Anthony -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 155

CITATION: Anthony -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 155 DIVISION: General Division APPLICANT John Anthony PARTIES: RESPONDENT Commissioner of Police, New South Wales Police Service FILE NUMBER: 003328 HEARING DATES: 25/10/2000 SUBMISSIONS CLOSED: 10/25/2000 DATE OF DECISION: 11/07/2000

BEFORE: Hennessy N (Deputy President) APPLICATION: Impounded vehicle MATTER FOR DECISION: Principal matter LEGISLATION CITED : Road Transport (General) Act 1999 CASES CITED: REPRESENTATION: In person J Tunks, solicitor ORDERS: 1. The application to release the applicant's vehicle is refused

Introduction 1 Mr Anthony's car was impounded by police following a "burn out" incident. He applied to police for the return of his car but that application was refused. Mr Anthony then applied to the Tribunal for an order for the release of his car. 2 On 25 October 2000, the Tribunal heard this matter and decided not to make an order releasing Mr Anthony's car. The reasons for that decision are set out below.

Background 3 Mr Anthony was charged with 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. If a police officer reasonably believes that a vehicle is being operated so as to commit an offence under the above section, he or she may seize the vehicle. In this case the vehicle was seized under s 39 of the Road Transport Act. 4 Schedule 1, Clause 5 of the Road Transport (General) Act 1999 (the Road Transport Act) provides that a person can apply to the Commissioner of Police for the release of an impounded vehicle. Clause 5 states that: (1) Application may be made by any person to the Commissioner for the release of an impounded vehicle into the person's custody. (2) The Commissioner may release the vehicle to the applicant if: (a) the period for which the vehicle would be liable to be impounded under as a result of a conviction for the offence that gave rise to its impounding has expired and the prescribed fees for storage of the vehicle by the Commissioner have (except to the extent that the Commissioner has waived payment of those fees) been paid, or (b) although that period has not expired, the Commissioner is satisfied, on such evidence as the Commissioner may reasonably require, that: (i) the offence concerned was not committed with the consent of the applicant, and (ii) the applicant did not know, and could not reasonably be expected to have known, that the vehicle would be used for the commission of the offence, and if the Commissioner is satisfied, on such evidence as the Commissioner may reasonably require, that the applicant is lawfully entitled to possession of the vehicle. Tribunal's jurisdiction 5 A person may apply to the Administrative Decisions Tribunal for an order for the release of an impounded vehicle into the person's custody. (Clause 6(1) of Schedule 1 of the Road Transport Act.) 6 The Tribunal is not limited to taking into account the same considerations that the Commissioner can take into account in deciding whether to release a vehicle. The Tribunal can take into account any alleged hardship as well as the public interest. The Tribunal can order or refuse to order the release of the vehicle "as justice requires." Schedule 1 Clause 6(4) and (5) state that: The Tribunal is not limited by the provisions of clause 5, and is entitled in any case to have regard not only to the public interest but to any alleged hardship or other circumstances of the case. Subclause (4) applies even though the Commissioner may have refused an application under clause 5, and the Tribunal may order or refuse to order the release of an impounded vehicle as justice requires.