Chalouhi Enterprises Pty Ltd v Roads and Maritime Services

Solicitors: Colin Biggers & Paisley Lawyers (Plaintiff) Hunt & Hunt (Defendant) File Number(s): 2019/169873 Decision under appeal Court or tribunal: New South Wales Local Court Jurisdiction: Criminal Date of Decision: 06 May 2019 Before: Barko LCM File Number(s): 2018/304429

Judgment

1. By its amended summons filed on 19 June 2019, the plaintiff, Chalouhi Enterprises Pty Ltd (Chalouhi), seeks leave, pursuant to s 53(3)(b) of the Crimes (Appeal and Review) Act 2001 (NSW) (the CAR Act), to appeal from a decision made by Barko LCM on 6 May 2019. The principal issue sought to be raised on appeal concerns whether the learned Magistrate erred in applying s 639 of the Heavy Vehicle National Law (NSW) (the HV Law) which, among other things, deems a registered operator of a heavy vehicle to be the operator of the vehicle and to have committed an offence in certain circumstances.
2. The defendant, Roads and Maritime Services (RMS), opposed leave being granted primarily on the basis that s 53(3)(b) of the CAR Act only applies if an interlocutory order has been made by the Local Court. RMS contended that no interlocutory order was made in the present case and, thus, this Court has no jurisdiction to grant leave or to hear the appeal.

Background

1. The background to this matter appears from the findings of Barko LCM and other undisputed material before the Court.
2. On 31 July 2018, Chalouhi was the "registered operator" of a heavy vehicle, as defined in the HV Law, but the vehicle was leased to, and operated by, Roman Plant Hire Pty Ltd. On that date, the vehicle was involved in an incident and, as a result, the vehicle was directed to the RMS Heavy Vehicle Inspection Station, Wetherill Park, where it was found to have exceeded the applicable mass requirements, in contravention of s 96 of the HV Law.
3. Under s 183(2)(c) of the HV Law, if an offence against s 96 is committed, the "operator" of the vehicle is taken to have committed the offence. Under s 639 of the HV Law, if an offence against the HV Law may be committed by the "operator" then the registered operator may, in certain circumstances, be taken to be the operator and to have committed the offence. This effect of s 639 can be avoided if a registered operator gives an "operator declaration" in accordance with s 639(4).
4. On 5 October 2018, a Court Attendance Notice (CAN) was filed charging Chalouhi with not complying with a mass requirement in respect of the vehicle. The CAN identified the statutory provision describing the offence as s 183(2)(c) of the HV Law. The CAN was served on Chalouhi on 9 October 2018. The CAN stated that the matter was listed on 17 December 2018 at 9.30 am before the Downing Centre Local Court.
5. At the hearing on 17 December 2018, the matter was adjourned to 4 February 2019, when it was then further adjourned to 11 February 2019. On 11 February 2019, Chalouhi entered a plea of not guilty and the matter was set down for a four hour hearing on 6 May 2019. On 11 February 2019, Chalouhi's legal representative also informed the Court and RMS that it intended to give an operator declaration in accordance with s 639(4) of the HV Law.
6. On 13 March 2019, the plaintiff served on RMS an operator declaration, for the purposes of s 639(4) of the HV Law, identifying Roman Plant Hire Pty Ltd as the operator of the vehicle on 31 July 2018.
7. On 6 May 2019, the matter came on for hearing before Barko LCM in the Local Court.

The Local Court decision

1. At the beginning of the Local Court hearing on 6 May 2019, Mr Barry of counsel, who appeared for Chalouhi on that occasion as he did in this Court, raised what was called a "preliminary point". In essence, while it was accepted that Chalouhi was the registered operator of the vehicle and that there was "no issue in relation to the substantive offence itself", [1] it was contended that Chalouhi was not the proper defendant and was not liable, because an operator declaration had been given in accordance with s 639(4) of the HV Law. As a result, it was contended that the deeming provision of s 639(2) of the HV Law, on which RMS relied, did not operate to render Chalouhi, as the registered operator, liable as the operator of the vehicle under s 183(2)(c).
2. The learned Magistrate effectively held that, in order for Chalouhi to succeed on this preliminary point, it had to establish that it gave to "the Regulator" an operator declaration "as soon as practicable after the charge comes to the registered operator's knowledge but at least 28 days before the charge is heard" as provided in s 639(4)(b)(ii).
3. In substance, Barko LCM accepted that, because RMS was prosecuting the charge against Chalouhi under delegated authority from the National Heavy Vehicle Regulator, giving an operator declaration to RMS relevantly constituted giving it to "the Regulator" for the purposes of s 639(4) in the present case. This approach was not challenged in these proceedings.
4. As to whether the operator declaration had been given within the timeframes specified in s 639(4)(b)(ii), his Honour's findings were to the effect that: 1. the CAN was served on Chalouhi on 9 October 2018 and the charge came to the attention of Chalouhi on or soon after that date; 2. the first return date for hearing of the charge in the CAN was 17 December 2018 and, in these circumstances, the date "the charge is to be heard" and the date when "the charge is heard" were both 17 December 2018; 3. consequently, to be effective under s 639(4) the operator declaration had to be given: 1. as soon as practicable after 9 October 2018; and 2. at least 28 days before 17 December 2018; 1. the operator declaration was not given until 13 March 2019 which was: 1. not as soon as practicable after 9 October 2018; and 2. not "at least 28 days before the charge is heard".
5. The Local Court transcript records his Honour's decision as follows: "By reason of the fact that not only did it not comply with the 28-day parameters, but also, in my - I'm satisfied that it was not as soon as practicable, given the fact it wasn't done until March 2019, as opposed to the court attendance notice coming to the attention of being served on the defendant [Chalouhi] within days of 9 October 2018. ACCORDINGLY, I'M SATISIFED THAT THE PROVISIONS OF SUBS 4 HAVE NOT BEEN COMPLIED WITH, AND THAT THE DEFENDANT IS, FOR PRESENT PURPOSES, THE REGISTERED OPERATOR OF THE HEAVY VEHICLE." [2]

Chalouhi's appeal

1. The summons filed on 30 May 2019 purports to appeal against "the whole of the decision below" under s 53(3)(b) of the CAR Act. In the summons, Chalouhi seeks orders to the effect that: leave to appeal be granted; the appeal be allowed; the decision below be set aside; the proceedings below be dismissed; and, RMS pay Chalouhi's costs of the proceedings below and of the appeal in this Court.
2. The grounds of appeal set out in the summons are as follows: "1. The learned Magistrate erred at law in finding that the phrase "at least 28 days before the charge is heard" in s 639(4)(b)(ii) of the Heavy Vehicle National Law (NSW) No 42a (HV Law) means 'at least 28 days before the matter is listed for first mention'. 2. In so doing the magistrate further erred at law in finding that the plaintiff had not given its operator declaration (within the meaning of s 639(7) of the HV Law) to the prosecution within the time permitted under s 639(4)(b)(ii) of the HV Law. 3. As a result of the Magistrate's errors above, the plaintiff remains the defendant in the proceedings below in circumstances where it is not the operator of the vehicle for the purposes of s 183(2)(c) of the HV Law. 4. The Magistrate should have found: (a) that the phrase "at least 28 days before the charge is heard" in s 639(4)(b)(ii) of the HV Law means 'at least 28 days before the charge is substantively heard'; (b) that the plaintiff had given its operator declaration (within the meaning of s 639(7) of the HV Law) to the prosecution within the time permitted under s 639(4)(b)(ii) of the HV Law; (c) that the plaintiff is not the operator of the vehicle for the purposes of s 183(2)(c) of the HV Law and by operation of s 639(5)(c) of the HV Law, dismissed the proceedings. 5. Alternatively, even if the Magistrate's finding at paragraph 1 was correct, the Magistrate erred at law by treating the prohibition in s 639(5)(c) as being solely contingent on the operator declaration being given to the Regulator within the time periods prescribed by s 639(4) of the HV Law. 6. In so doing, the Magistrate did not give effect to the words "statements in the operator declaration or otherwise" (within s 639(5)(c)) because the Magistrate did not have regard to the statements made in the operator declaration and other evidence before the court below when determining the operation of s 639(5)(c)."
3. RMS raised the preliminary issue of whether the present appeal can be brought under s 53(3)(b) of the CAR Act. This depends on whether the Local Court made an interlocutory order in the present case. In order to consider that question, it is useful also to understand the nature and effect of the relevant provisions of the HV Law as well as the CAR Act.

The CAR Act

1. Chalouhi brings the present appeal under s 53(3)(b) of the CAR Act. Section 53 relevantly provides: "(3) Any person against whom: … (b) an interlocutory order has been made by the Local Court in relation to the person in summary proceedings, may appeal to the Supreme Court against the order, but only on a ground that involves a question of law alone, and only by leave of the Supreme Court. (4) An application for leave to appeal must be made within such period after the date of the conviction, sentence or order as may be prescribed by rules of court."
2. It was not in dispute that Chalouhi was a person involved in summary proceedings in the Local Court and, if an interlocutory order was made, it was relevantly made against Chalouhi. There was also no dispute that the application for leave to appeal was brought within time.
3. The preliminary issue turns on whether there was "an interlocutory order [that] has been made by the Local Court". Given the way in which the case was put by Chalouhi, various provisions of the HV Law are relevant.

The HV Law

1. The prohibition underlying the offence with which Chalouhi was charged is found in s 96 of the HV Law which provides: "96 Compliance with mass requirements (1) A person must not drive on a road a heavy vehicle that (together with its load) does not, or whose components do not, comply with the mass requirements applying to the vehicle. Maximum penalty - (a) for a minor risk breach - $4000; or (b) for a substantial risk breach - $6000; or (c) for a severe risk breach - $10000, plus an additional maximum $500 for every additional 1% over a 120% overload (but so that the additional maximum penalty does not exceed $20000). Editorial note. See also section 737 (Increase of penalty amounts). (2) A person charged with an offence against subsection (1) does not have the benefit of the mistake of fact defence for the offence. (3) However, in a proceeding for an offence against subsection (1), the person charged has the benefit of the reasonable steps defence for the offence. Note - See Divisions 1 and 2 of Part 10.4 for the reasonable steps defence. …"
2. As at 31 July 2018, [5] if a person committed an offence against s 96, the operator of the heavy vehicle could be taken to have committed an offence against s 183 of the HV Law in the circumstances set out in that section. As noted above, the CAN alleged that the offence with which Chalouhi was charged was the offence in s 183(2)(c) of the HV Law. Section 183 relevantly provided: "183 Liability of employer etc. for contravention of mass, dimension or loading requirement (1) This section applies to an offence against section 96, 102 or 111 (a relevant offence). (2) If a relevant offence is committed in relation to a heavy vehicle, each of the following persons is taken to have committed an offence against this subsection - … (c) an operator of the vehicle or, if it is a combination, an operator of a vehicle in the combination; … Maximum penalty for an offence against this subsection - an amount equal to the maximum penalty for the relevant offence. (3) A person charged with an offence against subsection (2) does not have the benefit of the mistake of fact defence for the offence. (4) However, in a proceeding for an offence against subsection (2), the person charged has the benefit of the reasonable steps defence for the offence. (5) In a proceeding for an offence against subsection (2) - (a) it is irrelevant whether or not the driver has been or will be proceeded against, or convicted of, the relevant offence; and (b) evidence a court has convicted the driver of the relevant offence is evidence that the offence happened at the time and place, and in the circumstances, stated in the charge resulting in the conviction; and (c) evidence of details stated in an infringement notice issued for the relevant offence is evidence that the offence happened at the time and place, and in the circumstances, stated in the infringement notice."

Submissions

1. Mr Campbell, who appeared for RMS, submitted that no "interlocutory order" was made and relied on Salter v Director of Public Prosecutions (2009) 75 NSWLR 392; [2009] NSWCA 357 which considered what constitutes an "interlocutory order" for the purposes of s 53(3)(b). It was contended that in the present case all his Honour's ruling had done was answer a preliminary question of law and did not constitute an "order or judgment" as it did not "command that anything be done (or not done)". In the absence of such an order, it was submitted that leave to appeal should be refused and the appeal dismissed.
2. Mr Barry of counsel, who appeared for Chalouhi, submitted that the learned Magistrate made an interlocutory order where his Honour ruled: "[a]ccordingly I'm satisfied that the provisions of [s 639(4)] have not been complied with, and that [Chalouhi] is, for present purposes, the registered operator of the heavy vehicle." Chalouhi submitted that his Honour's decision or ruling amounted to an order "because it effectively commands [Chalouhi] to proceed to trial". [6]
3. It was also submitted that it was the character of the question and the effect of the decision that distinguished an order from an incidental ruling. The ruling in this case, it was said, effectively determined the Local Court proceedings against Chalouhi. In this regard, it was contended that Barko LCM's reference to Chalouhi being the "registered operator" was an error and he intended to refer, or should have referred, to it being the "operator", reflecting the operation of s 639(2) in the absence of an operator declaration given within the timeframes specified in s 639(4). If, as Chalouhi understood it, the Magistrate's ruling was that Chalouhi was the "operator", it was then said that such a finding precluded Chalouhi from arguing, based on s 639(5)(c), that it was not the "operator". In these circumstances, it was submitted that Chalouhi had, in effect, no defence available to it and, thus, the proceedings were effectively determined by the ruling.
4. Chalouhi argued that Salter v Director of Public Prosecutions concerned a case where there was no dispute that the defendant was correctly identified, whereas the present case involved a ruling that led to the wrong person being found to be the operator and thus the appropriate defendant. Continued prosecution of the wrong person, it was contended, would be "an error of principle apt to cause irregularity or injustice" and therefore leave should be granted: Queanbeyan City Council v Environment Protection Authority [2011] NSWCCA 108.

Consideration

1. The proper construction of "order" in s 53(3)(b) of the CAR Act was considered by the Court of Appeal in Salter v Director of Public Prosecutions (2009) 75 NSWLR 392; [2009] NSWCA 357 and the authorities have been comprehensively reviewed by N Adams J in Russell v Scott [2017] NSWSC 1720 at [51] to [81]. Nothing in Russell v Scott suggests that the reasoning and conclusions in Salter would not be applicable in the present case.
2. Salter concerned s 308H of the Crimes Act and, in particular, whether there should have been one charge or 22 separate charges laid in the matter. The Local Court, and Hulme J at first instance in the Supreme Court, held that 22 charges could be laid. On appeal, the question arose for the first time whether, in rejecting the challenge to the 22 charges, the Local Court had made an interlocutory order, within s 53(3)(b) of the CAR Act. There was no dispute that what had been done was interlocutory, the issue was the proper construction of "order" in that section.
3. Spigelman CJ (with whom McColl and Campbell JJA agreed) held in Salter at [10] - [17], [24] and [26]: "10 It is noteworthy that the word "order" appears in s 53(3)(b) alone and not, as is often the case, as part of a broader formulation extending to "judgment or order": cf Criminal Appeal Act 1912, s 5F. See R v Steffan (1993) 30 NSWLR 633 at 636-639. 11 As Samuels JA pointed out in Barton v Walker [1979] 2 NSWLR 740 at 747D: 'The word 'order' … is … a word familiar enough to lawyers commonly found in the collocation 'judgment or order'. The distinction between these two notions is reasonably clear, but the cases discriminating between them do not cast light on the precise meaning of "order" itself.' 12 Furthermore, as King CJ said in Legal Practitioners Complaints Committee v A Practitioner (1987) 46 SASR 126 at 127: 'There is no completely satisfying definition of either 'judgment' or 'order' and no exhaustively definitive way of distinguishing between judicial acts which should be characterised as judgments and judicial acts which should be characterised as orders.' 13 The word 'order' is narrower in scope than the word 'judgment', although they may substantially overlap in a particular statutory framework. It may well be that a decision on a separate question of law will constitute a 'judgment' in a particular statutory context. For present purposes it is not strictly necessary to distinguish between the two concepts. 14 Whether a decision or ruling constitutes a 'judgment or order' turns on whether there is an operative judicial act: see Johnston v Nationwide News Pty Ltd (2005) 62 NSWLR 309 at 314 [29]. There is no operative judicial act here. 15 Furthermore where, as in this case, a magistrate has done no more than answer a preliminary question of law, there has been, in my opinion, no order. As the joint judgment put it in Steffan (at 639), the determination does not 'command that anything be done (or not done) in the sense of an order of the court. It remains as no more than a ruling, one which can be tested on appeal to this Court after a conviction'. 16 By s 53(1) of the Act an appeal lies to the Supreme Court from a conviction or sentence, by leave or, pursuant to s 52(1), without leave on a question of law. It is plainly undesirable to fragment committal or summary proceedings by interlocutory appeals. The ability to appeal after conviction strongly indicates that the word "order" in both pars (a) and (b) of s 53(3) should not be given an expansive meaning. 17 An authority which is reasonably analogous to the present case is Commonwealth v Mullane (1961) 106 CLR 166. The Court below ruled upon a point of law without proceeding to dismiss the case. The joint judgment of the High Court said at 169: 'there was no determination. It was something done in the course of the hearing'. Accordingly, there was no judgment or order within s 73(ii) of the Constitution. Notwithstanding the constitutional overlay of Mullane, the same interpretation should be given to the same words in the statute under consideration. … 24 Section 53(3)(b) of the Act cannot be interpreted as if it said "an interlocutory decision" has been made. Nor can s 53(3)(a) be read as if it said a decision has been made in committal proceedings. That would permit fragmentation of both kinds of proceedings to a degree which could not have been intended. I note that the leave requirement would not, of itself, serve that purpose because of the possible disruption occasioned by applications for leave. … 26 The charges will, no doubt, now be determined by the Local Court. Assuming that the proceedings will result in conviction and sentence, the applicant will have the choice of proceeding by way of merits appeal to the District Court or by way of an appeal to the Supreme Court pursuant to s 52(1) or s 53(1) of the Act. …"

Conclusion and orders

1. For all of these reasons, Barko LCM's ruling to the effect that the operator declaration was not given within the relevant timeframes specified in s 639(4) was not an "interlocutory order" within s 53(3)(b) of the CAR Act. Consequently, this Court does not have jurisdiction to hear and determine the application for leave to appeal or the appeal.
2. Further and for the sake of completeness, I shall briefly consider whether, if I am wrong and the Court does have jurisdiction to hear and determine the application for leave to appeal, leave to appeal should be granted.
3. In my view, leave to appeal should not be granted for a number of reasons. First, grounds 1, 2, 3 and 4 (which have been set out above) all concern or turn on the issue of whether the words "at least 28 days before the charge is heard" in s 639(4)(b)(ii) of the HV Law mean at least 28 days before the matter is first listed before the Local Court, whether for mention or the substantive hearing, as held by the learned Magistrate. The difficulty is that there are two timeframes in s 639(4)(b)(ii) within which an operator declaration must be given: 1. "as soon as practicable after the charge comes to the registered operator's knowledge"; and 2. "at least 28 days before the charge is heard".
4. Barko LCM expressly found not only that the operator declaration had not been given at least 28 days before the charge was heard but also that it had not been given as soon as practicable after the charge came to the registered operator's knowledge. The learned Magistrate's view that s 639(4)(b)(ii) established two timeframes, with both of which Chalouhi had to comply in order to have the benefit of subs (4), is supported by the Court of Appeal's decision in Choy v Tiaro Coal Ltd (in liq) (2018) 98 NSWLR 493; [2018] NSWCA 2015 concerning similar wording in the Supreme Court (Corporations) Rules 1999 (NSW) (the Corporations Rules). In that case, r 2.7(1) of the Corporations Rules required a plaintiff to serve specified documents "[a]s soon as practicable after filing an originating process and, in any case, at least 5 days before the date fixed for hearing". Leeming JA (Gleeson and Payne JJA agreeing) rejected the submission that these words establish two timeframes, compliance with either of which would satisfy the rule. At [31], Leeming JA said: "1 … the obligation to serve within the time periods is expressed to be cumulative, not only by the conjunction "and", but also and especially by the words "in any case". It is difficult to see how those words could be consistent with a construction which leaves it to the plaintiff to elect which time period is applicable. On a natural reading, those words mandate in all cases service five days before a certain date, recognising that there may be room for dispute as to what is "as soon as practicable" in any particular case, but in no case relieving the plaintiff from the obligation to serve at least five days before the date."

Endnotes

1. The transcript of the hearing on 6 May 2019 at T5.42-44.
2. 6 May 2019 T8.9-16.
3. 6 May 2019 T9.9-50.
4. 6 May 2019 T10.35-.43.
5. Section 183 has subsequently been omitted from the HV Law as a result of the commencement of s 26 of the Heavy Vehicle National Law and Other Legislation Amendment Act 2016 (Qld) on 1 October 2018.
6. Chalouhi's written submissions in reply of 6 September 2019 at par 11.
7. 6 May 2019 T9.27-28.
8. 6 May 2019 T9.39-44.
9. It can be noted that the Court of Appeal concluded in Choy v Tiaro Coal Ltd (in liq) (2018) 98 NSWLR 493; [2018] NSWCA 2015 that the words "at least five days before the date fixed for hearing" in r 27(1) of the Corporations Rules do not refer to the date of the substantive hearing or a "hearing at which the claims that are the subject of the process are going to be heard and determined" but rather refer to the date for hearing endorsed on the originating process: at [30]-[31]. This indicates that it could not be said that Chalouhi's ground of appeal concerning the construction of the words "at least 28 days before the charge is heard" raises anything more than an arguable point based on the different wording and context of the HV Law. 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: 13 February 2020