Mack Fleet Pty Ltd v Transport for NSW

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.