Part 4CChief executive’s powers for vehicles, loads or other things#

Division 1Definitions#

51GAADefinitions#

In this part—

control
control includes possession.
load
load includes any goods, equipment or thing— that is carried by, in or on a vehicle, or is attached to a vehicle, mentioned in section 51G; or that was carried by, in or on a vehicle or attached to a vehicle, on a road but has become separated from the vehicle.
moving expenses
moving expenses, for a removed thing, means actual expenses relating to 1 or more of the following acts— calling a service or towing vehicle to the removed thing on a road; moving the removed thing on a road; removing the removed thing from a road; storing the removed thing after it has been removed from a road; releasing a removed thing mentioned in paragraph (d) from storage; disposing of a removed thing mentioned in paragraph (c) other than by selling it.
removed thing
removed thing means a vehicle, load or other thing moved or removed under section 51G.
used
used, for something other than a vehicle, includes held in someone’s possession.

Division 2Moving vehicles, loads or other things#

51GMoving abandoned, or otherwise stationary, vehicle, load or other thing on road#

  1. (1)This section applies if—
  2. (a)any of the following applies—
  3. (i)a vehicle or load on a road is immobilised by a breakdown, collision or fuel shortage or is otherwise stationary;
  4. (ii)another thing that is not abandoned is placed or comes to rest on a road;
  5. (iii)the chief executive reasonably believes a vehicle, load or other thing on a road is abandoned; and
  6. (b)either—
  7. (i)the chief executive can not immediately find the person in control of the vehicle, load or other thing; or
  8. (ii)the chief executive can immediately find the person in control of the vehicle, load or other thing but reasonably believes the person is unable or unwilling to move the vehicle, load or other thing immediately.
  9. (2)The chief executive may take the steps that are reasonably necessary to move the vehicle, load or other thing on, or remove the vehicle, load or other thing from, the road.
  10. (3)If the chief executive asks a service or towing vehicle operator to move or remove the vehicle, load or other thing, the service or towing vehicle operator may take the steps that are reasonably necessary to move or remove it as requested.
  1. (4)However, for a vehicle, load or other thing mentioned in subsection (1)(a)(i) or (ii), the chief executive may take the steps mentioned in subsection (2) only if the chief executive reasonably believes it is necessary for the safety or convenience of people using the road.

Division 3Recovering moving expenses#

51IRecovering moving expenses#

  1. (1)The chief executive may recover as a debt the moving expenses for a removed thing incurred by the State under this part.
  2. (2)The moving expenses may be recovered from—
  3. (a)the person who was in control of the removed thing immediately before it was moved or removed; or
  4. (b)if the identity of the person mentioned in paragraph (a) can not be discovered—the removed thing’s owner, unless the removed thing was being used without the owner’s consent.
  5. (3)The moving expenses claimed under subsection (1) must be reasonable.
  6. (4)If moving expenses were incurred because of the paramount or high degree of importance given to moving or removing the removed thing on or from the road quickly as mentioned in section 51N(2)(a), a court must act on the basis that the expenses were reasonable.

51JNotice to owner#

  1. (1)As soon as practicable, but within 14 days after removing a removed thing from a road, the chief executive must give the owner of the removed thing a written notice—
  2. (a)stating that the removed thing has been removed; and
  3. (b)explaining how it may be recovered; and
  4. (c)stating that it may be sold if it is not recovered.
  5. (2)If the owner can not be identified or located within the 14 days, the notice may be given by publishing it in a newspaper circulating generally in the State.
  6. (3)The chief executive need not give the notice required by this section for a vehicle if—
  7. (a)the chief executive reasonably believes the vehicle is abandoned; and
  8. (b)either—
  9. (i)the proceeds of the vehicle’s sale are not likely to cover—
  10. (A)the moving expenses for the vehicle; and
  11. (B)the expenses incurred by the chief executive in selling the vehicle; or
  12. (ii)it is otherwise impracticable to give the notice.
  13. (4)The chief executive need not give the notice required by this section for a removed thing other than a vehicle if—
  14. (a)the chief executive reasonably believes the removed thing is abandoned; or
  15. (b)the proceeds of the removed thing’s sale are not likely to cover—
  16. (i)the moving expenses for the removed thing; and
  17. (ii)the expenses incurred by the chief executive in selling the removed thing; or
  18. (c)it is otherwise impracticable to give the notice.
  19. (5)In this section—
removed thing other than a vehicle
for subsection (4), includes anything, including the load of a vehicle, that has become separated from the vehicle during the exercise of powers under this part.
vehicle
for subsection (3), includes the vehicle’s load to the extent it has remained with the vehicle during the exercise of powers under this part.

51KReleasing removed thing#

  1. (1)The chief executive must release a removed thing that was removed from a road to its owner if—
  2. (a)the removed thing was used by a person without the owner’s consent immediately before it was removed; or
  3. (b)the removed thing was used by the owner or a person with the owner’s consent immediately before it was removed and the moving expenses for the removed thing have been paid.
  4. (2)Subsection (1) does not apply if the chief executive has disposed of the removed thing under section 51L or 51M.

51LDisposing of removed thing#

  1. (1AA)This section is subject to section 51M.
  2. (1)The chief executive may dispose of a removed thing removed from a road if—
  3. (a)the moving expenses for the removed thing are not paid within 2 months after a notice is given to the removed thing’s owner under section 51J; or
  4. (b)the chief executive decides under section 51J(3) or (4) not to give a notice to the removed thing’s owner and at least 2 months have passed since the chief executive made the decision.
  5. (2)Unless subsection (3) applies, the chief executive may only dispose of the removed thing by selling it.
  6. (3)If the sale proceeds of the removed thing are not likely to cover the moving expenses and sale expenses for the removed thing, the chief executive may dispose of the removed thing in the way the chief executive considers appropriate.

If the removed thing is sold, the sale proceeds must be applied in making payments in the following order—

  1. (a)the sale expenses for the removed thing;
  2. (b)the moving expenses for the removed thing;
  3. (c)if there is an amount owing to an entity under a security interest registered for the removed thing under the Personal Property Securities Act 2009 (Cwlth)—the amount owing under the security interest;
  4. (d)the balance to the owner of the removed thing or, if the owner can not be found, to the consolidated fund.

A secured party can not enforce any security interest in the proceeds of sale against an entity to whom an amount is payable under subsection (4)(a) or (b).

If the sale proceeds are less than the moving expenses and sale expenses for the removed thing, the difference is a debt payable to the State by the person who is liable under section 51I for the moving expenses.

The chief executive may waive all or part of the moving expenses and sale expenses.

Compensation is not recoverable against the chief executive or the State for a payment made under this section.

In this section—

sale expenses
for a removed thing, means the expenses reasonably incurred by the chief executive in selling the removed thing.
secured party
has the meaning given by the Personal Property Securities Act 2009 (Cwlth), section 10.

51MImmediate disposal in particular circumstances#

Despite any other provision of this part, the chief executive may dispose of a removed thing other than a vehicle when and in the way the chief executive considers appropriate if—

  1. (a)the chief executive reasonably believes the removed thing has been abandoned; or
  2. (b)the proceeds of any sale of the removed thing are unlikely to cover—
  3. (i)the moving expenses for the removed thing; and
  4. (ii)the expenses likely to be incurred by the chief executive in selling the removed thing; or
  5. (c)it is otherwise impracticable to retain the removed thing.

In this section—

removed thing other than a vehicle
see section 51J(5).

Division 4Other provisions#

51NProtection for persons exercising power under pt 4C#

This section applies to proceedings in relation to liability for breach of duty arising out of damage to a removed thing that happens when a person exercises power, or assists another person exercising power, under this part in relation to the removed thing.

The person, a person assisting the person, the State or a local authority is not civilly liable—

  1. (a)because of the paramount or high degree of importance the person gave to moving or removing the removed thing on or from the road quickly; or
  2. (b)to the extent there was an increased likelihood that vehicles, loads and other things would be damaged in the exercise of power under this part, because of the nature of the power.

51ORelationship with s 66#

The powers of the chief executive under this part are not limited by a local law made under section 66(3) and section 66(6) does not apply to this part.

51PRelationship with s 137#

The powers of the chief executive under this part are not limited by the obligation imposed on a person by section 137(2) or anything a person is doing, attempting to do or proposing to do to comply with the person’s obligations under the section.

Source: TORUM Act 1995 · pages 116–123 Open PDF at this page Search this document