Dranmore Pty Ltd & Ors v Paul Bimson

Frederick Borg (as director of Dranmore Pty Limited) Provision Number of Dates offences Speed range cl.156(3) RTG 5 offences From 1 June 2011 107km/h to Reg/RTG Act 3 Jan 2012 121km/h

Total Dranmore Pty Limited: 10 offences Eezee nominees Pty Limited ACN 005 392 549 Provision Number of Dates offences Speed range cl.156(3) S/178 8 offences From 8 January 107km/h to RTG Reg/RTG 2011 to 6 February 125km/h Act 2012 and from 25 February 2011 to 20 January 2012

Frederick Borg (as director of Eezee Nominees Pty Limited) Provision Number of Dates offences Speed range cl.156(3)/s 178 8 offences From 25 February 107km/h to 125 RTG Reg/RTG 2011 km/h Act 3 Jan 2012

Total Eezee Nominees Pty Limited: 16 offences G.E. & C.D. Hommes Pty Limited ACN 006 229 545 Provision Number of Dates offences Speed range cl.156(3) S/178 50 offences From 8 January 107km/h to RTG Reg 2011 to 6 February 131km/h 2012

Danny Frederick Borg (as director of G.E. & C.D. Hommes Pty Limited) Provision Number of Dates offences Speed range cl.156(3)/s 178 15 offences From 8 January 107km/h to 131 RTG Reg/RTG 2011 km/h Act 17 January 2012

Total G.E. & C.D. Hommes Pty Limited: 65 offences Laudrup Pty Ltd ACN 122 126 078 Provision Number of Dates offences Speed range cl.156(3)/RTG 39 offences From 16 January 106 km/h to 130 Reg 2011 to 15 March km/h 2012

Grant Raymond Borg (as director of Laudrop Pty Limited) Provision Number of Dates offences Speed range cl.156(3)/s 178 10 offences From 16 January 111km/h to 130 RTG Reg/RTG 2011 to 5 km/h Act December 2011

Danny Frederick Borg (as director of Laudrop Pty Limited) Provision Number of Dates offences Speed range cl.156(3)/s 178 10 offences From 12 May 2011 107 km/h to 130 RTG Reg/RTG to 15 March 2012 km/h Act

Total Laudrop Pty Ltd: 59 offences Roadmaster Driving Tutorial Pty Ltd ACN 081 572 278ted) Provision Number of Dates offences Speed range cl.156(3)/s RTG 64 offences From 5 January 106 km/h to 130 Reg 2011 to 10 April km/h 2012

Frederick Borg (as director of Roadmaster Driving Tutorial Pty Limited) Provision Number of Dates offences Speed range cl.156(3)/s 178 15 offences From 5 January 114km/h to 130 RTG Reg/RTG 2011 to 29 km/h Act February 2012

Total Roadmaster Driving Tutorial Pty Ltd: 79 offences

Total offences now relevant: 229 10As can be seen from the table the remaining charges against the corporate plaintiff's arise under Cl 156(3) Road Transport (General) Regulation 2005 (NSW) (Repealed) (the Regulation) as against the director plaintiffs the charges are brought under s 178(1) Road Transport (General Act) 2005 (NSW) (the Act). 11Clause 156 is found in sub-division (1) of division 2 of Part 7 of the Regulation. Part 7 is headed "Heavy vehicle speeding compliance"; Division 2 is headed "Specific duties and offences"; and Sub-division 1 is headed "duties on employers, prime contractors and operators". It is not in dispute that Cl 156 applies to the corporate plaintiffs, because at the material time, they were each the operator of a heavy vehicle, and at the time the driver was making the journey for one of them. It is not in dispute that each of the vehicles concerned was a heavy vehicle and that each corporate plaintiff fell within the definition of operator in cl 152 of the Regulation. The parts of Cl 156 material to the present dispute are in the following terms: 156 Duty to ensure offences are not committed (3) A person to whom this clause applies commits an offence if, at any time the driver of the vehicle, or a vehicle is subject to the person's control, the driver commits a speeding offence while driving the vehicle. .................. (6) It is an offence under this clause if the accused person establishes that: (a) The person did not know and could not reasonably be expected to have known, of the conduct that constituted the offence, and; (b) Either: (i) The person took all reasonable steps to prevent that conduct from occurring, or (ii) There were no steps that the person could reasonably have been expected to have taken to prevent that conduct from occurring. ....................... I have included the heading notwithstanding s 35 Interpretation Act 1987 (NSW), because it is has relevance to the argument advanced by the plaintiffs. 12By cl 156(7) whether the driver has been charged is irrelevant, but if he or she has, evidence of a conviction or payment of an infringement penalty is evidence of the time, place and circumstances of the offence committed by the driver referred in cl 156(3). 13Section 178 is in chapter 5 of the Act. Chapter 5 is headed "Enforcement of Road Transport Legislation". Part 5.1 containing s 178 is headed "Liability for Offences". The provisions of s 178 material to the present case are as follows: 178 Liability of Directors, partners, employers and others for offences by bodies corporate, partnerships, associations and employees (1) If a body corporate commits an offence under the Road Transport Legislation, each director of the body corporate, and each person concerned in the management of the body corporate, is taken to have committed the offence and is punishable accordingly ................... (5) This section does not affect the liability of the person who actually committed the offence. (6) A person may be proceeded against and found guilty of an offence arising under this section whether or not the body corporate or other person who actually committed the offence has been proceeded against or been found guilty of the offence. (7) It is a defence to a prosecution for an offence arising under subsection (1) if the defendant establishes that: (a) The defendant was not in the position to influence the conduct of the body corporate in relation to the actual offence, or (b) The defendant, being in such a position, took reasonable precautions and exercised due diligence to prevent the commission of the actual offence. ....................

Proceedings below 14The prosecutions in the Local Court were commenced by CANs issued on 9th May 2012. A dispute arose about the adequacy of the particulars provided. The essential dispute between the parties was whether, for the purpose of cl 156(3) of the Regulation, and s 178(1) of the Act, it was for the prosecution to specify what reasonable steps, in the case of the regulation, and what reasonable precaution and due diligence, in the case of the Act the accused person should or could have taken to prevent the occurrence of the primary offence. 15By an undated Notice of Motion (but apparently filed on 10th January 2013) returnable on 14th January 2013 seeking, so far as is presently relevant, an order that the prosecution provide the particulars the plaintiffs maintain are due, a self executing order dismissing the proceedings if the prosecution failed to comply with an order for particulars, "and alternatively", the dismissal of all charges as incompetent. 16I interpolate that the defendant argues that the Local Court application was incompetent because the form used was headed in a manner appropriate to civil proceedings. This may be inferred from its reference to s 45 Local Court Act 2007 (NSW) and Part 4 Local Court Rules 2009 (NSW) which do not apply to criminal proceedings. However, the details of application provided in that form expressly invoked s 175(3)(b) Criminal Procedure Act 1986 (NSW). The use of an inappropriate form was a mere irregularity; at best a defect in form. 17Section 44 Local Court Act makes it clear that s 45 does not apply to criminal proceedings. This may be so, but the Local Court had undoubted power to order the provision of particulars on the application of an accused person: De Romanis v Sibraa (1977) 2 NSWLR 264 at 291-92; Ex parte N Ormsby & Sons Pty Ltd; Re Mason (1964) 81 WN (Pt 1) (NSW) 286 at 290 - 1 (see [43] below). I do not regard the use of a form which may have been inappropriate renders a decision based upon it as unamenable to the provisions of s 53 of the Review Act (cf s 80 Interpretation Act). 18In my view the learned Magistrate was correct to decide that he had the power to determine the interlocutory application.

Decision below 19His Honour decided the central question about whether Kirk required the disputed particulars to be provided in the following terms (Transcript 14th February 2013 page 11.15 - .45; ): But the central question, the decision is whether or not the High Court's decision in Kirk is applicable to these ... prosecutions and if it were, I think, as (Counsel for the plaintiff) has summed up I would be in the position where I might be obliged to dismiss them all. I must say that it is my conclusion that the High Court's judgment in Kirk so far as prosecutions clause 156 of the Regulation ... is concerned I think that the Kirk decision is irrelevant. I think the provisions examined by the High Court in that case were sections imposing a duty on employers to ensure that persons in employment were (not) exposed to particular risks (arising) from their employment. And failure to comply with that obligation is what constitutes an offence. The legislation that founds these prosecutions is to my mind an entirely different structure. Clause 156 ... impose(s) criminal liability on a person who while not the actual driver is a person who is (in) control of the vehicle or person responsible for the vehicle, when the actual driver of the vehicle commits a speeding offences ... they due not speak of duties. They impose strict liability on persons responsible for speeding vehicles and they provide statutory defences which are in broader terms than the Proudman v Dayman style of approach to defending strict liability offences. Strict liability offences are the way in which the road transport legislation manages obligations or the (Roads and Maritime Services) does through that legislation. There is nothing unfamiliar about it, and were I to suggest that in this case there was an obligation to provide a brief of evidence of the type described then all the strict liability offences would be similarly susceptible to people coming along and saying "I don't know enough about it". Alright there is a reference in earlier sections to duties, but the section itself is to my mind plain. It is in strict terms and as I have said I do not think the decision in Kirk is relevant. And as it has no application and the defence to my mind has not established any broader case to suggest an injustice being visited upon them, certainly not as a result of RMS intransigence. (My emphasis) ... After further the argument the learned magistrate gave some additional reasons (31.40-33.20T) including the following: A whole range of aspects (of Roads and Transport Legislation) are obviously deliberately designed to place the onus of proof for certain issues upon the defendant rather than being matters which a prosecutor has to disprove in the course of dealing with the proofs before the court. The proofs required for both Clause 156 and s 69C are pretty straight forward, they are not complex, they do not call for any expert evidence that I can see. As to what the requisitioning of materials from the defendants means I can only speculate. ... As I say I do not necessarily think for my own instincts it is a fair thing, but it's quite plain that legislature expects that the community will be content with the onus being shifted in some instances to a defendant to prove its innocence and this is increasingly the way in which legislation is constructed. That being so I really cannot see that it is reasonable in these circumstances for me to order any kind of special brief of evidence or other orders for production of material against the RMS. His Honour then pronounced the following order: In the circumstances the notice of motion is refused. 20The plaintiffs do not cavil with the order refusing their application for the provision of a brief of evidence. And, it is common ground that these passages represent his Honour's reasons for declining either to dismiss the CANs as defective or to order further particulars: the refusal of the motion covers both. 21Section 178 of the Act is not referred to in his Honour's reasons, presumably because so far as the remaining dispute is concerned, cl 156 of the Regulation is the main battleground. If there is no corporate liability under cl 156, there is no personal liability in a director under s 178.

The issues in this court 22The plaintiffs sought to have the CANs "quashed as insufficient in law and invalid as non-compliant with s 175(3)(a) and (b) Criminal Procedure Act" because they did not particularise the reasonable steps the corporate plaintiffs failed to take to prevent the primary offence occurring. A similar position was taken in relation to the failure to particularise the necessary, available reasonable precautions for the purpose of s 178 of the Act. 23Secondly, and in the alternative, the plaintiffs argue that leave should be granted to appeal from the learned magistrate's decision because he misinterpreted Cl 156 of the Regulation by deciding that the reasoning in Kirk did not apply to the interpretation of Cl 156 or, for that matter, s 178. This error of interpretation is "a question of law alone", undermining the magistrates interlocutory order refusing further particulars.

The arguments of the parties 24S 175(3) Criminal Procedure Act is in the following terms: (3) A court attendance notice must do the following: (a) describe the offence, (b) briefly state the particulars of the alleged offence, (c) contain the name of the prosecutor, (d) require the accused person to appear before the court at a specified date, time and place, unless a warrant is issued for the arrest of the person or the person is refused bail, (e) state, unless a warrant is issued for the arrest of the person or the person is refused bail, that failure to appear may result in the arrest of the person or in the matter being dealt with in the absence of the person. 25The common law rule which informs the meaning of s 175(3)(a) and (b) is that a defendant is entitled to be told not only the legal nature of the offence with which he or she is charged, but also the particular act, matter or thing alleged as the foundation of the charge. In support of this submission, counsel for the plaintiffs pointed to Johnson v Miller at 489 per Dixon J, and Kirk at [26], where the plurality said the following: The common law requires that a defendant is entitled to be told not only of the legal nature of the offence with which he or she is charged, but also of the particular act, matter or thing alleged as the foundation of the charge. In John L Pty Ltd v A-G (NSW), it was explained that the older cases established that an information could be quashed as insufficient in law if it failed to inform the justices of both the nature of the offence and the manner in which it had been committed. In more recent times the rationale of that requirement has been seen as lying in the necessity of informing the court of the identity of the offence with which it is required to deal and in providing the accused with the substance of the charge which he or she is called upon to meet. The common law requirement is that an information, or an application containing a statement of offences, "must at the least condescend to identifying the essential factual ingredients of the actual offence". These facts need not be as extensive as those which a defendant might obtain on an application for particulars. In Johnson v Miller, Dixon J considered that an information must specify "the time, place and manner of the defendant's acts or omissions". McTiernan J referred to the requirements of "fair information and reasonable particularity as to the nature of the offence charged". (Footnotes omitted) 26Counsel for the plaintiff submitted that this appeal is analogous to Kirk, and relied upon what he submitted were relevant similarities between the legislative regime applicable in Kirk and the legislation in the present proceedings. 27In Kirk, the appellant was charged with contraventions of the duties imposed upon employers by ss 15 and 16 of the Occupational Health and Safety Act 1983 (NSW) (Repealed) (OHS Act). The plaintiffs submit that these sections are analogous to clauses 155 and 156 of the Regulations because each describes offences by reference to duties. The plaintiffs pointed to the fact the clauses appear in the Regulation as part of Part 7 regarding heavy vehicle speeding compliance, the object of which is set out at cl 151(1): ...to improve road safety and compliance with road safety laws by imposing responsibility in relation to speeding by heavy vehicles on those whose business activities influence the conduct of the drivers of those vehicles. 28By its inclusion in Part 7, the plaintiffs submitted that cl 156 is directed towards identifying all reasonable steps that could have been taken to prevent the prohibited conduct, and whether or not those steps could be expected to have been taken. The plaintiff submits that, as in Kirk, proceedings for the charged offences in this case are to be dealt with summarily according to s 180(1) of the Act. The plaintiffs further submit that while in Kirk defences were available where the measures were not reasonably practicable or where the offence was due to causes over which the person had no control, in this case defences are available to the operators under cl 156(6) (see [11] above). They submit that while the burden of proof lies with the person charged, liability is not strict or absolute. Reference was also made to the defence available under s 178(7) of the Act in support of the submission that, in accordance with Kirk, it is not necessary and is unduly burdensome for a person charged to establish every possible risk has been obviated, rather it should answer only acts or omissions specified in the statement of charges. The plaintiffs submit that, in a manner similar to Kirk, the charges alleged against them say nothing about what should have been done, and do not identify the deficiency in any system adopted or measure taken. The absence of particulars of this kind means that the corporate and director plaintiffs are denied an opportunity to properly put a defence. 29The plaintiffs submit that by failing to appreciate that no act or omission on the part of the plaintiffs had been charged the learned magistrate committed error: Kirk at [37]. They submit that as the error appears as part of the reasons it is an error of law on the face of the record. The plaintiff also submits that the errors can be identified as jurisdictional error of the third kind identified by the High Court in Craig v State of South Australia [1995] HCA 58; 184 CLR 163; i.e, misconstruction of a statute causing the court to misapprehend the limits of its functions and powers. The plaintiffs seek prerogative relief in the nature of certiorari to correct these errors. 30The plaintiffs submit that if these propositions are established two further consequences flow. First, if the CANs are invalid then the proceedings against the corporate plaintiffs founded on them are likewise invalid, and accordingly the defendant would not be in a position to commence or maintain prosecutions against the director plaintiffs under the Act, as those offences are predicated on a conviction having been recorded against the corporate plaintiffs under the Regulation. Secondly, as the offences with which the plaintiffs are charged must be dealt with summarily within one year of the date of the alleged offence (s 181 of the Act), the defendant having failed to commence proceedings validly within that time limit is now statute barred from bringing proceedings, either by amendment or issuing fresh CANs. The defendant has never sought to amend and should not be permitted to do so now. 31The defendant submits that no claim for relief arises under s53(3)(b) Review Act as the true nature of the applications in the court below were not interlocutory, but rather were final orders seeking the dismissal of the CANs. The defendant submitted that in determining whether a claim for relief arises under the Act it is necessary to look at the nature of the applications and their strict legal effect: Sanofi v Parke Davis Pty Ltd (No 1) (1982) 149 CLR 147 at 152; Port of Melbourne Authority v Anshun Pty Ltd (No 1) (1980) 147 CLR 35. It was submitted that although the orders sought by the plaintiffs included both orders for the provision of particulars and other interlocutory matters, the strict legal effect of the applications was to have the CANs dismissed for non-compliance with s175(3) Criminal Procedure Act. If this characterisation were accepted it would not be appropriate to grant relief under s53(3)(b). 32As to the merits of the matter the defendant submitted that the court below properly construed cl 156(3) of the Regulation as not requiring the defendant to particularise an act or omission said to constitute, for instance, a failure to take all reasonable steps and accordingly no error of law was committed. Counsel for the defendant also submitted that it had adequately particularised each of the offences contrary to cl 156(3) both in the CANs themselves, and in letters to the plaintiffs solicitors dated 24 September 2012 and 23 April 2013. 33The defendant submits that even if the cl 156(3) offences were not adequately particularised in the CANs, particularisation need not occur at the time the charge was first brought: Area Concrete Pumping Pty Ltd v Childs (Workcover) [2012] NSWCA 208 at [45]. It submits that Kirk is not authority for the proposition that a failure to adequately particularise the charge as initially laid necessarily results in the charge being rejected. Rather, in its submission, a failure to adequately particularise a charge will not, without more, render it a nullity. Having regard to the provisions of s16(2) Criminal Procedure Act, defects can be cured by amendment to the charges, or subsequent particularisation, provided the charges disclose an offence known to law and procedural unfairness is not caused to the plaintiffs by such amendment. 34The defendant submits that Kirk is distinguishable. There are relevant differences in the offence provisions in that case when compared to those applicable in the present proceedings. In particular, the defendant submits that the relevant offence provision in Kirk was the contravention of statutory duties of employers to, inter alia, take such steps as are necessary to obviate an identifiable risk to employees in the workplace. He points out by way of comparision that cl 155, a contravention of which is not alleged against the plaintiff, imposes a duty on an operator to take all reasonable steps to ensure business practices will not cause a driver to exceed the speed limit. By contrast, the liability of an operator under cl 156(3) arises when one of its drivers commits a speeding offence. He submits that the offence provision does not include a failure to implement a system or business practice, or a failure to avoid a risk. The defendant submits that cl 156(6) provides a statutory defence, the legal burden for the establishment of which lies with the defence. He submits that, in contradistinction with Kirk, a duty to take 'reasonable steps' is not a part of the offence provision. The absence of any such duty as part of the offence provision in cl 156 distinguishes the offence provision from cl 155 and the provisions the subject of Kirk. It is submitted that the existence of a statutory defence does not necessitate its particularisation by the prosecution as part of the charge.

Western Freight Management Pty Ltd v Roads & Maritime Services NSW 35Whilst my decision was reserved, Davies J ([2013] NSWSC 1123; 64 MVR 415) and the Court of Appeal ([2014] NSWCA 132; 66 MVR 279) decided the Western Freight Management case by rejecting the applicability of the reasoning in Kirk to ss 56 and 87 of the Act, which have an interrelated operation. 36Both parties sought leave to make further submissions concerning the applicability of the Western Freight Management decision to the current case, albeit that Western Freight was concerned with different provisions. I granted leave on 19th May 2014. 37The plaintiff argued that the decision was distinguishable because ss 56 and 87 were separate provisions. One created an offence and the other provided a defence. Neither was predicated upon a duty to ensure steps were taken. This sufficiently distinguished them from cl 156 of the Regulation which was, as the heading to the Section demonstrated, concerned with a duty to ensure offences are not committed. This put that provision into the same category as Kirk. 38The defendant argued that the provisions were indistinguishable and the interpretation adopted in Western Freight Management was equally applicable to the provisions with which this case is concerned. The defendant pointed out that the heading was not part of the Act (s 35 Interpretation Act); and s 34 of the Interpretation Act did not apply because the meaning of the provisions was plain: there is no doubt about the ascertainment of their meaning; and they are not ambiguous, obscure, manifestly absurd or unreasonable. In truth, the defendant argued, the provisions in dispute before me were on all fours with the provisions, the subject of the decision of the Court of Appeal, by which I am bound.

Determination 39Both issues are interrelated because in the end, whether the CANs are valid on the one hand, or whether further particulars should have been ordered on the other, depends, at least in part, upon identification of the essential elements of the statutory offence. This, of course, is a question of statutory interpretation. 40The cases seem to admit a distinction between the sufficiency of the particularisation of the offence and the manner of committing it which must appear on the face of the CAN, and the entitlement to an order for the provision of further particulars: see De Romanis at 291-2; approved in John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508 at 519 - 20. This distinction is recognised in Kirk at [26] as set out above. As John L makes clear it is essential that the CAN provide "the accused with the substance of the charge which he is called upon to meet". Moreover, in Kirk at [27] legally sufficient particulars required identification of the specific act or omission relied upon as constituting a breach of ss 15(1) and 16(1) OHS Act. This was necessary to put the accused persons in a position to know whether a defence under s 53 of that Act was available: Kirk at [27] and [28]. Section 11 of the Criminal Procedure Act "does not dispense with the necessity of specifying the time, place and manner of the defendant's acts or omissions": Johnson v Miller at 486. 41The start of the plaintiffs' case on the first issue is a point not decided in "Kirk". At [30] the Court observed that no application was made for an order quashing the orders of the Industrial Court requiring the accused person "to appear to answer the offences charged ". It was "neither necessary nor appropriate" for their Honours to answer that question in those circumstances. But their Honours said "the matter should not have proceeded without further particularisation of the Acts and omissions said to found the charges". 42All of the proceedings in the present case were commenced in accordance with s 172 of the Criminal Procedure Act "by the issue and filing of a Court Attendance Notice". Under s 175(3)(d) a CAN "must ... require the accused person to appear before the Court at a specified date, time and place". The plaintiffs say that the question not decided in Kirk arises for determination in this case. This is not a matter which is free from authority binding on me. The Court of Appeal has twice considered the question. In GPI (General) Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 157; 207 IR 93, and in Area Concrete Pumping Pty Ltd v Childs (WorkCover) [2012] NSWCA 208. In the latter case the Chief Justice reviewed GPI (General) and other authorities, and concluded at [47]: In these circumstances GPI (General), in my opinion, is authority for the proposition that a failure to adequately particularise a charge will not without more render it a nullity and that having regard to the provisions of s 16(2) of the CP Act and s 170(3) of the IR Act, defects can be cured by amendment to the charge or subsequent particularisation, at least provided the charge describes an offence known to law and that procedural unfairness is not caused to the defendant by the amendment. Section 170 empowered the Industrial Court to allow an amendment. Sections 21 and 22 of the Criminal Procedure Act permit amendment of an indictment if the Court is of an opinion it can be done without injustice. An indictment for the purpose of ss 21 and 22 includes a CAN. There is no suggestion here that the offences with which the plaintiffs are charged are not "known to law". Before considering the question of procedural unfairness, it is appropriate to say something more about GPI (General). 43Hodgson JA at [33] made the point, as recognised by the Chief Justice in Area Concrete, that in Kirk the High Court did not rule that "particularisation had to occur at the time the charge was first brought". His Honour also pointed out that although in John L the majority seemed to hold that the lack of particularity in a charge as first brought was fatal, the statutory regime there did not include provisions in the nature of ss 11 and 16(2) of the Criminal Procedure Act. His Honour also referred to Johnson v Miller at 490 where Dixon J said: There is more than one means by which the occurrence or transaction, the subject of the charge, may be identified and distinguished from other occurrences or transactions alleged to have occurred, equally capable of supporting the complaint. A direction may be given that particulars should be furnished; the complainant may be required to elect among the instances or transactions he proposes to prove, and to state definitely to the court which of them is to be treated as the subject of the complaint; or the complaint may be amended so as to indicate one to the exclusion of the others. Although no statutory provision exists enabling courts of summary jurisdiction to require the furnishing of particulars, it is well recognised that they may do so if, as sometimes but probably not often happens, the interests of justice make it necessary (Citations omitted) At 497 - 8 Evatt J expressed the view that even absent express statutory power, courts of summary jurisdiction had authority to order further particulars to be furnished. McTiernan J was of the same view (see 501). Subject to considerations of natural justice as referred to by the Chief Justice in Area Concreting, and even assuming for the moment that it was incumbent upon the prosecution to provide particulars of the steps or precautions the accused persons ought to have taken to prevent the commission of the primary speeding offence, the CANs were not necessarily liable to be quashed because any such "defect" could be cured by an order for particulars, and if the learned magistrate refused (as his Honour did) he was subject to correction by this Court on an application for leave to appeal. I would refuse the application for judicial review. 44It is convenient now to turn to the question of statutory interpretation. Is the identification of relevant reasonable steps or reasonable precautions an element of the offence? As Basten JA pointed out in Western Freight Management at [48] "Kirk broke no new ground". His Honour stated that Kirk was decided by the application of established principle "that a statement of an offence" must identify "the essential ingredients of the actual offence". The principle is derived from John L, Basten JA went on to say: The statement of the statutory offence did not require the incorporation into the offence of any relevant element of the defence. The significance of the reference to the defence was that, unless the putative offender were told what conduct constituted the offence, albeit the conduct was by way of omission, the defendant would not be in a position to say whether there was a reasonably practicable course for remedying the alleged omission. 45And as McColl JA, distinguishing Western Freight Management from Kirk, said at [17]: No ingredient of the s 56 offence concerned taking steps to prevent the contravention. Rather, the actus reus of the s 56 contravention was the overloading, in this case of the tri-axle, not any matter which went to requiring the applicant to take reasonable steps. That was the subject of its s 87 defence. As the primary judge said (at [16]), once the s 56 contravention was particularised in the penalty notice and the court attendance notice, the applicant knew the charge it had to meet: see also Kirk at [26]. 46Leeming JA at [60] pointed out that an obligation to particularise within the CAN, the steps asserted to have been reasonable which were not taken could only arise "if an element of the offence was ... the absence of those steps". His Honour rejected a formulation of the offence in terms that the accused person "did not take all reasonable steps to prevent the axle overload". 47Basten JA and Leeming JA each said that natural justice may require the prosecutor "at some stage" to specify steps which were reasonable and which had not been taken: [50] - [51] Basten JA; [61] Leeming JA. 48I am of the view that the decision in this case is governed by the reasoning in Western Freight Management. The actus reus of the offending covered by cl 156(3) of the regulation is that the operator commits an offence if whilst a driver, or vehicle, is subject to its control, "the driver commits a speeding offence while driving the vehicle". Effectively the statute creates a form of vicarious criminal liability notwithstanding the common law's antipathy to such a concept. See Presidential Security Services of Australia Pty Ltd v Brilley [2008] NSWCA 204; 73 NSWLR 241 at 265 [140] to 268 [153] per Ipp JA. Vicarious liability is well recognised as a form of strict liability, the expression preferred by the learned Magistrate: Carolyn Sappideen and Prue Vines, Flemings the Law of Torts (Thomson Reuters 10th Ed, 2011) at page 437 (19.10). 49MFI 2 is a sample of the cl 156(3) CAN. It is not in dispute that it adequately particularises the elements of s 156(3). Nor is it disputed that it contains no averment, or particulars, of, or related to, the elements of s 156(6). For the reasons given by the judges in Western Freight Management s 15 of the OHS Act is not analogous to cl 156. In broad terms, s 15(1) imposed a duty to ensure, inter alia, safety at work. Section 15(2) expands on the content of that duty. Clearly a mere averment that an employer failed to provide a safe system of work, for example, may inform as to the nature of the offence but it does not inform as to the manner in which it has been committed. Unless the specific act or omission relied upon as constituting the breach is particularised, the accused person has no opportunity to rely upon a defence under s 53 of that legislation that it was not reasonably practicable for it to comply with s 15. This required particulars of the measure that should have been taken, but was not. 50Clause 156(3) is different. The offence is committed, for instance, when a driver commits a speeding offence whilst under the control of the accused person. The question of reasonable steps does not come into it. 51The language of cl 156(6) provides a defence if the accused person establishes the conditions set out in paragraph (a) and (b). Those conditions include taking all reasonable steps to prevent the driver speeding, or demonstrating there were no steps that the accused could reasonably have been expected to have taken to prevent the driver from speeding. These are elements of the defence to be established by the accused not elements of the offence to be established by the prosecution. It may be that natural justice will require the prosecution to point to a step not taken as Basten and Leeming JJA say in their separate reasons. As Basten JA put it at [50] procedural fairness may require the prosecution to indicate a step not taken before the defence is rejected. But the practical content of procedural fairness will depend upon the circumstances of the case including in particular the nature of the evidence raised or introduced by the accused, which bears the onus. 52In my opinion, the heading to cl 156, which does not form part of it, makes no difference in this case. The clarity of the language mitigates against whatever assistance the heading might otherwise provide. 53In my opinion s 178(1) of the Act falls into the same category. Again, it establishes a vicarious criminal liability: if the corporation commits an offence so too does, inter alia, the Director and he or she is liable for the same punishment. The sample CAN in respect of these offences is MFI 3. It sets out all of the elements of the Cl 156(3) offence and avers that the named defendant is a director of the corporation. Reliance is placed on s 178 as well as Cl 156. It does not specifically or separately aver that the corporation has committed an offence but no complaint is made about that, and reading the CAN as a whole that formal omission is of no moment. Again it says nothing about the matters referred to in s 178(7) which establishes the defence. It says nothing about how the defendant was in a position to influence the conduct of the company in relation to the actual offence, or what reasonable precautions, or due diligence, was required to prevent the commission of the actual offence. 54However the interpretation unanimously favoured by the Court of Appeal in Western Freight Management is equally applicable to s 178 of the Act and it is unnecessary to restate it. 55Western Freight Management, of course, was concerned with the interplay of two provisions in the Act being ss 56 and 87. However, s 56(3) effectively incorporated the provisions of s 87 by use of the expression "has the benefit of the reasonable steps defence". Section 87 described the content of that "reasonable steps defence" in various circumstances. There is no appreciable difference in meaning to be deduced from the structure of the provisions in question in Western Freight Management when compared with those in question here. 56For these reasons I conclude that the CANs are not liable to be quashed for invalidity and the learned magistrate's decision to dismiss the plaintiffs' application is not undermined "on [a] ground that involves a question of law alone". I would have granted leave but dismissed the appeal. 57Given these conclusions it is unnecessary for me to decide the points of contention raised by the defendant. I have already made clear that I would reject the argument that the application below was beyond power or outside the jurisdiction of the Local Court. In substance, the defendant conceded that either s 28 of the Local Court Act or s 219(3) Criminal Procedure Act conferred power to deal with the application. In my judgment an erroneous reference to Part 4 of the Local Court Act is of no moment and made no difference to the legality of the proceeding. 58As to the argument that s 53(3)(b) did not apply because the order made by the magistrate was final. With respect, the submission is entirely misconceived. Contrary to the submission of learned counsel, in Australian law it is not "the strict legal effect of the application" which is in question, rather "it is the legal force of the judgment in question, and not its practical effect, that has to be considered determining whether or not the judgment is a final one" (citations omitted). Sanofi at 152. The substance of the magistrate's order dismissing the application determined nothing finally. Even had the magistrate acceded to the application to dismiss the proceedings because the CANs were bad for want of sufficient particularisation, fresh CANs could have been issued subject to the provisions of the applicable statute of limitations, s 181 of the Act. 59In the event the proceedings must be dismissed. My provisional view in respect of costs is that the s 69C Road Transport (Safety and Traffic Management) Act 1999 matter makes no difference to the manner of the exercise of the court's discretion as to costs. For this reason I will pronounce the usual order for costs in favour of the defendant, but allow liberty to the plaintiff to apply for a variation of that order. I am adopting this approach, lest on consideration the plaintiffs decide to make no special application. 60My orders are: (1)Proceedings dismissed; (2)Plaintiffs to pay the defendant's costs on the usual basis forthwith after they have been agreed or assessed. (3)The parties to have liberty to apply for a variation of order (2) within 14 days of today's date by motion supported by written submissions not exceeding 3 pages in length and any necessary affidavit.

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