Warren v Road Transport Authority

[2021] ACAT 31

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

WARREN v ROAD TRANSPORT AUTHORITY (Administrative Review) [2021] ACAT 31

AT 9/2021

Catchwords:               ADMINISTRATIVE REVIEW – review of decision to refuse to withdraw infringement notice for disobeying a no stopping sign – particular offence generally considered unsuitable for withdrawal unless exceptional circumstances exist – no exceptional circumstances – decision confirmed

Subordinate

Legislation:Road Transport (General) Withdrawal of Infringement Notices Guidelines 2019 DI2019–211

Tribunal:  Senior Member K Katavic

Date of Orders:  29 March 2021

Date of Reasons for Decision:         20 April 2021

AUSTRALIAN CAPITAL TERRITORY          )

CIVIL & ADMINISTRATIVE TRIBUNAL     )          AT 9/2021

BETWEEN:

JOHN THOMAS WARREN

Applicant

AND:

ROAD TRANSPORT AUTHORITY

Respondent

TRIBUNAL:     Senior Member K Katavic

DATE:29 March 2021

ORDER

The Tribunal orders that:

1.The decision dated 27 January 2021 is confirmed.

………Signed………..

Senior Member K Katavic

REASONS FOR DECISION

1.On 17 February 2021, the applicant, John Warren, sought review of a decision of the respondent, the Road Transport Authority, regarding traffic infringement notice 2761326430. The respondent refused to withdraw the infringement notice for disobeying a no stopping sign.

2.On 29 March 2021, the Tribunal heard this application. After hearing from the parties, the Tribunal made orders and gave oral reasons.

3.Those oral reasons are set out below with some minor editing.

4.On 15 April 2020 an inspector driving a licence plate recognition vehicle captured the vehicle, the subject of the infringement notice stopped in a no stopping zone along Anketell Street in Tuggeranong. The applicant concedes he was responsible for the motor vehicle the subject of the infringement notice at the time.

5.The applicant made a request to have the infringement notice withdrawn. On 17 December 2020 that request was refused. The applicant sought internal review of the decision refusing to withdraw the infringement notice. On 27 January 2021, the applicant was advised the respondent had upheld the earlier decision again declining to withdraw the infringement notice.

6.The Tribunal now stands in the shoes of the decision-maker in order to consider whether the decision to uphold the earlier decision refusing to withdraw the infringement notice was correct or preferable. The Tribunal must do so based on the evidence before it at the time of hearing.

7.Directions were made requiring the parties to give to the Tribunal and each other any further evidence upon which they intended to rely upon at the hearing. The applicant lodged a document which I regarded to be both the evidence he wished to give before the Tribunal and a submission. Attached to it were a series of photographs and diagrams. The respondent did not object to the Tribunal accepting the applicant’s document on that basis. He also gave evidence before the Tribunal and was cross-examined.

8.The respondent gave to the Tribunal and the applicant relevant documents upon which the decision was based. These included the image of the vehicle captured by the camera, the inspector’s notes, the infringement notice, the applicant’s request for withdrawal, the original decision refusing withdrawal, the applicant’s request for further internal review, and the reviewable decision.

9.The respondent also lodged a witness statement of Alex McPherson, Senior Director of the Fair Trading and Compliance Team dated 22 March 2021. In that witness statement Ms McPherson explained decision-makers must apply the Road Transport (General) Withdrawal of Infringement Notices Guidelines 2019 (the Guidelines) in deciding a withdrawal request. A copy of the Guidelines was given to the applicant and the Tribunal.

10.The applicant explained in his application and in his evidence that he was driving east on Anketell Street in a shared zone and that a vehicle had stopped in the lane ahead of his vehicle and another vehicle in front of him. In order to pass the stationary vehicle he decided to follow the vehicle in front of him and merge left into an area that was not a designated lane, but a no stopping zone, to go around the stationary vehicle and then once past it, merge right back into the traffic lane. He says the vehicle in front of him, in the no stopping zone, came to a standstill and could not progress past the stationary vehicle due to the presence of a series of steel bollards. The vehicles in the designated traffic lane then began moving again and the applicant was able to merge right into the traffic lane, however he remained stationary in the no stopping zone until the flow of traffic permitted him to merge.

11.The applicant has illustrated the circumstances in figure 3 attached to his statement.

12.He says the licence plate recognition vehicle captured his vehicle stopped in the no stopping zone while he was trying to merge back into the traffic lane. He says at all times he remained in the vehicle and the vehicle remained running.

13.He was asked about the inspector’s notes that state his vehicle was subsequently seen doing a U-turn. The applicant did not recall making such a U-turn. The respondent did not call the inspector to give evidence in relation to the recorded notes.

14.The applicant also said he had a good driving history and could not recall any prior parking infringement notices. Despite the absence of any documentary evidence to support this assertion, the applicant’s evidence in this regard was not challenged.

15.Ms McPherson gave evidence before the Tribunal and was questioned by the applicant. She adhered to her witness statement and told the Tribunal that the applicant had a good driving record without any infringement notices in the last five years.

16.The applicant asked Ms McPherson a number of questions about her witness statement, in particular the statements made at paragraphs 3(d) and 3(e). The applicant disagreed with Ms McPherson’s characterisation of how he had come to a stop in the no stopping zone. Ms McPherson confirmed that the statement is an accurate reflection of how she had interpreted the applicant’s description of events. The applicant questioned Ms McPherson on why the area was regarded a pedestrian area, given a series of bollards were set back 7.5m from the traffic lane rather than immediately adjacent to the pedestrian crossing. Ms McPherson said the area was regarded as a high pedestrian traffic area with a higher risk of harm to pedestrians, hence the reason for the no stopping zone. She said she could not comment on the reason for the specific location of the bollards.

17.The decision to withdraw an infringement notice remains discretionary. That means the infringement notice may or may not be withdrawn after considering all of the relevant circumstances.

18.I accept the applicant did not intentionally flout the law and by his own admission  should not have followed the vehicle in front of him. I accept that in seeking review of the decision in this Tribunal he wished to explain the circumstances in which he found himself, and provide some insight into why he felt he had not truly stopped in a no stopping zone.

19.In this case, the offence involved the applicant stopping in a no stopping zone. That is an offence, according to attachment A of the Guidelines, that is generally considered unsuitable for withdrawal. The Guidelines further state that disagreeing with a law, or finding it inconvenient to adhere to it, are not grounds for having an infringement notice withdrawn.

20.On the evidence before me, the applicant has not established a basis upon which I could be comfortably satisfied the respondent’s decision should be set aside. I am not satisfied the applicant has established exceptional circumstances that might support the withdrawal of the infringement notice.

21.The starting point is the offence. In this case the applicant stopped his vehicle, however briefly, in a no stopping zone which by reason of the Guidelines is an offence unsuitable for withdrawal, unless there is something exceptional about the circumstances in which he did so. I am not satisfied the applicant was compelled to enter the no stopping zone in order to pass around a stationary vehicle in the traffic lane. The applicant agrees. He says that once he made the ill-fated decision to follow the vehicle in front of him into the no stopping zone, he was left with no choice but to stop and wait for the traffic to allow him to re- enter the traffic lane. It goes without saying that if the traffic in the designated traffic lane was stopped then it was incumbent upon the applicant to remain stationary in the traffic lane until the traffic began moving again. I do not think the applicant disagrees with that proposition. The traffic in the traffic lane began flowing again shortly after the applicant entered the no stopping zone, and it was not necessary to for him to enter the zone. In the process, the applicant found himself stationary in a designated no stopping zone. This is exemplified by the presence of steel bollards along the area of pavement which is posted as a no stopping zone and not a traffic lane. The presence of the steel bollards reinforces that vehicles are not permitted to stop in that location and remain in the traffic lane.

22.Whether he remained in the vehicle at all times and the vehicle remained running at all times does not detract from his vehicle being impermissibly stationary in that zone. I accept that the offence may be committed regardless of whether the driver remains in the vehicle and/or the vehicle remains running at all times. A vehicle found stationary in a no stopping zone is sufficient to establish the offence.

23.I accept Ms McPherson’s evidence that the area is regarded a high pedestrian area with a high risk of harm. Whether the bollards are adequately or preferably located does not detract from whether the applicant found himself stationary in a no stopping zone.

24.I do not regard the totality of the applicant’s actions to be a matter of convenience. Certainly seeking a way of passing the stationary vehicle may amount to convenience, but I do not think finding himself in a no stopping zone waiting for traffic to allow him to re-enter amounts to inconvenience in the manner described in the Guidelines. Certainly, the applicant found himself in an inconvenient situation.

25.It is unfortunate that the applicant found himself in that situation. Despite his intentions and contrition, I do not regard the circumstances he outlined as exceptional.

26.Even accepting that the applicant has an unblemished driving record, for which he is to be commended, that is not enough to warrant withdrawal of the infringement notice in circumstances where the legislature has seen fit to characterise this particular offence as one which is unsuitable for withdrawal. It is not a sufficient reason alone to have the infringement notice withdrawn.

27.The decision dated 27 January 2021 is confirmed.

………………………………..

Senior Member K Katavic

Date(s) of hearing	29 March 2021
Applicant:	In person
Solicitors for the Respondent:	Ms M Bayer, ACT Government Solicitor