Moujalli v Roads and Maritime Services

Applicable legislation

1. Section 15 of the Tow Truck Industry Act 1998 (TTI Act) creates an offence of carrying on a business as a tow truck operator without a tow truck operator's licence authorizing the kind of towing work carried on by the person in the course of that business.
2. Section 20(2)(a) of the TTI Act provides as follows: 20 Licence conditions (1) A licence may be granted subject to such conditions as may be specified in the licence. (2) In addition to the conditions specified in a licence, a licence is subject to the following conditions: (a) the licensee must take all reasonable precautions to prevent loss of or from, or damage to, any motor vehicle that: (i) is towed by a tow truck operated under the licence, or (ii) is being held in the licensee's holding yard, or (iii) is otherwise under the control of the licensee,….
3. Clause 36 of the Tow Truck Industry Regulation 2008 contains further requirements: 36 Security requirements (1) Except as provided by subclause (2), a licensee must ensure that any holding yard of the licensee: (a) is surrounded by a security fence that is not less than 2 metres high and that has gates with locks, and (b) has flood lighting installed, and (c) has an approved security alarm system installed. Maximum penalty: 5 penalty units. (2) RMS may, by notice in writing, exempt a licensee from any requirement under subclause (1). Such an exemption may be granted subject to the condition that the licensee comply with a requirement specified in the notice. (3) A licensee must ensure that the security fence surrounding any holding yard of the licensee is properly maintained and, if damaged, is repaired as soon as possible. Maximum penalty: 5 penalty units.
4. The parties agreed that the issue in the present case is whether the proposed holding yard at 565 Woodville Road complies with the requirements of cl 36 of the Regulation and, specifically, whether the holding yard may be contained within an area secured as described in cl 36, or whether the holding yard itself must be secured as described in that clause.

The evidence

1. The respondent tendered two statements signed by the respondent's investigations officer, Mr O'Toole, dated respectively 16 January 2017 (exhibit R2) and 10 February 2017 (exhibit R1). In exhibit R1, Mr O'Toole stated inter alia that the premises at 565 Woodville Road consist of numerous types of storage units and an outside area shared by numerous clients of Kennard's. He stated that other than the individual storage units, there is no specific large area that would comply with the requirements of cl 36.
2. In the course of his inspection on 28 November 2014 he noted that in the 565 Woodville Road site, in a large yard on the south side of the complex were stored a group of motor vehicles in various states of damage. Some had the towing green sticker attached to them. The front gate to the area was open, and no persons were seen in the vicinity. There was also a damaged Moujalli tow truck parked in the area. Inspection of the towing notices showed towed dates of 24 November 2014 and 27 November 2014, which Mr O'Toole said showed that the applicant was using the premises as an unauthorized holding yard.
3. On his 2 December 2014 inspection of 565 Woodville Road, he observed that new vehicles were in the premises and some vehicles from the previous visit had been removed. That fact also showed, Mr O'Toole stated, that the applicant was using the premises as an unauthorized tow truck holding yard.
4. Following the 7 January 2015 inspection by another RMS officer, Mr O'Toole again concluded that the premises did not comply with the statutory requirements. He made further enquiries that showed that the applicant was a constant user of 565 Woodville Road as his unauthorized holding yard for the storage of motor vehicles removed and stored as a result of motor vehicle accidents.
5. In exhibit R1, Mr O'Toole stated inter alia that he again attended the Kennard's Self Storage complex at 565 Woodville Road on 25 January 2017, specifically inspecting the yard at the south-western area of the complex. The front electronic gate of the area was closed, but he could see into the premises. He saw a large boat in a carry support immediately to the left as one looked into the complex. He also saw a number of buses within the yard, together with containers, caravans, another boat on a trailer and a tipper truck. There were also three damaged motor vehicles, together with tyres, in the immediate area to the right of the entry gate. He took photographs of the area, which were attached to his statement.
6. On 31 January 2017, Mr O'Toole again attended the same area within 565 Woodville Road. On that occasion the gates were again locked. He then observed that similar items were stored within the complex as on 25 January 2017, but there were further buses parked within the complex. He took further photographs of the area, which were also attached to his statement. While at the premises, he attended the Kennard site office, where he served a s 78 notice, as a result of which he had a conversation with Darryl Hodgson, operations manager of Kennard's Storage Management Pty Ltd on 1 February 2017. On 6 February 2017 Mr O'Toole received an email from Mr Hodgson attaching an undated reply to the s 78 notice. That reply was also attached to his statement and is described below.
7. Mr O'Toole further stated that he had undertaken over 350 holding yard inspections of various tow truck operators throughout New South Wales and interstate. The main issue in relation to those inspections is the safety and security of the motorists' motor vehicle until arrangements can be made by the owner or agent to remove the vehicle from the yard.
8. On the basis of his experience, the premises at 565 Woodville Road do not comply with holding yard requirements. The site has an electronic gate fitted with access available to the lessees of the area. Access to the premises is open to any one of the 20 or more lessees, or any person who is given access by any of the lessees in relation to this area, which is called yard Y. That meant, in Mr O'Toole's opinion, that the requirements of s 20 could not be complied with as full safety and security of the vehicles could not be guaranteed.
9. On two earlier visits to the premises, he had found the gates open and was able to walk in and about the premises without being challenged about his purpose for being inside the yard. That was also the case for another RMS authorized officer on his visit to the premises. The dynamics of the premises had changed on each occasion he had attended. He had observed persons walking about the yard or present inside the building, which has direct access to the yard. Access to the building is by the electronic gate only.
10. The number of vehicles and the amount of other property inside the yard and their respective locations had changed on each of his visits. Vehicles he had seen inside yard Y which he had identified by the green towing notices attached to them as being in Mr Moujalli's custody had not been positioned together but had been scattered about the yard. The fact that the vehicles were not accommodated together, and the fact of persons walking about the yard, meant that security could not be assured.
11. Exhibit R2 mainly deals with the history of the matter, including the interim proceedings in this tribunal, and also contains Mr O'Toole's observations on his visits to the premises at 565 Woodville Road in January 2017. It attaches 29 pages of photographs of those premises taken by Mr O'Toole and which are consistent with his two written statements.
12. Mr O'Toole was not required for cross-examination.

Mr Hodgson's evidence

1. As was noted above, on 6 February 2017 Mr O'Toole received an email from Mr Hodgson attaching a letter setting out certain information (the letter is undated, but can be presumed to be dated 6 February, like the email to which it was attached).
2. In it Mr Hodgson stated inter alia that self storage licensed to a customer is the subject of a storage agreement. He said that some key points of the arrangement were that the customer agrees to the self-storage agreement terms; storage fees must be paid in advance; in the case of storage units (some of which exist within the yard in question) the customer purchases a lock, secures the space and keeps the keys. In regard to open vehicle storage, the customer must secure the vehicles by locking them. The space is generally accessed by the customer entering his or her PIN number into the gate keypad, which opens the gate.
3. Yard Y has over 25 storage spaces or units. Current occupants, other than Secure Towing, include 20 or more other customers, each one of whom has signed a separate storage agreement. The customers include private citizens storing boats or caravans, a collector of 1970s-era American cars, a print distribution business, a construction company that stores its truck and an alcoholic beverages company that stores its promotional vehicle.
4. In oral evidence in chief by telephone at the hearing Mr Hodgson reiterated the above points and added that he did not know how many persons had access to the yard through each of the company's customers, as the customer controls access. The complex is not staffed on a 24 hours a day basis, but between 8:30 and 6:00 pm on weekdays and somewhat shorter periods at weekends. The security cameras are not continually monitored.
5. In cross-examination the witness said that Y yard was enclosed by fences 2.1 metres high with access via a gate controlled by a 6-digit PIN (in most cases). The gate will not open if the wrong number is keyed in and such incidents are automatically logged. He was not sure whether the yard was equipped with an anti-tailgating feature, as some gates in the complex that are used by large trucks are not suitable for that system. The cameras installed in Y yard to monitor the area are intended as a deterrent, and also to aid investigations in the event of a break-in. They are motion activated and record the scene after detecting movement. They use a wide-angle lens and would show the entrance gate to the yard. All users must key in their PIN and all have a storage agreement. In the 12 years he has been operations manager there have been no more than 4 or 5 break-ins, attempts to break in or stealing. There has been only one complaint about property being damaged by another user, who was a rather eccentric type, and his agreement was cancelled.

Applicant's submissions

1. The applicant filed written submissions in which he contended inter alia that the requirements of cl 36 were in fact satisfied. The area was surrounded by a security fence and there was a security gate to that area. No issue had been taken by the respondent in relation to the second requirement, that there be floodlighting. Finally, the area was secured also by an alarm system. The sole issue in dispute appeared to be whether a holding yard might be contained within an area secured as described in cl 36, or whether the yard itself must also be secured as prescribed in that clause. It was important to note that a licence holder was required by the Act to take "all reasonable precautions" to prevent loss or damage to the vehicles held, but the Act placed no absolute duty on the licence holder. Thus the duty was one that is grounded in reasonableness. As the regulations were made under the Act, the requirements imposed by the regulations must be examined through the prism of reasonableness that the Act provides.
2. The construction of cl 36 advanced by the applicant accorded with the requirements of the legislation. The holding yard was secured. While other persons might have access to the area that the applicant uses, nowhere does the legislation require that no person other than the licence holder and his drivers may have access to the holding yard. If that had been intended, it would have been easy for the legislature so to provide.
3. Indeed, the respondent's own policy document, the Tow Truck Holding Yard Policy (exhibit R3) did not assume that the holding yard must be accessible by the licence holder alone. The policy admits of the possibility that a licensee could share the yard with another business. Paragraph 3(a) of the policy stated that "The licensee must take all reasonable precautions to prevent the loss of or from, or damage to any motor vehicle that is being held in the licensee's holding yard or in a shared holding yard with another operator or business,…. (applicant's emphasis).
4. Nor does the regulation require that the yard be secured at all times, or that the security mechanisms must operate at all times. That also was a reflection of the requirement of reasonableness in the scheme. The suggestion that persons who lease space in the Y yard might tamper with vehicles stored there was fanciful. Not only did such persons store items there for themselves, and therefore had a legitimate reason for being in the area, but the evidence showed that the area was monitored. To take an extreme example, if the applicant employed an armed security guard to patrol 24 hours a day, it could not be said that he was not taking precautions to prevent loss or damage to stored vehicles as required by s 20. Yet on the respondent's argument, the applicant should be denied a licence. The respondent's position was therefore inconsistent with the legislation and, indeed, its own policy document. Consequently the holding yard should be approved.
5. Alternatively, in light of the significant security mechanisms at the 565 Woodville Road premises, the tribunal should find that the area is in fact secure, notwithstanding any failure to comply strictly with cl 36, and exercise its power under cl 36(2) to exempt the applicant from those requirements.
6. In oral submissions at the hearing Mr Lange reiterated those points, stressing that s 20(2)(a) stipulated only reasonable precautions and should be read as governing the requirements in cl 36. Only one fence is required in yard Y because of the other security measures in place. The outer fence is 2.1 metres high, more than satisfying the height requirement, and there are CCTV cameras, even though they are not required by the legislation. A 6-digit PIN is required and it is likely that an anti-tailgating system is in operation.
7. The CCTV cameras permit reconstruction of events if a break-in occurs, but they are also a deterrent. Mr Hodgson said that in his 12 years as operations manager, they had been only four or five break-ins and one case where a tenant damaged the property of other tenants. Consequently it may be concluded that the precautions taken actually work in practice. They would effectively prevent any looting of parts from damaged vehicles, as was evidenced by the fact that there had been no instances of it.
8. The legislation did not require absolute security and there was no strict liability offence relating to the duties of tow truck operators towards the owners of vehicles in their holding yard. The respondent's own policy document (exhibit R3) itself contemplated in para 3(a) that a holding yard might be shared with another operator or "business", which might not be another tow truck operator.
9. Thus there was no requirement for exclusivity of access for the licensee. In this instance other licensees do have access to the yard but the general public does not. Persons using the yard would need to have a legitimate reason to be there and were therefore unlikely to damage the vehicles being stored. Thus cl 36 did not preclude the holding yard arrangements in the present matter and, alternatively, the tribunal could exempt the applicant from the requirement for a special fence, subject to a condition that Kennard security arrangements continue.
10. In reply the applicant submitted that the legislation contained no concept of an unauthorized person, but was predicated on reasonable precautions to prevent loss. Restricting access by means of an additional fence might be helpful, but it is not the only possible way of ensuring security. The cameras could not prevent theft, but they performed a deterrent function that reduces risk but that the legislation itself does not require. The respondent had submitted that the tribunal would need evidence of who actually has access to yard Y, but para 13 of Mr Hodgson's letter listed the reasons why persons attended the premises.
11. As para 3(a) of the policy (exhibit R3) did not require that the other "business" be owned or operated by the tow truck operator personally, he or she could be sharing access with any other kind of business.

Consideration

1. This application turns on a relatively confined issue, namely whether the applicant's proposed holding yard at 565 Woodville Road satisfies the requirements of s 20 of the TA Act and cl 36 of the regulation even though it is not surrounded by a security fence other than the fence enclosing the whole of yard Y, which is accessible at least to other Kennard storage licensees and persons authorized by them.
2. Neither party cited any cases on the point, or concerning holding yards generally, and the matter appears to be a case of first impression.
3. The respondent RMS has the function of regulating the tow truck industry in accordance with the TTI Act and the regulations. The Act follows a line of previous legislation commencing with the Tow Truck Act 1967 and was enacted in response to the recommendations of a review known as the Anderson Report (Review of the Tow Truck Industry New South Wales, Hon. Peter Anderson, Final Report, December 1998), which concluded that despite earlier legislative attempts to reform it, the tow truck industry was still beset with a range of problems including corruption, intimidation, property damage, restrictive trade practices and violence (including firearms offences and murder).
4. In his second reading speech on the 1998 Bill the Minister described the prevailing circumstances in very similar terms: "The findings of the [Anderson] report were disturbing. Mr Anderson described an industry infiltrated by criminal elements and pervaded by fear of intimidation, physical harm and property damage…. That means that motorists are paying higher insurance premiums than would be the case in an industry that is better regulated" (Adassourian v Roads and Traffic Authority [2013] NSWADT 6, [64], affd [2013] NSWADTAP 46).
5. Section 15 of the TTI Act prohibits carrying on a tow truck operator business without an operator's licence authorizing the kind of towing work carried on. Under s 17 an application for a licence must inter alia "(c) specify each place intended to be used as a holding yard in carrying on that business…." Section 20 prescribes a number of mandatory conditions for all licences, including three requirements in relation to holding yards. The most relevant one for present purposes is in s 20(2)(a): "the licensee must take all reasonable precautions to prevent loss of or from, or damage to, any motor vehicle that:…(i) is being held in the licensee's holding yard".
6. The regulation-making power in s 105 empowers the governor to make regulations for or in respect of any matter required or permitted by the Act to be prescribed or that is necessary or convenient for carrying out or giving effect to the Act (s 105(1)). Subsection (2) then reads, "In particular, the regulations may make provision for or with respect to the following matters:…(d) holding yards". Clause 36 of the regulation, which has been set out above, presumably rests on that sub-paragraph of the regulations power. It was not suggested in argument that the clause was ultra vires.
7. The phrase "holding yard" is defined by s 3(1) as follows: "holding yard means a place used for the purposes of the safekeeping of towed motor vehicles".
8. The interpretation of New South Wales legislation is guided inter alia by s 33 of the Interpretation Act 1987: In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object.
9. The TTI Act contains no objects clause, but its policy and purpose plainly emerge from the legislative history and the Minister's second reading speech. They are ridding the industry of criminal elements and practices, safeguarding public safety and protecting property. Specifically, the purpose of the holding yard provisions is made clear by the definition in s 3(1) of a holding yard as a place used for the purposes of the safekeeping of towed motor vehicles. The primary purpose of holding yards is thus the security of vehicles removed from accident scenes. It follows that a security fence as prescribed by cl 36(1)(a) should normally be one that is capable of ensuring the security of the stored vehicles. That conclusion is reinforced by cl 36(3), which requires the licensee to ensure that the fence is properly maintained and, if damaged, is repaired as soon as possible.
10. The applicant submitted that yard Y satisfied those requirements as the other licensees with storage units or space in it, and any other persons authorized by them, had a legal right to be there and as they were themselves storing goods in the yard or in a unit, they would be unlikely to interfere with any of the stored damaged vehicles. That would appear to be presuming rather too much. Pursuant to the license agreements, the 20 or more licensees have control over access, and there is no evidence as to the number of other people to whom they have given their PIN code. Some persons who would not think of breaking into an intact motor vehicle might feel tempted to remove, say, a mirror or a taillight from a badly damaged vehicle, and some of those persons might yield to the temptation. The respondent submitted that the evidence showed that there had been only four or five actual or attempted break-ins and one theft, but gave no details of the property taken in the theft or the circumstances of its removal.
11. Further, parts could have been removed from a damaged vehicle without the necessity for a break-in. A wrongdoer could simply enter at a time when the gates were open, and in any event the absence of a mirror, a taillight, or perhaps an alternator, from a wrecked car might not be noticed. The surveillance cameras would have a deterrent value and would assist in any investigation, but they are not monitored and their recordings might not be referred to if the absence of a part had not been noticed. CCTV cameras can also be defeated by such devices as wearing a "hoodie".
12. The unchallenged evidence of Mr O'Toole, moreover, was that on three occasions when RMS officers inspected the premises, the gate was open and there was no-one in attendance. The internal review noted that an individual leaving the yard at the time of the 7 January 2015 inspection confirmed that he was not an employee of the applicant, that he had regular access to the yard, that he parked his truck there after work hours and his personal car there during work hours, and that he was surprised to find the yard locked during the day because he can normally just drive in. That would conflict with the RMS holding yard policy (exhibit R3), which states that an approved holding yard must not "expose stored motor vehicles to likely damage or access by unauthorised persons".
13. The applicant submitted that there was no legislative foundation for excluding access by "unauthorised persons", nor did the legislative scheme require exclusivity of access. He further pointed out that para 3(a) of that policy document contemplates the possibility of a licensee's having "a shared holding yard with another operator or business" and that such "business" was not required to be in any way related to the licensee.
14. When evaluating that line of argument one can draw assistance from the observations of Lord Reid in Gill v Donald Humberstone & Co. Ltd [1963] 3 All ER 180, 183. That case dealt with a regulation, but his Lordship's remarks apply a fortiori to a policy document: I find it necessary to make some general observations about the interpretation of regulations of this kind. They are addressed to practical people skilled in the particular trade or industry and their primary purpose is to prevent accidents by prescribing appropriate precautions…. They have often evolved by stages as in the present case, and as a result they often exhibit minor inconsistencies, overlapping and gaps. So they ought to be construed in light of practical considerations, rather than by a meticulous comparison of the language of their various provisions, such as might be appropriate in construing sections of an Act of Parliament….[D]ifficulties cannot always be foreseen, and it may happen that in a particular case the requirements of a regulation are unreasonable or impracticable; but, if the language is capable of more than one interpretation, we ought to discard the more natural meaning if it leads to an unreasonable result, and adopt that interpretation which leads to a reasonably practicable result.
15. If one adopts Lord Reid's approach to exhibit R3, the reference to "unauthorised persons" can be seen as a sensible injunction addressed to practical people working in the industry, and for the same reason "another operator or business" should be read as referring to another tow truck operator or some other business involved in dealing with damaged motor vehicles, such as a body repair shop. That approach also conforms to the purposive approach to interpretation required by s 33 of the Interpretation Act.
16. Wider s 33 considerations also favour the respondent's case in this application. Licence refusals, cancellations and other orders serve the public interest by establishing a regulatory structure for an industry that not only directly protects the public from harm, but also helps to preserve public confidence in that industry and its members by signalling that those whose activities or facilities do not meet the required standards will not be permitted to operate in the industry: Health Care Complaints Commission v Do [2014] NSWCA 307, [34] - [39]; Nazir v Roads and Maritime Services [2016] NSWCATOD 124, [43] - [44]. That objective must implicitly be one of the purposes of this legislative scheme and is relevant to the interpretation of its provisions.
17. As the tribunal pointed out in Naziry v Director-General, Ministry of Transport [2004] NSWADT 40 in the context of taxicab licensing, decision-makers must so far as possible place themselves in the position of a member of the public who might use the applicant's services and ask whether that member of the public, knowing of the applicant's record, would object to the applicant as the driver of the taxi.
18. Mutatis mutandis, therefore, the tribunal should so far as possible place itself in the shoes of a person whose car has just been damaged in an accident and ask itself whether the motorist would object to the vehicle being stored in a holding yard similar to the one previously operated, and now sought to be operated, by the applicant at 565 Woodville Road. In my view the answer is yes. Not only is yard Y accessible to the 20 or more other licensees and an unknown number of other persons who have been given the PIN code by a licensee, but the evidence suggests that there is nothing to prevent any licensee or PIN code holder from leaving the gate open to all comers. On three inspection visits RMS officers found the gates open and were able to walk around the yard unchallenged. The user interviewed by the RMS officer on 7 December 2015 said he regularly parked his car in the yard during working hours and his truck after hours, and had been surprised to find the gate locked on that occasion, as normally during the day he could simply drive in. The yard's security may thus be regularly compromised irrespective of the number of persons who possess the PIN code or their reasons for using the yard.
19. Nothing in the evidence suggests that the gate closes automatically after a vehicle or person has entered, and the fact that on three occasions RMS officers found it unlocked and were able to walk around the yard unchallenged supports the view that it does not. Mr Hodgson stated that some yards in the Kennard complex have an anti-tailgating feature on the gate that slowly closes it once the interrupted beam is completed again, but did not know whether yard Y had such a feature. The evidence that the gate is regularly left open for long periods suggests that it does not. The applicant submitted that the regulation does not require the yard to be secured at all times, but a situation in which the yard is left open and unattended for substantial amounts of time cannot be regarded as secure, notably in light of cl 36(3)'s requirement that damaged security fences be repaired as soon as possible.
20. The applicant contended hypothetically that if an operator were to engage a 24-hour armed guard service for a yard it would in fact be secure even if the fence failed to comply with the regulation, which meant that the interpretation contended for by the respondent could lead to an absurdity. But that is not this case. The applicant also submitted that the legislation does not insist on perfect safety but only reasonable precautions, but a requirement for a locked and secure fence ensuring that persons having no business with the operator or the vehicles have no ready access to them can hardly be regarded as unreasonable. The definition of a holding yard in s 3(1), it will be recalled, is a place for the "safekeeping" of towed vehicles.
21. Taking for a moment, by analogy with Naziry, the standpoint of a motorist whose vehicle has just been damaged in an accident, it seems unlikely that a relatively insecure and often unattended facility such as yard Y would be regarded as satisfactory, especially if the vehicle were an expensive one, the parts for which can command substantial prices. A regulatory system permitting such arrangements would command little public confidence.
22. Nor is this a suitable case for an exemption under cl 36(2), for the reasons already given. There is no practicable condition that could be imposed by the tribunal on such an exemption, short of actually requiring the installation of a separate lockable fence for vehicles towed by the applicant. The suitability of such a fence would need to be assessed by the respondent itself.
23. I therefore find that the applicant's proposed holding yard at 565 Woodville Road, Guildford, does not comply with s 20 or cl 36. The decision under review should be affirmed.

Order

1. The decision under review is affirmed. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 April 2023