Kumaragammage v Culbert

[2000] NSWSC 129

CITATION:	Kumaragammage & Anor v Culbert & Anor [2000] NSWSC 129
CURRENT JURISDICTION:	Common Law
FILE NUMBER(S):	SC 11160/1999
HEARING DATE(S):	17-18 February 2000
JUDGMENT DATE:	9 March 2000
PARTIES :	Prabha Kumaragammage (First Plaintiff) Don Kumaragammage (Second Plaintiff) v Patrick Culbert (First Defendant) Mr Johnson, LCM (Second Defendant)
JUDGMENT OF:	Master Malpass

LOWER COURT JURISDICTION :	Local Court
LOWER COURT FILE NUMBER(S) :	Parramatta Local Court 20 April 1999
LOWER COURT JUDICIAL OFFICER :	Mr Graham Johnson

COUNSEL :	N/A (First and Second Plaintiffs) Mr T A Game SC/Mr D Jordan (First Defendant) N/A (Second Defendant)
SOLICITORS:	Both in person (First and Second Plaintiffs) Smythe & Mallam (First Defendant) I V Knight - Crown Solicitor - Submitting appearance (Second Defendant)
CATCHWORDS:	Certiorari - public passenger service/tourist service - questions of statutory construction and evidence.
LEGISLATION CITED:	Passenger Transport Act 1990, s 3, s 4, s 6, s 7, s 9, s 63. Supreme Court Act 1970, s 69. Transport Licensing Act 1931.
CASES CITED:	N/A.
DECISION:	See paragraph 36.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER MALPASS

THURSDAY 9 MARCH 2000

11160/1999 PRABHA KUMARAGAMMAGE & ANOR v PATRICK CULBERT & ANOR

JUDGMENT


1   The plaintiffs are husband and wife. They had operated what has been described as a shuttle bus service between the western suburbs of Sydney and the international and domestic air terminals. The first plaintiff was the owner of the business and the second plaintiff was its manager. In May 1997, the first plaintiff was granted an accreditation to operate a “Tourist Service”. The first defendant issued a notice cancelling the accreditation (effective on 19 February 1998).

2   An appeal was brought against the cancellation. The operation of the bus service continued as usual. The appeal is yet to be heard.

3   On 2 March 1998, the second plaintiff sought accreditation to operate a “Tourist Service”. It was said that this application has not been processed.

4   On 18 March 1999, the plaintiffs by bus or motor vehicle carried passengers for fare or other considerations. The journeys involved are set out in a document headed “ ‘Tomorrows Programme’ 18/3/98”.

5 On 26 March 1998, eight Informations were laid alleging offences under s 7 (1) of the Passenger Transport Act 1990 (the Act). There were four Informations against each of the plaintiffs.

6   The hearing of these matters came before Johnson LCM. During the course of the hearing, the plaintiffs signed written admissions in the following terms:-
“1. On 18th of March 1998 Mrs Kumaragamage’s accreditation to operate tourist service was cancelled.
2. On 18th of March 1998, neither Mr nor Mrs Kumaragamage held any accreditation to operate any public passenger service in NSW.
3. On the 18th of March 1998, the defendants by bus or motor vehicle carried passengers for fare or other considerations.
4. The journeys referred to paragraph 3, were set out in a document headed ‘Tomorrows Programme’ 18/3/98”.

7   The learned Magistrate found that each offence had been proved beyond reasonable doubt and convicted the plaintiffs.

8   The proceedings before this Court were commenced by Summons filed on 17 May 1999. The relief claimed is in the following terms:-
“ 1 . An order in the nature of certiorari pursuant to Section 69 of the Supreme Court Act quashing the Orders made by the second defendant on 20th April 1999 convicting the both plaintiffs on 8 charges of breaching Section 7 (1)(a) of the Public Passenger Transport Act 1990 in that the both first and second plaintiffs carried on public passenger services without being accredited.”

Next to the Summons is a statement of the grounds of appeal relied on by the plaintiffs.


9   The hearing of the Summons commenced on 17 February 2000. An affidavit has been sworn by the second plaintiff. It inter alia refers to a number of exhibits. Save for those referred to as exhibits 17 and 18 (which were not in evidence before the learned Magistrate), the exhibits have been received into evidence. The plaintiffs have tendered the transcript of the argument before the learned Magistrate (Exhibit A). The first defendant relies on an affidavit sworn by Mr Wozniak.

10   The plaintiffs appear in person. The second plaintiff has adopted the role of spokesman for both plaintiffs. The first defendant is represented by senior and junior counsel. The second defendant takes a submitting role.

11 Section 7 (1) is in the following terms:-

“ A person who:

(a) carries on a public passenger service by means of a bus or other motor vehicle; or

(b) carries on a regular passenger service by means of a ferry,

being in either case a service operating within, or partly within, New South Wales is guilty of an offence unless the person is an accredited service operator for that service”.
12 Section 3 of the Act contains definitions. One of the definitions is in the following terms:-
“ ‘ public passenger service’ means the carriage of passengers for a fare or other consideration:
(a) by motor vehicle (other than a light rail vehicle) along a road or road related area; or
(b) by vessel within any New South Wales waterway;”
13   Also, the section defines “tourist service” . It is defined as follows:-
“ ‘tourist service’ means a public passenger service provided by a bus or ferry or another vehicle prescribed by the regulations, being:
(a) a pre-booked service designed for the carriage of tourists to destinations listed on a publicly available tour itinerary, or
(b) a service designed for the carriage of tourists where all passengers’ journeys have a common origin or a common destination, or both.”

14   Further, the section defines other public passenger services (“charter service”, “long distance service”, “private hire vehicle”, “regular passenger service” and “taxi-cab”).

15 Section 4 sets out the objects of the Act. One of them is expressed in the following terms:-
“ (a) to require the accreditation, by the Director-General, of the operators of and drivers involved in public passenger services; ……”

Another of them is expressed in the following terms:-

“(e) to encourage public passenger services that meet the reasonable expectations of the community for safe, reliable and efficient passenger transport services,….”

16 Section 7 is the only provision which creates an offence in respect of accreditation of operators. Section 9 provides for the style of accreditation. It confers wide powers. It enables accreditation to be given so as to be general or limited (such as appropriate for all public passenger services or only for the service or services designated in the accreditation).

17 Each Information alleges that the relevant defendant did carry on a public passenger service by means of a bus within New South Wales without being an accredited service operator for that service contrary to s 7 of the Act.

18 The plaintiffs seek relief pursuant to s 69 of the Supreme Court Act 1970. It is relief in the nature of certiorari. Subsections (3) and (4) of the section are in the following form:-
“ (3) It is declared that the jurisdiction of the Court to grant any relief or remedy in the nature of a writ of certiorari includes jurisdiction to quash the ultimate determination of a court or tribunal in any proceedings if that determination has been made on the basis of an error of law that appears on the face of the record of the proceedings.
(4) For the purposes of subsection (3), the face of the record includes the reasons expressed by the court or tribunal for its ultimate determination.”

19   The second plaintiff has addressed at prodigious and inordinate length. Numerous submissions were made. There were changes in stance. Some of the submissions had not been put to the learned Magistrate and others were contrary to what was said to him. There were submissions which related inter alia to matters of statutory construction, contentions as to no evidence on matters such as the elements of the statutory offence and of failure to take matters into account. There were submissions made in respect of other matters (including entrapment and estoppel). Certain of those involved a departmental manual and a letter of disputed authenticity (which is relied on as an advice to the plaintiffs that accreditation was not required). In my view, no good purpose is served by fully identifying each and every one of these arguments and then dealing with each of them individually. None of them assisted the plaintiffs in this case. I shall return to some of the arguments in due course.

20   I should mention that these proceedings form part of a long running dispute (aspects of which intruded into this hearing). The dispute appears to have generated considerable ill feeling (inter alia there are vehement allegations of misconduct which are hotly disputed and there have been other proceedings).

21   During the hearing before the learned Magistrate, the prosecution relied on the written admissions made by the plaintiffs. The learned Magistrate found that there was a case to answer. The plaintiffs went into evidence. There was a tender of documentary material (including correspondence passing between the plaintiffs and the Department of Transport) and oral evidence was given by the second plaintiff. This material evidences relevant further admissions made by or on behalf of the plaintiffs. The prosecution called Mr Wilkinson in reply.

22   The Act replaced existing legislation (the Transport Licensing Act 1931). It presents as an act to regulate public transport services. An intention was to remove what had been regarded as unnecessary restrictive regulations (the expressed objects of the Act indicate that this was seen to be the position in the case of long distance and tourist services). It introduced a regime of accreditation for public passenger services.

23   Although there is some otiose language, the relevant statutory provisions lack complexity. The proof of the statutory offence requires the prosecution to establish certain elements. Firstly, it must be established that the defendant is a person who carries on a public passenger service. Secondly, it must be carried on by means of a bus or other motor vehicle within New South Wales. Thirdly, it must be established that the person is not an accredited service operator for that service.

24   It is a contention of the first defendant, inter alia, that all of the elements were established by the written admissions. The plaintiffs do not take that view. One issue that is sought to be raised in these proceedings is whether or not the prosecution proved that the plaintiffs were carrying on a public passenger service on 18 March 1998. Another, is that no accreditation was required for the service carried on.

25   It was sought to agitate the contention that the definition of “public passenger service” was ambiguous. The learned Magistrate had found that it was not. I agree with him. This definition, seems to me to have been drafted in clear and unambiguous terms and the plaintiffs made an admission in terms of the definition. Whilst much time and effort was devoted to questions of ambiguity, in my view, those submissions do not in any way assist the plaintiffs in this case.

26   The plaintiffs agitated statutory construction arguments in relation to the words “carries on”. The learned Magistrate construed “carries on” in the sense of “operating”. This approach receives support from what appears in the statute itself. The plaintiffs accepted this construction, however, they say that “operate” has a special meaning. The special meaning has three elements. Firstly, the person must own the vehicles by hire or registration. Secondly, that the person must carry passengers by means of the same vehicles for fare or consideration. Thirdly, the person must become the owner of the fare collected.

27   I do not accept these contentions. Although the word “operator” appears in the body of the statute, it is not given a special or statutory definition (the Act does define “accredited service operator” and “driver”). In my view, the word should be given its natural or literal meaning (the dictionary meaning includes “to work or run or to manage”). Both plaintiffs involved themselves in such a role. The first defendant accepts that a “carrying on” must consist of a continuous type of conduct as opposed to an isolated transaction with nothing else.

28   The first defendant says that before the learned Magistrate there was evidence of and that indeed it was not disputed that the plaintiffs had carried on a public passenger service. In my view, this submission has force.

29   Indeed, the learned Magistrate had before him more than ample evidence that the plaintiffs had carried on a public passenger service (which he found to be a “tourist service” without accreditation) on 18 March 1998. It well satisfied the beyond reasonable doubt test. Apart from the written admissions, other evidence may be found in the material adduced by the plaintiffs (both in the documentation and the oral evidence given by the second plaintiff). The material is redolent with relevant admissions. An example is a letter dated 17 March 1998 which contained the following:-
“Please understand that Mrs Kumaragamage is still operating the bus service as usual under her accreditaion (sic). There is no reason why she should close her business because she has made an appeal to local court against the cancellation. Although you challenged me to show you in the act where it is mentioned that she can operate after the appeal you also failed to show me in the act where it is written that she can not operate after the appeal against the cancellation.
According to the common law of the country if one has appealed to the court against other’s decision, the decision is not valid until the court makes a judgement on the matter. Therefore please be advised that Mrs Kumaragamage’s operation is totally lawful.”

If it is said that the written admissions fell short of proving this aspect of the prosecution case, the material provided by the second plaintiff well and truly cured any deficiency.


30   There were submissions which laboured under misconception as to provisions of the Act. It was said that there were mistakes in the Act. Much was said about “Not Defined” services in respect to which it was said that accreditation was not available. It was argued that “tourist service” did not require accreditation (this was contrary to the stance being taken in other proceedings (the appeal) in which accreditation in respect of a “tourist service” is being pursued and it was not the approach taken before the learned Magistrate). This argument is clearly erroneous.

31 A “tourist service” has been referred to as a “defined service” (in the sense that it is defined in section 3). Like the other “defined services”, it is a species of “public passenger service”. The first expressed object of the Act is to require the accreditation of the operators and drivers involved in public passenger services. Section 6 enables the operation of the Act to be extended by regulation to “any specified class of vehicles”. Exemption may also be effected by regulation (s 63 (3) ).

32   The plaintiffs complain that matters were agitated before the learned Magistrate which were not decided by him. Whilst this may be the case, the matters were not ones which it was necessary for him to decide.

33   The plaintiffs complain that there were matters that were erroneously decided by him. I have already expressed the view that matters essential to his decision were correctly decided by the learned Magistrate. It is unnecessary to form a view as to whether or not any of the other matters were erroneously decided. None of them were determinative of the real issues and could have no effect on the result reached by him.

34 Arguments were put as to the number of Informations. The case that was being put in relation to these arguments was far from clear. The principles of estoppel were invoked in relation to this submission. Also, it was said that only one offence was committed on 18 March 1998 and that the Informations were in some way deficient. In my view, these arguments were lacking in substance. Each indictment related to a discrete or individual journey. In my view, each such incident involved an offence under s 7.

35   I have listened carefully to what has been said on behalf of the plaintiffs. I have taken into account all of the arguments that have been put. They bear the onus of satisfying the court that there has been an error of law which justifies the disturbing of the convictions. The plaintiffs have failed to discharge that onus. Indeed, in my view, the learned Magistrate was correct in convicting both plaintiffs.

36   The Summons is dismissed. The plaintiffs are to pay the costs of the proceedings. The exhibits may be returned.
**********

Last Modified: 09/25/2000