Plaintiffs v Defendant

Plaintiffs v Defendant - [2011] VSC 199 - VSC 2011 case summary — Zoe

[25]

"181B Demerits Register

(1) The Corporation must keep a Demerits Register and must record in the Register the demerit points -

(a) that each tow truck licence holder incurs; and

(b) that each holder of an accident towing driver authority incurs; and

(c) that each person who does not hold a tow truck licence would have incurred if the person had held a tow truck licence; and

(d) that each person who does not hold an accident towing driver authority would have incurred if the person had held such an authority.

(2) The circumstances in which demerit points are incurred, and the number of demerit points that are to be incurred in any particular circumstance, are as set out in the regulations.

(3) The Corporation must immediately suspend for 1 month -

(a) the tow truck licence of any person who incurs 6 or more demerit points within any 3 year period in his, her or its capacity as the holder of the licence;

(b) the accident towing driver authority of any person who incurs 6 or more demerit points within any 3 year period in his or her capacity as the holder of an accident towing driver authority.

(4) The Corporation must immediately suspend for 3 months -

(a) the tow truck licence of any person who incurs 12 or more demerit points within any 3 year period in his, her or its capacity as the holder of the licence;

(b) the accident towing driver authority of any person who incurs 12 or more demerit points within any 3 year period in his or her capacity as the holder of an accident towing driver authority.

(5) The Corporation must immediately suspend for 2 years -

(a) the tow truck licence of any person who incurs 18 or more demerit points within any 3 year period in his, her or its capacity as the holder of the licence;

(b) the accident towing driver authority of any person who incurs 18 or more demerit points within any 3 year period in his or her capacity as the holder of an accident towing driver authority.

(5A) A reference in subsections (3), (4) and (5) to demerit points incurred in a person's capacity as the holder of a licence includes a reference to demerit points that have been recorded in respect of the person under subsection (1)(c).

(5B) A reference in subsections (3), (4) and (5) to demerit points incurred in a person's capacity as the holder of an accident towing driver authority includes a reference to demerit points that have been recorded in respect of the person under subsection (1)(d).

(6) The regulations may set out circumstances in which the Corporation may cancel demerit points.

(7) The Corporation must notify in writing any person who incurs any demerit points that the demerit points have been recorded against the person in the Register and must do this as soon as is reasonably possible after the recording occurs.

(8) The fact that demerit points are recorded against a person is not admissible in evidence in any court proceedings.

(9) Nothing in this section prevents the Corporation from separating the Register into 2 or more parts and from separately administering each part.

(10) On the transfer of a tow truck licence, any demerit points that have been recorded against the holder of the licence under this section are automatically transferred to the new holder of the licence (regardless of whether or not the points were recorded against the person while he, she or it held the licence).

(11) If an accident towing driver authority expires while it is suspended under this section, the person who held the authority is not eligible to hold another accident towing driver authority until the expiry of the period of suspension that applied to the expired authority."

[28]

"37 How demerit points are incurred

(1) In this regulation -

appropriate number of demerit points for a relevant offence means the number of demerit points set out in Column 3 of Schedule 2 for that offence;

relevant offence means an offence described in Columns 1 and 2 of Schedule 2 or a corresponding offence against the law of another State or Territory.

(2) For the purposes of section 181B(2) of the Act, a person incurs demerit points if the person -

(a) is convicted or found guilty of a relevant offence; or

(b) pays the penalty specified in an infringement notice issued for a relevant offence.

(3) The licensing authority must maintain the Register in a manner that records points incurred by tow truck licence holders separately from points incurred by the holders of accident towing driver authorities.

(4) For the purpose of ascertaining the total number of demerit points against any person, points recorded against a person as the holder of an accident towing driver authority are not to be added to points recorded against that person as the licence holder.

(5) For the purpose of working out the total number of demerit points for any licence holder, the demerit points are to be accumulated individually against the licence applicable to the vehicle used in the commission of each offence.

(6) Demerit points are incurred for a relevant offence on -

(a) the date on which the amount of the penalty specified in an infringement notice is paid; or

(b) if the amount of the penalty specified in an infringement notice is not paid and notice of objection is not given within the time specified in the notice, the date on which the period specified in the notice as the time for payment expires; or

(c) in any other case, the date on which the person was convicted or found guilty.

38 Notice of recording of demerit points

A notice under section 181B(7) of the Act must contain -

(a) details of the tow truck licence or registration number;

(b) details of any accident towing driver authority and driver's licence held by the person;

(c) particulars of the offence including the date of the offence and the number of demerit points recorded in respect of the offence;

(d) particulars of any demerit points previously recorded against the person.

Part 8 - General

39 Expiry

These Regulations cease to have any force or effect on 14 November 2008."

[30]

"S 3 Definitions

(1) In this Act -

...

accident towing demerit point means a demerit point incurred in accordance with regulations made under this Act;

...

S 164 Demerits Register

VicRoads must keep an Accident Towing Demerits Register and must record in the Register the accident towing demerit points that a person incurs.

S 231 Repeal of Division 8 of Part VI, Tow Trucks

Division 8 of Part VI of the Transport Act 1983 is repealed.

Schedule 3

Transitional provisions for new accident towing services scheme

1 Definitions

In this Schedule -

commencement day means the day on which Part 9 of this Act commences;

disqualified person, in respect of -

(a) tow truck driver accreditation, means a person in respect of whom, if the person were to be an applicant for tow truck driver accreditation, VicRoads would be required to refuse accreditation under section 107; or

(b) towing operator accreditation, means a person in respect of whom, if the person were to be an applicant for a towing operator accreditation, VicRoads would be required to refuse the accreditation under section 66(1);

old Act means the Transport Act 1983 as in force immediately before the commencement day;

old accident towing licence means an accident towing licence, within the meaning of Part VI of the old Act, being a licence that is in force immediately before the commencement day;

old demerits register means the register of demerit points kept by the Secretary under section 181B of the old Act as in force immediately before the commencement day;

old driver authority means an accident towing driver authority that has been issued under section 182B of the old Act and that is in force immediately before the commencement day;

old heavy accident tow truck towing licence means a heavy accident tow truck towing licence, within the meaning of Part VI of the old Act, that is in force immediately before the commencement day;

old limited tow truck licence means -

(a) a heavy accident towing licence within the meaning of Part VI of the old Act; or

(b) an accident towing licence within the meaning of Part VI of the old Act -

that is in force immediately before the commencement day and that is held by a relevant agency;

Secretary means the person who is, for the time being, the Department Head (within the meaning of the Public Administration Act 2004) of the Department.

2 Tow Truck Driver Authorities

Sch. 3

A person who was, immediately before the commencement day, the holder of an old driver authority -

(a) who is not a disqualified person; or

(b) who is a disqualified person who has been determined to be eligible by VicRoads under clause 10(1)(a) -

is taken to be the holder of a tow truck driver accreditation that is taken to -

(c) continue in force for the remainder of the period of the old driver authority; and

(d) be subject to the same conditions as those that applied to the old driver authority immediately before the commencement day, to the extent that those conditions are not inconsistent with this Act.

3 Accident towing licences

(1) A person who was, immediately before the commencement day, the holder of an old heavy accident tow truck towing licence is taken to be the holder of a heavy tow truck licence -

(a) for which the tow truck, to which the licence applied immediately before the commencement day, is taken to be the specified tow truck for the licence; and

(b) that -

(i) is taken to continue in force for the remainder of the period of the old licence; and

(ii) is taken to be subject to the same conditions as those that applied to the old licence immediately before the commencement day, to the extent that those conditions are not inconsistent with this Act or regulations made under this Act; and

(iii) in the case of such a licence that is an old limited tow truck licence, is taken to be a limited tow truck licence.

(2) A person who was, immediately before the commencement day, the holder of an old accident towing licence is taken to be the holder of a regular tow truck licence -

(a) for which the tow truck, to which the licence applied immediately before the commencement day, is taken to be the specified tow truck for the licence; and

(b) that -

(i) is taken to continue in force for the remainder of the period of the old licence; and

(ii) is taken to be subject to the same conditions as those that applied to the old licence immediately before the commencement day, to the extent that those conditions are not inconsistent with this Act or regulations made under this Act; and

(iii) in the case of such a licence that is an old limited tow truck licence, is taken to be a limited tow truck licence.

4 Operator accreditations

A person who was, immediately before the commencement day, the holder of an old heavy accident tow truck towing licence or the holder of an old accident towing licence -

(a) who is not a disqualified person; or

(b) who is a disqualified person who has been determined to be eligible by VicRoads under clause 10(1)(b) or 10(1)(c) -

is taken to be the holder of a towing operator accreditation that is to be taken to remain in force for a period of 12 months from the commencement day, unless sooner cancelled or suspended under this Act.

5 Demerit points

If, immediately before the commencement day, a person is recorded in the old demerits register as having incurred demerit points, the demerit points so recorded are taken to be accident towing demerit points within the meaning of this Act incurred by that person and, for the purposes of this Act, the point in time at which the demerit points have been incurred is to be taken to be the same point in time as that which applied under the old Act.

6 Determination of tow truck charges

A determination of the Minister that has been made under section 184A of the old Act, and that is in force immediately before the commencement day, is taken to be a determination made under section 211 and may be amended or revoked accordingly.

7 Continuation of operation of regulations

If Part 9 of this Act commences before 14 November 2008, despite that commencement, Part 4 of the Transport (Tow Truck) Regulations 2005, as in force immediately before that commencement is to be taken to continue in force until 14 November 2008, as if the Regulations were made under this Act, and the following provisions apply -

(a) the Regulations may be amended or revoked as if they were made under this Act;

(b) in the Regulations -

licensing authority is to be taken to mean VicRoads.

10 Determinations of eligibility

(1) VicRoads may determine that -

(a) the holder of an old driver authority who is a disqualified person in respect of tow truck driver accreditation is eligible to be taken to be the holder of a tow truck driver accreditation; or

(b) the holder of an old heavy accident tow truck towing licence who is a disqualified person in respect of towing operator accreditation is eligible to be taken to be the holder of a towing operator accreditation; or

(c) the holder of an old accident towing licence who is a disqualified person in respect of towing operator accreditation is eligible to be taken to be the holder of a towing operator accreditation.

(2) VicRoads must -

(a) refuse an application for a determination under subclause (1)(a) unless VicRoads is satisfied that the applicant has demonstrated that there are exceptional circumstances that make the determination appropriate having regard to the driver accreditation objective.

(b) refuse an application for a determination under subclause (1)(b) or (c) unless VicRoads is satisfied that the applicant has demonstrated that there are exceptional circumstances that make the determination appropriate having regard to the industry accreditation objective.

(3) In making a determination under subclause (1) VicRoads may have regard to all or any of the following matters -

(a) the nature and gravity of any relevant offence or alleged offence and its relevance to the activities in respect of which accreditation is sought; and

(b) the period of time since the offence or alleged offence was committed or was alleged to have been committed; and

(c) if there has been a finding of guilt or a conviction, whether the finding of guilt or the conviction was recorded; and

(d) if there has been a finding of guilt or a conviction, the sentence (if any) imposed for the offence; and

(e) the age of the applicant or nominated person or relevant person when the offence or alleged offence was committed or was alleged to have been committed; and

(f) if there has been a finding of guilt or a conviction, whether or not the conduct that constituted the offence has been decriminalised since the offence was committed; and

(g) the behaviour of the applicant or nominated person or relevant person since committing the offence or since the offence was alleged to have been committed; and

(h) the likelihood of the applicant or nominated person or relevant person committing an offence in the future, in particular, any future threat to persons involved in accidents or the owners of accident damaged motor vehicles; and

(i) any information given by the applicant, nominated person or relevant person; and

(j) any other matter that VicRoads considers relevant.

(4) A person who is the holder of an old driver authority, an old heavy accident tow truck towing licence or an old accident towing licence may apply to VicRoads for a determination under subclause (1).

(5) An application under this clause must be made before the commencement day.

(6) So far as is necessary to give effect to this clause before the commencement day, words and phrases used in this clause have the same meaning as they would have if the remaining provisions of the Act were in operation."

[59]

Before the introduction of the provisions which stand in the Commonwealth statutes as sec. 8 of the Acts Interpretation Act 1901-1930, the repeal of an Act of Parliament put an end to it as a source of liability, whether arising out of acts or omissions, before or after its repeal.

"The general rule of law is that a repealed statute cannot be acted upon after its repeal, although all matters that have taken place under it before its repeal are valid and cannot be called in question" (per Lord Campbell C.J., R. v Inhabitants of Denton). "What has been perfected under operation of the statute is not to be disturbed; but if the statute be necessary for any farther step, it must be in force at the time of taking that farther step" (per Coleridge J.). "I take the effect of repealing a statute to be, to obliterate it as completely from the records of the Parliament as if it had never been passed; and it must be considered as a law that never existed, except for the purpose of those actions which were commenced, prosecuted, and concluded whilst it was an existing law" (per Tindal C.J., Kay v Goodwin). "It has long been established, that, when an Act of Parliament is repealed, it must be considered (except as to transactions past and closed) as if it had never existed" (per Lord Tenterden C.J., Surtees v Ellison).

Thus a liability to punishment for contravention of a penal statute did not continue after the repeal of the enactment which imposed it unless expressly saved by the repealing statute.

"The offences committed before such repeal, and the proceedings thereupon are discharged by such repeal, and cannot be proceeded upon after such repeal" (Hale, History of the Pleas of the Crown, vol. i., p. 291). The doctrine of the common law is that a right conferred and a duty imposed by statute subsisted only while the statute remained in operation as a law. This doctrine appears to be applicable to subordinate legislation. When the regulation "ceases to have effect" how can a liability which arises under it, and depends upon it alike for its origin and continuance remain enforceable? It is only because the regulation had "effect" as a law that the liability could continue. The power to make regulations is not a mere discretionary authority to determine when and how the statute itself shall operate. It is not as if the Act of Parliament alone imposed a liability for failure to conform to an executive or administrative direction. The regulation is a real exercise of subordinate legislative authority. In my opinion, the result is that upon the disallowance of the regulation it can no longer be relied upon as a source of liability. Thus, after a regulation has been disallowed, no one is liable to conviction for an offence committed while it was in force. His liability ceases when the law is revoked that imposed it. But if he has already been convicted, then because his liability has merged in the conviction, it no longer depends upon the law under which it arose, and it does not lapse with the revocation of the law. The conviction has become the source of his liability for his offence, and the conviction continues in force because its operation does not depend upon the law creating the offence, but upon the authority belonging to a judgment or sentence of a competent Court.

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