Chalouhi Enterprises Pty Ltd v Roads and Maritime Services

[2020] NSWSC 66

Supreme Court

New South Wales

Medium Neutral Citation:	Chalouhi Enterprises Pty Ltd v Roads and Maritime Services [2020] NSWSC 66
Hearing dates:	7 November 2019
Date of orders:	13 February 2020
Decision date:	13 February 2020
Jurisdiction:	Common Law
Before:	Wright J
Decision:	(1) The plaintiff’s summons seeking leave to appeal filed on 30 May 2019 is dismissed.  (2) The plaintiff is to pay the defendant’s costs as agreed or assessed.
Catchwords:	APPEAL – Crimes (Appeal and Review) Act 2001 s 53(3)(b) – application for leave to appeal from Local Court to Supreme Court against interlocutory order – meaning of “interlocutory order” – Magistrate’s ruling on a preliminary point not interlocutory order – no jurisdiction to hear and determine application – in any event, leave to appeal should be refused
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Appeal and Review Act) 2001 (NSW) Heavy Vehicle National Law 2013 (NSW) Supreme Court (Corporations) Rules 1999 (NSW)
Cases Cited:	Choy v Tiaro Coal Ltd (in liq) (2018) 98 NSWLR 493; [2018] NSWCA 2015; (2018) 364 ALR 554 Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 Queanbeyan City Council v Environment Protection Authority [2011] NSWCCA 108 Russell v Scott [2017] NSWSC 1720 Salter v Director of Public Prosecutions (2009) 75 NSWLR 392; [2009] NSWCA 357
Category:	Principal judgment
Parties:	Chalouhi Enterprises Pty Ltd (Plaintiff) Roads and Maritime Services (Defendant)
Representation:	Counsel: P Barry (Plaintiff) A L Campbell (Defendant)   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

3. The background to this matter appears from the findings of Barko LCM and other undisputed material before the Court.

4. 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.

5. 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).

6. 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.

7. 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.

8. 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.

9. On 6 May 2019, the matter came on for hearing before Barko LCM in the Local Court.

The Local Court decision

10. 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).

    1. The transcript of the hearing on 6 May 2019 at T5.42-44.

11. 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).

12. 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.

13. 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;

4. 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”.

14. 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]

2. 6 May 2019 T8.9-16.

15. After making those findings, his Honour clarified that his understanding of s 639(4) was that the operator declaration was required to be given at least 28 days before the first return date of the matter, not the date of the defended hearing. Chalouhi submitted that it had proceeded on the basis that the date “the charge is heard” in s 639(4)(b)(ii) was the date of the defended hearing and in those circumstances the operator’s declaration had been submitted “at least 28 days before the charge is heard.” Barko LCM also reiterated his view that the operator declaration had not, in any event, been given as soon as practicable after the charge in the CAN had come to Chalouhi’s attention.

16. The following exchange then took place:

“HIS HONOUR: I'm happy for instructing solicitors to get a ruling on it, if they want. At the Supreme Court. I often invite prosecutors to get a ruling, because if there's no authorial case law on it, then it might assist all head operators in the national law to know exactly where they stand.

…

BARRY: I think then, in that case, perhaps today can at least go no further. I might have to just get some instructions and take a view. If your Honour pleases.

SHORT ADJOURNMENT

BARRY: Your Honour, I have instructions to agitate the point elsewhere. That being the case, that's the position of the defendant, your Honour.

HIS HONOUR: I think I'll have to hear the matter in its entirety, though. Then you can take it up.

BARRY: I had intended not, as a stated case, simply that it being a preliminary point. As I understand the operation of- Your Honour doesn't need to make findings of fact if it's not a stated case. There is a provision for an appeal of a single decision-

HIS HONOUR: Including an issue of law?

BARRY: Yes.

HIS HONOUR: That won’t be an issue. But the question is, because of the anticipated delay, I can fire – put it this way, is it going to be plea of guilty if my determination’s .. (not transcribable) .. is it going to be a plea of guilty?

BARRY: No, your Honour. Not that I know of. My instructions are that it would be a defendant [?defended matter] but I’d need time to consider that.

HIS HONOUR: All right. I’ll just make a note on the Court file .. (not transcribable) .. It’s a pretty narrow point, isn’t it?

BARRY: Yes.” [3]

3. 6 May 2019 T9.9-50.

17. There was a further exchange between counsel for Chalouhi and the learned Magistrate regarding a proposed mention date, among other things. Further towards the end of the hearing, his Honour is recorded as saying (although the transcript appears to be somewhat unreliable and it is not clear what was actually said):

“I've just noted the Court for I rule that s 639 subs 4 does not apply, in that the defendant did not provide the requisite declaration records. This section of 639 subs 4, sub-sub s ii) requirements. The defendant in code submissions to appeal is a matter of law for the Supreme Court. So, I'll just list that for a mention date. Just to keep track or might take me..(not transcribable)..supreme.

And in between now and then, if anybody finds any authority on that point, let me know. …” [4]

4. 6 May 2019 T10.35-.43.

18. As foreshadowed before the Local Court, Chalouhi decided to lodge an appeal to this Court.

Chalouhi’s appeal

19. 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.

20. 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).”

21. 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.

Relevant statutory provisions

The CAR Act

22. 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.”

23. 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.

24. 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

25. 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.

…”

26. 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:

    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.

“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.”

27. “Operator” is defined in s 5 of the HV Law relevantly as follows:

“operate and operator—

A person operates a vehicle …, and is an operator of the vehicle …, if the person is responsible for controlling or directing the use of—

(a) for a vehicle (including a vehicle in a combination)—the vehicle …”.

28. The liability of an “operator” can be extended to the “registered operator” of a heavy vehicle by s 639 of the HV Law. Section 639 relevantly provides:

639 Liability of registered operator

(1) This section applies to an offence against this Law that may be committed by the operator of a heavy vehicle (whether or not any other person can also commit the offence).

(2) If an offence to which this section applies is committed, the following person is taken to be the operator of the heavy vehicle and, in that capacity, is taken to have committed the offence—

(a) for a heavy vehicle that is not a combination—the registered operator of the vehicle;

…

(3) The registered operator has the same excuses and defences available to the operator of the heavy vehicle under this Law or another law.

(4) Subsection (2) does not apply if the registered operator gives the Regulator an operator declaration—

…

(b) if the registered operator is charged with the offence—

(i) if the charge is to be heard 28 days or less after the charge comes to the operator’s knowledge—as soon as practicable after the charge comes to the registered operator’s knowledge; or

(ii) if the charge is to be heard more than 28 days after the charge comes to the operator’s knowledge—as soon as practicable after the charge comes to the registered operator’s knowledge but at least 28 days before the charge is heard.

(5) If the registered operator gives an operator declaration as mentioned in subsection (4)—

(a) a proceeding for the offence may be started against the person named as the operator of the heavy vehicle in the operator declaration only if a copy of the operator declaration has been served on the person; and

(b) in a proceeding for the offence against the person named as the operator of the heavy vehicle in the operator declaration, the operator declaration is evidence that the person was the operator of the heavy vehicle at the time of the offence; and

(c) in a proceeding for the offence against the registered operator, a court must not find the registered operator guilty of the offence in the registered operator’s capacity as the operator of the heavy vehicle if it is satisfied, whether on the statements in the operator declaration or otherwise, the registered operator was not the operator of the heavy vehicle at the time of the offence.

(6) To remove any doubt, it is declared that this section does not affect the liability of the registered operator in a capacity other than as the operator of the heavy vehicle.

(7) In this section—

operator declaration means a statutory declaration, made by the registered operator of a vehicle that is or forms part of a heavy vehicle the subject of an offence against this Law, stating—

(a) the registered operator was not the operator of the heavy vehicle at the time of the offence; and

(b) the name and address of the operator of the heavy vehicle at the time of the offence.

registered operator, of a vehicle other than a heavy vehicle, means the registered or licensed operator of the vehicle under an Australian road law.”

29. Before this Court, it was not in dispute that:

1. s 639 applies to offences under s 183 of the HV Law;

2. Chalouhi was the “registered operator” of the vehicle in question at the relevant time; and

3. the statutory declaration made by Mr John Faulkner, commercial manager of Chalouhi, on 12 March 2019 was an “operator declaration” as defined in s 639(7).

30. In the Local Court, the question in relation to the operator declaration was whether it had been given within the timeframes specified in subs 4(b) of s 639 so that subs (2) of that section did not apply. In this Court, the issue was whether, in determining that question, the Local Court made an “interlocutory order” for the purposes of s 53(3)(b) of the CAR Act.

Did the Local Court make an interlocutory order?

Submissions

31. 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.

32. 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]

    6. Chalouhi’s written submissions in reply of 6 September 2019 at par 11.

33. 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.

34. 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

35. 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.

36. 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.

37. 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. …”

38. In Salter, Campbell JA observed at [32] that:

“Section 53(3)(b) does not confer jurisdiction for the Supreme Court to give leave to appeal against an ‘interlocutory decision’ only against an ‘interlocutory order’. There are some interlocutory decisions, of which those involved in the present case are examples, that are not in themselves interlocutory orders, and do not ever come to be given effect to by an interlocutory order.”

39. The fact that the ruling in the present case concerned whether s 639(2) had the effect that Chalouhi, as the registered operator, could be liable as the operator and thus be an appropriate defendant in the proceedings, does not provide a proper basis for distinguishing this case from Salter. Whether there was no operative judicial act in the present case, as in Salter, does not turn upon whether Chalouhi was the correct defendant.

40. Applying the principles set out in Salter, I am of the view that the Magistrate’s ruling on whether an operator declaration had been given within the timeframes specified in s 639(4)(b)(ii) in the present case was not an “interlocutory order”. It was no more than a preliminary decision or ruling that did not constitute or involve an operative judicial act. The ruling did not command that anything be done or not done. It did not determine the proceedings. The ruling was no more than a ruling which could be tested on appeal to this Court or the District Court after a conviction, if there were a conviction.

41. The learned Magistrate correctly perceived that the appropriate course in the present case was for him to hear the matter to finality so that there would be an order against which Chalouhi could appeal. After he indicated that he was content for the parties to test whether his ruling was correct and Chalouhi indicated that it wished to appeal, Barko LCM said: “I think I'll have to hear the matter in its entirety, though. Then you can take it up.” [7] This would have been a correct course to take. If it had occurred, all the arguments available before the Local Court could have been raised and, if there was a conviction, it could have been appealed to the District Court or the Supreme Court.

    7. 6 May 2019 T9.27-28.

42. Unfortunately, the Magistrate was dissuaded from this course. In response to the enquiry whether there would, in light of his ruling, be a plea of guilty, his Honour was informed that Chalouhi would not be pleading guilty and the matter would continue to be defended. [8] It was then suggested that a “single decision” could be appealed to the Supreme Court. In these circumstances, the matter was adjourned to allow this Court to “deal with this legal issue”.

    8. 6 May 2019 T9.39-44.

43. From the Magistrate’s enquiry and the position adopted by Chalouhi that there would not be a plea of guilty and the matter would continue to be defended, it can be seen that it was not perceived, at that time, that the Magistrate’s ruling had effectively determined the proceedings before him. This provides further support for the conclusion that the ruling did not constitute or involve an operative judicial act.

44. At this point it is appropriate to deal with Chalouhi’s submission in this Court that the ruling did determine the proceedings in the Local Court in a practical sense and, thus, amounted to an “order” for the purposes of s 53(3)(b) of the CAR Act. As noted above, this submission depended in part upon the reference in Barko LCM’s ruling to Chalouhi as the “registered operator” being an error and he should have said that Chalouhi was the “operator”, because of the finding that the operator declaration was not given within the timeframes specified in s 639(4).

45. It was observed that, in earlier submissions before the Local Court, Chalouhi had touched upon the operation of s 639(5)(c) of the HV Law. On this basis, it was submitted that Chalouhi did not have the option of defending the proceedings on the basis of that subsection, after Barko LCM’s ruling on whether an operator declaration had been given within the timeframes specified in s 639(4)(b)(ii). As Chalouhi understood it, the Magistrate’s ruling was that Chalouhi was the “operator” and 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 the ruling effectively determined the proceedings. On this basis, it was submitted, the ruling could be said to be an operative judicial act and, therefore, an “order”.

46. This submission should not be accepted for a number of reasons. First, it does not appear to me that Barko LCM’s reference in his ruling to Chalouhi being the registered operator was necessarily or actually an error. His statement that Chalouhi was the registered operator was correct and Chalouhi’s status as the registered operator was relevant in the proceedings in the Local Court having regard, among other things, to subs (2), (3), (4), (5) and (6) of s 639. What flowed from his ruling and the observation that Chalouhi was the registered operator of the vehicle were matters that would, in the ordinary course, be considered in light of further submissions in the proceedings, if they had continued.

47. Secondly, s 639(5)(c) precludes the Local Court from finding a registered operator guilty as the operator, in certain circumstances. How s 639(2) and (4)(b)(ii) interrelate with s 639(5)(c) was never argued before the Local Court, despite s 639(5)(c) having been mentioned prior to the Magistrate’s ruling in relation to s 639(4)(b)(ii). What had been said earlier concerning s 639(5)(c) appears to have been in the context of a review of s 639 more generally and was limited to the following:

“And, if I can take the matter [?out] of order, just to explain the function of the section, [s 639(7)] in this section operator declaration means that is then the provision that I spoke about a moment ago saying “We are not the operator and who is?” The second last point is that the function, as it were, and result then of that section, if your Honour is satisfied, that is born out in [s 639(5)(c)], and that is that if your Honour is satisfied that the declaration has been made, that effectively then is, with regards to your Honour, is to have a treat the application [?how you have to treat the application].”

48. The question of whether s 639(5) is applicable, when an otherwise valid operator declaration is given outside the timeframes set out in s 639(4) for the purposes of s 639(2), was not a question that was argued or determined in the Local Court. If it is the case that the words “an operator declaration as mentioned in subsection (4)” in the chapeau to s 639(5) refer to any operator declaration, as mentioned in subs (4) and as defined in subs (7), whether or not it is given within the timeframes in subs (4)(a) or (b), then Chalouhi would be able to defend the proceedings on the basis that, as stated in s 639(5)(c), the Local Court:

“must not find the registered operator [Chalouhi] guilty of the offence in the registered operator’s capacity as the operator of the heavy vehicle if [the Court] is satisfied, whether on the statements in the operator declaration or otherwise, the registered operator was not the operator of the heavy vehicle at the time of the offence”.

49. It follows from this that the Magistrate’s ruling concerning whether the operator declaration was given within the timeframes in s 639(4)(b)(ii) did not, without more, effectively determine the proceedings in the Local Court. Consequently, it should not be accepted that the ruling amounted to an operative judicial act and an “order” within the meaning of s 53(3)(b) of the CAR Act.

Conclusion and orders

50. 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.

51. 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.

52. 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”.

53. 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.”

54. In my view and contrary to a submission advanced by Chalouhi, the use of the conjunction “but” in s 639(4)(b)(ii) instead of “and, in any event,” in r 2.7 does not lead to a different conclusion in the present case from that reached in Choy. On a natural reading of s 639(4)(b)(ii), a registered operator is not given a choice whether to give the operator declaration “as soon as practicable after the charge comes to the registered operator’s knowledge” or “at least 28 days before the charge is heard” but must comply with both for subs (4) to operate. The use of “but” in this context indicates that what follows is a cumulative qualification on the preceding timeframe not an alternative.

55. Further, while a “question of law alone”, within s 53(3)(b) of the CAR Act, might possibly be said to arise in relation to the construction of the words “at least 28 days before the charge is heard” upon which grounds 1, 2, 3 and 4 are based, no challenge has been made and no question of law alone arises, or is said to arise, in relation to the finding that the operator declaration had not been given as soon as practicable after the charge came to the registered operator’s knowledge. This finding is a finding of fact and any challenge to it would raise only a question of fact or, at most, a mixed question of fact and law. In these circumstances, even if the Magistrate erred in his construction of the words “at least 28 days before the charge is heard”, the finding that the operator declaration had not been given within the other timeframe specified in s 639(4)(b)(ii) would still remain. It follows from this, that grounds 1, 2, 3 and 4 lack practical utility or should be rejected because:

1. those grounds deal with, or are based upon, only one of the timeframes in s 639(4)(b)(ii); and

2. the conclusion that the operator declaration was not given within the time required by s 639(4)(b)(ii) was correct having regard to the finding (which has not been and could not be challenged in this Court) that the operator declaration was not given as soon as practicable after the charge came to the registered operator’s knowledge.

56. Secondly, grounds 5 and 6 concern the construction and operation of s 639(5)(c), which was not argued before Barko LCM, as explained earlier in these reasons, and upon which the Magistrate did not have the opportunity to rule, since the proceedings were not heard to finality but were adjourned.

57. Thirdly, it is well established that generally an applicant for leave must demonstrate something more than that the court at first instance was arguably wrong in the conclusion arrived at, and leave should only be granted in matters that involve issues of principle, questions of general public importance or an injustice which is reasonably clear, in the sense of going beyond what being merely arguable: Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 at [46] (Campbell JA, Young and Meagher JJA agreeing). In the present case, it does not appear to me that Chalouhi has shown something more than that Barko LCM was arguably wrong in respect of only one aspect of s 639(4)(b)(ii). [9] Nor do I accept that there are issues of principle or questions of public importance or any injustice that can be said to arise in the present proceedings, where:

1. there is an unchallenged finding that the operator declaration was not given as soon as practicable after the charge came to the registered operator’s knowledge and, thus, s 639(4)(b)(ii) was not complied with, whether or not the operator declaration was given “at least days before the charge is heard”; and

2. the operation and effect of s 639(5)(c) was not argued and determined in the Local Court.

   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.

58. It is unfortunate that, in this instance, no definitive guidance can be given in relation to the construction of the phrase “28 days before the charge is heard” in s 639(4)(b)(ii). This is, however, the case for at least two reasons. First, this Court does not have jurisdiction to hear and determine the application for leave to appeal, for the reasons I have outlined above. Accordingly, it is not appropriate to purport to rule on a question of construction that is not properly before the Court. Secondly, even if the Court did have jurisdiction, it would not be necessary to determine this question as the operator declaration was not given as soon as practicable after the charge came to the registered operator’s knowledge and thus the requirements of s 639(4)(b)(ii) have not been met in any event.

59. There are no circumstances which were drawn to my attention, or of which I am aware, that would make it appropriate to depart from the usual order that costs follow the event. Consequently, I propose to order that the plaintiff pay the defendant’s costs of the proceedings.

60. In these circumstances, the Court orders:

1. The plaintiff’s summons seeking leave to appeal filed on 30 May 2019 is dismissed.

2. The plaintiff is to pay the defendant’s costs as agreed or assessed.

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Endnotes

Decision last updated: 13 February 2020