Mack Fleet Pty Ltd v Transport for NSW - [2020] NSWCA 149

Court of Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Mack Fleet Pty Ltd v Transport for NSW [2020] NSWCA 149
Hearing dates: 16 July 2020
Date of orders: 16 July 2020
Decision date: 21 July 2020
Before: Basten JA at [1];
Ward JA at [50];
Leeming JA at [51]
Decision:
(1) Direct that the name of the respondent be amended to Transport for NSW.
(2) Refuse the applicant an extension of time within which to file the summons filed on 6 April 2020, seeking to review the decision of Judge King SC on 11 November 2019 refusing the applicant’s request to submit a question of law for determination by the Court of Criminal Appeal under s 5B of the Criminal Appeal Act 1912 (NSW).
(3) Order the applicant to pay the respondent’s costs in this Court.

Catchwords:
CRIMINAL LAW – appeal – procedure – appeal from Local Court to District Court – appeal dismissed – request to judge to submit question of law to Court of Criminal Appeal – request declined – requirement to identify a question of law – Criminal Appeal Act 1912 (NSW), s 5B
CRIMINAL LAW – use on road of heavy vehicle – whether vehicle unsafe – non-compliance with regulations setting standards for braking systems – separate offence of non-compliance with regulations – Heavy Vehicle National Law (NSW) s 89(2)
JUDICIAL REVIEW – jurisdictional error –refusal of District Court judge to submit a question of law to the Court of Criminal Appeal – whether power coupled with duty to exercise power on request – whether request stated a question of law – challenge to determination of judge that no question of law raised
PRACTICE AND PROCEDURE – criminal – power of judge of District Court to submit question of law to Court of Criminal Appeal – application out of time – identification of question of law – whether discretion to refuse request
PRACTICE AND PROCEDURE – judicial review – application out of time – whether application had merit warranting extension of time – Uniform Civil Procedure Rules 2005 (NSW), r 59.10(1)

Legislation Cited:
Criminal Appeal Act 1912 (NSW), ss 5A, 5B
District Court Act 1973 (NSW), s 176
Heavy Vehicle National Law (NSW), ss 60, 89; Sch 2, Pt 7
Interpretation Act 1987 (NSW), ss 5, 9
Uniform Civil Procedure Rules 2005 (NSW), r 59.10(1)

Cases Cited:
Elias v Director of Public Prosecutions (NSW) (2012) 222 A Crim R 286; [2012] NSWCA 302
Ex parte McGavin; Re Berne (1945) 46 SR (NSW) 58
Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 217
Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32
Lavorato v The Queen (2012) 82 NSWLR 568; [2012] NSWCCA 61
Robinson v Woolworths Ltd (t/as Woolworths Plus Petrol Werrington) (2005) 64 NSWLR 612; [2005] NSWCCA 426
Sasterawan v Morris (2007) 69 NSWLR 547; [2007] NSWCCA 185
The Owners of the Ship ‘Shin Kobe Maru’ v Empire Shipping…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Mack Fleet Pty Ltd v Transport for NSW and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] NSWCA 149
Decision Date: 21 July 2020

CaseChat Overview and Summary

The applicant, Mack Fleet Pty Ltd, sought judicial review of a decision by a District Court judge to refuse its request to submit a question of law to the Court of Criminal Appeal. This request arose after the District Court dismissed Mack Fleet's appeal from the Local Court concerning an offence under the Heavy Vehicle National Law (NSW) for using an unsafe heavy vehicle due to non-compliance with braking system regulations.

The primary legal issues before the Court of Appeal were whether the District Court judge erred in refusing to submit a question of law to the Court of Criminal Appeal under section 5B of the *Criminal Appeal Act 1912* (NSW), and whether the applicant's application for judicial review, filed out of time, had sufficient merit to warrant an extension of time. The court also considered whether the judge's determination that no question of law was raised by the applicant's request was correct.

The Court of Appeal held that the power under section 5B of the *Criminal Appeal Act 1912* (NSW) to submit a question of law to the Court of Criminal Appeal is discretionary and not a duty that is automatically exercised upon request. It was necessary for the applicant to identify a genuine question of law for the judge to consider. The court found that the applicant had failed to articulate a question of law that was arguable or that raised a matter of sufficient importance to warrant referral. Consequently, the judge was entitled to refuse the request.

The Court of Appeal refused the applicant's application for an extension of time to file its summons for judicial review, finding that the application lacked merit. The court ordered the applicant to pay the respondent's costs.

Orders

Orders of the court

(1) Direct that the name of the respondent be amended to Transport for NSW.

(2) Refuse the applicant an extension of time within which to file the summons filed on 6 April 2020, seeking to review the decision of Judge King SC on 11 November 2019 refusing the applicant’s request to submit a question of law for determination by the Court of Criminal Appeal under s 5B of the Criminal Appeal Act 1912 (NSW).

(3) Order the applicant to pay the respondent’s costs in this Court.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Mack Fleet Pty Ltd v Transport for NSW [2020] NSWCA 149
Hearing dates:	16 July 2020
Date of orders:	16 July 2020
Decision date:	21 July 2020
Before:	Basten JA at [1]; Ward JA at [50]; Leeming JA at [51]
Decision:	(1) Direct that the name of the respondent be amended to Transport for NSW. (2) Refuse the applicant an extension of time within which to file the summons filed on 6 April 2020, seeking to review the decision of Judge King SC on 11 November 2019 refusing the applicant’s request to submit a question of law for determination by the Court of Criminal Appeal under s 5B of the Criminal Appeal Act 1912 (NSW). (3) Order the applicant to pay the respondent’s costs in this Court.
Catchwords:	CRIMINAL LAW – appeal – procedure – appeal from Local Court to District Court – appeal dismissed – request to judge to submit question of law to Court of Criminal Appeal – request declined – requirement to identify a question of law – Criminal Appeal Act 1912 (NSW), s 5B CRIMINAL LAW – use on road of heavy vehicle – whether vehicle unsafe – non-compliance with regulations setting standards for braking systems – separate offence of non-compliance with regulations – Heavy Vehicle National Law (NSW) s 89(2) JUDICIAL REVIEW – jurisdictional error –refusal of District Court judge to submit a question of law to the Court of Criminal Appeal – whether power coupled with duty to exercise power on request – whether request stated a question of law – challenge to determination of judge that no question of law raised PRACTICE AND PROCEDURE – criminal – power of judge of District Court to submit question of law to Court of Criminal Appeal – application out of time – identification of question of law – whether discretion to refuse request PRACTICE AND PROCEDURE – judicial review – application out of time – whether application had merit warranting extension of time – Uniform Civil Procedure Rules 2005 (NSW), r 59.10(1)
Legislation Cited:	Criminal Appeal Act 1912 (NSW), ss 5A, 5B District Court Act 1973 (NSW), s 176 Heavy Vehicle National Law (NSW), ss 60, 89; Sch 2, Pt 7 Interpretation Act 1987 (NSW), ss 5, 9 Uniform Civil Procedure Rules 2005 (NSW), r 59.10(1)
Cases Cited:	Elias v Director of Public Prosecutions (NSW) (2012) 222 A Crim R 286; [2012] NSWCA 302 Ex parte McGavin; Re Berne (1945) 46 SR (NSW) 58 Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 217 Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32 Lavorato v The Queen (2012) 82 NSWLR 568; [2012] NSWCCA 61 Robinson v Woolworths Ltd (t/as Woolworths Plus Petrol Werrington) (2005) 64 NSWLR 612; [2005] NSWCCA 426 Sasterawan v Morris (2007) 69 NSWLR 547; [2007] NSWCCA 185 The Owners of the Ship ‘Shin Kobe Maru’ v Empire Shipping…