stations issued by the RTA, inspection reports were issued by him which "when subsequently re-inspected were found not to comply with the standards prescribed. Again, details were said to be recorded on attached reports.

1. On 7 October 2009 Mr Love replied on the letterhead of Quirindi Engineering. He acknowledged some breaches, attributed some to human error and provided explanations for others. He also asserted that the RTA made similar errors and suggested reasons why the whole topic could have been handled differently by the RTA.

1. The matters were the subject of consideration by a Committee of Review and, following the Committee's recommendations, on 30 November the RTA wrote to Mr Love advising that the Authority issued to him under s 58 of the Road Transport (Vehicle Registration) Regulations was cancelled. The letter said that the RTA was satisfied that he had failed to comply with Rules in force under clause 60 of the Road Transport (Vehicle Registration) Regulation. Further particulars were said to be attached and would appear to have included reference to specified vehicles and defects in them, commentary on Mr Love's response to the show cause letter and his paperwork.

1. Also on 30 November 2009, the RTA wrote to Quirindi Engineering advising that its authority to operate an Authorised Inspection Station was to be suspended for 6 months on the ground that it had "failed to comply with Rule 6.06 of the Rules for Authorised Inspection Stations issued pursuant to Clause 60". Under a heading "Further Particulars" there were specified some 22 rules or sub-rules said to have been breached.

1. Rule 6.06 of the Rules for Authorised Inspection Stations provides that "The Proprietor must not allow any person to sign AIS documents on their behalf". Rule 6.06 of the Rules for Authorised Inspection Stations Heavy Vehicles provides:-

The Proprietor is responsible for ensuring that an AIS is operated strictly in accordance with the AIS Rules. The AIS Rules, Bulletins and supplements are to be kept up to date and on the premises during business hours, so as to be available for use by the Authorised Examiner.

1. It was submitted, faintly, that in light of the Rules first mentioned in the immediately preceding paragraph, the letter to Quirindi Engineering was thus meaningless. However, given the subsequent proceedings before Magistrate Prowse, nothing turns on the point.

1. The practice in appeals to the Local Court such as those brought by Mr Love and Quirindi Engineering has been for such appeals to proceed by way of hearing de novo and before me both parties accepted that such a practice was correct. Before Magistrate Prowse two RTA inspectors gave evidence and a number of documents, including statutory declarations from owners of vehicles the subject of suggested defects were admitted. Neither Mr Love nor anyone else from Quirindi Engineering gave evidence.

1. In summary, the RTA's case before Magistrate Prowse was that Mr Love was not a fit and proper person to be inspecting vehicles, that he had blatantly disregarded the Rules for the purpose for potentially saving vehicle owners money, that safety should not be jeopardised for the sake of minimising cost and it was important that the integrity of the inspection and registration system and thus the issue of safety be maintained.

1. The evidentiary foundation relied on was that a vehicle SWY462, passed for registration by Mr Love was found some 17 days later to have 8 defects, that a subsequent inspection of a number of other vehicles passed by Mr Love revealed another 20 defects, that Mr Love acknowledged passing one vehicle in which he had previously found defects without re-inspecting it and there were some 17 omissions or defects in Mr Love's record keeping relating to his inspections. I do not find it necessary to detail all of these matters.

1. In this Court the principal submissions of the RTA were contained in some 20 pages of written submissions. In summary the major complaints were that Magistrate Prowse:-

(i) Failed to determine which of the rule breaches alleged by the RTA had been made out.

(ii) In light of findings in respect of those and other relevant matters, failed to decide whether the Defendants' authorities should be cancelled or suspended and, if suspended, for how long.

(iii) Failed to address the seriousness of breaches in terms of the cumulative, rather than individual, significance of them.

(iv) Failed to address the seriousness of breaches in the context of whether the Defendants could be relied upon to comply with statutorily imposed conditions of their authorities.

1. To say that the magistrate took a dim view of the RTA's case is to understate the position. Included in his robust remarks for disallowing the RTA's decisions was the following:-

Now one only has to go through some of these things to see that there appears to be an extraordinarily officious attention to detail. Miss Swain (appearing for the RTA) says that is as it should be, and it is possibly difficult to argue with that, especially with matters of some moment. Well for example, the absence of reflectors on that horse trailer was explained to me in detail by the inspectors that they were there so that the vehicle could be outlined at night so that for example, you drove around a corner and there was the vehicle parked, you would not run up the back of it, or into the side of it, or up the front of it I suppose. One would hope that one might also be able to utilise the vehicle's headlights that one was driving, to discern something that is only just slightly less than the Queen Mary in size, it being painted white and would possibly stand out like the proverbials, i.e., the Pyramids from Mars, the Pyramids are viewable from the moon. To suggest that there was any safety compromised for example on that vehicle, beggars belief.

To suggest that a fuel trailer that is dragged around a paddock, willy nilly at speed, because it's obviously broken the wire, to need mudflaps when it travels on one occasion per year to town to be re-registered essentially, and back, again is a breach of the rules and I can understand the need for mud flaps. But to say that that is sufficient to justify cancelling somebody's livelihood, again almost beggars belief.

To suggest that a crack in the windscreen is of such moment that it would cause a person's livelihood to be cancelled, again almost beggars belief, especially when one has regard to the statutory declaration of Mr Green...

1. His Honour then directed remarks to the reasons given by the Committee of Review and after quoting some of these continued:-

Nothing about doing a course. Nothing about being re-educated. Nothing about attending some workshop in relation to overcoming perceived defects and shortfalls. Just a mere straight out suspension as a matter of punishment as opposed to addressing any of the matters that they refer to, that have some substance to them. But of course, the real substance of this in my opinion is Colin Love begins and ends his reply to show cause by criticising the RTA inspectors missing safety related defects during HVIS inspections. In other words, they are castigating Mr Love for having the audacity to so do and the temerity to point out shortcomings in others when he is apparently is supposed to only adopt the sackcloth and ashes of a true penitent...

It seems to me that this falls probably just short of a witch hunt but not much short. It seems to me to be a travesty of justice on one view...

Miss Swain says... safety is better than the opposite and there is no doubt about that. But there also has to be some degree of common sense applied in these matters before such a crucial decision to rip from under a person their ability to earn an income... I am not suggesting that Mr Love is a plaster saint in disguise by any stroke of the imagination. He certainly should not have passed vehicle SYW-462 without looking at the vehicle again but in a perfect world that would not have happened and in the country, a lot of things are done on trust with people you know... But I am certainly saying that Mr Love operates in a small community and does a lot for the community it would appear and as has been recognised by the RTA themselves in their letter of commendation of August 2003...

1. In light of the conclusion at which I have arrived, viz. that the magistrate did make errors of law requiring that I quash his decision, it is not necessary that I deal, certainly deal at length, with all of the arguments advance on behalf of the RTA. I would however say this. The RTA alleged that on inspection of some 6 vehicles by their officers 28 defects were found and that his Honour failed to make findings in respect of 5 of these. When regard is had to the findings he did make and to his general view of the RTA case, in my view it was unnecessary for him to make a decision in respect of these 5 but in any event his Honour's conclusions concerning the 5, if not expressed as clearly as they might have been, are evident from his remarks.

1. The first of the 5 concerned a fuel trailer and was described in an RTA Breach Report of 26 March 2009 as "Rear axle brakes inoperative, electric brake wires broken near brake backing plates on left and right hand sides". His Honour referred to a record of an interview with Mr Love in which Mr Love had said that the brakes were working at the time of his inspection and to statutory declarations from owners of vehicles as "telling". One such declaration was from the owner of this vehicle who said that he had observed Mr Love inspect the vehicle and confirm that the brakes were operating.

1. Another of the 5 concerned a Dog Trailer V23325 and was described in an RTA Breach Report of 26 March 2009 as "1 st axle brakes on left and right hand sides have excessive travel and when applied linings do not contact brake drum left hand side brake slack adjuster not operating correctly". In a statutory declaration apparently from the owner of this vehicle, it was asserted that the brakes had been working a week before they were inspected by the RTA inspectors, i.e. 2 weeks after the vehicle was inspected by Mr Love. There is also reference to some work having been done in that intervening period and the document does not exclude the possibility that they were not working at the time of Mr Love's inspection. However it does preclude any relevant inference in that regard being drawn from what the inspectors saw.

1. The third and fifth of the 5 matters that, according to the RTA submissions, were not the subject of findings concerned a Rigid Truck QHF 645 and were described in an RTA Breach Report of 26 March 2009 as "Right hand rear reflector damaged/faded" and "Right hand rear park light lens showing white light to rear of vehicle". This was also the subject of a statutory declaration from its owner who said that he replaced the light after the RTA inspection and when lit it looked as red as the one the subject of the inspectors' criticism and as red as one on the opposite side that Mr Love had replaced at the time of his inspection.

1. The fourth of the 5 matters also concerned the fuel trailer and was described in an RTA Breach Report of 26 March 2009 as "Left and right hand side front reflectors missing". The Magistrate quoted Mr Love's response in an interview where he said "The side reflectors were missing and I've since studied up on the requirements for all reflectors on vehicles".

1. I would also reject the criticism made about his Honour's remarks concerning the decision of the Committee of Review. The written submissions of counsel appearing for the RTA before his Honour placed reliance on, and made extensive reference to, findings of that Committee. It hardly lies in the mouth of the RTA here to criticize his Honour for then dealing with the decision of the Committee and matters pertinent thereto. His Honour was fully entitled to do so albeit care may have been needed as to the use made of his conclusions in that regard.

1. Contrary to further submissions of the RTA before me, it was also relevant for his Honour to consider the nature of the defects alleged and whether they concerned issues of safety or raised no practical safety issues. Thus, while one may accept that the presence of reflectors on vehicles is calculated to make those vehicles more readily visible and, if required by the Regulations but absent, because of the terms of the Rules should have led to the refusal of a pink slip, there is much to be said for Magistrate Prowse's view that at a practical level they are entirely otiose in the case of the horse trailer the subject of evidence before him. Even from a photograph one can say that without reflectors that vehicle is far more visible than many, perhaps the majority, of cars on the road and, while reflectors might add to that visibility, any increase is likely to be marginal.

1. As the orders available to his Honour included not only cancellation of Mr Love's authority but its suspension and, if the latter, for how long, it was also relevant to consider other factors bearing on the seriousness of Mr Love's defaults including, to pick but one example, giving a pink slip to a vehicle with a cracked windscreen that would have had to be replaced shortly in any event, because it was to be the subject of an RTA inspection 2 weeks or thereabouts later.

1. It is not necessary that I pursue these matters further. Why it is necessary that the magistrate's decision be quashed is because he did make some errors of law. Clearly relevant to the decision he should have made were not only the individual defects that Mr Love allowed to pass rather than be the cause of withholding pink slips but also the totality of the defects, both in number and seriousness, particularly against the background that, under Regulation 60(3) it was a condition of Mr Love's authority that he comply with the Rules. So far as one can judge from his Honour's reasons he did not consider this question.

1. Similarly relevant, though perhaps of different weight, were the deficiencies in record keeping. Again his Honour seems not to have given any consideration to the significance of this.

1. Nor did he give consideration to the question of the extent to which Mr Love's failure to ensure the defects were fixed prior to issuing a pink slip was deliberate, accidental, or the product of gross negligence or incompetence. Such issues also were relevant to whether Mr Love's authority should be suspended or cancelled

1. A further error lay in his Honour's remarks concerning the cancellation of Mr Love's livelihood. While undoubtedly the protection of the public and the effectiveness of the inspection system were of more importance in the decision his Honour had to make, given the range of the relief available to his Honour the impact of any order on Mr Love was also relevant. However, there was no evidence that the effect of suspending or cancelling Mr Love's authority would or might have effectively cancelled his livelihood. Yet in the passages I have quoted his Honour seems to have taken the view that that would or might be the result of the orders sought by the RTA. Again he erred.

1. In the forgoing I have concentrated on the position of Mr Love. The relationship between him and Quirindi Engineering means that my remarks, mutatis mutandis, apply to that organisation also.

1. It follows that the following orders should be made:-

(i) The Appeals be allowed.

(ii) The determination of Magistrate Prowse on 18 May 2010 in Local Court proceedings 2009/285677 to disallow the decision of the Roads and Traffic Authority to cancel Colin Alexander Love's Examiner's Authority be set aside.

(iii) The determination of Magistrate Prowse on 18 May 2010 in Local Court proceedings 2009/285703 to disallow the decision of the Roads and Traffic Authority to suspend the Authority of Owen Wellington Love, Lloyd Charles Love, Bruce Owen Love and Colin Alexander Love, trading as Quirindi Engineering to operate an Authorised Inspection Station be set aside.

(iv) The order of Magistrate Prowse on 18 May 2010 made in Local Court proceedings 2009/ 285677 and 2009/285703 that the RTA pay Colin Love and Quirindi Engineering the sum of $16,470.50 be set aside.

(v) That the Defendants pay the Plaintiff's costs of the proceedings in this Court.

1. The fourth of these orders was not expressly sought in the Amended Summons and there was no argument concerning it or the topic of costs. In that situation, I will stay those two orders up to and including 21 October next and give the parties liberty to apply by written notice to the other and to my Associate, returnable before me in the week commencing 17 October 2011 to have those orders vacated.

42.  Subsequent to the publication of these reasons, it was drawn to my attention that I had not addressed the topic of what should happen subsequent to the setting aside of the orders of Magistrate Prowse.  Given the number and nature of the errors he made, it is obviously desirable that the relevant issues be considered by another Magistrate.  Consequently, I made the order set forth in the immediately succeeding paragraph.

43.  I order that the Local Court differently constituted herein determine the aplications the subject of Local Court proceedings 2009/285677 and 2009/285703 according to law.

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