Appellant v Respondents

1 The appellant appeals convictions of the Magistrates' Court made on 28 May 2013, in respect of six charges alleging offences under s 26 of the Accident Towing Services Act 2007 ("the Act"). The appeals are brought pursuant to s 272 of the Criminal Procedure Act 2009 on a question of law. The appellant contends that the Magistrate failed to give a proper construction and interpretation to sections of the Act concerning the operation of its tow trucks.

2 Section 26 of the Act requires the holder of a tow truck licence "to comply with a condition to which the licence is subject". The appellant held two tow truck licences, numbered "TOW131" and "TOW355" (each being a "Licence", and together, "the Licences"), which were each subject to the following condition ("Condition 2"):

The licensed tow truck shall be used as a tow truck for the purpose of lifting and carrying or lifting and towing damaged or disabled motor vehicles -

(a) only from a road accident scene within that part of Victoria which is outside a 'controlled area' and outside the area defined as the Geelong Accident Allocation Area to the authorised depot shown above or to the place specified by the owner or person in charge of the damaged motor vehicle or by a member of the Victoria Police or an officer of the Roads Corporation.

(b) from any place other than a road accident scene to any place in Victoria.

The tow trucks were licensed to operate from the appellant's authorised depot at 33 Fisken Street, Maddingly.

3 Five offences were charged by Mr Douglas (the respondent in Proceeding No. S CI 2013 3170), and one offence was charged by Mr Kolonis (the respondent in Proceeding No. S CI 2013 3168). The respondents at the Magistrates' Court hearing alleged that, in breach of Condition 2 of the relevant Licence, the appellant:

(a) on four occasions (being 5 September 2011, 3 October 2011, 13 March 2012 and 1 August 2012) caused its tow truck licensed "TOW131", to attend a road accident scene, within a controlled area, for the purpose of lifting and carrying or lifting and towing a damaged or disabled motor vehicle; and

(b) on two occasions (being 7 December 2011 and 9 March 2012) caused its tow truck licensed "TOW355", to tow a damaged or disabled motor vehicle from a road accident scene.

4 The appellant pleaded not guilty to each charge. The appellant's primary contention was that Condition 2, properly constructed and read in the light of various provisions of the Act, did not prevent its tow trucks attending road accident scenes within a controlled area and towing damaged motor vehicles with a gross vehicle mass ("GVM") of four tonnes or more. The Magistrate rejected these submissions and found the six charges proved and sentenced the appellant to a fine of $10,000 on each charge, and ordered the appellant to pay the respondents' costs.

5 The appellant raised seven questions of law in each appeal, which can be summarised as follows:

(a) Did Condition 2 prohibit licensed tow trucks from attending a road accident scene within a controlled area?[1]

(b) If yes to (a) above, should Condition 2 be read down, by reference to Division 9 of Part 2 of the Act (particularly s 42 of the Act), so that it does not prohibit lifting and towing of a motor vehicle with a GVM of four tonnes or more?[2]

(c) If yes to (a) and (b) above, was it open to the Magistrate on the evidence to convict the appellant on each charge?[3]

(d) Alternatively, was the sentence manifestly excessive?[4]

(e) Further, was it open to the Magistrate to order the appellant to pay the respondents' costs?[5]

6 Primarily, the appellant's argument on appeal concerned the construction of the Act. The facts and circumstances of each charge were not in dispute.

7 Some further background is necessary for an understanding of the issues on appeal.

8 The Act sets out a legislative regime in respect of tow truck administration, licensing, operations and offences in the State of Victoria. An objective of the Act is to "promote the safe, efficient and timely provision of accident towing services and other related services".[6] To achieve this objective, the Act establishes "controlled areas"[7] in which towing operations are limited.

9 The history of the regulation of the operation of tow trucks in Victoria is relevant. Mr Walters SC, Senior Counsel for the respondents, referred me to the Full Court decision of Accident Towing Advisory Committee v Combined Motor Industries Pty Ltd.[8] In that case, McGarvie J detailed the objective of the legislature in introducing the Transport Regulation (Tow Truck) Act 1982 and the Transport Consolidated (Tow Truck) Regulations 1982, legislation that preceded the Act. McGarvie J stated that:

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. [9]

Southwell J also referred to the purpose and objectives of the Act:

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.[10]

10 Pursuant to s 46 of the Act, VicRoads has declared a controlled area for the operation of tow trucks; tow trucks are licensed to operate either within a controlled area or outside a controlled area. The statutory regime considered by McGarvie J in Accident Towing Advisory Committee similarly provided for the relevant authority to declare "controlled" areas for the operation of tow trucks. The intent of the legislature in enacting the scheme for controlled areas is relevant to an understanding of the Act, and is helpfully described by McGarvie J in the following terms:

The legislation validly establishes a system for the regulation of the towing of vehicles from the scenes of accidents which differentiates between the 'controlled area', which is metropolitan Melbourne, and the rest of Victoria.[11]

...

The legislative scheme sets up two virtually exclusive areas within which tow trucks may attend the scenes of accidents ... The legislative intent is to limit one group of tow trucks to accidents within the controlled area and the other group to accidents outside it.[12]

11 The Licences held by the appellant were "regular tow truck licences" issued by VicRoads pursuant to s 10 of the Act, which states:

(1) 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.

12 Further, pursuant to s 11 of the Act, VicRoads has the power to issue "heavy tow truck licences", for the operation of specified tow trucks capable of towing vehicles that have a GVM of four tonnes or more. Section 11 of the Act states:

(1) 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.

13 VicRoads has the power to impose conditions on the tow truck licences it issues. In particular, ss 25(1) and 25(4) of the Act state:

(1) On the issue of a tow truck licence by VicRoads, VicRoads may impose conditions on the licence...

(4) A tow truck licence is also subject to any condition that applies to the licence and that is set out in regulations made under this Act.

The conditions imposed on the Licences in this matter[13] are imposed pursuant to this section.

14 As stated above, a failure to comply with any condition or conditions imposed on a tow truck license by VicRoads is an offence pursuant to s 26 of the Act, and is subject to a fine of up to 150 penalty units (in the case of a body corporate).

15 Division 9 of Part 2 of the Act sets out the allocation regime upon which the holders of regular tow truck licences are regulated to operate within a controlled area. In particular, s 42(1) of the Act makes it an offence for the holder of a regular tow truck licence to operate in a controlled area without authority from the relevant allocation body.[14] Section 42(1) of the Act states:

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.[15]

Background and facts, Magistrates' Court hearing

16 Each Licence held by the appellant is classified as an "Accident Outside Controlled Area" licence, meaning, so the respondents contended, that the tow trucks operating under the licences are only permitted to lift, carry or tow damaged or disabled motor vehicles from road accident scenes located in parts of Victoria outside a controlled area.[16]

17 On each occasion, the subject of the six charges, one or other of the appellant's licensed tow trucks attended a road accident scene within a controlled area without receiving authority to do so from the allocation body under the Act. The evidence before the Magistrate was that at each road accident scene attended by the appellant's tow trucks, there was a damaged vehicle involved in a road accident with a GVM of over four tonnes.

18 The appellant in the Magistrates' Court hearing submitted that Condition 2 should be read in conjunction with the Act, specifically s 42(1), which the appellant contends imposes no specific restriction on the attendance of an unallocated regular tow truck in a controlled area for towing a damaged vehicle with a GVM of four tonnes or more. The Magistrate rejected these submissions, and held that "Condition 2 does prevent attendance at a road accident scene in a controlled area, irrespective of the weight".[17]

(a) Condition 2 restricted the activities that a tow truck can undertake;[18]

(b) Condition 2 was effective only if it prevented attendance at road accident scenes in controlled areas; its purpose was plainly to prevent country licences from being operated in Metropolitan Melbourne;[19]

(c) Attendance at a road accident scene within a controlled area breaches the limitation imposed by Condition 2;[20] and

(d) Condition 2 could not be read down by reference to Division 9 of Part 2 of the Act, so as to apply only to the towing of motor vehicles with a GVM of less than four tonnes, and in any event the Act did not require it to be read down in that way.[21]

20 Mr Billings, counsel for the appellant, submitted that s 42(1) of the Act[22] did not prevent a regular tow truck licence holder from causing that tow truck to attend a road accident scene in a controlled area without authorisation if its purpose in so doing was to tow a vehicle with a GVM of four tonnes or more. In short, it was contended on behalf of the appellant that a proper construction of s 42(1) of the Act meant a tow truck with a regular licence -

(a) could attend a road accident scene in a controlled area;

(b) tow an accident damaged motor vehicle with a GVM of four tonnes or more in a controlled area without authorisation from the allocation body for that controlled area and without a job number for the authorisation.

21 Mr Billings contended the above construction was the only one that could make sense of s 42(1), that it would be "ludicrous" if mere attendance at a road accident scene was in breach of this provision of the Act. As I understand the submissions of the appellant, the contended construction of s 42(1) of the Act means that the conditions of the Licences should be construed or read down so as not to conflict with its purported construction of s 42(1) of the Act.

22 Mr Walters submitted the plain meaning of s 42(1) of the Act was clear. The use of the word "or" at the conclusion of s 42(1)(a) means that s 42(1)(a) cannot be read conjunctively with s 42(1)(b). I agree with the submission of the respondents. Any other construction is against the plain words and meaning of the section, which clearly demonstrates the legislative intention. Section 42(1)(a) states that a tow truck with a regular licence "must not" attend a road accident scene in a controlled area unless authorised by the allocation body for that controlled area and given a job number for that authorisation. 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 within a controlled area.

23 In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue,[23] Hayne, Heydon, Crennan and Kieffel JJ stated as follows:

This Court has stated on many occasions that the task of a statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of the provision, in particular the mischief it is seeking to remedy.[24]

24 The suggested construction of s 42(1)(a) of the Act by the appellant in this case is against the language of the section and the clear intention of the legislature that a tow truck with a regular licence can only attend a road accident scene in a controlled area if authorised.

25 Mr Billings contended that s 42(1)(b) of the Act permitted a regular tow truck to attend a road accident scene in a controlled area if it was attending for the purpose of towing a damaged motor vehicle with a GVM of four tonnes or more. He submitted no authorisation from the allocation body was necessary in such circumstances.

26 I do not accept that s 42(1) of the Act can be construed as providing a carte blanche to the licensees of regular tow trucks, licensed to operate outside controlled areas, to attend road accident scenes in controlled areas, without authorisation, to tow vehicles with a GVM of four tonnes or more. Not only is such a construction against the language of the section, it is the antithesis of the legislative intention as referred to above in Accident Towing Advisory Committee.[25]

27 The Magistrate referred to evidence concerning the costs of tow truck licences.[26] This evidence underscores the legislative intention that I have referred to above. Mr Douglas, an authorised officer appointed by VicRoads under the Act, provided evidence, which was not contested, of the difference between the cost of licences for regular tow trucks operating outside and inside a controlled area. The licence fee for the tow truck licenced "TOW131", licenced to the appellant to operate outside a controlled area, was most recently exchanged for $68,000. Comparative licences for operation within a controlled area, Mr Douglas stated, are exchanged between $350,000 and $400,000. Heavy tow truck licences, within a controlled area, according to Mr Douglas, cost around $400,000. Common sense suggests it would be contrary to the provision of efficient towing services and the scheme established under the Act to read s 42(1) of the Act as permitting regular tow trucks licensed to operate outside a controlled area with licences worth less than one quarter of the value of the equivalent licences for tow trucks operating within a controlled area to compete in a controlled area on an unrestricted basis for the towing of damaged motor vehicles with a GVM four tonnes or more.

28 The appellant, in written submissions, conceded that Condition 2(a) of the Licence set out above[27] "seems on a literal reading to confine the operation of the tow trucks operated by [the appellant] to accident scenes outside a controlled area". Mr Billings submitted, however, that this is not "a proper view of its effect", "if one assumes the damaged or disabled motor vehicles specified in Condition 2(a) simply refer to vehicles with a GVM of less than four tonne". This assumption, Mr Billings contended, was supported because the Act only regulated the operation of regular tow truck licences towing damaged motor vehicles with a GVM of less than four tonnes.

29 The appellant further submitted that s 10(1) of the Act,[28] which concerned the issue of regular tow truck licences, permitted such licensed tow trucks to provide towing services to damaged vehicles of any GVM that the tow truck is capable of carrying.

30 The submission of the appellant that the literal meaning of the licence conditions should be read down based upon an assumption to be inferred into the licence conditions cannot be sustained.

31 The wording of Condition 2 is mandatory. The licensed tow truck "shall be used" for the purpose of towing damaged motor vehicle "only from a road accident scene within that part of Victoria which is outside a 'controlled area'". There is no justification or warrant to read Condition 2 as permitting the towing of damaged motor vehicles with a GVM of four tonnes or more from a road accident scene within a controlled area. There is no basis for implying a term into Condition 2 that would permit the operation of the tow truck in a controlled area by reference to the weight of the vehicle to be towed.

32 Section 10(1) of the Act is of no assistance to the appellant's argument. Section 10(1) concerns the power of VicRoads to issue regular tow truck licences. Section 10(1) does not in any way limit the power conferred on VicRoads by s 25(1) of the Act to impose conditions on licences it issues. That power was not challenged by the appellant before the Magistrate or on appeal.

33 In my opinion, there is no inconsistency between Condition 2 and s 42(1) of the Act. Condition 2 prohibits attendance of the licensed tow truck at a road accident scene inside a controlled area. Section 42(1)(a) prohibits the holder of a regular tow truck licence causing such tow truck to attend a road accident scene in a controlled area unless authorised.

34 The appellant relied upon an amendment to the Act under the Road Legislation Amendment (Use and Disclosure of Information and Other Matters) Act 2013 (No. 55 of 2013). In accordance with this amending legislation, s 25(1) of the Act was amended by the inclusion of 1A:

A condition imposed on a tow truck licence under subsection (1) may prohibit a tow truck operating under the licence from -

(a) attending an area specified in the licence; and

(b) being used to tow, or attempt to tow, any accident damaged vehicle (regardless of its gross vehicle mass) from an area that under this Act or the licence the tow truck is prohibited from attending.

35 Mr Billings submitted the amendment should be interpreted as the legislature seeking to remedy the appellant's interpretation of s 42(1) of the Act. Yet, during the course of submissions, Mr Billings quite frankly conceded that if the amendment had been in place at the time the Magistrate heard the matter, it would have made no difference to his submissions or to the outcome of the proceedings. Mr Billings also stated that if in fact there was ambiguity or need for clarification as to whether a tow truck with a regular licence can attend a road accident scene in a controlled area without authorisation to tow a damaged vehicle with GVM of four tonnes or more, it would have been s 42(1) of the Act that would require amendment, not s 25. In this regard, Mr Billings stated, "if in fact there was that aspect of clarification required, then s 42 would have been amended".

36 Mr Walters referred me to the Second Reading Speech of the Minister for Roads in respect of the amending legislation made on 12 June 2013, in which the Minister explained the amendments in the following terms:

Confirm that VicRoads may impose conditions on a regular tow truck licence that prohibit the holder from towing vehicles from within a specified area, irrespective of the weight of the vehicle.

37 The respondents submitted there was no ambiguity in s 25(1) of the Act remedied by this amendment, and that the section prior to amendment was sufficient to impose Condition 2 on the Licences. The respondents contended the amendment was introduced to confirm the exact power that already existed, to remove any possible doubts that VicRoads had power to impose conditions on licences. The power of VicRoads pursuant to s 25(1) of the Act to impose Condition 2 on the Licences of the appellant's tow trucks was not in dispute.[29] In agreeing that the grounds of appeal did not raise an issue concerning the scope of s 25(1) of the Act, Mr Billings stated: "if the amendment is simply viewed as specifying the power which may be imposed in regard to conditions, then it takes the matter no further because the conditions on the licences are as framed". In my opinion, that is the limit of the amendment. The amendment does not assist the appellant's contentions on appeal.

38 The Magistrate imposed a penalty of $10,000 for each of the six offences proved against the appellant. The appellant contends in its notice of appeal this punishment "was excessive, crushing and out of all proportion with the criminality".[30]

39 As stated above, the penalty in respect of breach of s 26 of the Act by a body corporate is 150 penalty units. One penalty unit was $140.84.[31] As a result, the maximum penalty that was within the discretion of the Magistrate to impose for each offence was $21,126.

40 The Magistrate provided brief reasons for the penalty imposed, stating that the breaches were "serious and persistent", "struck at the heart of the regulatory scheme and were a blatant attempt to undermine it", the conduct "was done simply for profit using cheap country licences", and that "this was simply about the accused company making money".

41 The appellant contends that in imposing the penalty, the Magistrate:

(a) gave insufficient weight to the fact the appellant was entitled to test its interpretation of the Act as of right;

(b) gave disproportionate weight to general and specific deterrence;

(c) gave insufficient weight to the lack of prior convictions;

(d) imposed a crushing sentence not warranted in the circumstances.

42 The appellant at the Magistrates' Court hearing called Mr Merkovic, at the time an investigator with VicRoads, on the plea in mitigation of penalty. Mr Merkovic gave evidence of a conversation with Mr Mirra of the appellant company concerning the use of the appellant's tow trucks for towing heavy vehicles in Metropolitan Melbourne (being the controlled area). Mr Merkovic said that his view at the time of the conversation was that there was an anomaly in the Act in relation to the towing of heavy vehicles from a controlled area. Mr Merkovic also stated, however, that he reported the conversation to VicRoads, after which letters were sent to the appellant by VicRoads advising that the appellant's tow trucks were not permitted to attend road accident scenes in Metropolitan Melbourne.

43 Tendered on the plea by the respondents was a letter dated 16 September 2011 sent by VicRoads to the appellant indicating that the attendance of its tow trucks in a controlled area was a breach of the terms of the Licence to operate such tow trucks.

44 The appellant had no prior convictions of any relevance. On the plea it was stated the appellant had been in operation for 25 years, it employed 45 persons, and whilst it operated tow trucks, the main part of its business was truck repair.

45 The principal argument of the appellant in respect of penalty was that the Magistrate fell into error by accepting the submissions of the respondents that the appellant's conduct amounted to a serious breach of the Act and that the appellant's conduct was motivated by profit. The appellant contended, in accepting the respondents' submissions, the Magistrate failed to consider that the appellant had an entitlement to assert its rights, the right to press what it contended was a justifiable interpretation of the Act as to how its tow trucks could, in certain circumstances, operate in a controlled area.

46 Before the Magistrate, the respondents submitted that the conduct of the appellant was an attempt to "beat the system", that the conduct was motivated by financial gain at the expense of other licensed tow truck businesses, that the appellant did not attempt to clarify its interpretation of the Act with VicRoads after receipt of the warning letter. Mr Walters submitted to the Magistrate that it was appropriate to impose a sentence that would send a strong message both to the appellant and to the community of the importance of the zoning scheme. He urged a range of $15,000 to $20,000 fine for each offence. In reply to these submissions, Mr Billings stated to the Magistrate that to punish the appellant for asserting its interpretation of the Act in the manner suggested by the respondents would be "appalling".

47 The Magistrate was informed during the course of submissions there were no sentencing statistics in connection with a breach of s 26 of the Act.

48 Five of the six charges proved against the appellant relate to conduct after the VicRoads letter to the appellant of 16 September 2011 warning that its conduct was in breach of conditions of its licences. In circumstances where it had received a warning from the regulator, VicRoads, but continued to operate its tow trucks ignoring the warning, the appellant could be said, as the Magistrate found, to have committed serious and persistent breaches of the Act.

49 Mr Billings submitted the appellant had an entitlement to assert its rights, its interpretation of the Act. In my opinion, the manner in which the appellant chose to assert its "right", by ignoring a warning that it was in breach of its Licence conditions and that its conduct was illegal, justified the finding of the Magistrate that the conduct amounted to a blatant attempt to undermine the regulatory scheme. Further, the assertion that the (illegal) conduct of the appellant was undertaken because it was pursuing its interpretation of the Act carries little weight. Such an attitude of licence holders has the potential to lead to chaotic scenes at road accidents with the attendance of unauthorised tow trucks. It is conduct that demonstrates a brazen disregard of the regulator and, as I have set out above, is in breach of the plain meaning of the Act and the Licence conditions. It might be thought this conduct reduces the significance of a lack of relevant prior convictions.

50 The Magistrate found the appellant was attempting to profit from using cheaper country licences. In my opinion, such finding was open to the Magistrate. The evidence of the very substantial disparity between the cost of licences for tow trucks operating inside and outside a controlled area, the clear words of the licence condition of the appellant's tow trucks and the unequivocal words of s 42(1)(a) of the Act justified the Magistrate's view of the appellant's conduct.

51 The fine of $10,000 on each charge is substantial, yet it is half the maximum amount. Mr Billings submitted to me that the fine was crushing.

52 The appellant at the Magistrates' Court hearing made no attempt to refute the alleged motive of profit, it made no attempt to put before the Magistrate the financial circumstances of the appellant that would demonstrate a fine of the magnitude of $15,000 to $20,000 as sought by the respondents, or the $10,000 for each breach imposed by the Magistrate, would be crushing. The only evidence that was before the Magistrate concerning the appellant company was that it was a sizeable operation, employing 45 people with a major interest in the repair of heavy vehicles. Fines of the magnitude imposed were discussed in submissions on penalty at the Magistrates' Court hearing without any suggestion that such fines would have an effect on the appellant that would be "crushing". There is no evidence which permits me to find the Magistrate erred at law by imposing a crushing fine.

53 In submissions on appeal, Mr Billings contended the Magistrate did not take account of the principle of "totality" in imposing a $10,000 fine for each of the six offences. While the principle itself is not referred to in the reasons of the Magistrate, I can find no basis for finding the aggregate sentence exceeds what is appropriate, or that the total penalty represents an over-assessment of the deliberateness and criminality of the conduct of the appellant.

54 I can see no grounds for interfering with the Magistrate's sentencing discretion.

55 On this appeal, the appellant seeks to argue whether it was open to the Magistrate to order the appellant to pay the respondents' costs and, if it was, the appropriateness of making such an order in the circumstances.[32]

56 At the Magistrates' Court hearing, the appellant did not argue it was not open to the Magistrate to award costs. Mr Billings requested the Magistrate reserve the questions of costs with liberty to apply so that the parties could undertake a negotiating process to agree on costs. This request was granted by the Magistrate. The Magistrate indicated at the time of granting the stay that if the matter did not resolve between the parties, he would refer the question of costs to the Costs Court.

57 On appeal, Mr Billings accepted, "there is a general discretion to award costs to the prosecution". Mr Billings then submitted on behalf of the appellant that it was not in the public interest that unsuccessful defendants should face substantial costs of prosecuting authorities such as the respondents in this appeal. Mr Billings also urged that this Court should give "some guidance" to the Magistrates' Court on the question of costs.

58 This appeal as to costs is unmeritorious. The power of the Magistrate to award costs was not questioned at the Magistrates' Court hearing. In any event, that power could not be doubted.[33] I do not accept the appellant's "public interest" submission. It should be obvious that the respondents in prosecuting conduct that challenges the Act and the scheme regulating tow trucks will be required to incur significant costs. In the absence of agreement, the appropriateness of costs claimed by the respondents can be assessed by the Costs Court, which is in the best position to make judgments concerning the amounts claimed. It would be inappropriate for this Court to provide "guidance".

[1] Questions 2(a) and 3 in each Notice of Appeal dated 20 June 2013 (each being a "Notice of Appeal").

[2] Questions 1 and 2(b) in each Notice of Appeal.

[3] Questions 4 and 5 in each Notice of Appeal.

[4] Question 6 in each Notice of Appeal.

[5] Question 7 in each Notice of Appeal.

[7] Section 46(1) of the Act empowers VicRoads to declare, by notice, an area to be a controlled area.

[8] [1987] VicRp 48; [1987] VR 529.

[10] Accident Towing Advisory Committee at 572.

[13] See [2] which specifically refers to Condition 2. The Licences contained other conditions.

[14] Section 47(1) of the Act empowers VicRoads to appoint a person or body by notice "to be the allocation body for a controlled area".

[15] Section 42 of the Act is subject to the salvage exemption in s 43 of the Act. This exemption was not the subject of any submissions before me.

[16] See Condition 2, which also states that the licensed tow truck is permitted to undertake relevant towing operations "outside the area defined as the Geelong Accident Allocation Area to the authorised depot shown above or to the place specified by the owner or person in charge of the damaged motor vehicle or by a member of the Victoria Police or an officer of the Roads Corporation".

[23] (2009) 259 CLR 27.

[25] See [9] and [10]. Further, see regulation 31 of the Accident Towing Services Regulations 2008 concerning authorisation to attend road accident scenes establishing authorisation and a job number as a prerequisite of towing.

[29] See Allina Pty Ltd v Federal Commissioner of Taxation [1991] FCA 78; (1991) 99 ALR 295 (Lockhart, Burchett and Gummow JJ): "...if the words of the earlier statute are clear, little assistance may be gained from the later statute" at 303.

[30] Ground 6 in each Notice of Appeal.

[31] As at 1 July 2012 to 30 June 2013.

[33] See s 131 of the Magistrates' Court Act 1989.