Western Truck Towing v Scott Andrew Douglas , S Apci 2014 0050 , Western Truck Towing and John Kolonis
[2014] VSCA 130
•20 June 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2014 0049
| WESTERN TRUCK TOWING | Applicant |
| v | |
| SCOTT ANDREW DOUGLAS | Respondent |
| S APCI 2014 0050 | |
| WESTERN TRUCK TOWING | Applicant |
| v | |
| JOHN KOLONIS | Respondent |
---
| JUDGES | ASHLEY and MANDIE JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 20 June 2014 |
| DATE OF JUDGMENT | 20 June 2014 |
| MEDIUM NEUTRAL CITATION | [2014] VSCA 130 |
| JUDGMENT APPEALED FROM | Western Truck Towing v Douglas & Anor [2014] VSC 159 (Rush J) |
---
APPEAL – Application for leave to appeal judicial review decision pursuant to s 272 of the Criminal Procedure Act 2009 – Applicant convicted by Magistrate under s 26 of the Accident Towing Services Act 2007 for failing to comply with a condition to which a tow truck licence is subject – Construction of condition to which licence subject – Application for leave to appeal dismissed.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr P J Billings with Ms B Armatys | Marshall & Dent |
| For Respondents | Mr B E Walters QC with Mr E M Nekvapil | Roads Corporation |
ASHLEY JA:
I will ask Mandie JA to deliver the first judgment.
MANDIE JA:
Introduction
These are two applications by Western Truck Towing Pty Ltd for leave to appeal[1] against orders made by a judge in the Trial Division of the Court under s 272 of the Criminal Procedure Act 2009 (Vic). Section 272 of the Criminal Procedure Act 2009 (Vic) provides that a party to a criminal proceeding in the Magistrates’ Court may appeal to the Supreme Court on a question of law from a final order of the Magistrates’ Court in that proceeding.
[1]See Supreme Court Act 1986 (Vic) s 17A(3A)(ab).
The applicant was convicted and fined by a Magistrate in two criminal proceedings (‘the Kolonis prosecution’ and the ‘Douglas prosecution’). The applicant appealed to the Supreme Court on questions of law pursuant to s 272 and the judge dismissed both appeals.[2]
[2]See Western Truck Towing v Douglas & Anor [2014] VSC 159.
The applicant was convicted of six offences (five in the Douglas prosecution and one in the Kolonis prosecution) under s 26 of the Accident Towing Services Act 2007 (Vic) (‘the Act’).
Section 26 of the Act, headed ‘Offence not to comply with conditions on licence’ provides that the holder of a tow truck licence must comply with a condition to which the licence is subject and provides for monetary penalties for breach of the section.
In the present matters, the applicant held two tow truck licences which were each subject to the following condition (‘Condition 2’):
The licensed tow truck shall be used as a tow truck for the purpose of lifting and carrying or lifting and towing damaged or disabled motor vehicles –
(a)only from a road accident scene within that part of Victoria which is outside a ‘controlled area’ and outside the area defined as the Geelong Accident Allocation Area to the authorised depot shown above or to the place specified by the owner or person in charge of the damaged motor vehicle or by a member of the Victoria Police or an officer of the Roads Corporation.
(b)from any place other than a road accident scene to any place in Victoria.
The breaches of Condition 2 of the licences of which the applicant was convicted were that the applicant:
(a) on four occasions (being 5 September 2011, 3 October 2011, 13 March 2012 and 1 August 2012) caused its tow truck licensed ‘TOW131’, to attend a road accident scene, within a controlled area, for the purpose of lifting and carrying or lifting and towing a damaged or disabled motor vehicle; and
(b)on two occasions (being 7 December 2011 and 9 March 2012) caused its tow truck licensed ‘TOW355’, to tow a damaged or disabled motor vehicle from a road accident scene.
Reasons of judge
The judge said that the applicant’s primary contention (which the Magistrate rejected) was that Condition 2, properly constructed and read in the light of various provisions of the Act, did not prevent its tow trucks attending road accident scenes within a controlled area and towing damaged motor vehicles with a gross vehicle mass (“GVM”) of four tonnes or more.
The judge summarised the questions of law raised by the applicant as follows:
(a)Did Condition 2 prohibit licensed tow trucks from attending a road accident scene within a controlled area?
(b)If yes to (a) above, should Condition 2 be read down, by reference to Division 9 of Part 2 of the Act (particularly s 42 of the Act), so that it does not prohibit lifting and towing of a motor vehicle with a GVM of four tonnes or more?
(c)If yes to (a) and (b) above, was it open to the Magistrate on the evidence to convict the appellant on each charge?
(d) Alternatively, was the sentence manifestly excessive?
(e)Further, was it open to the Magistrate to order the appellant to pay the respondents’ costs?
The judge said that the applicant’s argument on appeal concerned the construction of the Act.
The judge then said:
The Act sets out a legislative regime in respect of tow truck administration, licensing, operations and offences in the State of Victoria. An objective of the Act is to ‘promote the safe, efficient and timely provision of accident towing services and other related services’. To achieve this objective, the Act establishes ‘controlled areas’ in which towing operations are limited.
His Honour then referred to judicial statements, made concerning the objectives of the legislative regime which preceded the Act, in a decision of the Full Court.[3] In that decision, McGarvie J said:
One of the primary objectives of the Regulations is to substitute an orderly and fair system for the operation of tow trucks within the controlled area in place of the primitive and often violent and dangerous conditions in which tow truck operators previously competed for the prize of towing a damaged vehicle from the scene of an accident. [4]
and Southwell J said:
The evils which Parliament primarily wish to eradicate included the unseemly harassment at accident scenes of shocked and perhaps injured car drivers and the eruption of violence between rival tow truck operators .... In my opinion, the purpose and object of the Act was not merely to control the distribution of tow trucks at accident scenes: the purpose and object went much further than that — to control the number of tow trucks operating in Melbourne on the one hand and in the various country centres on the other, in order to satisfy the needs of the public by an orderly system of distribution, and, having thereby interfered with some rights and freedom of operators, to preserve their economic viability by protecting them from undue or unfair competition.
[3]Accident Towing Advisory Committee v Combined Motor Industries Pty Ltd [1987] VR 529.
[4]Ibid 532.
His Honour then described the relevant legislative background as follows:
10Pursuant to s 46 of the Act, VicRoads has declared a controlled area for the operation of tow trucks; tow trucks are licensed to operate either within a controlled area or outside a controlled area. The statutory regime considered by McGarvie J in Accident Towing Advisory Committee similarly provided for the relevant authority to declare ‘controlled’ areas for the operation of tow trucks. The intent of the legislature in enacting the scheme for controlled areas is relevant to an understanding of the Act, and is helpfully described by McGarvie J in the following terms:
The legislation validly establishes a system for the regulation of the towing of vehicles from the scenes of accidents which differentiates between the ‘controlled area’, which is metropolitan Melbourne, and the rest of Victoria.
…
The legislative scheme sets up two virtually exclusive areas within which tow trucks may attend the scenes of accidents ... The legislative intent is to limit one group of tow trucks to accidents within the controlled area and the other group to accidents outside it.
11The Licences held by the appellant were ‘regular tow truck licences’ issued by VicRoads pursuant to s 10 of the Act, which states:
(1)Subject to subsections (2) and (3), VicRoads may license a person to operate a tow truck that is specified in the licence in the course of conducting an accident towing service business—
(a)to provide accident towing services to vehicles of any gross vehicle mass that the tow truck is capable of towing; and
(b) from the depot specified in the licence.
12Further, pursuant to s 11 of the Act, VicRoads has the power to issue ‘heavy tow truck licences’, for the operation of specified tow trucks capable of towing vehicles that have a GVM of four tonnes or more. Section 11 of the Act states:
(1)Subject to subsections (2) and (3), VicRoads may license a person to operate a tow truck that is specified in the licence in the course of conducting an accident towing service business—
(a)to provide accident towing services to vehicles that the tow truck is capable of towing that have a gross vehicle mass of 4 tonnes or more; and
(b) from the depot specified in the licence.
13VicRoads has the power to impose conditions on the tow truck licences it issues. In particular, ss 25(1) and 25(4) of the Act state:
(1)On the issue of a tow truck licence by VicRoads, VicRoads may impose conditions on the licence …
(4)A tow truck licence is also subject to any condition that applies to the licence and that is set out in regulations made under this Act.
The conditions imposed on the Licences in this matter are imposed pursuant to this section.
14As stated above, a failure to comply with any condition or conditions imposed on a tow truck license by VicRoads is an offence pursuant to s 26 of the Act, and is subject to a fine of up to 150 penalty units (in the case of a body corporate).
15Division 9 of Part 2 of the Act sets out the allocation regime upon which the holders of regular tow truck licences are regulated to operate within a controlled area. In particular, s 42(1) of the Act makes it an offence for the holder of a regular tow truck licence to operate in a controlled area without authority from the relevant allocation body. Section 42(1) of the Act states:
The holder of a regular tow truck licence must not cause the tow truck operating under that licence—
(a) to attend a road accident scene in a controlled area; or
(b)to be used to tow, or attempt to tow, an accident damaged motor vehicle, with a gross vehicle mass of less than 4 tonnes, from a road accident scene in a controlled area—
unless the allocation body for that area has authorised that the tow truck operating under the licence so attend or be so used, and the allocation body has given a job number for that authorisation to the holder of the licence.
His Honour then referred to the relevant facts and to what occurred in the Magistrates’ Court as follows:
16Each Licence held by the appellant is classified as an ‘Accident Outside Controlled Area’ licence, meaning, so the respondents contended, that the tow trucks operating under the licences are only permitted to lift, carry or tow damaged or disabled motor vehicles from road accident scenes located in parts of Victoria outside a controlled area.
17On each occasion, the subject of the six charges, one or other of the appellant’s licensed tow trucks attended a road accident scene within a controlled area without receiving authority to do so from the allocation body under the Act. The evidence before the Magistrate was that at each road accident scene attended by the appellant’s tow trucks, there was a damaged vehicle involved in a road accident with a GVM of over four tonnes.
18The appellant in the Magistrates’ Court hearing submitted that Condition 2 should be read in conjunction with the Act, specifically s 42(1), which the appellant contends imposes no specific restriction on the attendance of an unallocated regular tow truck in a controlled area for towing a damaged vehicle with a GVM of four tonnes or more. The Magistrate rejected these submissions, and held that “Condition 2 does prevent attendance at a road accident scene in a controlled area, irrespective of the weight”.
19 The Magistrate held that:
(a)Condition 2 restricted the activities that a tow truck can undertake;
(b)Condition 2 was effective only if it prevented attendance at road accident scenes in controlled areas; its purpose was plainly to prevent country licences from being operated in Metropolitan Melbourne;
(c)Attendance at a road accident scene within a controlled area breaches the limitation imposed by Condition 2; and
(d)Condition 2 could not be read down by reference to Division 9 of the Act, so as to apply only to the towing of motor vehicles with a GVM of less than four tonnes, and in any event the Act did not require it to be read down in that way.
His Honour then summarised the principal appeal submission put on behalf of the applicant as follows:
20Mr Billings, counsel for the appellant, submitted that s 42(1) of the Act did not prevent a regular tow truck licence holder from causing that tow truck to attend a road accident scene in a controlled area without authorisation if its purpose in so doing was to tow a vehicle with a GVM of four tonnes or more. In short, it was contended on behalf of the appellant that a proper construction of s 42(1) of the Act meant a tow truck with a regular licence –
(a) could attend a road accident scene in a controlled area;
(b)tow an accident damaged motor vehicle with a GVM of four tonnes or more in a controlled area without authorisation from the allocation body for that controlled area and without a job number for the authorisation.
21Mr Billings contended the above construction was the only one that could make sense of s 42(1), that it would be ‘ludicrous’ if mere attendance at a road accident scene was in breach of this provision of the Act. As I understand the submissions of the appellant, the contended construction of s 42(1) of the Act means that the conditions of the Licences should be construed or read down so as not to conflict with its purported construction of s 42(1) of the Act.
His Honour’s conclusions on the foregoing submissions were stated as follows:
22Mr Walters submitted the plain meaning of s 42(1) of the Act was clear. The use of the word ‘or’ at the conclusion of s 42(1)(a) means that s 42(1)(a) cannot be read conjunctively with s 42(1)(b). I agree with the submission of the respondents. Any other construction is against the plain words and meaning of the section, which clearly demonstrates the legislative intention. Section 42(1)(a) states that a tow truck with a regular licence ‘must not’ attend a road accident scene in a controlled area unless authorised by the allocation body for that controlled area and given a job number for that authorisation. The section unequivocally establishes authorisation by the allocation body as a prerequisite for a tow truck with a regular licence to attend a road accident scene within a controlled area.
23In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue,[5] Hayne, Heydon, Crennan and Kieffel JJ stated as follows:
24This Court has stated on many occasions that the task of a statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of the provision, in particular the mischief it is seeking to remedy.
25The suggested construction of s 42(1)(a) of the Act by the appellant in this case is against the language of the section and the clear intention of the legislature that a tow truck with a regular licence can only attend a road accident scene in a controlled area if authorised.
26Mr Billings contended that s 42(1)(b) of the Act permitted a regular tow truck to attend a road accident scene in a controlled area if it was attending for the purpose of towing a damaged motor vehicle with a GVM of four tonnes or more. He submitted no authorisation from the allocation body was necessary in such circumstances.
27 I do not accept that s 42(1) of the Act can be construed as providing a carte blanche to the licensees of regular tow trucks, licensed to operate outside controlled areas, to attend road accident scenes in controlled areas, without authorisation, to tow vehicles with a GVM of four tonnes or more. Not only is such a construction against the language of the section, it is the antithesis of the legislative intention as referred to above in Accident Towing Advisory Committee.
[5](2009) 259 CLR 27.
His Honour then referred to a submission on appeal by the applicant concerning the proper construction of Condition 2 in the licences and said:
28The appellant, in written submissions, conceded that Condition 2(a) of the Licence set out above ‘seems on a literal reading to confine the operation of the tow trucks operated by [the appellant] to accident scenes outside a controlled area’. Mr Billings submitted, however, that this is not ‘a proper view of its effect’, ‘if one assumes the damaged or disabled motor vehicles specified in Condition 2(a) simply refer to vehicles with a GVM of less than four tonne’. This assumption, Mr Billings contended, was supported because the Act only regulated the operation of regular tow truck licences towing damaged motor vehicles with a GVM of less than four tonnes.
29 The appellant further submitted that s 10(1) of the Act, which concerned the issue of regular tow truck licences, permitted such licensed tow trucks to provide towing services to damaged vehicles of any GVM that the tow truck is capable of carrying.
30The submission of the appellant that the literal meaning of the licence conditions should be read down based upon an assumption to be inferred into the licence conditions cannot be sustained.
31The wording of Condition 2 is mandatory. The licensed tow truck ‘shall be used’ for the purpose of towing damaged motor vehicle ‘only from a road accident scene within that part of Victoria which is outside a “controlled area”’. There is no justification or warrant to read Condition 2 as permitting the towing of damaged motor vehicles with a GVM of four tonnes or more from a road accident scene within a controlled area. There is no basis for implying a term into Condition 2 that would permit the operation of the tow truck in a controlled area by reference to the weight of the vehicle to be towed.
32Section 10(1) of the Act is of no assistance to the appellant’s argument. Section 10(1) concerns the power of VicRoads to issue regular tow truck licences. Section 10(1) does not in any way limit the power conferred on VicRoads by s 25(1) of the Act to impose conditions on licences it issues. That power was not challenged by the appellant before the Magistrate or on appeal.
33In my opinion, there is no inconsistency between Condition 2 and s 42(1) of the Act. Condition 2 prohibits attendance of the licensed tow truck at a road accident scene inside a controlled area. Section 42(1)(a) prohibits the holder of a regular tow truck licence causing such tow truck to attend a road accident scene in a controlled area unless authorised.
The judge then turned to the applicant’s submissions concerning questions of penalty and costs and also rejected them.
Proposed grounds of appeal
The applicant’s proposed Notice of Appeal sets out the following grounds of appeal, contending that the judge erred in law:
1.By holding that under the circumstances Condition 2 on a tow truck licence held by the Appellant prohibited attendance of the licensed tow truck at a road accident scene inside a controlled area.
2.By not holding that Condition 2 on a tow truck licence held by the Appellant in its plain terms did not prohibit attendance of the licensed tow truck at a road accident scene inside a controlled area, but rather prohibited lifting and carrying or lifting and towing damaged or disabled motor vehicles from a road accident scene within the controlled area within the meaning of those plain terms.
3.By not holding that under the circumstances all or any of the charges against the Appellant laid by the Respondent and/or as amended which alleged attendance at a road accident scene in breach of Condition 2 of the tow truck licence were to be dismissed.
4.In the alternative by failing to hold that on a proper construction of Division 9 of the Accident Towing Services Act 2007 as in force at the relevant time of each of the charges alleged it was open to interpret Division 9 read as a whole:
(a)as regulating and/or pertaining to the operation of two trucks under regular tow truck licences only with respect to accident damaged motor vehicles with a gross vehicle mass of less than 4 tonnes; and/or
(b)with respect to the prohibition of attending a road accident scene in a controlled area as relating only to a road accident scene with respect to accident damaged motor vehicles with a gross vehicle mass of less than 4 tonnes; and/or
(c)as not regulating and/or pertaining to the operation of tow trucks under regular tow truck licences with respect to accident damaged motor vehicles with a gross vehicle mass of 4 tonnes or more.
5.By failing to hold that on a proper construction of condition 2(a) of the relevant tow truck licence introduced into evidence, condition 2(a) did not prohibit a licensed tow truck which is subject to that condition:
(a)from attending a road accident scene within the controlled area; and/or
(b)from attending a road accident scene within the controlled area which relates or pertains to damaged or disabled motor vehicles with a gross vehicle mass of 4 tonnes or more; and/or
(c)from lifting and carrying or lifting and towing damaged or disabled motor vehicles with a gross vehicle mass of 4 tonnes or more from an accident scene within the controlled area.
Submissions of the applicant in support of leave to appeal
The applicant says that four of the six charges specified, as a breach of s 26 of the Act, a breach of Condition 2(a) of the licences by attendance at a road accident scene within a controlled area. The applicant submits that a mere attendance at a road accident scene within a controlled area is not a breach of Condition 2(a) of the licence and that the convictions on those charges should have been quashed.
The applicant next submitted that the effect of Condition 2, when read together with s 42 of the Act, is to prohibit the operation of the applicant’s tow trucks in a controlled area only with respect to vehicles with a GVM of less than four tonnes.
Respondents’ submissions
The respondents submitted that the test or guideline for the purpose of a grant of leave to appeal was whether the decision appealed from was attended by sufficient doubt as to warrant the grant of such leave.[6] I will say at once that I agree with that submission. Accordingly, the respondents submitted that the decision of the judge in the present case was not attended by sufficient doubt as would warrant the grant of leave to appeal.
[6]See Secretary to the Department of Premier and Cabinet v Hulls [1999] 3 VR 331, 335–337 [8]–[15], Myers v Medical Practitioners Board (2007) 18 VR 48, 55–56 [28]–[29]; DPP v Kypri [2010] VSCA 323 [14]–[15].
The respondents’ substantive submissions are sufficiently noted in what follows.
Consideration of the parties’ submissions
Condition 2(a) of the licences relevantly required that a licenced tow truck should ‘be used as a tow truck for the purpose of lifting and carrying or lifting or towing damaged or disabled motor vehicles … only from a road accident scene … outside a ‘controlled area’. One of the applicant’s submissions is that an offence particularised in terms of a tow truck attending a road accident scene in a controlled area was deficient in form because Condition 2(a) does not prohibit the ‘mere attendance’ of a tow truck at a road accident scene in a controlled area. As has already been mentioned, four of the charges particularise the offence as being constituted by attendance at a road accident scene within a controlled area for the proscribed purpose. The applicant now contends that this did not disclose an offence, although, before the Judge, the applicant appeared to accept that a ‘literal reading’ of Condition 2(a) prohibited such an attendance. On the other hand, the respondents contended that, on a proper construction of Condition 2(a), the mere attendance of a tow truck at an accident scene within a controlled area for the proscribed purpose was a breach of the condition because what Condition 2(a) prohibits is the ‘use’ of a licenced tow truck ‘for the purpose of’ lifting and carrying[7] damaged or disabled motor vehicles. I would have thought that it was a wholly inescapable inference, from the fact of attendance of each of the applicant’s tow trucks at an accident scene for the proscribed purpose as found by the Magistrate, that the tow truck was being ‘used’ for the proscribed purpose. Be that as it may, the offence charged was breach of a condition of a licence. That the particulars of four of the charges referred to the tow truck as attending at an accident scene in a controlled area without specifically alleging that the tow truck was being used for the proscribed purpose, although they do refer to attending for that purpose, is at best a pedantic criticism of the particulars, but nothing of substance flows from that criticism. Accordingly, I do not think that the Magistrate made any error of law in finding the charges valid, nor did the judge make any error of law on this point. At any rate, I do not think that the decision is in this respect attended by a sufficient doubt as would warrant a grant of leave to appeal.
[7]Or lifting and towing.
The other submission of the applicant is that the effect of Condition 2 was to
prohibit the operation of the applicant’s tow trucks in a controlled area only with respect to vehicles with a GVM of less than four tonnes. In my opinion, with respect, the Judge’s decision on this submission is clearly correct for the reasons stated by his Honour.[8] At any rate, again, I do not think that the decision is attended by sufficient doubt as would warrant a grant of leave to appeal.
[8]See [15]–[17] above.
The proposed grounds of appeal are incorrect or inadequate, as the respondents submit but, in any event, sufficient doubt as to the correctness of the judgment below is not shown as would warrant a grant of leave to appeal and I would refuse leave to appeal.
ASHLEY JA:
I agree with Mandie J. I add this.
When counsel for the applicants commenced his submissions today, he proposed that in four instances the charges were simply that the tow truck attended the scene of an accident. The charges did not allege that the vehicle attended for a specified purpose. But consideration of pertinent documents showed that the charges in their amended form had indeed referred to purpose. The arguments advanced for the appellant, in the event, were not useful in attacking the convictions on those four charges.
Having considered the submissions made for the applicants before the Magistrate and before the judge below, it is apparent that large emphasis was placed upon what may be called the four tonne gross vehicle mass point, and that very little was said with respect to the attendance point pertinent to the four charges to which I have been referring. The attendance point, so far as it was raised, was to be found in a single paragraph in one of three sets of written submissions relied upon by the applicant at different stages in the prosecution in the Magistrates’ Court. Understandably in those circumstances, the Magistrate’s reasons, which
adverted to submissions relating to the four tonne gross vehicle mass point, made no reference to submissions referable to the attendance point.
The subsidiary role of the attendance point is also evident from the reasons of the judge below.[9] See particularly his Honour’s reference to the applicants’ primary contention at [6], and see also [20].
[9]Western Truck Towing v Douglas [2014] VSC 159.
It is quite unsatisfactory that what turned out to be, in argument today, a substantial part of the applicants’ argument, should have gone scarcely remarked upon both in the Magistrates’ Court and before the judge below.
Be that as it may, my brother Mandie has made it very clear that the attendance point is without substance.
The order is that leave to appeal is refused in each of the Kolonis and Douglas matters.
(Discussion re costs).
In each instance, leave will be refused with costs.
---
0
4
0