Kevin James Fogarty v Director of Public Prosecutions (NSW) [2014] NSWSC 1245

Supreme Court New South Wales

Medium Neutral Citation: Kevin James Fogarty v Director of Public Prosecutions (NSW) [2014] NSWSC 1245 Hearing dates: 13 August 2014 Decision date: 09 September 2014 Before: Rothman J Decision: 1. To the extent necessary, leave to appeal granted; 2. Pursuant to the terms of s 55(1) of the Crimes (Appeal and Review) Act 2001, the conviction of the plaintiff entered on 22 November 2013 in the Local Court at Coonabarabran for the offences of: (a) Driving a motor vehicle, namely a Peterbilt heavy vehicle tow truck, in a Class 2 vehicle combination, on a road, without being licensed for that purpose or exempted by the Regulations from being licensed for that purpose, contrary to s 25(1)(a) of the Road Transport (Driver Licensing) Act 1998; and (b) Driving a Class 2 vehicle, namely a Peterbilt heavy vehicle tow truck, on a road, at the time was operating as a Class 2 road train in an area not permitted for use by road trains, contrary to Clause 19 of the Road Transport (Mass, Loading and Access) Regulation 2005; are hereby set aside; 3. In accordance with s 70 of the Crimes (Appeal and Review) Act 2001, no order for costs; 4. The applicant Kevin James Fogarty be granted a certificate under s 6 of the Suitors' Fund Act 1951 if otherwise eligible. Catchwords: APPEALS AND REVIEWS - appeal on question of law alone - leave to appeal on question of mixed law and fact - statutory construction - discussion STATUTORY CONSTRUCTION - several overlapping statutes of one legislature - harmonious goals - context essential TRAFFIC LAW - Regulation of Tow Truck drivers - definition of B-double and road train - distinction between motor vehicle and trailer, trailer and semi-trailer, towing and driving Legislation Cited: Crimes (Appeal and Review) Act 2001 Road Transport (Driver Licensing) Act 1998 Road Transport (Driver Licensing) Regulation 2008 Road Transport (Mass, Loading and Access) Regulations 2005 Road Transport (Safety and Traffic Management) Act 1999 Road Transport (Vehicle Registration) Regulation 2007 Tow Truck industry Act 1998 Cases Cited: Assadourian v Roads and Traffic Authority of New South Wales (Northern Region) [2011] NSWSC 1052 Australian Gas Light Company v Valuer-General (1940) 40 SR (NSW) 126 Collector of Customs v Agfa-Gevaert [1996] HCA 36; (1996) 186 CLR 389 Collector of Customs v Pressure Tankers Pty Ltd and Pozzolanic Enterprises Pty Ltd [1993] FCA 322; (1993) 43 FCR 280 Commissioner of Police v Eaton [2013] HCA 2; (2013) 87 ALJR 267 Hayes v Federal Commissioner of Taxation [1956] HCA 21; (1956) 96 CLR 47 L&B Linings Pty Ltd v WorkCover Authority of New South Wales [2011] NSWSC 474 L&B Linings Pty Ltd v Work Cover Authority of New South Wales [2012] NSWCA 15 Plaintiff M150 of 2013 v Minister for Immigration and Border Protection [2014] HCA 25; (2014) 88 ALJR 735 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 QBE Insurance (Australia) Ltd v Motor Accidents Authority of New South Wales [2013] NSWSC 549; (2013) 63 MVR 470 Semaan v Poidevin [2013] NSWSC 226; (2013) 228 A Crim R 363 Category: Principal judgment Parties: Kevin James Fogarty (Applicant) Director of Public Prosecutions (NSW) (Respondent) Representation: Counsel: D Jordan SC/Ann Bonnor (Applicant) D Kell/with G Hazlitt (Respondent) Solicitors: Creevey Russell Lawyers (Applicant) Office of the Director of Public Prosecutions (Respondent) File Number(s): 2013/00379973 Publication restriction: None