[78] … the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning."
51 According to the Macquarie Dictionary, the potentially applicable meanings of the adjective "auxiliary" include "1. giving support; helping; aiding; assisting. 2. subsidiary; additional". The Australian Oxford Dictionary states available meanings of the adjective "auxiliary" as "1. (of a person of thing) that gives help. 2. (of services or equipment) subsidiary, additional". The Shorter Oxford English Dictionary includes as definitions for the adjective "auxiliary" the terms "1. helpful, assistant, giving support or succour" and "subsidiary to the ordinary".
52 It is necessary to construe the word "auxiliary" in the context of Clause 15 and the Regulation generally. That provision applies to a pedal cycle to which is attached an auxiliary propulsion motor or motors with a maximum power output not exceeding 200 watts. In my view, the Plaintiff's construction of Clause 15 would render the word "auxiliary" otiose. If it was intended that the mere addition or attachment to a pedal cycle of a motor or motors with a maximum power output not exceeding 200 watts would suffice to render the registration provisions inapplicable, the clause could have easily said so. The omission of the word "auxiliary" would have had this effect. However, the word "auxiliary" appears in the clause. It has statutory work to do.
53 The legislature intended the word to have a purpose and to perform a function in the provision. The use of the word "auxiliary" raises for consideration questions concerning the nature and purpose of propulsion motors attached to the relevant pedal cycle. If the legislature had intended to provide that registration provisions did not apply to pedal cycles to which were attached propulsion motors having a combined maximum power output not exceeding 200 watts, the provision could have stated that simply. Rather, the word "auxiliary" has been included and has a role to play.
54 Consideration of the question whether a vehicle falls within Clause 15 invites an enquiry as to whether the vehicle is in fact a "pedal cycle" to which is attached one or more subsidiary or supporting or secondary propulsion motors not exceeding 200 watts maximum power. If the vehicle is, in truth, a motor scooter intended to operate primarily under motor with a back-up pedalling facility, then it would not fall within the statutory formula. In my view, it is relevant to have regard to the size, shape, weight, run distance, motor power, climbing angle and speed in forming a conclusion as to whether the Plaintiff's cycle was a pedal cycle with auxiliary propulsion motors attached. For this purpose, it was relevant to have regard to the structure and appearance of the cycle in question. If the vehicle has the appearance of a motor scooter and is utilised as a motor scooter with a facility for back-up pedal power, then the construction advanced by the Defendant is fortified.
55 During the course of submissions, I raised with Ms Norton SC the fact that, if the Plaintiff's submission be correct, then unlicensed children could lawfully ride the Plaintiff's cycle under motor power at speeds up to 30 kms per hour in traffic. Although it is undoubtedly the case that children may ride pedal cycles in traffic, it seems to me that the possible use by children (or any unlicensed person) of a cycle such as this on a road or road-related area fortifies a conclusion that the objects of the legislation are served by adoption of the construction advanced by the Defendant.
56 I am not satisfied that the Plaintiff has demonstrated error of law on the part of the Magistrate in the manner asserted in the first ground. I accept the Defendant's construction concerning the meaning of the term "auxiliary propulsion motors" in Clause 15. In my view, the learned Magistrate did not err in the meaning giving to the word "auxiliary" in Clause 15 nor in the application of the clause to the Plaintiff's vehicle. It was open to the learned Magistrate to interpret the word "auxiliary" in its statutory context as meaning "secondary" or "back-up". Thereafter, it was a factual question for his Honour to apply that construction to the evidence adduced in the case.
57 There was no express evidence before the Local Court to the effect "that the pedals have been placed on the bike with a view to the bike then being marketed as not requiring registration". There was evidence that the cycle was marketed as one not requiring a licence. In evidence, the Plaintiff said that she would probably not have purchased the cycle if the formalities of registration were required.
58 His Honour drew an inference from all the photographic, oral and documentary evidence that pedals had been placed on the Eazyride cycle with a view to it then being marketed as not requiring registration. The learned Magistrate's observation concerning the marketing purpose for attaching pedals to the cycle was a conclusion of fact. I do not detect any error in his Honour's conclusion. The appearance of the cycle and the evidence concerning its use tended to support such an inference. Even if this conclusion could be characterised as perverse (which I do not find), it would constitute an error of fact and not an error of law: Azzopardi v Tasman UEB Industries Limited (1985) at 156-157; Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 at 282.
59 Even if this observation by the learned Magistrate could be characterised as an error of law (which is not the case), it does not seem to me, in any event, that such an error was dispositive so that the decision of the Local Court should be set aside. His Honour was correct in the construction of Clause 15 of Schedule 1. It was this construction, and the associated factual finding that the cycle was primarily a motor scooter with secondary pedals, that determined the outcome of the prosecution in the Local Court.
60 In my view, it was open to the learned Magistrate to construe Clause 15 in the manner applied, and it was open to him to make findings of fact based upon the Plaintiff's vehicle being primarily motor driven with a secondary pedal function. No error of law is revealed in the learned Magistrate's conclusion that the Plaintiff's vehicle was a registrable vehicle to which the registration provisions applied.
61 I do not consider that this outcome gives rise to an uncertain or inconvenient result. This conclusion is the product of the application of the statutory test to the vehicle in question. When this task is performed, in my view, the answer to the statutory question is clear.
62 The Plaintiff's appeal against conviction must fail.