RTA of NSW v Jara Transport Pty Limited

Button v Evans (1984) 3 NSWLR 191 Environment Protection Authority v N (1992) 26 NSWLR 352 CASES CITED : Hawthorne (Department of Health) v Morcam Pty Limited (1992) 29 NSWLR 120 Proudman v Dayman (1963) 67 CLR 536 at 541 SRA of NSW v Hunter Water Board (1992) 28 NSWLR 721

Roads and Traffic Authority of NSW - Plaintiff PARTIES : Jara Transport Pty Limited - Defendant

Mr T Lynch - Plaintiff COUNSEL : Ms R Toor - Director of Defendant Company

Hunt & Hunt - Plaintiff SOLICITORS : Ms R Toor - Director of Defendant Company

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

12502/2005 - ROADS & TRAFFIC AUTHORITY OF NSW v JARA TRANSPORT PTY LIMITED

JUDGMENT 1 The Roads and Traffic Authority (RTA) as plaintiff appeals by way of summons from a decision of his Honour Mr Maloney LCM of 13 May 2005. In that decision his Honour dismissed proceedings commenced by two Court Attendance Notices (CANs) filed by the RTA on 8 November 2004 against the defendant Jara Transport Pty Limited (Jara Transport). 2 The right of appeal is provided by s56(1)(c) of the Crimes (Local Courts Appeal and Review) Act 2001. Such appeal is restricted to a question of law alone. This requirement is satisfied in that the appeal raises for consideration the meaning of the word "produce" as used in s21 of the Road Transport (General) Act 1999 and in clause 63 of the Road Transport (Safety and Traffic Management) (Driver Fatigue) Regulation 1999. It also raises the question of whether the section and regulation impose strict liability or absolute liability on those required to comply with them.

Factual background 3 Jara Transport conducted a trucking business. It was alleged by the RTA that on 7 May 2004 at the 12Mile Avoidance Heavy Vehicle Checking Station the driver of one of Jara Transport's trucks failed to comply with a direction to stop at that checking station pursuant to s230 of the Roads Act 1993. 4 As a result the RTA by notice dated 8 June 2004 required that Jara Transport provide and produce certain documents and information. In order to understand the issues which arise on the appeal it is necessary to set out the notice in full. "Letter date: 08/06/2004 JARA TRANSPORT PTY LTD 187 WALTERS RD ARNDELL PARK NSW 2148 Notice to produce records It is alleged that on 07/05/2004 at the 12Mile Avoidance Heavy Vehicle Checking Station, the driver of motor vehicle NV93EV committed an offence under Section 230 of the Roads Act 1993 which is set out below. The sighting details are shown on the reverse of this letter. Fail to comply with a direction to stop pursuant to section 230 of Roads Act, 1993. Accordingly, you are directed under. · Section 229 of the Roads Act 1993 and Section 21 of the Road Transport (General) Act 1999 to provide the name and home address of the driver of the above vehicle as at the date set out above. · Section 66 of the Road Transport (Safety & Traffic Management) Act 1999 to produce vehicle movement records including all vehicle monitoring device and/or tachograph records in respect of vehicle registration NV93EV from 06/05/2004 to 08/05/2004. · Clause 63 of the Road Transport (Safety & Traffic Management) (Driver Fatigue) Regulation 1999 to produce all driving records being duplicate or original logbook records (including copies of Accreditation in Alternative Fatigue Management Schemes, if applicable) in relation to the driver of vehicle registration number NV93EV from 06/05/2004 to 08/05/2004. You are required to produce all of these records and the attached statement duly completed to the undersigned at the following address, or by Fax on (02) 9218 3962, within 28 days from the date of this letter. The Manager, Safe-T-Cam Roads and Traffic Authority Level 2, 260 Elizabeth Street SURRY HILLS NSW 2010 Failure to comply with this notice will render you liable to prosecution. Maximum penalty is $5,500. Yours faithfully" 5 It was the submission of Jara Transport that it received the notice on 12 June 2004 and responded to it on that day by faxing to the RTA log book pages and driver's details as requested. On 15 June 2004 it sent by mail the driver's details requested. His Honour made findings to that effect. His Honour also found that these documents were not received by the RTA. 6 Because the documents requested were not received, the RTA on 8 November 2004 issued the two CANs, the subject of the appeal. Each CAN required the attendance of Jara Transport at the Downing Centre Local Court on 14 February 2005. The first CAN (RTA case No 13) provided details of the offence as follows: "The defendant was the owner of a vehicle bearing NSW number plate NV93EV and failed to comply with a written Notice to Produce specified driver details within a specified time as required by the Road Transport (General) Act 1999."

The specified time was 8 June - 7 July 2004. The statutory provision giving rise to the offence was identified as Road Transport (General) Act 1999 section 21. 7 In the second CAN (RTA case No 18) the details of the offence were: "The defendant was the owner of a vehicle bearing NSW number plate NV93EV and failed to comply when requested to produce driving records within a specified time as required by the Road Transport (Safety and Traffic Management) (Driver Fatigue) Regulation 1999.

The time specified was 8 June - 7 July 2004. The type of information requested was logbook pages for the specified vehicle for the period 6 May - 8 May 2004. The statutory provision giving rise to the offence was identified as: Road Transport (Safety and Traffic) (Driver Fatigue) Regulation 1999 s63(1)(2)(3). 8 It was only when it received the two CANs that Jara Transport became aware that the documents which it had sent to the RTA had not arrived. Additional copies of the documents requested were then sent to the RTA. The RTA nevertheless continued to prosecute the two CANs which had been issued. These came on for hearing before his Honour Mr Maloney LCM in the Local Court at the Downing Centre on 13 May 2005. His Honour dismissed the proceedings commenced by the two CANs.

Proceedings in the Local Court 9 When the matter came on for hearing Jara Transport was represented by one of its directors, Ms Ravinder Toor. She also represented Jara Transport in these proceedings. In the Local Court the RTA was represented by Mr Taylor, a solicitor. 10 The proceedings in the Local Court were conducted with some informality. The RTA tendered a statement by Ms Monroe dated 18 April 2005, which had annexed to it the Notice to Produce Records of 8 June 2004, together with a letter received from Ms Toor, dated 24 January 2005. That letter and statements made by Ms Toor from the bar table made it clear that Jara Transport was maintaining that it had forwarded the relevant documents to the RTA by facsimile and mail. Ms Toor was not sworn as a witness, no formal evidence was taken from her nor was she cross-examined. 11 Despite that informality, it seems tolerably clear that his Honour found that Jara Transport sent the RTA the documents which it requested, but that those documents were not received by the RTA. It is implicit in the dismissal of the proceedings that the Court must have found that those documents were sent on or before 7 July 2004. The RTA was submitting that to comply with the words "give" and "produce" as used in the statutes, more than a "mere sending" was required. There had to be proof of receipt in that the offences charged were ones of absolute liability. His Honour implicitly rejected that proposition and in effect found that the sending of the documents requested was a sufficient compliance with the notice of 8 June 2004. I infer that his Honour when dismissing the proceedings on the basis that Jara Transport "got the benefit of the doubt" was in fact finding that the offences had not been proved beyond reasonable doubt.

Submissions on appeal 12 The RTA submitted that there were three possible bases on which the CANs could have been dismissed and that none of these were available.

(i) Jara Transport had in fact complied with the notice.

(ii) The offences required mens rea, and it had not been proved.

(iii) The offences were strict liability and a Proudman v Dayman "defence" had been evidentially raised and not negated.

Compliance in fact 13 The RTA submitted that there was not compliance with the notice of 8 June 2004. The essence of s21 of the Road Transport (General) Act 1999 was that upon being "required to do so" the "responsible person" for the vehicle "must immediately give" the "information" required. Similarly the essence of cl 63 of the Road Transport (Safety and Traffic Management) (Driver Fatigue) Regulation was that the person required to keep "driving records" must "produce the stated driving records to the authority within the time stated in the notice". 14 It was submitted that a "sending" which does not result in that which was sent being received by the addressee, does not result in that which was sent having been "given". A sending is part but not the entirety of a "giving". 15 In relation to "production" it was submitted that "production" is not always or invariably a consequence of "sending". "Sending" is a necessary step in "production" but is not itself "production". 16 The RTA relied upon the definition of "give" in the Macquarie Dictionary which included "to hand over", "to deliver to another", "to present" and "to produce". The definition of "produce" included "to provide, furnish or supply". 17 In relation to "give" Stroud's Judicial Dictionary (6th ed) said: "The primary meaning of the word appears to have been the placing of a material object in the hands of another person".

Of "produce" it was said: "To produce a thing to a person means to show it to him personally and does not involve the idea that the possession of it is to be parted with; … something was produced when an opportunity was given to inspect it." 18 It followed that compliance with s21 and cl 63 required that there be an actual "giving" or "production" of the information and documents to the RTA. A person obliged to give and produce information or documents takes the risk that sending alone will not achieve the necessary "giving" or "production" unless something is done to ensure that the documents or information has been received. Accordingly it was not open to the court to find that by "sending" there had been compliance in fact with the requirements to "give" and "produce". 19 To some extent the submissions of the RTA misunderstand the obligation which Jara Transport had to meet. What Jara Transport had to do was to comply with the notice of 8 June 2004. That notice required Jara Transport to "provide" details concerning the driver and to "produce" certain specified records. Although the notice referred to s21 and cl 63, it did not in any way reproduce the provisions of that section and that regulation so that the requirement on Jara Transport was to do no more than to comply with the notice in the terms in which it was expressed. 20 This means that there was never a requirement on Jara Transport to "give" anything to the RTA. The requirement was to "provide" and to "produce" as specified in the notice. 21 For practical purposes, however, it is a distinction without a difference. It seems to me that the words "provide" and "produce" do involve more than a mere sending. Some step needs to be taken to ensure that the sending was successful so that the relevant information or document is received. 22 The difficulties in defining a word such as "produce" were highlighted by Carruthers J in Button v Evans (1984) 3 NSWLR 191. His Honour noted that the word "produced" is "a word that has not got an exact legal meaning but requires an interpretation to be put upon it in the statute in which it occurs". In some cases it might involve personal delivery. Quite clearly in this case that is not required, although such a delivery would be compliance in fact with the notice. In addition to sending, some additional step needed to be taken to ensure that the documents were capable of being inspected and that the driver information was available, ie that both had been received. 23 It is not necessary to set out a comprehensive definition of the words "to provide" and "to produce" as used in the notice. It is sufficient that I indicate my agreement with the substance of the submission of the RTA that compliance with the notice did require more than a mere sending and it was a misdirection by his Honour to find that the act of "sending" was a sufficient compliance with the notice.

Mens rea and strict liability 24 These two bases for the proper dismissal of the CANs really raise the same issue. It is whether the offences specified in the two CANs were matters of strict or absolute liability. The submission of the RTA was that the offences specified in the CANs were matters of absolute liability and consequently there was no room for any consideration of mens rea or a Proudman v Dayman "defence". 25 I have already set out the relevant contents of the two CANs. To understand the RTA's submission on this issue, however, it is necessary to set out s21 of the Road Transport (General) Act 1999 and cl 63 of the Road Transport (Safety and Traffic Management) (Driver Fatigue) Regulation 1999: "21(1) If the driver of a motor vehicle is alleged to have committed an offence under the road transport legislation: (a) the responsible person for the vehicle, or the person having the custody of the vehicle, must, when required to do so by an authorised officer, immediately give information (which must, if so required, be given in the form of a written statement signed by the responsible person) as to the name and home address of the driver, and (b) any other person must, if required to do so by an authorised officer, give any information that it is in the person's power to give and that may lead to the identification of the driver. Maximum penalty: 20 penalty units. (2) It is a defence to a prosecution for an offence under subsection (1)(a) if the defendant proves to the satisfaction of the court that he or she did not know and could not with reasonable diligence have ascertained the driver's name and home address. (3) A written statement purporting to be given under subsection (1)(a) and to contain particulars of the name and home address of the driver of a motor vehicle at the time of commission of an alleged offence under the road transport legislation that is produced in any court in proceedings against the person named in the statement as the driver for such an offence is evidence without proof of signature that the person was the driver of the vehicle at the time of the alleged offence if the person does not appear before the court." "63(1) The Authority may, by written notice given to a person who is required under this Division to keep driving records, ask the person to produce stated driving records to the Authority for inspection within the time stated in the notice. (2) The time stated in the notice must be at least 7 days after the notice is given to the person. (3) The person must comply with the notice. Maximum penalty (subclause (3)): 20 penalty units." 26 The appropriate test to be applied to such legislation was succinctly stated in Hawthorne (Department of Health) v Morcam Pty Limited (1992) 29 NSWLR 120 at 131B: "The issue of statutory construction raised is whether the legislature intended the offence created by s10 to be one of absolute liability or one of strict liability. This Court recently considered the law relating to the construction of such provisions in Environment Protection Authority v N (1992) 26 NSWLR 352 at 354-55. It is unnecessary to repeat the citations of authority there for the following propositions: (1) The common law presumption is that an essential element of every offence is that the defendant knew of the wrongfulness of his act. (2) The presumption is, however, liable to be displaced. (3) In determining whether the common law presumption has been displaced in the particular case, the Courts have taken various matters into consideration. They are (a) the words of the statute itself, (b) the subject matter with which the statute deals and (c) whether an absolute liability will assist in overcoming the mischief at which the statute is aimed. As Gibbs CJ remarked in He Kaw The's case (at 530), these indications do not all point in the same direction. There is also clear authority for the further proposition that the defendant's knowledge of the wrongfulness of his act is an essential ingredient of every statutory offence unless the statute excludes it either expressly or by necessary implication. …" 27 I agree with the RTA that his Honour's reference to "giving Jara Transport the benefit of the doubt" suggests that his Honour approached the offences on the basis that they were ones of strict liability rather than absolute liability. In other words that he found a Proudman v Dayman "defence" in that Jara Transport had "reasonable grounds for believing in the existence of a state of facts which, if true, would take its act outside the operation of the enactment and that on those grounds it did so believe." (Proudman v Dayman (1963) 67 CLR 536 at 541). 28 The RTA submitted that if his Honour had approached the matter in that way, his Honour had erred because the statements from Ms Toor from the bar table even if taken as evidence went no further than to establish a belief that the information/documents had been provided and produced because they had been sent. No basis had been established for a positive belief, reasonably held, that the required production and provision had occurred and accordingly no Proudman v Dayman "defence" was raised. The material before his Honour did not permit a finding of honest and reasonable belief of facts if true would have established production and provision as required by the notice. 29 I agree with the RTA that there was not evidence of a kind sufficient to establish a Proudman v Dayman "defence" before his Honour. That may well have been because the matter was dealt with in an informal manner. Had Ms Toor given sworn evidence as to what steps she took in sending the information and document, evidence sufficient to raise a Proudman v Dayman "defence" may have been elicited. It is for that reason that I propose to remit the matter to the Local Court rather than deciding the issue myself. There is a suggestion by Ms Toor in her letter to the RTA that she did have some confirmatory discussion with someone from the RTA after her "sending" of the documents and information but the date of that discussion is not made clear. 30 It follows that I need to determine whether the offences raised by the two CANs are offences of strict liability or absolute liability in case such evidence is adduced in the Local Court upon the remitting of this matter. 31 As a first consideration it must be said that there is no indication in either s21 or cl 63 of an intention on the part of the legislature that the offences created involve absolute liability. Section 21 specifically refers in its terms to a number of qualifications and exceptions to compliance. The fact that the section and clause use the word "must" is not decisive. 32 The subject matter of the statute is the enforcement of road traffic legislation. That there should be the orderly control and regulation of road traffic is a matter going to public welfare. The requesting of such information and documents as specified in the notice, is part of the overall matrix of provisions which combine to produce orderly control and regulation of road traffic. 33 The specific purpose of s21 and cl 63 is to enable the RTA to obtain access promptly to information and documents. It does so by enforcing the obligation upon those in whose custody or under whose control the documents or information are to be found, to produce them. There is a public interest in the RTA obtaining access to such documents in that the accessing of such information plays a part in the orderly control of road traffic. 34 What is not clear is how absolute liability in the production of such information and documents will assist in achieving that purpose. It will certainly assist in obtaining convictions where there has been a failure to provide and produce documents, but that is not a compelling reason for finding absolute liability. An unjust conviction will, of course, do nothing to assist the RTA to obtain access to documents and information if the failure to produce or provide was caused by an honest and reasonable mistake. 35 An obvious example of such a situation is this. Documents and information might, in accordance with a notice, have been sent to the RTA. Within the 28 days specified, the person sending the documents and information might have contacted personnel from the RTA to ask whether the documents and information had been received. What would be the situation if the RTA representative, to whom the inquiry was made, erroneously advised that the documents and information had been received when that was not so. That it seems to me would create a classic Proudman v Dayman "defence" situation. 36 The analysis by Gleeson CJ in SRA of NSW v Hunter Water Board (1992) 28 NSWLR 721 at 725E is useful. "The concluding words in that passage emphasise that what is involved is something more than inadvertence. In a number of different contexts courts have stressed the need to show an affirmative belief in a certain fact or state of affairs as distinct from a mere absence of knowledge … In determining what state of mind will be treated as a mistaken belief for the purposes of a defence of strict liability created by statute, questions of statutory construction arise, and the purpose of the legislature in creating an offence needs to be considered… It would be inconsistent with the legislative purpose underlying the Clean Waters Act to conclude that the mere lack of knowledge that pollution was occurring, or was likely to occur, based upon a general understanding or assumption that everything was in order, would be sufficient to amount to a mistaken belief. Rather, a belief in the existence of a set of facts which, if true, would take the conduct in question outside the operation of the statute would entail, in a case such as the present, a positive belief that the operation of the plant and equipment would not result in pollution. That belief would also need to be sufficiently specific to relate it to the elements of the particular offence." 37 The particular illustration to which I have referred satisfies that analysis. There would be a basis for the positive belief that the documents and information had been sent and received. If such a situation did occur the purposes of the legislation would not in any way be advanced or facilitated by a conviction on the basis of absolute liability. 38 In my opinion the offences raised in the two CANs were offences of strict liability to which a Proudman v Dayman "defence" was potentially available. They were not offences of absolute liability.

Conclusion 39 For the above reasons I find that his Honour erred in concluding that evidence as to "sending" only without any follow up was sufficient compliance with the notice. 40 To the extent that his Honour regarded the offences in the two CANs as being offences of strict liability rather than absolute liability, his Honour was correct. His Honour did, however, err to the extent to which he considered that a Proudman v Dayman "defence" had actually been made out, ie that there was sufficient evidence before him to substantiate a finding that not only had the information and documents been sent but that they had been received. 41 This has been something of a test case. Ms Toor is not legally qualified and has represented the defendant in her capacity as a director. On the limited evidence available, it seems to me that she at all times acted in good faith and attempted to comply with the notice of 8 June 2004. It was not her fault that the notice and the legislation to which it referred, is couched in obscure and legalistic language which would be largely impenetrable to members of the public. Accordingly although the plaintiff has succeeded in its appeal, I do not propose to award costs in its favour. 42 The orders which I make are as follows:

(1) I order that the order of the Local Court at the Downing Centre of 13 May 2005 dismissing the proceedings commenced by the two Court Attendance Notices filed by the plaintiff on 8 November 2004 against the defendant be set aside.

(2) I order that the further hearing of the two Court Attendance Notices be remitted to the Local Court at the Downing Centre to be determined according to law.

(3) The plaintiff is to pay its own costs of the proceedings in the Supreme Court.

(4) In relation to the costs of the proceedings in the Local Court on 13 May 2005 in relation to the two Court Attendance Notices, the defendant is to have a certificate under the Suitors Fund Act if the defendant is otherwise entitled to such a certificate in accordance with the provisions of the Suitors Fund Act. **********

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