Duffy v Road Safety Authority and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Noonan
• Judgment Date: 21 September 2015
• Neutral Citation: [2015] IEHC 579
• Court: High Court
• Date: 21 September 2015

[2015] IEHC 579

THE HIGH COURT

[No. 248 J.R./2015]

Duffy v Road Safety Authority & Ors

JUDICIAL REVIEW

BETWEEN

MICHAEL DUFFY

APPLICANT

AND

ROAD SAFETY AUTHORITY, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

Local Government – Road and Safety – Commercial Vehicle Roadworthiness Regulations 2013 – Road Safety Authority (Commercial Vehicle Roadworthiness) Act 2012 – Certificate of Roadworthiness – Time barred actions

Facts: The applicant sought a declaration that the interpretation of the Commercial Vehicle Roadworthiness Regulations 2013 by the first named respondent was incorrect and that art. 5 and art. 9 of the said Reg. 2013 were unconstitutional. The applicant contended that notwithstanding the coming into force of the Regulations, he should be entitled to present his vehicle for testing to obtain the requisite certificate for at least 12 months.

Mr. Justice Noonan refused to grant the declaration to the applicant. The Court held that the applicant could not avail the ignorance of law as an excuse and the time limits contained in o. 84 of the Rules of the Superior Courts have the same status as the time limits found in primary legislation. The Court found that the applicant had repeatedly failed to comply with the statute as he had failed to get his vehicle tested on several occasions and thus, he would not be entitled for any relief.

1 JUDGMENT of Mr. Justice Noonan delivered on the 21st day of September, 2015

2 1. In the within proceedings, the applicant seeks:

3 (a) a declaration that the interpretation by the first named respondent (RSA) of the Commercial Vehicle Roadworthiness (Vehicle Testing) (No. 2) Regulations 2013 ( S.I. 347 of 2013) ("the Regulations") is incorrect with respect to the issuing of a certificate of roadworthiness for a vehicle 00CE2192 on the 20 ^th of February, 2015;

4 (b) A declaration that the applicant is entitled to a certificate of roadworthiness for a period of twelve months from the 20 ^th of February, 2015;

5 (c) A declaration that Articles 5 and 9 of the Regulations are unconstitutional;

6 (d) Damages;

7 (e) Ancillary relief

The Regulations

8 2. The Regulations came into operation on the 25 ^th of September, 2013. They were made by the Minister for Transport, Tourism and Sport in exercise of the powers conferred on him by the Road Safety Authority (Commercial Vehicle Roadworthiness) Act 2012. They gave effect to Directive 2009/40/EC of the European Parliament and of the Council of the 6 ^lh of May, 2009 as amended by Commission Directive 2010/48/EU of the 5 ^th of July, 2010.

9 3. The Regulations apply to specified classes of vehicles known as "CVR" vehicles, the acronym standing for commercial vehicle roadworthiness.

10 4. These proceedings concern in particular the following Regulations:

11 "Frequency of testing

12 5. A vehicle shall be submitted for testing in respect of each test due date. Test due dates

13 2 6.(1) Subject to Regulations 7, 8 and 9 the following shall be test due dates in respect of a CVR vehicle:

14 (a) the first test due date;

15 (b) in the case of a class of CVR vehicle of a class specified in column (2) of Schedule 1 at reference numbers 1 to 8 in column (1) [which include the applicant's vehicle], each subsequent anniversary of the first test due date…

16 (2) Subject to paragraph (3), the first test due date for a CVR vehicle is the first anniversary of its date of first registration…

17 Test due dates - certificate of roadworthiness in force

18 7. Notwithstanding Regulation 6, where on the commencement of these Regulations there is in force in respect of a CVR vehicle a certificate of roadworthiness issued under the Regulations of 2004 or the Regulations of 2013 the test due dates in respect of that vehicle shall be-

19 (a) the expiry date of such certificate of roadworthiness,

20 (b) in the case of a class of CVR vehicle of a class specified in column (2) of Schedule 1 at reference numbers 1 to 8 in column (1), each subsequent anniversary of that expiry date…

21 Test due dates - early testing

22 8. Where a CVR vehicle is submitted for CVR testing on a date ("testing date") falling more than one month before a test due date, the following shall be the test due dates for that vehicle:

23 (a) in the case of a CVR vehicle of a class specified in column (2) of Schedule 1 at reference numbers 1 to 8 in column (1), each subsequent anniversary of the testing date…"

24 Test due dates - late testing

25 3 9.(1) Where a CVR vehicle is submitted for CVR testing on a testing date more than one year after a test due date the next test due date in respect of that vehicle (in addition to the test due dates specified in Regulation 6, 7 or 8 as the case may be) shall be-

26 (a) the date falling 6 months after the testing date, or

27 (b) the next test due date under Regulation 6, whichever is earlier."

28 5. The scheme of testing the roadworthiness of commercial vehicles has been established for many years and an annual test for vehicles such as that owned by the applicant has long been a feature. Prior to the commencement of the Regulations however, commercial vehicles undergoing a test were issued with a Certificate of Roadworthiness (CRW) for a period of twelve months from the test date. Although in theory this required testing in consecutive twelve month periods, if the vehicle owner delayed in presenting the vehicle for testing for say three months after the expiry of the previous CRW, it could effectively "gain" an extra three months although of course if the vehicle was being used in a public place during that three months, the owner would be committing an offence.

29 6. The relevant authorities considered that this gave rise to a level of invidious discrimination against compliant commercial vehicle owners as against others who were not compliant.

30 7. Thus, the Regulations were brought into effect to address this apparent unfairness by resetting the test due date by reference to the anniversary of the vehicle's first registration. The clear purpose of this measure was to eliminate any perceived advantage in disobeying the law.

The Applicant's Vehicle

31 8. The applicant acquired the vehicle in question, a Toyota Land Cruiser jeep, new and it was first registered to him on the 21 ^st of February, 2000. It was tested from time to time thereafter although there were significant periods when it was "out of test". The last time the vehicle was tested prior to the commencement of the Regulations was on the 17 ^th of February, 2012 when it was in fact 408 days unlawfully out of test. On that occasion, the applicant received a CRW for twelve months which expired on the 16 ^th of February, 2013.

32 9. The applicant did not however present his vehicle for retest until the 15 ^th of January, 2014 at which time it had been unlawfully without a CRW for some eleven months. The vehicle failed the test on the latter date and was...