New South Wales Supreme Court CITATION : RTA v Macri [2009] NSWSC 15 HEARING DATE(S) : 2 February 2009 JUDGMENT DATE : 2 February 2009 JUDGMENT OF : Price J at 1 EX TEMPORE JUDGMENT DATE : 2 February 2009 DECISION : 1. That the decision of Huber LCM on 30 June 2008 to dismiss a court attendance notice issued by Fiona Spencer to Vincent Raymond Macri on 6 February 2008 be set aside. 2. The matter is remitted to the Local Court for further hearing according to law. I make no order as to costs. However, the defendant is to be granted a certificate under s 6 of the Suitors Fund Act if otherwise entitled to such a certificate. CATCHWORDS : Crown appeal - consideration of s 92 of the Road Transport (General) Act - use of vehicle at the relevant time - scope of employment or agency. LEGISLATION CITED : Road Transport (General) Act 2005 s 56, s 92, s 92(1) Suitors Fund Act 1951 s 6 CATEGORY : Principal judgment PARTIES : The Roads and Traffic Authority of New South Wales Raymond Vincent Macri FILE NUMBER(S) : SC 14292/08 COUNSEL : Mr T Lynch (plaintiff) Mr B Vasic (defendant) LOWER COURT JURISDICTION : Local Court LOWER COURT JUDICIAL OFFICER : Huber LCM LOWER COURT DATE OF DECISION : 30 June 2008 IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION PRICE J 2 February 2009 14292/08 THE ROADS AND TRAFFIC AUTHORITY OF NEW SOUTH WALES v RAYMOND VINCENT MACRI EX TEMPORE JUDGMENT 1 HIS HONOUR: By an amended summons dated 2 February 2009, the Roads and Traffic Authority of New South Wales seeks the following orders: 1. The decision of the Local Court at the Downing Centre Local Court constituted by Huber LCM on 30 June 2008 to dismiss a court attendance notice (CAN) issued by Fiona Spencer to Vincent Raymond Macri on 6 February 2007 (sic) be set aside. 2. The Local Court resume the hearing of the matter in the CAN according to law. 3. Such further orders as the court finds just and expedient. 2 As I understand it, no order as to costs is sought. 3 Mr Vasic of counsel, who appears on behalf of the defendant, has indicated by way of written submissions that the defendant does not contest the orders sought. The only aspect which is raised on behalf of the defendant is whether or not a certificate ought to be issued under the Suitors Fund Act 1951. 4 Very shortly stated, the learned magistrate on 30 June 2008 dismissed the court attendance notice which alleged a single overloading offence by Mr Macri. 5 The court attendance notice (CAN) alleged that the defendant was the operator of a New South Wales registered vehicle AO21NH which did not comply with the mass requirements of a vehicle or combination on a road or road related area under s 56 of the Road Transport (General) Act 2005 at 6.45am on 9 August 2007 at Windsor Road, Rouse Hill. It was alleged that the weight detected was 20.90 tonnes, the permissible weight being 16.50 tonnes on the fourth and fifth axles. 6 The type of offence alleged by the CAN was an overload on the axle group/s 4 to 5. The percentage overload was 26.67 per cent, the amount of the overload being 4.40 tonnes. These matters were not in dispute before her Honour. 7 There was evidence before her Honour that John Serovich was the driver of the vehicle at the time of the offence alleged. The defendant had engaged Mr Serovich to drive the combination, that is, a prime mover and trailer, from the defendant's premises at Austral, unload it at those of CJ Doyle Contracting Services at Prestons, to there collect and load an excavator and thereafter deliver the excavator to a site at Rouse Hill. Mr Serovich proceeded on the journey and during the journey from CJ Doyle's yard at Prestons to Rouse Hill the combination was pulled over and inspected by RTA officers at Windsor Road, Rouse Hill. The overload was then detected. 8 The defendant testified that he had directed Mr Serovich to pick up an 18 tonne excavator from the premises of CJ Doyle. It appears that Mr Serovich in fact loaded another machine, a 23 tonne excavator. 9 It was the defendant's case that for the purposes of s 92 of the Road Transport (General) Act that Mr Serovich's collection of the wrong machine was conduct outside the scope of his employment or, alternatively, agency with the defendant. 10 Section 92 relevantly provides: (1) It is a defence to an applicable road law offence alleged to have been committed by a person as an owner or operator of a vehicle or combination if the person establishes that the vehicle or combination was being used at the relevant time by: … (b) an employee of the alleged offender who was acting at the relevant time outside the scope of the employment, or (c) an agent (in any capacity) of the alleged offender who was acting at the relevant time outside the scope of the agency. 11 Her Honour found that the instruction within the employment "was not to pick up an excavator but rather to pick up an 18 tonne excavator" and the collection of the 23 tonne excavator was outside the direction of the employer. Her Honour said: "For whatever reason, be it a mistake, be it a genuine mistake on behalf of Mr Serovich or be it a conscious decision on behalf of Mr Serovich to load something other than the 18 tonne excavator, it's clear that he did indeed at that relevant time act outside the scope of his employment and for that reason the charge is dismissed." 12 Mr Lynch, counsel for the plaintiff, contends that the prefatory words in s 92(1) direct the inquiry about scope of employment or agency to the "use" of the vehicle "at the relevant time". As s 92 is a defence to the offence charged, the relevant time is the occasion of the offence; in this case 6.45am on 9 August 2007. The relevant "use", the plaintiff submits, is that charged as the use at the relevant time. In the context of a s 56 offence, the proscribed "use" is the combination being on "a road or road related area" and overloaded, that is, on Windsor Road, Rouse Hill, bearing the weight that it did. In the context of these facts it follows that the issue arising from the defendant's reliance on s 92 becomes: "Was Mr Serovich's driving of the combination on Windsor Road, Rouse Hill at 6.45am on 9 August 2007 with an excavator as his load outside the scope of his employment or, alternatively, agency because the excavator being carried was not the one he had been directed to load and transport?" 13 The plaintiff argues that her Honour erred in acceding to a submission which directed her attention to the time at which the excavator was loaded onto the combination before that particularised in the charge and to a "use", the loading of the trailer with an excavator in the Doyle yard, which was not the use charged in the court attendance notice. It was further submitted that her Honour misconstrued the expression "outside the scope of" in relation to Mr Serovich's employment or agency and failed to have regard to evidence relevant to the issue of scope in relation to the use charged. 14 As I have said, it is conceded on behalf of the defendant that the submissions made by the plaintiff are in fact correct and her Honour erred. It is not necessary for me to further dilate on these matters. In my opinion, the submissions made by Mr Lynch on behalf of the plaintiff are those which are to be accepted. The defendant had not established on the balance of probabilities that the combination was being used by Mr Serovich at the time of the offence outside the scope of his employment or agency. 15 Accordingly, I make the following orders: 1. That the decision of Huber LCM on 30 June 2008 to dismiss a court attendance notice issued by Fiona Spencer to Vincent Raymond Macri on 6 February 2008 be set aside. 2. The matter is remitted to the Local Court for further hearing according to law. I make no order as to costs. However, the defendant is to be granted a certificate under s 6 of the Suitors Fund Act if otherwise entitled to such a certificate. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.