Russo -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 40

CITATION: Russo -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 40 DIVISION: General Division APPLICANT Lisa Marie Russo PARTIES: RESPONDENT Commissioner of Police, New South Wales Police Service FILE NUMBER: 003097 HEARING DATES: 07/04/2000 SUBMISSIONS CLOSED: 04/07/2000 DATE OF DECISION: 04/07/2000

BEFORE: Hennessy N (Deputy President) APPLICATION: Impounded vehicle - Road Transport (General) Act - Impounded vehicle MATTER FOR DECISION: principal matter LEGISLATION CITED : Road Transport (General) Act 1999 CASES CITED: APPLICANT REPRESENTATION: In person RESPONDENT J Tunks, prosecutor ORDERS: 1. The Tribunal orders pursuant to Cl 6(1) of Schedule 1 of the Road Transport (General) Act 1999 that impounded vehicle, registration number AFD 17S be released into the custody of Ms Lisa Russo.; 2. The Tribunal also orders pursuant to Cl 6(7) that no prescribed fees for storage or towing of the vehicle by the Commissioner are payable by Ms Lisa Russo or any other person.

REASONS FOR DECISION Background 1 This is the first application which has been heard by the Tribunal in relation to the impounding of vehicles. Ms Russo's vehicle was impounded by a police officer on 30 March 2000 after her 18 year old son was issued with an infringement notice for what is colloquially known as a "burn out" offence. This is an offence under s 41(1) of the Road Transport (Safety and Traffic Management) Act 1999. That provision states that: A person must not, on a road related area, operate a motor vehicle in such a manner as to cause the vehicle to undergo sustained loss of traction by one or more of the driving wheels (or, in the case of a motor cycle, the driving wheel) of the vehicle. 2 Ms Russo is applying to the Tribunal for the return of her motor vehicle. Jurisdiction 3 The exact nature and extent of the Tribunal's jurisdiction in relation to impounded vehicles must be ascertained from the relevant legislation. Since this is the first case of its kind, the Tribunal needs to satisfy itself of the precise source and nature of its jurisdiction. 4 Section 37 of the Administrative Decisions Tribunal Act 1997(ADT Act) gives the Tribunal jurisdiction under an enactment "to act as the primary decision-maker if the enactment provides that application may be made to it for decisions made in the exercise of functions conferred or imposed on the Tribunal by or under that enactment." 5 Clause 6 of Schedule 1 to the Road Transport (General) Act 1999 (the Road Transport Act) is the source of the Tribunal's jurisdiction in relation to vehicles which have been impounded. That Clause states that: A person may apply to the Administrative Decisions Tribunal for an order for the release of an impounded vehicle into the person's custody. 6 Unlike s 48 of Road Transport Act which gives the Tribunal power to review certain decisions made by a police officer or the Commissioner of Police, Clause 6 of Schedule 1 gives the Tribunal original jurisdiction to make an order for the release of an impounded vehicle. 7 Section 39(6) of the Road Transport Act states that "Schedule 1 has effect with respect to a motor vehicle impounded under this section." Section 40(7) states that "Schedule 1 has effect with respect to a motor vehicle impounded or forfeited under this section." These provision are necessary because the source of the Tribunal's power is set out in a Schedule rather than in the Act itself. 8 Consequently, the Tribunal has power to make an original decision in relation to the release of a vehicle which has been impounded under s 39 or s 40 of the Road Transport Act. 9 In this case the vehicle, if it has been impounded, has been impounded under s 39. Under section 40, vehicles can only be impounded after the offence is found to be proven before any court or when the amount in the penalty notice has been paid. It is common ground that neither of these events has taken place in relation to the offence allegedly committed by Ms Russo's son. Section 40 states that: (1) A motor vehicle used in connection with an offence under section 40 or 41of the Road Transport (Safety and Traffic Management) Act 1999, being in either case the first offence by the offender under the provision concerned, that is found to be proven before any court is by the finding liable to be impounded for a period of 3 months, unless the court by order otherwise directs under subsection (3). (2) A motor vehicle used in connection with an offence under section 40 or 41 of the Road Transport (Safety and Traffic Management) Act 1999, being in either case a second or subsequent offence by the offender under the provision concerned, that is found to be proven before any court is by the finding liable to be forfeited to the Crown, unless the court by order otherwise directs under subsection (3). (3) The court before which an offence under section 40 or 41 of the Road Transport (Safety and Traffic Management) Act 1999 is found to be proven may, for reasons of the avoidance of any undue hardship to any person or other injustice perceived by the court, by its order direct that a period of impounding imposed by this section be reduced or dispensed with, or that a forfeiture imposed by this section be commuted to a period of impounding. (4) The period for which a vehicle was impounded under section 39 is to be reckoned as counting towards a period of impounding imposed by or under this section. (5) Any impounding or forfeiture under this section is in addition to any other penalty that may be imposed for the offence concerned, but for the purposes of any rights of appeal against a penalty so imposed by the court finding the offence to be proven, the impounding or forfeiture is taken to be, or to be part of, that penalty. (6) For the purposes of this section, payment of the amount specified: