Action Towing Pty Ltd v VicRoads (Review and Regulation) [2015] VCAT 249

1. By consent, the name of the applicant is amended from Mr Milan (Mick) Zukanovic to Action Towing Pty Ltd (ACN: 006 067 563).

1. The decision of the respondent made 23 July 2014 is set aside, and the following decision is substituted.

1. Pursuant to section 27 of the Accident Towing Services Act 2007, the Western Star vehicle, engine no. 7940364, is specified as the tow truck in respect of licence TOW713.

1. In July 2014, the applicant, Action Towing Pty Ltd (Action Towing) applied to VicRoads to alter the specification on a regular tow truck licence, licence number TOW713, held by Action Towing,. VicRoads refused the application, and Action Towing has applied to the Tribunal for a review of VicRoads' decision.
2. Action Towing made its application under section 27 of the Accident Towing Services Act 2007 ("the Act"). Under section 27, the holder of a tow truck licence may apply to VicRoads for the specification of the tow truck in the licence to be altered. On such an application, VicRoads may alter the specification in the licence by substituting another tow truck for the specified tow truck.
3. Action Towing has held the licence the subject of the application for some time, as one of a number of tow truck licences it holds. It has not been used for several years and currently no tow truck is specified on the licence. That being so it is not, strictly, a substitution application but it is not in dispute that section 27 is the appropriate section of the Act for what Action Towing wants to do.
4. The Act sets out a legislative scheme for the licensing and operation of tow trucks that are used in the State to provide accident towing services.
5. A tow truck used to attend road accident scenes, tow away accident damaged vehicles or clear accident scenes must have one of two licences - a regular tow truck licence or a heavy tow truck licence.
6. Different requirements apply to each kind of licence. Tow trucks that operate under regular tow truck licences are subject to an accident allocation and authorisation system. The allocation system replaces the previous practice of rival tow truck operators competing for business at the scene of an accident, and applies to most road accidents in the metropolitan area.
7. Tow trucks operating under heavy tow truck licences are not required to go through the accident allocation and authorisation system. They may attend road accidents without being allocated, but they may only tow heavy vehicles, 4 tonnes gross vehicle mass (GVM) or more. There are fewer heavy tow truck licences. There are fewer road accidents involving heavy vehicles.
8. The tow truck that Action Towing wants to put on the regular licence TOW713, is a Western Star truck, which is a large and heavy vehicle capable of towing most vehicles including heavy vehicles such as prime movers, buses and other trucks.
9. VicRoads refused Action Towing's application because of concerns that Action Towing intends to use the Western Star truck, without going through the allocation and authorisation system, to tow accident damaged heavy vehicles in the metropolitan controlled area in breach of the requirements in respect of regular licences.
10. VicRoads based its refusal on the size of the truck, which it regards as more suitable for a heavy licence; and a concern that Action Towing will use the tow truck principally for heavy vehicle towing, circumventing the allocation system and competing with existing operators of tow trucks with heavy tow truck licences. Its concern is based on what it considers to be the limited commercial purposes for such a truck if operated in compliance with the Act.
11. Action Towing, through its director Mr Milan Zukanovic, says that the proposed truck "will be used for the purpose of towing light and/or heavy vehicles as required in accordance with the Accident Towing Services Act 2007 and the Accident Towing Services Regulations 2008".
12. Mr Zukanovic says that he intends to comply with the law and with the licence conditions. One of the issues in this case is whether Mr Zukanovic fully understands the relevant parts of the Act.
13. It is common ground that a regular tow truck licence allows the operator to provide accident towing services to vehicles of any GVM that the tow truck is capable of towing. In other words, there is no prescribed upper weight limit, either for the truck on the licence or for any vehicle it may tow. The limit is instead based on the capacity of the tow truck. In contrast, a tow truck on a heavy licence is limited to towing vehicles of 4 tonnes GVM or more
14. In essence, Action Towing says that the Act allows a tow truck of any size to be attached to a regular tow truck licence, and permits towing services to be provided to vehicles of any GVM, provided it is within the capacity of the truck to do so, therefore the size of the Western Star truck should not matter. It intends to comply with the law, and the application should therefore be approved. Action Towing asks the Tribunal to set aside VicRoads' decision.
15. VicRoads contends that the discretion in section 27 of the Act should be exercised against approval of substitution, in all the circumstances.
16. One of the issues in this case is the extent to which the Tribunal can and should infer that Action Towing is likely to break the law if the substitution is allowed.
17. The role of the Tribunal on a review such as this, and the nature of the discretion are discussed below.

1. Mr Halse appeared as solicitor for the Action Towing. Mr Zukanovic made a witness statement and was cross-examined. Mr Stuart Squire of Squires Towing Service in Cranbourne, who had been summonsed by the applicant to appear, gave evidence and was cross-examined.
2. Mr Nekvapil appeared as Counsel for VicRoads. Witnesses were the decision-maker, Richard Bell, and another employee of VicRoads, Paola Gonzalez. Both made witness statements and were cross-examined.
3. Both parties provided written and oral submissions.
4. After the hearing concluded, I invited further submissions from the parties. The focus of the evidence and submissions at the hearing was on the concerns expressed by VicRoads in its statement of reasons. The parties approached the matter on the basis that the primary question for the Tribunal was whether the Tribunal could draw an inference that, if the substitution is allowed, Action Towing intends to use the Western Star tow truck to tow heavy vehicles outside of the allocation system, which is an offence under section 42(1)(a) of the Act. VicRoads submitted that allowing the substitution would facilitate, and might be seen to permit, the commission of offences against the Act. Action Towing contended that no inference could be drawn that it intends to break the law.
5. The Tribunal's role on a review, discussed further below, is not to evaluate the merits of the decision under review, or the decision-making process. It is to make its own decision on the evidence before it and the current law.
6. On consideration of the evidence and the submissions, there appeared to me to be broader matters of potential relevance, which had not been canvassed in any detailed way in submissions. By letter to the parties, I invited the parties to make further submissions on the following:
   • The discretionary nature of the decision to be made in circumstances where the statute does not expressly state the considerations to be taken into account. In particular, in section 27(3), the statute does not expressly state any factors the decision-maker is bound to consider, and in those circumstances the relevant factors may need to be determined by implication from the subject matter, scope and purpose of the Act.[1]
   • The relevance of the broader legislative regime, referred to by the Supreme Court and the Court of Appeal in Western Truck Towing the Douglas & Anor[2], which appeared to raise as a relevant consideration the question of whether there is a need for a heavy vehicle such as the Western Star truck in the tow truck system at present.
7. The parties each provided very helpful submissions in response to the invitation, which are discussed further below.

1. As noted above, the role of the Tribunal on review is not to assess whether the decision-maker's decision is correct. It is to consider all the evidence available to the Tribunal, including matters that may not have been before the original decision-maker, and the current law, and then make what has been described as the correct or preferable decision.[3]
2. A review by the Tribunal is merits review; it is not the same as an appeal or judicial review. The Tribunal 'stands in the shoes of' the original decision maker, has all the functions of the original decision-maker under the enabling legislation, and has the powers given to it by the Victorian Civil and Administrative Tribunal Act 1998.
3. The Tribunal may:
   • Affirm the decision, in which case it stands;
   • Vary the decision;
   • Set aside the decision and make another decision in substitution for it;
   • Set aside the decision and remit (send back) the matter for reconsideration by the decision-maker giving directions or recommendations; or
   • At any time in the proceeding invite the decision-maker to reconsider the decision.[4]
4. On a review of a decision made under a statutory discretion, the Tribunal, like the original decision-maker, also has a discretion.

The nature of the discretion in section 27 of the Act

1. Unlike other provisions in the Act,[5] section 27 does not provide any criteria for or prerequisites to the exercise of the discretion in section 27(3). It says only that:

VicRoads may, on an application under subsection (4), alter the specification of a tow truck in a tow truck licence by substituting another tow truck for the tow truck so specified

1. Action Towing submitted that the use of the word "may" in section 27 is indicative of but not conclusive as to the nature of the decision to be made: the word 'may' is often used to indicate a conferral of power on an official or authority which must be exercised once any conditions precedent as may exist, have been satisfied..
2. Action Towing submitted that the fact that the applicant is seeking to substitute a tow truck of greater towing capacity than a regular tow truck and one that might otherwise be registered as a heavy tow truck is entirely consistent with the specific legislative amendments introduced by the Road Legislation Amendment Act 2009. I note in this context that section 6 of the Act, as in force prior to the 2009 amendments, limited the operation of tow trucks on a regular licence to towing accident damaged motor vehicles with a GVM of less than 4 tonnes.[6]
3. Action Towing contends that the discretion in section 27 should be assessed in a similar light to the discretion in relation to applications for new licences that have been issued; once the application is made for a newly issued licence and the information is provided, there is no discretion to refuse.
4. I disagree with the applicant's characterisation of the discretion in relation to approving applications for new licences. Section 18 sets out prerequisites for applications, including provision of any information or thing that is reasonably required by VicRoads to assess the licence. Section 19 requires VicRoads to decide whether to approve or refuse the application within a specified time. And section 20 provides that VicRoads must not approve an application unless it is satisfied of certain matters.
5. The legislative amendment to section 6 of the Act, referred to by the applicant, is relevant, in my view, to considering the broader legislation scheme and I discuss it further below. But it remains the case that section 27 sets out no express considerations or prerequisites, unlike a number of other sections in the Act. It is an open discretion, and 'may' does not mean 'must'.
6. This does not mean that the discretion is exercised in a vacuum, without regard to the broader legislative scheme. As observed by then Deputy President Macnamara in Feaks v Cardinia Shire Council,[7]

High authority tells us that even open discretions have to be exercised by reference to matters that seem appropriately related to the subject matter of the discretion and cannot be exercised on whim or for matters that are entirely irrelevant.

1. As VicRoads submitted, in circumstances where the text of the provision itself is silent, it is appropriate to have regard to the overall scheme of the Act in exercising the discretion. The principle is set out in the observations of the High Court in Minister for Aboriginal Affairs v Peko- Wallsend Ltd.[8]

"What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute confirming the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the Court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors - and in this context I use this expression to refer to the factors which the decision-maker is bound to consider - are not expressly stated, they must be determined by implication from the subject matter, scope and purpose of the Act.

1. In this instance, section 27 does not set out any relevant factors to be taken into account. In those circumstances, the relevant factors must be determined by implication from the subject matter, scope and purpose of the Act.

Relevant factors: subject matter, scope and purpose of the Act

1. The Act sets out a scheme for licensing the operation of tow trucks that provide accident towing services, accreditation of operators of businesses and tow truck drivers when accident towing services are involved, and providing for other related matters.
2. Section 27 is in the part of the Act to do with tow truck licences.

1. It is clear that safety, efficiency, timeliness, and the controlled and orderly attendance of tow trucks at road accident scenes are important factors to consider.
2. The Act has as its purpose:

To promote the safe, efficient and timely provision of accident towing services and other related services.[9]

1. The stated objectives of the Act, in section 4, are to -
   • (a) provide the safe, efficient and timely provision of accident towing services and other related services;
   • (b) ensure that persons who are providing accident towing services -
     • (i) are of appropriate character; and
     • (ii) are technically competent to provide the services; and
     • (iii) when providing the services, act with integrity and in a manner that is safe, timely, efficient and law abiding, and in particular, that regard is had for vulnerable persons.
2. The stated objectives[10] of the Accident Towing Services Regulations 2008 ("the Regulations") are to -
   • (a) facilitate the safe, efficient and timely provision of accident towing services and other related services;
   • (b) impose requirements on tow truck licence holders, accredited persons and others which advance the objectives set out in section 4 of the Act;
   • (c) ensure that the attendance of licensed tow trucks at road accident scenes in controlled areas is controlled and efficient;
   • (d) regulate the behaviour of tow truck drivers at road accident scenes;
   • (e) provide for accident towing demerit points;
   • (f) prescribe infringement offences and prescribe the penalties for those offences.

1. A person who operates a tow truck to provide accident towing services must hold one of two licences:[11]
   • A regular tow truck licence, if the person provides the service to vehicles of any GVM, or
   • A heavy tow truck licence, if the person provides the service only to vehicles that have a GVM of 4 tonnes or more.
2. There is a limit on the number of licences in each category, and new licences are not issued without Ministerial authorisation.[12]
3. There are a number of differences between the two licences to do with the GVM of the vehicle that may be towed and the way in which the tow truck may be operated.

Distinctions between regular and heavy tow truck licences

1. A tow truck operating under a regular licence may tow any vehicle within its legal capacity. A tow truck operating under a heavy licence may only tow heavy vehicles - those with a GVM of 4 tonnes or more.

1. Section 10 of the Act sets out VicRoads' power to issue regular tow truck licences. Section 10(1) states:

Subject to subsections (2) and (3), VicRoads may license a person to operate a tow truck that is specified in the licence in the course of conducting an accident towing service business -

(a) to provide accident towing services to vehicles of any gross vehicle mass that the tow truck is capable of towing; and

(b) from the depot specified in the licence.

1. Section 11 of the Act sets out VicRoad's power to issue heavy tow truck licences. Section 11(1) states:

Subject to subsections (2) and (3), VicRoads may license a person to operate a tow truck that is specified in the licence in the course of conducting an accident towing service business -

(a) to provide accident towing services to vehicles that the tow truck is capable of towing that have a gross vehicle mass of 4 tonnes or more and

(b) from the depot specified in the licence.

Attendance at road accident scenes - the roster and allocation system

1. An accident roster, allocation and authorisation system applies to tow trucks operating under regular licences. No formal allocation system applies to tow trucks operating under heavy licences.
2. Part 6 of the Regulations, headed "Tow Truck Operations in a Controlled Area", circumscribes the operation of tow trucks on regular tow truck licences by providing for a road accident scene roster and an allocation system.
3. In summary, the system provided for is that:
   • the chief allocation officer of the allocation body for a controlled area[13] must keep a road accident scene roster;
   • the roster must record details of those regular tow truck licences that have been allocated a place on the roster, and the details of the truck;
   • those who hold regular tow truck licences and have a specified depot in the controlled area may apply in writing to VicRoads for a place on the road accident scene roster[14] and VicRoads may grant or refuse an application;
   • licence holders may lose their allocated place on the roster for various reasons;[15]
   • an allocation officer may make an allocation for a road accident scene if there is a request to remove an accident damaged motor vehicle from a road accident scene in the controlled area;[16]
   • an allocation is made by contacting a holder of the place on the roster who is next entitled to an allocation, and offering that person an authorisation;[17]
   • if the person accepts the authorisation they may attend the road accident scene and offer to tow an accident damaged motor vehicle from the scene;
   • if they refuse or are unable to accept the authorisation the allocation officer offers the authorisation to the person next on the roster;[18]
   • there are various requirements on those who have been authorised to attend a road accident scene under the allocation system.[19]
4. Section 42(1) of the Act was the subject of a number of submissions in this case. It provides -

The holder of a regular tow truck licence must not cause the tow truck operating under that licence -

(a) to attend a road accident scene in a controlled area; or

(b) to be used to tow, or attempt to tow, an accident damaged motor vehicle, with a gross vehicle mass of less than 4 tonnes, from a road accident scene in a controlled area -

unless the allocation body for that area has authorised that the tow truck operating under the licence so attend or be so used, and the allocation body has given a job number for that authorisation to the holder of the licence.

1. Section 42(1) prescribes a penalty of 100 penalty units.
2. As noted above, there is no formal allocation system for tow trucks with heavy tow truck licences. The evidence, discussed in more detail below, is that there are fewer such licences, fewer road accident scenes involving heavy vehicles, and that an allocation system has not, to date, been required.
3. There have been a number of judicial statements about the scope and purpose of the Act and its predecessors. Those referred to me were:
   • Accident Towing Advisory Committee v Combined Motor Industries Pty Ltd [1987] VicRp 48; [1987] VR 529;
   • Western Truck Towing v Douglas & Anor [2014] VSC 159, decision of Rush J;
   • Western Truck Towing v Douglas & Anor [2014] VSCA 130, decision of the Court of Appeal dismissing the appeal from the decision of Rush J
4. The following is from the decision of Mandie JA in Western Truck Towing v Douglas & Anor (the Court of Appeal)[20] and relates to observations made by Rush J at first instance:

[Having referred to the objectives of the Act] His Honour then referred to judicial statements, made concerning the objectives of the legislative regime which preceded the Act, in a decision of the Full Court.[21] In that decision, McGarvie J said:

One of the primary objectives of the Regulations is to substitute an orderly and fair system for the operation of tow trucks within the controlled area in place of the primitive and often violent and dangerous conditions in which tow truck operators previously competed for the prize of towing a damaged vehicle from the scene of an accident.[22]

The evils which Parliament primarily wish to eradicate included the unseemly harassment at accident scenes of shocked and perhaps injured car drivers and the eruption of violence between rival tow truck operators ... In my opinion, the purpose and object of the Act was not merely to control the distribution of tow trucks at accident scenes: the purpose and object went much further than that - to control the number of tow trucks operating in Melbourne on the one hand and in the various country centres on the other, in order to satisfy the needs of the public by an orderly system of distribution and, having thereby interfered with some rights and freedom of operators, to preserve their economic viability by protecting them from undue or unfair competition.

1. Action Towing submitted that the judicial statements made in the Accident Towing Advisory Committee case, referred to in Western Truck Towing related to the objectives of the legislative regime that preceded the current Act, and were not factors presently relevant for consideration by the Tribunal.
2. I disagree. Although the observations of Southwell J and McGarvie J related to a predecessor Act, they were regarded by the Court in each of the Western Truck Towing cases as relevant to an assessment of the purpose and scope of the current legislation, in the context of considering the meaning to be given to section 42(1).
3. In my view, those earlier judicial statements are relevant. Like the predecessor legislation, the current Act and Regulations are clearly concerned with the safe, efficient, timely, and orderly attendance of licensed tow trucks at road accident scenes in controlled areas.
4. Like the predecessor legislation referred to by Southwell J, the current Act limits the number of tow trucks operating in the Metropolitan controlled area and in country areas, interferes with some rights and freedoms of operators, but also preserves their economic viability by protecting them from undue or unfair competition.
5. Southwell J, was referring to competition between metropolitan and country operators, as submitted by the applicant, but the observations are equally relevant, in my view, to competition between holders of regular tow truck licences and holders of heavy tow truck licences within the controlled area.
6. As VicRoads submitted, one of the Act's purposes is to limit the number of tow truck licences, and hence the number of tow trucks in operation in the controlled area. In my view, limiting the numbers of tow truck licences is an indication that the current legislation is concerned with protecting operators from undue or unfair competition.

Is it relevant to consider whether there is a need for an additional heavy tow truck in the system?

1. As noted above, I invited the parties to make further submissions on the question of whether 'need' is a relevant consideration in exercising the discretion in section 27. The question arises from the following:
   • Southwell J referred to the purpose and object of the preceding regime as including controlling the number of tow trucks in operation, taking into account the needs of the public and preserving the economic viability of operators;
   • The provisions in sections 14 and 15 of the Act, relating to ministerial authorisation of the issue of new licences, require the Minister to consider the public interest, having regard to any increase in the need for tow trucks operating under regular or heavy licences. I noted that this proceeding does not concern the issue of a new licence but asked the question whether the need for a heavy vehicle such as the applicant's Western Star truck in the system at present is a relevant consideration.
2. In its further written submissions, VicRoads contended that need was a relevant consideration and referred to the following additional passage from Southwell J's judgment in the Accident Towing Advisory Committee case[23]:

In my opinion the authority is entitled to take the view that it would neither be fair to those whose rights to work are restricted (and they are of course persons who "provide tow truck facilities"), nor would it be in the interests of the public generally, to permit a greater number of operators to operate in Melbourne than is reasonably necessary to service the demand for tow trucks. If there is a need for a certain number of tow trucks in Melbourne the authority is entitled to take the view that it is not in the interests of the public generally in the whole of the state, or of most tow truck operators, to permit operators who had hitherto worked from country depots to transfer to Melbourne, thereby increasing the number of licences in Melbourne to a figure in excess of those required, and in turn endangering the economic viability of existing Melbourne operators and, for a time at least, depriving country centres of a satisfactory level of service [emphasis added].

1. As Action Towing submitted, this case is not about the issue of a new licence, and approval will not add to the number of licences in Melbourne.
2. Action Towing also submitted that there would be no net increase in either the number of tow trucks being operated in the system, or the number of tow trucks being operated by the applicant.
3. In fact, there will be an addition to the number of tow trucks operating in the Melbourne area and by the applicant because no tow truck is currently specified on the applicant's licence.
4. In the respondent's submission, need may be a relevant consideration in the context of the overall legislative scheme, the fact a distinction is drawn between regular and heavy licences, and the numbers of licences in each category is limited.
5. In my view, in exercising the unconfined discretion in section 27, it is relevant to consider whether or not it there is a need for a particularly heavy vehicle such as the applicant's Western Star tow truck to operate in the Melbourne controlled area. The question arises because the Western Star is not the usual size of tow truck operating on a regular licence. Although on the evidence there are some heavy vehicles operating on regular licences, the Western Star would be largest. Most tow trucks on a regular licence are the common tilt-tray type of tow truck.

Other relevant matters - the consideration of section 42(1) in the Western Truck Towing cases

1. As noted above section 42(1) of the Act provides as follows:

The holder of a regular tow truck licence must not cause the tow truck operating under that licence -

(a) to attend a road accident scene in a controlled area; or

(b) to be used to tow, or attempt to tow, an accident damaged motor vehicle, with a gross vehicle mass of less than 4 tonnes, from a road accident scene in a controlled area -

unless the allocation body for that area has authorised that the tow truck operating under the licence so attend or be so used, and the allocation body has given a job number for that authorisation to the holder of the licence.

1. Both parties acknowledged that there has been a view amongst tow truck operators holding regular licences, that, provided their tow truck was capable of towing heavy vehicles, they did not need authorisation to attend a road accident scene and to tow away a heavy vehicle. The view is based on the wording of section 42(1)(b).
2. The witnesses for VicRoads conceded that VicRoads itself shared that view until June 2014, when the Court of Appeal handed down its decision in Western Truck Towing v Douglas & Anor[24].
3. The parties held different views as to the relevance of the Western Truck Towing decision.
4. VicRoads said that it clearly establishes that a tow truck on a regular licence may not attend a road accident scene without authorisation from the allocation body, whatever the weight of vehicle to be towed away.
5. Mr Zukanovic stated a number of times his belief that the Western Truck Towing case is irrelevant to his situation as it concerned a "country licence". He said that was the advice he had received.
6. It is useful to set out a brief summary of the Western Truck Towing case.
7. The case concerned Western Truck Towing's appeals against convictions in the Magistrates' Court in respect of six charges alleging offences under section 26 of the Act. Section 26 requires the holder of a tow truck licence to comply with the conditions to which the licence is subject.
8. The licences in question were subject to the condition that any towing of damaged or disabled motor vehicles be only from a road accident scene in that part of Victoria which is outside a "controlled area" and outside the area defined as the Geelong accident allocation area. In other words, the licences were of the sort commonly known as 'country licences'.
9. Western Truck Towing had been allowing its tow trucks to attend road accident scenes within the controlled area, but only to tow damaged motor vehicles with a GVM of 4 tonnes or more. It contended that it was permitted to do so, on the basis of the wording of section 42(1)(b).
10. The Court considered the proper construction of section 42(1) of the Act. That part of the decision is directly relevant to the issue in this case of whether Action Towing intends to abide by the allocation system if substitution is allowed. The issue arises because Mr Zukanovic said that he regarded the decision as irrelevant and appeared to believe that the truck could attend road accident scenes without allocation, provided it only towed away heavy vehicles.
11. As submitted by Action Towing, the Western Truck Towing case concerned tow trucks with 'country' licences coming into the controlled area, attending road accident scenes and towing away accident damaged heavy vehicles. But as noted above, the principal issue to be determined was the construction of section 42(1).
12. While I accept that there have been different views in the industry about the meaning of section 42(1), in my view, the effect of section 42(1) is clear; the use of the word "or" between sections 42(1)(a) and (b) means that the holder of a regular tow truck licence must have authorisation from the allocation body to attend a road accident scene in a controlled area.
13. To the extent there was any uncertainty caused by the wording of section 42(1)(b), the matter has been resolved by the decision of Rush J[25] and the decision of the Court of Appeal, dismissing the appeal.[26] With respect, I agree with the conclusion of Rush J, at paragraph 22, that:

the section unequivocally establishes authorisation by the allocation body as a prerequisite for a tow truck with a regular licence to attend a road accident scene in a controlled area.

1. Regardless of whether the vehicle to be towed is light or heavy, the holder of a regular tow truck licence is in breach of the Act if the licensed tow truck attends a road accident scene in a controlled area without authorisation from the allocation body.

1. On the basis of the above matters my view is that relevant factors in the exercise of the discretion, implied from the subject matter, purpose and scope of the legislation will include:
   • Is the proposed tow truck within any size or capacity limit specified by the Act for the particular licence;
   • Will an exercise of the discretion in the applicant's favour assist or hinder the orderly and efficient attendance of tow trucks at road accident scenes in the controlled area;
   • Will the tow truck to be specified on the licence be operated in accordance with the allocation and authorisation system for tow trucks on regular licences;
   • Is an exercise of the discretion in the applicant's favour consistent with the distinctions between regular and heavy tow truck licences in the Act and any distinctions between the work to be done by tow trucks on each kind of licence;
   • Where the proposed tow truck is a heavy tow truck, is there a need for an additional heavy tow truck in the controlled area;
   • Will an exercise of the discretion in the applicant's favour impact on the economic viability of other licensed operators, or result in unfair or undue competition;
   • Will an exercise of the discretion in the applicant's favour meet the objectives of an orderly and fair system?

1. I now turn to a consideration of the evidence before me relating to the various questions in this case.

1. In correspondence with VicRoads, Mr Zukanovic stated that the licence TOW713 would be used for the purpose of towing light and/or heavy vehicles as required in accordance with the Act and the Regulations.
2. It was not in dispute that Mr Zukanovic had initially made enquiries about whether there were any heavy tow truck licences available. He said that none was available and he had the idea of applying to assign TOW713 to the Western Star truck.
3. In his statement,[27] Mr Bell stated that when he asked Mr Zukanovic why he was not seeking to allocate a heavy tow truck licence to the Western Star vehicle, Mr Zukanovic responded that a heavy licence costs approximately $400,000 and he was not aware that there were any for sale.
4. Mr Zukanovic said that he discovered that a number of heavy tow trucks were already attached to regular licences, and he thought he could use the licence he already has. As noted, the licence currently does not have a tow truck specified on it. From the evidence from both parties, I gather that this is not unusual, some operators may have a number of "spare" licences, or licences that are "in the cupboard" to use Mr Zukanovic's expression.
5. In his evidence, Mr Zukanovic stated unequivocally that he intends to comply with the law.
6. It was not clear from his evidence whether this included only attending road accident scenes if authorised by the allocation body. He stated a number of times that he believes the Western Truck Towing case is not relevant to his situation. He talked about the usefulness of having a truck such as the Western Star operating out of his depot in Sunshine, because of its proximity to the Western Ring Road. His evidence on these matters concerned me. Whatever his belief before the hearing, he ought now to be in no doubt that Action Towing will be in breach of the law if it uses the Western Star truck to attend road accident scenes of any description without allocation and authorisation.
7. Further, during submissions, the applicant's solicitor, Mr Halse, stated that his client's instructions were that the tow truck would not attend a road accident scene within the controlled area without authorisation from the allocation body. That statement, made to the Tribunal on instructions, is an important factor, and it would be a most serious matter if Mr Zukanovic's intentions were otherwise.
8. Mr Zukanovic denied that his intention was only to tow heavy vehicles; he said "heavy or light as required".
9. Both Mr Zukanovic, and Mr Squires, who operates a towing business in Cranbourne, gave evidence that having a heavy tow truck capable of towing heavy vehicles can be very useful when attending road accident scenes.
10. Mr Squires said he had three regular tow truck licences. Two of those are attached to heavier than usual trucks because his experience is that both the allocation body and the tow truck operator may not know what is required until the tow truck arrives at the road accident scene. Mr Squires said that having and sending a heavier truck can mean that a wider range of vehicle recovery can be carried out and gives greater flexibility.
11. Mr Zukanovic gave evidence of the various attachments that he has fitted to the Western Star truck, that he said give flexibility in the sizes of vehicles that may be towed and how they may be towed.
12. In further submissions, the applicant's solicitor noted the evidence that there was no heavy tow truck situated near the Western Ring Road and that if substitution were allowed it would enable the applicant to attend such an accident within a much shorter time frame, which was in the public interest. The submission referred to heavy tow truck operators being located at Cranbourne, Craigieburn and Laverton.
13. Although the submission was put in the context of whether there might be a need for an additional heavy tow truck in the system, I note that the relative location of other heavy tow truck operators would only be an advantage to Action Towing if its intention were to attend heavy vehicle accidents in competition with existing heavy licence holders.
14. At the hearing, VicRoads submitted that, on the evidence, the Tribunal should draw the inference that the applicant is likely to operate the tow truck in breach of either the letter or the spirit of the law.
15. I declined to draw that particular inference on the evidence before me. If there are other reasons for VicRoads' concerns, these were not put to me.
16. There was no evidence that the applicant or its director, Mr Zukanovic, has committed any offences under the Act, or is otherwise not a law abiding person. Whilst it is possible that Mr Zukanovic has an intention other than the one stated to the Tribunal by his solicitor, a possibility is not enough, particularly where such a serious inference is under consideration.
17. As Street CJ observed in Gurnett v Macquarie Stevedoring Co Pty Ltd:[28]

A guess is a mere opinion or judgment formed at random and based on slight or uncertain grounds. In contradistinction to such a conjectural opinion, an inference is a reasonable conclusion drawn as a matter of strict logical deduction from known or assumed facts. It must be something which flows from the given premises and is certainly or probably true, and the mere possibility of truth is not sufficient to justify an inference to that effect.

1. The evidence is that a large tow truck such as the Western Star can be used to tow a wide range of accident-damaged vehicles, including light vehicles, and can be used in a number of situations where a lighter tow truck or a tow truck with a tilt tray will be unsuitable. The proposed truck can also, lawfully, be used to tow heavy vehicles that have broken down, or for insurance work.
2. Early in the hearing, Mr Halse raised a concern his client had, that VicRoads' made its decision because of an unsuccessful prosecution of his client some time ago. Other than to say that numerous charges were brought which were dismissed, because of a defect in the delegation according to VicRoads, neither party provided any further information about this matter, and in circumstances where any charges were dismissed, it is irrelevant to the decision the Tribunal has to make.
3. The position is that there is no evidence that the applicant has broken the law in the past. Mr Zukanovic has given instructions to his solicitor, which have been communicated by his solicitor to the Tribunal, that the truck will not attend a road accident scene without authorisation from the allocation body. If he acts otherwise, the consequences will be serious.
4. If the truck is authorised to attend a road accident scene involving a standard vehicle and a heavy vehicle (in which case only one tow truck on a regular licence would be allocated to the accident) but tows away the heavy vehicle leaving the standard vehicle behind, it is quite possible that Action Towing's place on the roster will be jeopardised.

1. Mr Bell's uncontested evidence was that there are only six heavy vehicle towing operators operating in the Melbourne controlled area. In his statement he said that -

"The reason why heavy vehicles are not part of the allocation system is that historically there has been insufficient numbers of accidents involving heavy vehicles to require an allocation system. Also there are only six heavy vehicle towing operators in the Melbourne controlled area, which means there is not the competition for jobs nor the likelihood of several heavy tow trucks attending a heavy vehicle accident to the same extent as can occur in an uncontrolled, unallocated accident involving regular vehicles."

"There are a small number of vehicles in the Melbourne controlled area that are capable of towing both light and heavy vehicles.[29] These vehicles tend to be larger than standard, tilt-tray vehicles which may be able to tow or carry a vehicle of greater than 4 tonnes. However, I am not aware of any purpose-built, heavy tow truck of similar size and specification to the Western Star vehicle operating in the Melbourne controlled area under a regular licence. Purpose-built, heavy tow trucks capable of towing vehicles of greater than 4 tonnes operating in the Melbourne controlled area operate with heavy tow truck licences issued under section 11 of the Act."

1. Mr Bell's evidence supports the following, in my view:
   • There are fewer accidents involving heavy vehicles;
   • There is at present no need for an additional heavy tow truck in the system;
   • The relatively small number of tow trucks on heavy licences means that there is currently no undue competition for jobs;
   • If it is the applicant's intention to use the Western Star to tow heavy vehicles there are unlikely to be sufficient commercial opportunities, operating within the allocation system, to enable him to obtain a return on the considerable investment involved in the Western Star truck.[30]
2. In VicRoads' submission, this last factor creates a risk that the applicant will be tempted to operate outside the allocation system, not only breaking the law but also unfairly competing with heavy tow truck licence holders.
3. VicRoads is right to be concerned about potential disruption to the orderly and fair attendance of tow trucks at road accidents, in my view, but as with its submission in relation to intention, there was insufficient material in evidence before me to support a conclusion that the risk will eventuate.
4. If there is insufficient work lawfully available, Action Towing will need to make a decision about whether to continue to operate the tow truck on a regular licence. It may decide to wait until a heavy tow truck licence becomes available or sell the truck. It does not necessarily follow that the applicant will break the law.
5. Similarly, provided the applicant obeys the law and operates only within the allocation system, allowing the substitution will not affect the orderly and efficient attendance of tow trucks at road accident scenes in the controlled area. Nor will it result in unfair or undue competition or impact on the economic viability of holders of heavy tow truck licences.
6. The fact that the applicant intends to tow heavy vehicles (as well as light) is not inconsistent with the regulatory framework set out in the Act. A regular tow truck licence allows the person holding it to provide accident towing services to vehicles of any GVM it has the capacity to tow; and VicRoads may issue such a licence to a person to provide accident towing services to vehicles of any GVM that the tow truck is capable of towing (the effect of section 6(a) and 10(1).
7. This is not to say that the distinction between licences is or ought to be meaningless. There is a clear intention in the Act and the Regulations to distinguish between the work that will be done on each kind of licence. Regular licensed trucks will attend the majority of road accident scenes operating within the allocation system, and heavy licensed trucks will attend heavy vehicle accidents as needed and as arranged between those tow truck operators and owners or drivers of accident damaged heavy vehicles. But there is no clear legislative statement that a heavy tow truck may only operate on a heavy tow truck licence.
8. It is certainly the case that the Western Star truck appears more suited to a heavy tow truck licence. But, as the Act is currently drafted, holders of regular tow truck licences are not limited to towing vehicles of less than 4 tonnes GVM (provided they operate within the allocation system), therefore the fact that the Western Star truck is capable of towing heavy vehicles is not, in itself, a reason to refuse a substitution. If the circumstances in this case warrant a change to that position, it will be a matter for Parliament.
9. It is also relevant, in my view, that this case does not concern the question of whether a new licence should be issued, the applicant already holds a licence and wishes to use it by specifying the Western Star truck on that licence.
10. As noted above, there is insufficient evidence to draw an inference that the applicant intends to break the law. If the substitution is allowed and the applicant then breaks the law by attending road accident scenes involving heavy vehicles without authorisation from the allocation body, or otherwise fails to comply with the regulations governing the roster and allocation system, consequences will follow.
11. Counsel for VicRoads submitted that it does not have the resources to monitor the operations of individual tow trucks, and financial constraints may prevent it pursuing any breach of the law by the applicant.
12. It is reasonable to assume, however, that if Action Towing at any time solicits or accepts heavy vehicle accident towing without being authorised through the allocation system, those operators with heavy tow truck licences with whom the applicant would then be in direct competition, would draw it to the attention of VicRoads.
13. Prosecutions do require the use of financial resources, but this is not, of itself, a reason to refuse the application, in the absence of evidence that the applicant is likely to break the law.
14. To the extent that VicRoads is concerned not to establish a precedent, if the applicant does breach the law VicRoads will have a strong basis to refuse any similar applications in the future by other operators.
15. As I indicated to the parties, I retain concerns about Mr Zukanovic's understanding of his legal obligations; and I had considered whether it would be appropriate to grant the substitution but impose a condition that mirrors section 42(1)(a).
16. On further consideration, I am not satisfied that such a condition is available or appropriate. Section 27 does not provide for imposing conditions on the substitution - the power is only to allow or refuse the application. .
17. Further, while there is power on VicRoads to impose conditions on any licence,[31] the condition under consideration is not one that appears to be able to be imposed under the Act.
18. Moreover, such a condition would be in the nature of a condition that the applicant obey the law, and would be superfluous.

1. As noted above, the role of the Tribunal on review is not to examine in detail the original decision and the reasons for it. The Tribunal stands in the shoes of the original decision-maker, considers all the evidence before the Tribunal together with the current law, and makes what it considers to be the correct or preferable decision. The fact that the Tribunal comes to a different view does not mean that it considers that the decision-maker was wrong.
2. In this case, I have accepted that VicRoads, in its role as regulator, has concerns about the possible implications of allowing Action Towing to put the Western Star tow truck on a regular licence.
3. I had my own concerns, but there was simply insufficient evidence to infer that Action Towing will act in a way that is contrary to the letter and spirit of the legislative scheme. And provided it complies with its obligations, allowing the substitution is consistent with the subject matter, scope and purpose of the Act, as it is currently worded.
4. In all the circumstances, in my view it is appropriate to set aside the decision of the respondent and to alter the specification in licence no. TOW713 to specify Western Star vehicle, engine number 7940364 .

[1] The parties were directed to the High Court statement of the decision-maker's task where the discretion is unconfined by the terms of the statute, in Minister for Aboriginal Affairs v Peko-Wallsend Ltd & Ors [1986] HCA 40; [1985-1986] 162 CLR 24 at pp39-40, paragraph (b)

[2] [2014] VSC 159

[3] Feaks v Cardinia Shire Council [2010] VCAT 1436

[4] Section 51 Victorian Civil and Administrative Tribunal Act 1998

[5] See for example, section 30 'Application for transfer of tow-truck licence', which specifies prerequisites; similarly section 32 'VicRoads may cancel or suspend a tow truck licences'; section 65 which sets out when VicRoads may approve an application for accreditation; section 68, which concerns discretionary refusal of accreditation; in particular section 68(4) which sets out factors VicRoads must have regard to in exercising a discretion under that section.

[6] Section 6(1)(c) - version as at 1 January 2009.

[7] [2010] VCAT 1430

[8] [1986] HCA 40; [1985-1986] 162 CLR 24 at 40, paragraph (b) per Mason J

[9] Section 1(a)

[10] In regulation 1.

[11] Section 6

[12] See Part 2 Division 3 of the Act.

[13] The allocation body in the metropolitan controlled area is the RACV

[14] Regulation 27 [previous footnote Regulation 26]

[20] [2014] VSCA 130 at [12]

[21] Accident Towing Advisory Committee v Combined Motor Industries Pty Ltd [1987] VicRp 48; [1987] VR 529

[23] [1987] VicRp 48; [1987] VR 529 at p 571

[24] [2014] VSCA 130

[25] [2014] VSC 159

[26] [2014] VSCA 130

[28] (1955) 72 WN (NSW) 261 at 264 cited by Muirhead J in Nominal Defendant v Owens (1978) 22 ALR 128 at 133.

[29] Mr Squires' evidence is that he has two tow trucks on regular licences which are capable of towing heavy vehicles. He said neither of them are as large as the Western Star truck.

[30] Mr Zukanovic's evidence was that the cost so far had been approximately $500,000. He also gave evidence that the cost of a heavy tow truck was about $450,000 but there were none currently for sale.