RTA v Pegararo [2007] NSWSC 747

New South Wales Supreme Court

CITATION : RTA v Pegararo [2007] NSWSC 747

HEARING DATE(S) : 13/07/2007

JUDGMENT DATE : 13 July 2007

JUDGMENT OF : Associate Justice Malpass

DECISION : I consider that the Magistrate has erred. The decision and orders made by the Magistrate on 22 November 2006 are set aside. The matter is remitted back to the Local Court for determination according to law. Each party is to pay its own costs.

CATCHWORDS : Length of "combination" - construction of clause of regulation - "design" is an additional requirement

LEGISLATION CITED : Road Transport (General) Act 2005 (NSW)Road Transport (Mass Loading and Access) Regulation 2005 (NSW) Road Transport (Vehicle Registration) Regulation 1998 (NSW)

PARTIES : The Roads & Traffic Authority of New South Wales (Pl) Gary A Pegoraro (Def)

FILE NUMBER(S) : SC 11076/07

COUNSEL : Mr T. Lynch (Pl) Submitting appearance (Def)

SOLICITORS : Hunt & Hunt (Pl) Peninsula Law (Def)

LOWER COURT JURISDICTION : Local Court

LOWER COURT FILE NUMBER(S) : 56733/06/86

LOWER COURT JUDICIAL OFFICER : Cocks LCM

LOWER COURT DATE OF DECISION : 22/11/ 2006

- 4 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

ASSOCIATE JUSTICE MALPASS

13 JULY 2007

11076/07 RTA v Pegararo

JUDGMENT 1 HIS HONOUR: The plaintiff commenced proceedings in the Local Court by Court Attendance Notice. The alleged offence may be described as a single "exceed dimensions" offence under s56 of the Road Transport (General) Act 2005 (NSW). 2 The alleged offence took place on 26 June 2006. It was brought against the defendant as "the operator" of a "vehicle combination" which comprised a rigid truck and trailer. 3 The proceedings were heard by Cocks LCM on 22 November 2006. The Magistrate dismissed the proceedings. 4 By Summons filed on 28 February 2007, the plaintiff brings an appeal against that decision. An appeal may be brought on a ground that involves a question of law only. 5 The appeal was heard on 13 July 2007. The parties were legally represented. Counsel appeared for the plaintiff. The defendant filed a submitting appearance (save as to costs). 6 The Magistrate delivered a short ex tempore judgment. It might be said that the reasoning process has unusual features and is not easy to comprehend. 7 There was no dispute between the parties that the combination had a length of 22.7 metres. The contest came down to one issue. It has been described as the design issue. 8 In addressing this question, the Magistrate looked to the terms of the Restricted Access Vehicle (Car Carrier) Exemption Notice 2005 (the exemption notice). The plaintiff contends that he erred in so doing. It further contends that he should have looked to clause 73(1) of Schedule 4 of Road Transport (Mass Loading and Access) Regulation 2005 (NSW) (the 2005 Regulation). It is said that the exemption notice makes provision for the regulation of "car carriers" and the combination was not one that was eligible for benefit under it. 9 The Magistrate made various findings. I will refer to certain of them. 10 He found that the original purpose of the combination was to carry cars and that it was periodically used for that purpose. He found that it was purpose built for dual-purpose usage and allowed the carrying of caravans if the top deck was taken off. He found that at the time of the alleged offence the combination was being operated with only one storey or deck and that the load on it was three caravans (one on the truck and two on the trailer). 11 Evidence was given by Mr Pegararo to the effect that the carrying of a caravan precluded carrying cars on two decks because the installation of a second deck would exceed a different "dimension requirement" (being one for maximum height). 12 The relevant provisions may be found in either the 2005 Regulation or the Road Transport (Vehicle Registration) Regulation 1998 (NSW) (the 1998 Regulation). 13 The exemption notice had been made under the predecessor to the 2005 Regulation. Notwithstanding the repeal of the predecessor, the exemption notice continued in force for the purposes of the 2005 Regulation. The terms of the exemption notice make it plain that it continued in force for the purposes of Part 2 Division 4 of the 2005 Regulation. Clause 18 deals with the application of Division 4. The combination as it was being operated did not fall within the class of vehicles contemplated by Clause 18. 14 The relevant provisions of the 1998 Regulation are as follows:- "73 Length of combinations (1) A combination must not be over: (a) for a B-double—25 metres long, and (b) for a road train—53.5 metres long, and (c) for a combination, except a road train, designed to carry vehicles on 2 or more partly or completely overlapping decks—25 metres long, and (d) for another combination—19 metres long."