Roads & Traffic Authority of NSW v Frank Trinci [2011] NSWSC 211

Supreme Court New South Wales

Medium Neutral Citation: Roads & Traffic Authority of NSW v Frank Trinci [2011] NSWSC 211 Hearing dates: 20 September 2010 Decision date: 28 March 2011 Before: Hidden J Decision: Appeal allowed, proceedings remitted to Local Court. Catchwords: ROAD TRANSPORT -- appeal from Local Court - regulatory offence - driver of heavy vehicle failing to take prescribed period of continuous rest during 24 hour work period - determination of the time at which the 24 hour period began - meaning of "major rest break" in Road Transport (General) Regulation Legislation Cited: Road Transport (General) Regulation 2005 Crimes (Appeal and Review) Act 2001 Road Transport (General) Act 2005 Category: Principal judgment Parties: Roads & Traffic Authority of NSW (plaintiff) Frank Trinci (defendant) Representation: Counsel: T Lynch (plaintiff) submitting appearance (defendant) Solicitors: Brett Kenneth Hearnden, Hunt & Hunt (plaintiff) Rodney Peter Boyd, Manfred Dougall & Company (defendant) File Number(s): 2010/251278

Judgment 1The defendant in these proceedings, Frank Trinci, is a truck driver. The plaintiff, Roads and Traffic Authority of NSW (RTA), prosecuted him in the Local Court for failing to take a prescribed period of continuous rest from driving during a 24 hour period, an offence under cl 68 of the Road Transport (General) Regulation 2005. The proceedings were commenced by court attendance notice. The matter was heard at Goulburn Local Court on 28 May 2010 and the court attendance notice was dismissed. 2The RTA has appealed to this Court, alleging error of law by the magistrate who heard the matter, pursuant to s 56(1)(c) of the Crimes (Appeal and Review) Act 2001. Mr Trinci has entered an appearance submitting to any order except as to costs. The RTA does not seek costs. 3Before turning to the facts of the matter, it is necessary to examine the relevant statutory framework. Mr Trinci was the driver of a heavy vehicle, as that expression is defined in s 3 of the Road Transport (General) Act 2005. Section 11B of that Act provides that regulations may be made in relation to "the management and prevention of driver fatigue in connection with the driving of heavy vehicles ..." Subsection (2) of that section sets out a number of specific matters which might be the subject of such regulations, including "the periods that drivers of heavy vehicles ... spend working and resting": subs (2)(d). These provisions are the source of cl 68 of the Regulation. 4At the relevant time Mr Trinci drove alone and, having no-one to relieve him, was a "solo driver" as that expression is defined in cl 39 of the Regulation. He was subject to a regime known as Basic Fatigue Management (BFM). Clause 68 is concerned with solo drivers under that regime. 5By that clause, he was bound to take minimum rest breaks within specified work periods. These are set out in a table, comprising four columns. Column 1 sets out a series of time periods. Column 2 sets out the maximum length of time a driver may work within each of those periods. Column 3 sets out minimum rest breaks which must be taken during each period. Column 4 is concerned with offences constituted by breaches of the requirements of the table, and is not relevant for present purposes. 6It is sufficient to set out cl 68(2), and the first three columns in the table for the periods 6 hours, 9 hours, 12 hours and 24 hours: "(2) In any period mentioned in Column 1 of the Table to this clause, the solo driver: (a) must not work for more than the work time mentioned in Column 2 of that Table, and (b) must have the rest of that period off work, with at least the rest time mentioned in Column 3 of that Table." ... BFM hours - solo drivers of a regulated heavy vehicle Column 1 Column 2 Column 3 Total period Maximum work time Minimum rest time In any period of ... A driver must not work for more than ... And must have the rest of that period off work, with at least ... 6 hrs 6 hrs work time 15 continuous mins rest time 9 hrs 8 hrs work time 30 mins rest time, in blocks of 15 continuous mins 12 hrs 11 hrs work time 60 mins rest time, in blocks of 15 continuous mins 24 hrs 14 hrs work time 7 continuous hrs stationary rest time