Palfrey v South Penrith Sand and Soil Pty Ltd

Judgment 1BARRETT JA: South Penrith Sand and Soil Pty Ltd (which I shall call "the Company") is the respondent named in a notice of appeal filed on 4 December 2012. By notice of motion filed on 20 February 2013, the Company challenges the competency of the appeal brought against it. 2The appellant named in the notice of appeal is David Palfrey. He is an "authorised officer" for the purposes of Schedule 2 to the Road Transport (General) Regulation 2005 and as defined by s 3 of the Road Transport (General) Act 2005. I shall refer to him as "the Officer". 3The statutory authority responsible for the administration of the legislation just mentioned is Roads and Maritime Services. It is not a party to the appeal; nor was it a party to the proceedings below. 4In December 2011, the Officer took steps to institute proceedings in accordance with s 180(1) of the Road Transport (General) Act which is in these terms: "Proceedings for an offence against the road transport legislation are to be dealt with summarily before the Local Court or the Supreme Court in its summary jurisdiction." 5In order to invoke the summary jurisdiction of the Supreme Court, the Officer made an application to that court under s 246(1) of the Criminal Procedure Act 1986. When that application came before the court, a judge of the Common Law Division (Rothman J) made the orders sought, being orders requiring the Company and two of its officers or employees to appear to answer to offences stated in the Officer's application. As a result of those orders, several summonses were issued charging breaches of provisions of the Road Transport (General) Regulation. The Company was named as defendant in five of those summonses. 6After the five summonses directed to it had been served, the Company filed a notice of motion in the Common Law Division seeking orders that certain of the charges against it be quashed or, in the alternative, stayed until further order. Barr AJ, taking the view that it was an abuse of process for the Officer to charge the Company in several different ways when there was a single underlying event and only one sentence could result, afforded the Officer an opportunity to elect the charges on which he would proceed. When the Officer did not do so, his Honour ordered on 20 November 2012 that two of the summonses be dismissed and that certain of the counts in the other summonses be struck out. 7It was in consequence of these orders made by Barr AJ that the Officer filed a notice of appeal to the Court of Appeal. Several grounds of appeal are articulated in that notice of appeal. 8The Officer says that the appeal is brought as of right pursuant to s 101(1)(a) of the Supreme Court Act 1970. The Company's contention, however, is that, if any avenue of appeal is available (which it does not admit), it is provided by the Criminal Appeal Act 1912; and that no appeal can be brought under the Supreme Court Act. It is on this basis that the Company says that the appeal arising from the notice of appeal filed on 4 December 2012 is incompetent. 9The following aspects of the Criminal Procedure Act and its operation are of special relevance to the question raised by the Company's notice of motion: