Clyde & Co, Solicitors (First and Second Plaintiff)
Sparke Helmore Lawyers (Roads and Maritime Services)
File Number(s): 2016/59228
[2]
Preliminary
I am dealing with an application for a stay of proceedings in the Local Court of New South Wales pending the determination of an application for leave to appeal and appeal from a decision her Honour Magistrate McIntyre made on 26 October 2016. The proceedings in this Court were commenced by summons filed on 1 November 2016, and I granted leave, by consent, for an amended summons to be filed in court today.
The proceedings before her Honour are to commence tomorrow, 11 November 2016. They consist of a summary trial of proceedings under the Road Transport (Vehicle and Driver Management) Act 2005 (NSW) (Repealed) and under the Heavy Vehicle National Law (NSW) Act which replaced the repealed Act. The proceedings are estimated to last three weeks.
There are in total one hundred and fifty six offences alleged against each of the two plaintiffs. The first plaintiff is a corporation, and the second plaintiff is its director. The offences relate to so-called "chain of responsibility" offences arising under the road transport legislation. They consist of two alternative tranches of seventy-eight charges against each plaintiff. They relate to overloading of trucks in the corporate plaintiffs capacity as a consignor or, in the alternative, as a loader of mulch. The director plaintiff is charged in his capacity as a director of the company in respect of each of those matters.
The proposed leave application and appeal which, in accordance with the usual practice in the Common Law Division, will be heard concurrently, relates to what is said to be interlocutory orders made by her Honour. Lest the plaintiff run into difficulties by reference to the decision of the Court of Appeal in Salter v Director of Public Prosecutions (NSW) [2009] NSWCA 357, the amended summons adds an alternative claim for judicial review.
For the purpose of determining this application, I have had the considerable advantage - or perhaps it is better more honestly put, burden - of receiving detailed written submissions from learned counsel experienced in the field on each side of the record. Given the comparative urgency of the matter and dealing with it, as I am, in a Duty Judge list, I apologise if the reasons I give for my decision do less than justice to the care with which the arguments were prepared and presented.
I think it is common ground that the principles to be applied are analogous to those applicable in the case of civil appeals, with an addition. The general principles are that in order to obtain a stay on appeal, a party seeking a stay must demonstrate a fairly arguable case, and that the balance of convenience favours the grant of a stay.
In criminal cases there is the additional point that when determining the balance of convenience one has regard to the public interest in criminal proceedings being brought to a comparatively expeditious resolution. This public interest is the source of the rule of restraint, often expressed in terms of the higher courts being reluctant - perhaps even extremely reluctant - to countenance interlocutory appeals in criminal matters for fear of unduly fragmenting or fracturing the administration of criminal justice.
The orders made by her Honour were in response to an application made by the defence in the Local Court. To state matters briefly, the prosecution complied with directions that had been made for the service of a brief of evidence. In response to inquiries made by the defence in about June 2016, the prosecution indicated that it had served all of the evidence it intended to rely upon. In about August of 2016 the prosecution issued a subpoena to produce documents to the defendants seeking documents referable to weighbridge dockets, and then served a supplementary volume of material consisting of what it said were seventy-eight weighbridge dockets.
The defence sought relief from the learned Magistrate arguing that the service of the supplementary material and the issue of the subpoena seeking yet further documents which might find their way into evidence was, in the circumstances of the case, an abuse of process. The defence asked for an order that the subpoena be struck out and a ruling that the weighbridge docket material cannot be relied upon in the prosecution's case in chief.
In the course of written submissions it was argued that the prosecutor must be "brought into line" with the Court's proper case management of its criminal proceedings. The learned Magistrate refused both applications. In the course of giving a prepared oral judgment, her Honour held, essentially, that the proceedings were for a monetary penalty only, and that by force of the provisions of the Criminal Procedure Act 1986 (NSW), and the regulations made thereunder, governing the management of summary proceedings, a brief was not required. Her Honour held that the previous orders directing the prosecution to serve a brief, and to comply with a timetable in respect of it, should be set aside. Her Honour also declined to set aside the subpoena, saying she was not satisfied that it had no legitimate forensic purpose.
[3]
Grounds of Appeal
The grounds of appeal to be pursued, if leave is granted, seek to impugn the order declining to set aside the subpoena, the order dismissing the application for an exclusion order, and a related application for a stay pending an appeal. There is an issue about whether that last application was made. However that may be, I am of the view that the power of this Court to grant a stay of proceedings is essentially an exercise of original jurisdiction. It is not a precondition of the exercise of the power that an order should have been sought in the court below.
Given the limited right of appeal from interlocutory orders in the Local Court in the exercise of its summary jurisdiction provided by the Crimes (Appeal and Review) Act 2001 (NSW), as I have said, the plaintiffs seek the alternative of judicial review.
[4]
Decision
Without going through all of their detail, I am satisfied that each of the grounds set out in the statement of grounds in the amended summons, being grounds one to six, on their face raise a question of law. For what it is worth, bearing in mind the restricted concept of jurisdictional error as it applies to lower courts, as explained by the High Court in Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58, grounds one to six raise grounds which may fairly be said to be either errors of law appearing on the face of the record of her Honour's reasons, or perhaps jurisdictional error, given that they largely concern the interpretation of the governing statute for the exercise of the Local Court's summary criminal jurisdiction.
The grounds, I think, are fairly arguable. They are fairly arguable as being interlocutory orders, bearing in mind the restrictions on the meaning of that expression to be found in Salter at [32].
[5]
Balance of convenience
I turn then to the balance of convenience. There are a number of complex issues which arise in the application of the balance of convenience in this case. Those complex issues relate in part to the reluctance of the Court to fragment the criminal process.
An important additional factor is that no relief by way of adjournment of the trial fixed for 11 November 2016 was sought as part of the interlocutory application disposed of by the learned Magistrate in her judgment of 26 October. What were sought were effectively exclusionary orders, which would preclude the prosecution from ever relying upon the additional material.
I leave aside the strong argument on either side of the record about whether the statutory provisions of the Criminal Procedure Act, requiring the service of briefs, applied to these proceedings. It is fairly arguable - as has been put for the defence - that the ancillary matters referred to in s 109 and s 111 of the Road Transport (Vehicle and Driver Management) Act, are at least arguably indicative of the fact that the monetary penalty, which in this case I am told could amount to as much as $4 million, is not the only penalty provided. In particular, I would regard a prohibition order as being penal in nature. In any event, as has been argued by Mr Muddle SC and Mr Ireland for the applicants, s 593 of the Heavy Vehicle National Law refers to such orders as penalties, at least by necessary implication.
The meaning of the provisions of the Criminal Procedure Act and its application to a case of this nature is a matter for the appeal. But the points sought to be raised by the plaintiff are fairly arguable.
I have given serious consideration as to whether the relief sought from the Magistrate is ever likely to be granted in a case like this. It seemed to me during the course of that argument that as Mr Cahill and Mr Hartford-Davis argue for the defendant, it is a most unlikely occurrence that a prosecutor would never, in any circumstances, be able to rely upon relevant material even if that material had been served late.
It was not put to the Magistrate, and it is not put to me, that specific forensic prejudice arises out of the plaintiffs having to meet the additional material, although I accept that there may be prejudice in a more general sense if the plaintiffs are convicted on the basis of the new material.
This consideration has weighed heavily with me. I understand the nature of the argument put forward on the basis of abuse of process. There must be cases, of course, where a prosecutor would be precluded from relying upon late served material, and of course there are cases where a permanent stay has been granted because the conduct of the case by the prosecution makes it impossible for the defendant to receive a fair trial. It seems to me that this is at the heart of the matter when arguments of this type are made. I accept that prejudice can have a more insidious effect.
The rules of natural justice require, whatever the statute says, a party to have a fair opportunity to meet the case brought against it. Mr Muddle was careful to point out that no application for an adjournment had been made to the Magistrate, and that no argument was put before me that there was any prejudice in conducting the defence by reference to the late served material, as I will call it for convenience.
A further factor which I think is relevant, as referred to by Beech-Jones J in R v Obeid (No 5) [2015] NSWSC 1967 at [23], is whether the denial of a stay will deprive the plaintiff's statutory right of appeal of any utility. This is a factor which is often very influential in the administration of civil justice.
In Patrick Stevedores Operations (No 2) Pty Limited v Maritime Union of Australia (No 2) [1998] HCA 32; 72 ALJR 869 at [3] - [4], Hayne J said this:
"To speak only of preserving the subject-matter of litigation may in some cases obscure the fact that the jurisdiction can be invoked, if to grant a stay is necessary to prevent the exercise of rights of appeal being rendered futile or their exercise in circumstances where restoration of the status quo cannot be achieved.
The jurisdiction to grant the stay is, however, an extraordinary jurisdiction and exceptional circumstances must be shown before its exercise is warranted."
It is not my understanding that exceptional circumstances are generally required in appeals to intermediate courts of appeal. The cases that Beech-Jones J reviewed in Obeid (No 5) related to cases where special leave to appeal to the High Court was sought. However, it seems to me that the deprivation of a party of its right to appeal might be an exceptional circumstance requiring the grant of a stay. In quoting that passage from Patrick Stevedores Operations (No 2), Beech-Jones J emphasised the expression "rights of appeal". I am conscious that the statutory relief provided by the Crimes (Appeal and Review) Act requires leave, but speaking for myself, I do not regard that as particularly material given that that is the only avenue of appeal provided.
I suppose it may be said that if I refuse a stay the evidence will be admitted against the defence. Even if that is corrected on a subsequent appeal, it may be that the ability to have a new trial absent that evidence will effectively, at least as a practical matter, be lost. Once the evidence is in it will have its full forensic effect in the trial starting tomorrow.
I am conscious of the consideration that the Local Court has set aside three weeks of its scarce time to hear and determine this matter, and that a stay might lead to public money being wasted. Doubtless the lists in the Local Court are such that the learned Magistrate can be usefully re-deployed and the court resources engaged, but that is not necessarily self-evident.
It is a finely balanced matter in which there is much to be said for both sides of the argument. In the end it comes down to which of the desire not to fragment the criminal process on the one hand, and the desire not to deprive the plaintiffs of a fairly arguable avenue of appeal on the other, tips the balance, always bearing in mind where the onus of proof lies. It seems to me that dealing with the matter on the probabilities, and not without a large degree of doubt, the balance of convenience favours the grant of the stay in order that the appeal be determined.
In coming to this conclusion I am conscious of the fact that even as was argued strongly by Mr Cahill, her Honour was wrong about her interpretation of the Criminal Procedure Act. The Act provides that prosecution material where a brief is required can be served up until fourteen days prior to the commencement of the summary trial. There are however cases where natural justice might require, by way of case management, less leeway than that to either party. It is not obvious to me that in a case involving so many charges, which are chain of responsibility matters, that the orders made for providing plenty of notice to the defence as to what would be led against them, were not required as a matter of fairness.
[6]
Order
For these reasons, I order that the proceedings in the Local Court, to commence on 11 November 2016 between the Roads and Maritime Services and Remondis Australia Pty Limited and Luke Agati are stayed pending the disposition of the application for leave to appeal and appeal in this Court.
[7]
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: 22 November 2016
Parties
Applicant/Plaintiff:
Remondis Australia Pty Ltd
Respondent/Defendant:
Local Court of New South Wales
Legislation Cited (3)
Road Transport (Vehicle and Driver Management) Act 2005(NSW)