Lv Dohnt & Co Pty Ltd v Chambers - [2009] SASC 402

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
LV DOHNT & CO PTY LTD v CHAMBERS
[2009] SASC 402
Judgment of The Honourable Justice Bleby
23 December 2009
TRAFFIC LAW - LOADS TO BE CARRIED BY VEHICLES - SOUTH AUSTRALIA
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - GENERAL APPROACHES TO INTERPRETATION - WHOLE ACT TO BE CONSIDERED
Appeal against conviction in Magistrates Court – appellant charged with driving an overloaded vehicle on the Princes Highway – inspector stopped appellant’s vehicle on a different road and directed driver to drive to a checking station adjacent to Princes Highway.
Whether direction was lawful – whether offence committed under compulsion – whether prosecution for driving an overloaded vehicle pursuant to a lawful direction would constitute an abuse of process – whether provision authorising inspector to direct a vehicle to be drivern to a particular place constitutes an exception to provision creating an offence.
Appeal allowed – conviction set aside – complaint dismissed.

CRIMINAL LAW - PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - AMENDMENT - IMMATERIALITY OR ABSENCE OF PREJUDICE
Complaint amended during trial to specify that part of the Princes Highway adjacent to the checking station – whether Magistrate entitled to amend complaint.
Road Traffic Act 1961 (SA) s 114, s 152, s 163AA, s 174C, s 175; Road Traffic (Mass and Loading Requirements) Regulations 1999 (SA) Sch 1; Summary Procedure Act 1921 (SA) s 22A, referred to.
Dann v Stirzaker (1988) 50 SASR 190; Dann v Ballantyne (1989) 51 SASR 75, discussed.
Bunning v Cross (1978) 141 CLR 54; O’Sullivan v DeYoung [1949] SASR 159; Lafitte v Samuels (1972) 3 SASR 1, considered.

LV DOHNT & CO PTY LTD v CHAMBERS
[2009] SASC 402
Magistrates Appeal

BLEBY J. The appellant appeals against a conviction in the Magistrates Court of South Australia of a breach of s 114 of the Road Traffic Act 1961 (SA) (“the Act”). As a result of the conviction the appellant was fined $1500 and was ordered to pay costs of $300, together with court fees of $115 and Victims of Crime levy of $70.
Section 114 of the Act, which has since been repealed, relevantly provided:
114—Offences relating to mass and loading requirements
(1)A vehicle must not be driven or towed on a road if the vehicle or a load on the vehicle does not comply with the mass and loading requirements.
(2)If a vehicle is driven or towed in contravention of subsection (1), the driver and the owner and the operator of the vehicle are each guilty of an offence.
…
(5)In this section, a reference to the owner or the operator of a vehicle is, in relation to the non-compliance of a combination with the mass and loading requirements (rather than the non-compliance of a vehicle that forms part of a combination), a reference to the owner or the operator of the motor vehicle that provides the motive power of the combination.
The vehicle concerned was what is known as a combination in the form of a B-double, comprising a prime-mover and two semi-trailers. Clause 4(6) of Schedule 1 of the Road Traffic (Mass and Loading Requirements) Regulations 1999 (SA) provides:
The total mass of a B-double, and any load, must not exceed 62.5 tonnes.
After what is, for present purposes, an inconsequential amendment, the complaint alleged that the appellant:
On the 3^RD day of NOVEMBER 2006 at about 5.15 P.M. near MOUNT GAMBIER in the State of South Australia was the OWNER of an overloaded vehicle namely a B-double, comprising prime-mover SA WZJ-119 and semi-trailer SA YBJ-411 and second semi-trailer SA YAA-798.
Contrary to Sub-regulation 4(6) of Schedule 1 of the Road Traffic (Mass and Loading Requirements) Regulations, 1999 and Sections 114(1) and 2) (sic) of the Road Traffic Act, 1961.
Particulars
AND IT IS ALLEGED that the said vehicle was driven on a road namely PRINCES HIGHWAY whilst it exceeded its permitted mass 62.500 tonnes by 6.900 tonnes.
There was no question but that the defendant was the owner and operator of the vehicle at the material time. The driver was not charged with any offence.
The course of the hearing
The prosecution called one witness at the trial, namely a safety compliance officer employed by the Department of Transport, Energy and Infrastructure (“the Inspector”). In addition, there were tendered three documentary exhibits, namely a copy of the Instrument of Appointment and Revocation of Inspectors under s 35(1) of the Act authorising the witness to act as an inspector for the purposes of the Act, an extract from the entry in the Register of Motor Vehicles regarding the vehicle the subject of the charge and a copy of a permit issued to the appellant to operate the B-double combination the subject of the charge. That permit appears to have been issued pursuant to s 163AA of the Act, to which I shall return in due course.
The Inspector gave evidence that he was on a routine patrol in the Mount Gambier area, having commenced his shift at about 3.00pm. It appears that he was travelling north along Riddoch Highway. The evidence showed that Riddoch Highway is the main arterial road leading north from Mount Gambier to Penola and beyond. The Inspector saw the appellant’s vehicle travelling in an easterly direction along Airport Road towards the junction of Airport Road and Riddoch Highway. The vehicle was indicating an intended turn right into Riddoch Highway to travel south towards Mount Gambier. The Inspector drove past the junction but then turned his vehicle around and overtook the B-double combination, then travelling south on Riddoch Highway, and signalled the driver to stop.
The Inspector admitted in the course of his evidence that he did not stop the vehicle because it was operating unusually or because there was any indication that it might be overloaded. The vehicle was loaded with pine logs. It appears that the Inspector’s principal concern was that Airport Road was not a road on which B-double combinations were permitted to drive.
There was a conversation between the Inspector and the driver and a discussion about mass limits for what was known as road-friendly suspension with which the vehicle was equipped, although it was apparently not carrying the appropriate label for higher mass limits for such vehicles. There was also conversation about the existence of a permit for the combination to travel on Airport Road, which the driver was, at that time, unable to produce. As mentioned, however, a copy of such permit allowing this B-double combination to travel on Airport Road was tendered in evidence.
According to the Inspector’s evidence, he asked the driver what his destination was, to which the driver replied “the Woods & Forest mill in the Mount”. The Inspector then directed the driver, pursuant to s 152 of the Act, to go to the “Mount Gambier checking station”. According to the Inspector’s evidence the driver replied that he understood the direction and that he would see him there.
There was no attempt in the Inspector’s evidence-in-chief to lead any evidence as to precisely where the Woods & Forest mill in Mount Gambier was located or where the Mount Gambier checking station was located.
The evidence showed that Airport Road was approximately 10 kilometres north of what is known as the McDonalds roundabout on the northern side of the central business district of Mount Gambier. Riddoch Highway enters the roundabout from the north. The roads travelling east and west from the roundabout were referred to by the Inspector as being either Princes Highway or Jubilee Highway. West from Mount Gambier Princes Highway is the main road to Kingston and beyond. East of the roundabout Princes Highway continues to the Victorian border. However, the witness said that he believed that some distance east of the roundabout the road was called Jubilee Highway. He was unable to say at what point either east or west of the roundabout Jubilee Highway became Princes Highway, but he said that it was all the same road. After expressing some confusion as to where the road changed its name, the witness was asked by cross-examining counsel to presume, for the purpose of questioning, that it was called Jubilee Highway “as it goes through Mount Gambier”. The witness then described the checking station as being approximately 2 kms east of the roundabout “down Jubilee Highway”. He described the checking station as being adjacent to Jubilee Highway.
The only evidence as to the location of what the driver had described as the Woods & Forest mill was that it was on the eastern side of Mount Gambier. There was no evidence of the road on which the mill was located. There was no evidence that the mill was associated with the checking station. From the Inspector’s lack of inquiry it could be inferred that the Inspector knew where the mill was, but he did not say where it was, apart from on the eastern side of Mount Gambier. Contrary to a finding of the Magistrate, there was no evidence that the Inspector knew that the mill was on Princes Highway.
The complaint alleged that the offence occurred at about 5.15pm on the day in question. However, no evidence was adduced as to the time of the offence. Although, by virtue of s 175 of the Act, an allegation in a complaint of certain matters is proof of those matters in the absence of proof to the contrary, the time of an offence is not included in such matters.
No evidence was adduced as to the length of time of the conversation between the Inspector and the driver or of the time interval between the conversation on Riddoch Highway and the arrival of the B-double at the checking station. No evidence was adduced as to the route taken by the B-double to reach the checking station. There was no evidence of any observation of the vehicle to prove that there were no changes to the load of the vehicle. From the evidence it may be inferred that, in order to reach the mill, on the eastern side of Mount Gambier, the most likely route intended by the driver would be to continue south along Riddoch Highway at least to the McDonalds roundabout, and that at that or some other nearby point the driver intended to turn east to travel towards the mill. It was a large double articulated fully laden heavy vehicle. Whatever alternative routes there might have been, it would be inferred that the driver was likely to drive on main roads as far as possible. Indeed, the copy of the permit named only a limited number of roads apart from B-double gazette routes on which the vehicle could be driven.
As to proof of the mass of the vehicle, the prosecution apparently chose not to rely on the provision of s 175(3)(a) of the Act in order to prove the mass of the vehicle by way of a statement signed by a member of the police force or an inspector. The Inspector was asked some questions about the process involved in weighing the vehicle when counsel for the appellant admitted that the vehicle was 6.4 tonnes over-mass, being the mass prescribed in cl 4(6) of Schedule 1 of the Road Traffic (Mass and Loading Requirements) Regulations.
At the close of the prosecution case the appellant’s counsel, having indicated that he did not propose to call evidence, made a submission of no case to answer on the basis that there was no evidence that the vehicle was driven on Princes Highway. It was submitted that that was an essential element of the charge, and that the charge must therefore fail. In the alternative it was submitted that if there was a case to answer, the weight of the evidence as to the element of the vehicle having been driven on Princes Highway was such that that could not be established beyond reasonable doubt and that that element of the charge was not made out. As I understand the argument, it was that, given the uncertainty as to where Jubilee Highway ended and Princes Highway began, there was no evidence that the vehicle either had been driven or was required to be driven along Princes Highway in order to reach the checking station. What was clear from the complaint and the evidence was that the prosecution case was that the vehicle had been driven on some portion of the road travelling east from the McDonalds roundabout.
The Magistrate took the view that the only essential element was that the vehicle was driven on a road, but the name of the road was not an essential element of the charge. He considered that as there was no prejudice to the appellant in doing so, he would amend the complaint to accord with the evidence. He did so by deleting, in the particulars, the words “namely PRINCES HIGHWAY” and by inserting in their place the words “Adjacent to the Woods & Forrest (sic) checking station Princess (sic) Highway Mount Gambier East”. He further amended the particulars by deleting the figure 6.900 and substituting therefor the figure 6.400, to accommodate the admission made by counsel in the course of the prosecution case. The particulars as amended then read:
AND IT IS ALLEGED that the said vehicle was driven on a road adjacent to the Woods and Forrests checking station Princess Highway Mount Gambier East whilst it exceeded its permitted mass 62.500 tonnes by 6.400 tonnes.
The Magistrate then found that there was a case to answer.
An additional submission made by the appellant as to whether the charge had been proved was that the direction given by the Inspector to the driver to drive to the checking station was unlawful, and that the evidence as to the mass of the vehicle should be excluded in the exercise of the Court’s discretion for that reason.[1] The Magistrate found that the direction was lawful and that therefore the question did not arise.
[1] See Bunning v Cross (1978) 141 CLR 54.
However, it seems to me that in the context in which that question arose, the question of the lawfulness of the direction was irrelevant, as there was no objection taken to questions preparatory to establishing the mass of the vehicle as apparently recorded at the checking station, and at that point the appellant admitted, through its counsel, that the vehicle was 6.4 tonnes over mass. However, it will be necessary to consider the legality of the direction in another context.
The Magistrate therefore found the appellant guilty of the offence and, after hearing submissions, recorded a conviction and imposed the penalty mentioned above.
A number of grounds were argued on the appeal. I will deal with each one in turn.
Amendment of the complaint
The original particulars of the complaint alleged that the offence occurred “near Mount Gambier”, “on a road namely Princes Highway”. No further particulars were sought prior to trial.
Section 22A(1) of the Summary Procedure Act 1921 (SA) provides:
22A—Description of offence
(1)Every information, complaint, summons, warrant, or other document under this Act in which it is necessary to state the matter charged against any person shall be sufficient if it contains a statement of the specific offence with which the accused person is charged, together with such particulars as are necessary for giving reasonable information as to the nature of the charge.
In short, an accused person must be told what law he has alleged to have broken and, with reasonable particularity, how he is alleged to have broken it.[2] For reasons which will become apparent, I consider it necessary to identify the road on which an offence against s 114 of the Act is alleged to have been committed. That road was identified in the particulars of the charge as being the road that travels in an east/west direction through Mount Gambier. Of significance in this case is that the offence was not alleged to have been committed on Riddoch Highway or on Airport Road. The only confusion that emerged in the evidence at the trial was whether, at the point adjacent to the checking station, on which the vehicle must have been driven, the road was known as Princes Highway or Jubilee Highway. That distinction was immaterial. There was no doubt that the road concerned was the road on which the checking station was located some two kilometres east of the McDonald’s roundabout.
[2] O’Sullivan v DeYoung [1949] SASR 159, 164; Lafitte v Samuels (1972) 3 SASR 1, 6.
In the state of the evidence as it was, the Magistrate was entitled to amend the complaint in the manner in which he did. There was no prejudice to the appellant in doing so. There could have been no misapprehension as to the road on which the offence was alleged to have occurred. All the Magistrate was doing was correcting a possible misdescription of the road in question.
As I have said, and as will become apparent, the identification of the road on which the offence is alleged to have been committed is fundamental to the charge. However, the amendment did not change the identification of the road.
That the alleged offence was committed under compulsion
In brief, the appellant’s argument was that the direction to the driver to drive to the Mount Gambier checking station was a direction to drive the vehicle to the checking station, and it was only driven on the road alleged in the particulars of the complaint by virtue of that direction.
So far as is relevant for present purposes, s 152 of the Act provided:
152—Directions to driver etc
(1)A member of the police force or an inspector may, for the purposes of determining any of the masses to which this Act relates, direct the driver or other person in charge of a vehicle—
(a)     to drive the vehicle or cause it to be driven forthwith—
(i)to a place at which a weighbridge or other instrument for determining mass is located; or
(ii)to a particular place convenient for using an instrument for determining mass; and
(b)to do such things as are reasonably necessary to enable the masses in question to be determined.
…
(3)     A person who—
(a)     fails to comply with a direction under subsection (1); or
(b)     leaves a vehicle unattended for the purpose of avoiding a direction under subsection (1),
is guilty of an offence.
Penalty:
For a first offence—not less than $5 000 and not more than $10 000.
For a second or subsequent offence—not less than $10 000 and not more than $20 000.
(4)A court may not reduce or mitigate in any way a minimum penalty prescribed by subsection (3).
(5)Where a court convicts a person of an offence against this section, the court may order that the person be disqualified from holding or obtaining a driver's licence for a period not exceeding three months.
…
The penalty for a breach of that section is severe, and will also be incurred if the driver leaves the vehicle unattended for the purpose of avoiding a direction under sub-s (1).
If a direction is lawfully given under s 152, and if the vehicle is found to be over-mass at the checking station, the direction under s 152(1)(a) is, in effect, a direction to drive the vehicle contrary to s 114. It is a direction to commit what the Inspector well knows may be an offence if the vehicle is over-mass.
There are two possible reasons why, in my opinion, a person cannot be convicted of an offence in those circumstances. The first relates to the proper interpretation of the Act. It must be read as a whole. Section 152 contemplates that the driving of the vehicle to the weighbridge may well constitute an offence. The driving of the vehicle to the weighbridge is for the very purpose of establishing whether an offence has been committed. If it has been, the continued driving, other than by the authority given under s 152, would also be an offence.
In Dann v Ballantyne[3] Prior J considered an argument that driving a vehicle to the middle of the road for the purpose of enabling it to be weighed pursuant to a direction under s 152 would result in a breach of (then) s 54 of the Act, which required that a driver drive his vehicle as near as practicable to the left-hand boundary of the carriageway. His Honour said:[4]
… [T]here can be cases where, in the course of responding to a lawful direction under s 152, a driver may commit a breach of another provision of the Road Traffic Act. Certain general principles of statutory construction dictate these possibilities without invalidating s 152 itself. These same general principles call for subordinating the terms of s 54 to s 152. ...
The apparent scope of a section in a statute may be limited by other sections in the same Act. Different sections in a statute must be read in such a way that they will fit with one another. This may require a section to be read more narrowly than it would if it stood on its own: R v Ross (1979) 141 CLR 432 at 440. The statute must be read in its entirety, with particular provisions:
"given a construction that will render them harmonious with (others), if that is possible. If … two sections could not both be given effect, … the later enactment would prevail.” Gibbs J, as he then was, in R v Ross 141 CLR 432 at 440."
The general rule is that where possible all words in an Act should be given effect to but specific provisions prevail over general provisions in a statute, "where contrariety is manifest". Stephen J in Reseck v Federal Commissioner of Taxation (1975) 133 CLR 45 at 53. These principles properly applied to the provisions referred to by the magistrate seem to me to disclose quite plainly that s 54 has no application to a particular direction given under s 152 that calls for the driver of a vehicle to drive to the centre of the roadway.
[3] (1989) 51 SASR 75.
[4] Ibid 79.

It would be an extraordinary result if Parliament, having created an offence of driving on a road a vehicle which does not comply with the mass requirements, then enacted a provision which required a person so to drive and thereby to commit an offence. The clearest implication from reading ss 114 and 152 together is that the driving by lawful direction in accordance with the requirements of s 152 is an exception to what would otherwise be an offence against s 114. The very purpose of s 152 is to ascertain whether an offence was committed before the direction was given.
If I am wrong in so interpreting the Act, there is a second reason why a conviction cannot be recorded. To prosecute a driver or owner for a breach of s 114 for driving an over-mass vehicle pursuant to a lawful direction of an inspector would constitute an abuse of process of the Court. The exercise of the statutory power of compulsion was to require the driver and the owner to commit an offence. The requirement of the Inspector to drive on the road adjacent to the weighbridge was an essential element of the offence charged. In order to secure the conviction for driving the vehicle on the road alleged, the complainant had to rely on the direction of the Inspector. To prosecute the appellant for the driving thus required is oppressive and an affront to the administration of justice.
That to prosecute for a breach of s 114 in those circumstances would constitute an abuse of process derives support from a dictum of Cox J in Dann v Stirzaker.[5] In that case the appellant was convicted of driving an overloaded vehicle between the point of apprehension by an inspector and the weighbridge where the vehicle was weighed at Ceduna. However, that case did not involve a direction under s 152. The driver faced the prospect of having his vehicle weighed on the spot by means of a loadometer being carried by the inspector. The driver requested that the weighing be done at a weighbridge at Ceduna. The inspector told the driver that he had no authority to direct him to go to Ceduna, but did not stand in his way. He told the driver that he must assume responsibility for what was to happen if he drove to Ceduna. It was found that the inspector did not encourage or acquiesce in the illegal conduct. In the course of his reasons, with which Prior J agreed, Cox J said:[6]
One can conceive of a case in which the only driving of an overweight vehicle under s 147(5a) that can be established is the driving that is done in compliance with the direction of a police officer or an inspector acting under s 152 of the Act. In such circumstances a question might very well arise whether a prosecution based exclusively on that act of driving is oppressive and should be frustrated either by excluding the evidence thus provided as having been unfairly obtained or, perhaps more appropriately, by holding that the prosecution amounts to an abuse of the Court's process. I should have thought that the obvious course for the authorities to have taken here was to prosecute the appellant for driving to the place where his overloaded vehicle was found, not away from it.
[5] (1988) 50 SASR 190.
[6] Ibid 197-198.
The lawfulness of the direction
Before the Magistrates Court the appellant argued that the direction to proceed to the checking station was unlawful, in an attempt to have the evidence of the mass of the vehicle excluded. Thus far I have proceeded on the assumption that it will only be a lawful direction under s 152 which engages the implied exception to the commission of an offence under s 114 or which justifies the finding that the prosecution is an abuse of process of the court. As, from what appears below, I consider that the direction was lawful, it is not necessary to consider whether an unlawful direction under s 152 by an inspector would also give rise to an abuse of process if the driver complied with such an unlawful direction.
In order to consider the lawfulness of the direction it is necessary to set out sub-ss (7) and (8) of s 152 as it was at the time of the alleged offence:
(7)Subject to subsection (8), the place to which a vehicle may be required to be driven pursuant to this section must not be more than eight kilometres from the place at which the vehicle is located when the direction is given.
(8)If there are reasonable grounds for believing that the driver of the vehicle intends in the ordinary course of the journey to travel along a particular road, the vehicle may be required to be driven any distance further along that road to a place that is not more than eight kilometres from either side of the road.
On the evidence of the Inspector, the checking station was more than 8 kms from the place at which the vehicle was located when the direction was given. However, I consider that the Inspector had reasonable grounds for believing that the driver intended, in the ordinary course of his journey, to travel south along Riddoch Highway to Mount Gambier. The vehicle had turned out of Airport Road and was already travelling south along Riddoch Highway. The driver told the Inspector that his destination was “the Woods & Forest mill in the Mount”. It is reasonable to assume that the driver intended to continue travelling south along Riddoch Highway at least to the McDonalds roundabout just north of the city. Beyond that point all we know is that the mill was on the eastern side of Mount Gambier.
The evidence was that the checking station was approximately 2 kms along either Jubilee Highway or Princes Highway east of the McDonalds roundabout and Riddoch Highway. In my opinion, the provisions of sub-s (8) were properly engaged. The Inspector had reasonable grounds for believing that the driver intended, in the ordinary course of his journey, to continue south along Riddoch Highway to the roundabout, whatever route may in fact have been taken. The direction to drive to the Mount Gambier checking station was, in the circumstances, lawfully given.
It follows that, because the driver at all material times was driving under a lawful direction of the Inspector, the Magistrate was in error in convicting the appellant of driving the over mass vehicle on a road adjacent to the Woods & Forest checking station, and the conviction must be set aside.
The importance of the identification of the road
The respondent argued that the appellant could still be convicted of an offence against s 114 for driving the vehicle on Riddoch Highway or Airport Road before he was apprehended by the Inspector. I reject that submission.
The very fact that a conviction cannot be recorded against a person driving pursuant to a lawful direction given under s 152 means that the road on which the offence is alleged to have been committed must be specified with some particularity. In the circumstances of this case, the driving on Princes Highway or on the road adjacent to the checking station could not result in a conviction. There might have been a conviction if it were alleged in the complaint that the driving took place on Airport Road or Riddoch Highway. There are other provisions of the Act which render it important to identify the road on which the alleged offence occurs. Section 163AA provides and at all material times has provided that the Minister may, by instrument in writing or by notice published in the Gazette, exempt a specified vehicle or class of vehicles from specified provisions of the part of the Act in which s 114 appears. The exemption may be subject to such conditions and limitations as the Minister thinks fit and specifies in the instrument or notice of exemption. The permit tendered in evidence in these proceedings would appear to be an exemption under s 163AA. It specifies certain roads on which the subject vehicle may be driven. Likewise, s 174C of the Act confers and at all material times has conferred power on a council to exempt any person or class of persons or specified vehicle or class of vehicles from compliance within its area with a prescribed provision of the Act.
Section 152 and the two exemption provisions referred to provide examples of the importance of identifying the road on which an offence is alleged to have occurred in order that a defendant may ascertain whether he may have a defence by virtue of the operation of one of those sections. In any event, a defendant is entitled to be informed of how, when and where it is that an offence is alleged to have been committed. Many other possible defences may turn on such details.
It is significant that, in this case, the complaint did not allege driving an over-mass vehicle on either Airport Road or Riddoch Highway. The reason for choosing to allege that the offence occurred on Princes Highway adjacent to the checking station is not difficult to perceive. The fact of the matter was that the necessary chain of evidence to prove that the vehicle was over-mass at any point other than immediately adjacent to the checking station was lacking. There was no evidence of the route travelled by the vehicle from the point of apprehension on Riddoch Highway to the checking station. There was no evidence of the time interval involved. There was no evidence of any observation of the vehicle during that period in order to prove that it remained in the same condition and with the same load at all material times until it was weighed at the checking station. The necessary chain of evidence was lacking, and the complaint cannot now be rectified by amendment to allege the driving of the over-mass vehicle at some point on Airport Road or Riddoch Highway.
This illustrates the importance of identifying the road on which the offence is alleged to have occurred. It is a different issue from identifying but possibly misnaming the road, as was done in this case.
Conclusion
For these reasons the appeal must be allowed and the conviction and other orders set aside. The complaint should be dismissed.