Ereira v Roads & Traffic Authority [2009] NSWADT 299

Ereira v Roads & Traffic Authority [2009] NSWADT 299

There was no inconsistency between s 26 of the Tow Truck Industry Act 1998 and cl 16 of the Tow Truck Industry Regulation 2008. The regulation's references to penalty were intended to apply where a penalty had been recorded, and the prescribed offences could apply where there had been either a conviction or a finding of guilt without conviction. Because the Applicant's assault conviction resulted in an $800 fine, below the $1,000 monetary penalty threshold in cl 16(1), there were no mandatory grounds for refusing to grant an application for a drivers certificate.

Jurisdiction
Australia
Judgment Date
01 December 2009
Procedural Posture
Application for Review of a Decision to Disqualify the Applicant From Holding a Tow Truck Drivers Certificate / Preliminary Issue on Alleged Inconsistency Between the Tow Truck Industry Act 1998 and the Tow Truck Industry Regulation 2008
Outcome
Preliminary issue determined in favour of the Applicant; no mandatory grounds for refusing to grant an application for a drivers certificate were found, and the matter was to proceed to further directions.
Legal Topics
['tow Truck Drivers Certificate' 'mandatory Refusal' 'disqualification' 'delegated Legislation' 'prescribed Offences']
['administrative Law' 'statutory Interpretation' 'transport Regulation'] ['tow Truck Drivers Certificate' 'mandatory Refusal' 'disqualification' 'delegated Legislation' 'prescribed Offences']

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Procedural Posture

Application for Review of a Decision to Disqualify the Applicant From Holding a Tow Truck Drivers Certificate / Preliminary Issue on Alleged Inconsistency Between the Tow Truck Industry Act 1998 and the Tow Truck Industry Regulation 2008

Legal Issues

  1. 1 ['Whether cl 16 of the Tow Truck Industry Regulation 2008 is inconsistent with s 26(2)(b) of the Tow Truck Industry Act 1998.' 'Whether the penalty threshold in cl 16(1) of the Tow Truck Industry Regulation 2008 should be severed as beyond delegated regulatory power.' "Whether the Applicant's assault conviction and $800 fine gave rise to mandatory grounds for refusing to grant a drivers certificate."]

Ratio Decidendi

There was no inconsistency between s 26 of the Tow Truck Industry Act 1998 and cl 16 of the Tow Truck Industry Regulation 2008. The regulation's references to penalty were intended to apply where a penalty had been recorded, and the prescribed offences could apply where there had been either a conviction or a finding of guilt without conviction. Because the Applicant's assault conviction resulted in an $800 fine, below the $1,000 monetary penalty threshold in cl 16(1), there were no mandatory grounds for refusing to grant an application for a drivers certificate.

Court Disposition

Preliminary issue determined in favour of the Applicant; no mandatory grounds for refusing to grant an application for a drivers certificate were found, and the matter was to proceed to further directions.

Orders

  • ['The matter is to be listed for further directions at a date suitable to the parties and the Tribunal.']