Palfrey v South Penrith Sand and Soil Pty Ltd
[2013] NSWCA 99
•02 May 2013
Court of Appeal
New South Wales
Case Title: Palfrey v South Penrith Sand and Soil Pty Ltd Medium Neutral Citation: [2013] NSWCA 99 Hearing Date(s): 22 April 2013 Decision Date: 02 May 2013 Before: Barrett JA Decision: 1. Order that the appeal be dismissed as incompetent.
2. Order that the appellant pay the respondent's costs of the notice of motion and the appeal.[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords: APPEAL - appeal to Court of Appeal - whether appeal lies from an order of the Supreme Court in its summary jurisdiction dismissing certain summonses issued upon an application made under s 246(1) of the Criminal Procedure Act 1986 and striking out certain counts in other such summonses - whether an application made or filed under that provision is an information presented or filed - WORDS AND PHRASES - "information presented or filed as provided by law for the prosecution of offenders" Legislation Cited: Consumer Protection Act 1969, s 56(4)
Criminal Appeal Act 1912, ss 5AE, 5C, 5D
Criminal Procedure Act 1986, Part 5 Chapter 4, ss 3, 246(1) and (2)
Interpretation Act 1987, s 13A(1)
Justices Act 1902 (WA)
Land and Environment Court Rules, Part 6 rule 2(d)
Pesticides Act 1978, s 59(3)
Road Transport (General) Act 2005, ss 3,121, 122(1), 123, 128 180(1)
Road Transport (General) Regulation 2005, Schedule 2
Supreme Court Act 1970, Third Schedule paras (a), (a1), ss 17, 19, 101(a)
Supreme Court Rules 19970, Part 75 rules 4, 7
Supreme Court (Summary Jurisdiction) Act 1967
Transport Administration Act 1988, s 46Cases Cited: Hanley v Steel (1973) 5 SASR 242
John Holland Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 338
John L Pty Ltd v Attorney-General (NSW) [1987] HCA 42; (1987) 163 CLR 508
John Nominees Pty Ltd v Dixon [2003] WASCA 51
Ove Arup Pty Ltd v Industrial Court of New South Wales [2006] NSWCA 28
Parker v Comptroller-General of Customs [2007] NSWCA 348; (2007) 243 ALR 574
Plenty v Dillon [1991] HCA 5; (1991) 171 CLR 635
Southlink Pty Ltd v Workcover Corporation of South Australia [2009] SASC 175
Taylor v Environment Protection Authority [2000] NSWCCA 71; (2000) 50 NSWLR 48Texts Cited: Stephen's Commentaries on the Laws of England, 8th ed (1880), vol 4, ch 11 Category: Interlocutory applications Parties: David Palfrey - Applicant
South Penrith Sand & Soil Pty Limited - RespondentRepresentation - Counsel: G J Hatcher SC/S R Colemen - Appellant
M G Higgins - Respondent- Solicitors: Hicksons Lawyers - Appellant
Farry & Co Solicitors - RespondentFile Number(s): 2012/376886 Decision Under Appeal - Before: Barr AJ - Court File Number(s): 2011/00407510, 2011/00407520, 2011/00407525, 2011/00407531, 2011/00407560, 2011/00407563, 2011/00407567, 2011/00407572, 2011/00407599, 2011/00407623
JUDGMENT
BARRETT JA: South Penrith Sand and Soil Pty Ltd (which I shall call "the Company") is the respondent named in a notice of appeal filed on 4 December 2012. By notice of motion filed on 20 February 2013, the Company challenges the competency of the appeal brought against it.
The appellant named in the notice of appeal is David Palfrey. He is an "authorised officer" for the purposes of Schedule 2 to the Road Transport (General) Regulation 2005 and as defined by s 3 of the Road Transport (General) Act2005. I shall refer to him as "the Officer".
The statutory authority responsible for the administration of the legislation just mentioned is Roads and Maritime Services. It is not a party to the appeal; nor was it a party to the proceedings below.
In December 2011, the Officer took steps to institute proceedings in accordance with s 180(1) of the Road Transport (General) Act which is in these terms:
"Proceedings for an offence against the road transport legislation are to be dealt with summarily before the Local Court or the Supreme Court in its summary jurisdiction."
In order to invoke the summary jurisdiction of the Supreme Court, the Officer made an application to that court under s 246(1) of the Criminal Procedure Act1986. When that application came before the court, a judge of the Common Law Division (Rothman J) made the orders sought, being orders requiring the Company and two of its officers or employees to appear to answer to offences stated in the Officer's application. As a result of those orders, several summonses were issued charging breaches of provisions of the Road Transport (General) Regulation. The Company was named as defendant in five of those summonses.
After the five summonses directed to it had been served, the Company filed a notice of motion in the Common Law Division seeking orders that certain of the charges against it be quashed or, in the alternative, stayed until further order. Barr AJ, taking the view that it was an abuse of process for the Officer to charge the Company in several different ways when there was a single underlying event and only one sentence could result, afforded the Officer an opportunity to elect the charges on which he would proceed. When the Officer did not do so, his Honour ordered on 20 November 2012 that two of the summonses be dismissed and that certain of the counts in the other summonses be struck out.
It was in consequence of these orders made by Barr AJ that the Officer filed a notice of appeal to the Court of Appeal. Several grounds of appeal are articulated in that notice of appeal.
The Officer says that the appeal is brought as of right pursuant to s 101(1)(a) of the Supreme Court Act1970. The Company's contention, however, is that, if any avenue of appeal is available (which it does not admit), it is provided by the Criminal Appeal Act1912; and that no appeal can be brought under the Supreme Court Act. It is on this basis that the Company says that the appeal arising from the notice of appeal filed on 4 December 2012 is incompetent.
The following aspects of the Criminal Procedure Act and its operation are of special relevance to the question raised by the Company's notice of motion:
1. Sections 246(1) and (2) provide:
"(1) A prosecutor may apply for an order:
(a) that a person alleged in the application to have committed an offence that may be dealt with summarily by the court must appear at a time and place specified in the order to answer to the offence charged in the order, or
(b) for the apprehension of any such person for the purpose of being brought before a Judge to answer to the offence charged in the order.
(2) The application must be in accordance with the rules."
2. For these purposes, "the court" includes the Supreme Court.
3. The expression "prosecutor" is defined by s 3 as follows:
"'prosecutor' means the Director of Public Prosecutions or other person who institutes or is responsible for the conduct of a prosecution and includes (where the subject-matter or context allows or requires) an Australian legal practitioner representing the prosecutor."
It is not in contest that the Officer is a "prosecutor" within this definition.
The Company's argument turns largely on s 17(1) of the Supreme Court Act and provisions in the Third Schedule to that Act. Section 17(1) is in these terms:
"Except as provided in this section this Act and the rules do not apply to any of the proceedings in the Court which are specified in the Third Schedule, and no claim for relief lies to the Court against an interlocutory judgment or order given or made in proceedings referred to in paragraph (a1) or (a2) of that Schedule."
It is relevant to quote also s 17(2):
"Rules may be made under this Act:
(a) for regulating and prescribing the practice and procedure of the Court, and
(b) without limiting the generality of paragraph (a), for:
(i) providing for the regulation of the sittings and order of business of the Court and the regulation of the vacations and holidays to be observed by the Court and in the offices of the Court, and
(ii) prescribing the duties and functions of the Prothonotary and other officers of the Court and the records to be kept by them,
in relation to any of the proceedings in the Court which are specified in the Third Schedule."
Among the items in the Third Schedule to the Supreme Court Act are these:
"(a) Proceedings in the Court for the prosecution of offenders on indictment ('indictment' including any information presented or filed as provided by law for the prosecution of offenders) including the sentencing or otherwise dealing with persons convicted,
(a1) proceedings (including committal proceedings) for the prosecution of offenders on indictment ('indictment' including any information presented or filed as provided by law for the prosecution of offenders) in the Court or in the District Court".
Also relevant is s 5C of the Criminal Appeal Act1912 (which deals expressly with proceedings under s 246 of the Criminal Procedure Act) since it must, I think, be accepted that if a specific avenue of appeal is created by that section, the general appeal provisions in the Supreme Court Act will not apply. Section 5C is as follows:
"Where the Supreme Court or the District Court has quashed any information or indictment or any count thereof or the Supreme Court or District Court in its summary jurisdiction, in any proceedings to which the Crown was a party, has quashed any application made under section 246(1) of the Criminal Procedure Act 1986 or any charge specified in such an application, or the Land and Environment Court in its summary jurisdiction, in any proceedings to which the Crown was a party, has quashed any application made under section 41(1) of the Land and Environment Court Act 1979 or any charge specified in such an application, the Attorney-General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against the order made, and such court may thereupon determine the appeal and if the appeal is sustained may make such order for the prosecution of the trial as may be necessary".
The Company argues that the proceedings commenced against it are within item (a) or (a1) of the Third Schedule to the Supreme Court Act and that that Act and the "rules" to which it refers (which, as defined by s 19, include the Supreme Court Rules) therefore do not apply to those proceedings. That proposition is sustainable only if the proceedings are "for the prosecution of offenders on indictment", with "indictment" understood in the extended sense emerging from each of paragraphs (a) and (a1), that is, as including "any information presented or filed as provided by law for the prosecution of offenders".
This makes it necessary to consider the way in which proceedings under s 246(1) of the Criminal Procedure Act are initiated. Section 246(2) states that the manner of proceeding is by "application" made "in accordance with the rules". The expression "rules" is defined by s 3:
"'rules' means rules made for the purposes of a court to which the relevant provision applies."
Since, as already noted, the Supreme Court is a court to which s 246 applies, s 246(2) requires that an application made under s 246 to the Supreme Court be in accordance with the "rules made for the purposes of" that court, that is, the Supreme Court Rules 1970. Part 75 rule 4 of those rules appears in Division 2 of Part 75 and provides:
"This Division applies to proceedings in the Court under the Part 5 of Chapter 4 of the Criminal Procedure Act1986 (in this Division called the 'subject Act')".
That provision is preceded by Part 75 rule 1 which is in these terms:
"Subject to section 17 of the Act and except as provided in this Part, the rules do not apply to any of the proceedings in the Court which are specified in the Third Schedule to the Act."
Part 75 rules 7 to 10 (also within Division 2 of Part 75) are as follows:
"7 Commencement of proceedings
Proceedings for an offence under any Act which may be taken before the Court in its summary jurisdiction shall be commenced in the Court by summons claiming an order under section 246 of the subject Act in respect of the offence and claiming that the defendant be dealt with according to law for commission of the offence.8 Copies of order
When the prosecutor files the summons, he shall lodge with the registrar two or more copies of a minute of the order which he claims.9 Service
(1) The summons and any affidavit in support of an application under section 246 of the subject Act shall not, unless the Court so directs, be served before the making of the order but shall be served on the defendant when the minute of order is served on him.
(2) Subject to any Act, a minute of any order made under section 246(1) or section 250(b) of the subject Act and any affidavits used to obtain either of those orders shall be served personally upon the defendant.10 Evidence of service
Evidence of service of any document in any proceedings to which this Division applies may be given by affidavit."The effect of s 17 of the Supreme Court Act is that that Act and the Supreme Court Rules do not apply to any proceeding in the Supreme Court specified in the Third Schedule to the Act, but that certain rules are excepted from that displacement, being rules made under the Act which, in relation to such Third Schedule proceedings, regulate and prescribe the practice and procedure of the Supreme Court. It may be accepted, therefore, that Division 2 of Part 75 of the Supreme Court Rules, which deals with practice and procedure in relation to Supreme Court proceedings under Part 5 of Chapter 4 of the Criminal Procedure Act, have effect whether or not those proceedings are described in the Third Schedule. But provisions of the Supreme Court Act (and of the Supreme Court Rules, beyond Division 2 of Part 75), including those concerning appeal to the Court of Appeal, do not apply to such proceedings if they are within the Third Schedule.
A central question is therefore whether the proceedings brought by the Officer against the Company are, as referred to in item (a) or (a1) of the Third Schedule, proceedings for
"the prosecution of offenders on indictment ('indictment' including any information presented or filed as provided by law for the prosecution of offenders)".
The method of making a s 246(1) application prescribed under Division 2 of Part 75 is the filing of a summons (which may, but need not, be accompanied by a supporting affidavit) seeking an order that the person in question appear before the Supreme Court to answer to the offence charged in the order.
The Company contends that proceedings commenced in that way are, in terms of items (a) and (a1), proceedings commenced by "information". The Company relies on the decision of the Court of Criminal Appeal in Taylor v Environment Protection Authority [2000] NSWCCA 71; (2000) 50 NSWLR 48. That case concerned a statutory offence proceedings in respect of which, on the view the court took of s 59(3) of the Pesticides Act1978, could only be be commenced by "information" laid within a particular time. Proceedings were in fact commenced in the summary jurisdiction of the Land and Environment Court by the filing of a summons pursuant to Part 75 rule 7 of the Supreme Court Rules, as adapted by Part 6 rule 2(d) of the Land and Environment Court Rules 1980. The question was whether the proceedings commenced in that way by summons (under provisions relevantly indistinguishable from those of this case) had been commenced "by information".
The Court of Criminal Appeal gave a positive answer to that question. Sperling J (with whom Meagher JA and James J agreed) said (at [15]-[18]):
"In my opinion, a summons under Part 75, rule 7 is an information within the meaning of s 59(3). (It would be the more so, if affidavits were filed with it, disclosing a prima facie case, but that is put out of account.) My reasons follow.
The word 'information' is most commonly used to mean the document by which criminal proceedings are instituted before a magistrate. The function of such an information is to provide sufficient information for the issue of a summons directing the defendant to appear to answer the charge. Depending on
the context, however, the word may have a wider meaning. In Hanley v Steel (1973) 5 SASR 242 at 246, Bray CJ said that an information can be 'an initiatory proceeding of some kind ... the initiatory step in proceedings of a criminal nature, which are to be disposed of summarily ...'. The word has been held, in context, to comprehend an indictment: R v Slator (1881) 8 QBD 267; R v Woolcott Forbes (1944) 44 SR (NSW) 333; 61 WN (NSW) 219; Fraser v The Queen [No 2] (1985) 1 NSWLR 680. In R v Hull (1989) 16 NSWLR 385, the Court of Criminal Appeal was concerned with s 45B of the Poisons Act 1966, which provided that an 'information' for an offence may be laid within two years after the alleged commission of the offence. The prosecution had been commenced by indictment. It was held that s 45B applied.
Gleeson CJ said (at 394):'In my opinion s 45B has the meaning and effect contended for by the appellant. The word 'information' is used in the wider rather than the narrower sense, and the time bar imposed by the section relates to the commencement by any means of a prosecution for an offence of the kind to which the section relates. For the reasons which follow I also consider that to issue an ex officio indictment against a person who has been discharged by a magistrate relevantly involves the commencement of proceedings.'
In the present case, the legislature amended s 59 of the Pesticides Act1978, giving the Land and Environment Court jurisdiction to try offences under the Act. It did so in the context of the procedures of that court, which provided for proceedings of the relevant kind to be instituted by summons for an order requiring the attendance of the defendant to answer the charge.
In these circumstances, the word 'information' in s 59(3) is to be construed to include such a summons."
The decision in Taylor v Environment Protection Authority was that, where a statutory provision required an offence to be prosecuted "by information", the requirement was satisfied by resort to the procedure under Part 75 rule 7 of the Supreme Court Rules applicable to s 246 of the Supreme Court Act (as adapted for proceedings in the Land and Environment Court). In the present case, there is no similar requirement to proceed by "information". Section 180(1) of the Road Transport (General) Act, as already noted, merely says that proceedings for an offence "are to be dealt with summarily before the Local Court or the Supreme Court in its summary jurisdiction".
The question whether an "information" or "indictment" is involved also arises under the "first limb" of s 5C of the Criminal Appeal Act dealing with the quashing of an "information or indictment or any count thereof". That first limb was considered by the High Court in John L Pty Ltd v Attorney-General (NSW) [1987] HCA 42; (1987) 163 CLR 508. The case concerned the procedure by way of summons pursuant to Part 75 rule 7 of the Supreme Court Rules then applicable to proceedings under a provision of the Supreme Court (Summary Jurisdiction) Act1967 relevantly indistinguishable from the present s 246 of the Criminal Procedure Act. The procedure had been employed in respect of an alleged offence against the Consumer Protection Act1969. That Act provided that proceedings for an offence might be taken and prosecuted only by a person acting with the authority in writing of the Minister and "be disposed of summarily" before one of several courts, including "the Supreme Court in its summary jurisdiction". It was also provided, however, that proceedings "shall be commenced by information . . . ".
A Supreme Court judge had decided that a failure to specify the way in which an alleged statement was false or misleading to the knowledge of the maker of it invalidated the application. The judge ordered that the information be dismissed, the summons be struck out and the proceedings be dismissed generally. The Court of Criminal Appeal held that an appeal lay to that court under s 5C of the Criminal Appeal Act and dealt with the appeal accordingly. The High Court, by majority, dismissed a further appeal. Mason CJ, Deane and Dawson JJ were of the opinion that the matter was within the "first limb" of s 5C.
The majority observed (at 517) that the requirement of the Consumer Protection Act that the proceedings be commenced by information was "in conflict with" the procedure under Part 75 rule 7 of the Supreme Court Rules applicable to matters prosecuted in the summary jurisdiction of the Supreme Court. The requirement, it was said, "reflects what must be presumed to be a considered legislative intent that proceedings in any court for an offence against the Consumer Protection Act (Part V excepted) should be commenced by information with all that that involves". The joint judgment continues (also at 517):
"That being so, there is no reason why it should be supposed that it was the legislative intent that the ordinary procedures for quashing an information or for appealing from a decision quashing an information should be excluded. Moreover, in that context, the actual information commencing proceedings in the summary jurisdiction for an offence against the Consumer Protection Act cannot properly be described as an 'application made under' the Summary Jurisdiction Act. It was and remained an information under the Consumer Protection Act."
The majority thus proceeded on the basis that, where an offence could only be prosecuted by information and the statutory scheme also provided that resort might be had to the Supreme Court's summary jurisdiction, the legislative intent was that procedures for quashing an information should remain available even though the procedure by summons was adopted. It is, however, significant that, as the majority pointed out (at 514), the prosecutor had adopted "the approach that any need to choose between commencing the proceedings by information in compliance with s 56(4) of the Consumer Protection Act and commencing them by summons in compliance with the Summary Jurisdiction Act and the Supreme Court Rules was best avoided by commencing them by both". The course taken was described as follows (also at 514):
"In addition to the information laid before a judge of the Supreme Court, a summons was filed in accordance with the Rules. Technically, it would seem that the summons was unnecessary."
Neither Taylor v Environment Protection Authority nor John L Pty Ltd v Attorney-General (NSW) addressed in any direct way the question whether, if there is no requirement for the laying of an information and nothing purporting to be an information is actually used, proceedings brought in the Supreme Court's summary jurisdiction merely by application (perhaps with a supporting affidavit) under Division 2 of Part 75 of the Supreme Court Rules are proceedings for the prosecution of offenders on indictment or information.
That said, however, Basten JA suggested in Parker v Comptroller-General of Customs [2007] NSWCA 348; (2007) 243 ALR 574 at [33], with the concurrence of Mason P and Tobias JA, that, in light of John L Pty Ltd v Attorney-General (NSW), the concept of an "information" should, in the context of the Third Schedule to the Supreme Court Rules, be understood as extending to the means by which a public prosecution is commenced seeking a conviction for an offence. His Honour also referred in that connection, to his judgment in Ove Arup Pty Ltd v Industrial Court of New South Wales [2006] NSWCA 28 (Spigelman CJ and Mason P concurring). The central question there concerned the first limb of s 5C of the Criminal Appeal Act and Basten JA suggested that the question whether that limb should be read broadly so as to cover all methods of commencing a public prosecution for an offence might be elucidated by a consideration of the operation of the second limb. I therefore turn to that second limb and its applicability to the present case.
The second limb, as it relates to matters brought in the summary jurisdiction of the Supreme Court, is concerned with the case where the court "in any proceedings to which the Crown was a party, has quashed any application made under section 246(1) of the Criminal Procedure Act 1986 or any charge specified in such an application". The present case will properly be regarded as within the second limb if two conditions are satisfied: first, the effect of the orders of Barr AJ was to "quash" something to which s 5C refers; and, second, the proceedings commenced in December 2011 by the Officer are "proceedings to which the Crown was a party".
Counsel for the Officer submitted that the orders of Barr AJ did not "quash" anything. As I have said, his Honour ordered that two of the summonses issued on the order of Rothman J in response to the Officer's application be dismissed and that certain counts in the other summonses be struck out. The Officer says that those orders finally determined the claims and allegations concerned and that "quash" is not a word apt to describe that result. The concept the word conveys is said to be confined to the annulment or setting aside of something already in existence, such as a conviction, an order, a decision or a determination.
That is certainly an accepted meaning of "quash" but I do not think that the concept can be restricted in that way. As s 5C itself recognises, it is sensible to speak of the "quashing" of a charge (see also John Holland Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 338) or the "quashing" of an application (see also Southlink Pty Ltd v Workcover Corporation of South Australia [2009] SASC 175). That being so, a judicial act that affects an initiating step in legal proceedings in such a way that the proceedings are brought to a halt and cannot proceed beyond that initiating step (so that the merits are never addressed) is sensibly described as a "quashing" of the initiating step. I am therefore prepared to think that the orders of Barr AJ "quashed" two of the summonses directed to the Company and the particular counts or charges in the other three summonses.
There is, however, a question whether any such "quashing" is of the kind with which the second limb of s 5C of the Criminal Appeal Act is concerned, that is, of an "application made under section 246(1) of the Criminal Procedure Act 1986 or any charge specified in such an application".
The application made under s 246(1) in this case was the application made in accordance with Division 2 of Part 75 of the Supreme Court Rules that was heard and determined by Rothman J. The relevant charges were those specified in the application dealt with by Rothman J who made the order sought in the application, that is, an order that the Company appear at a particular time and place to answer to the offences charged in the order. It was that order that brought about the issue of the summonses that later came before Barr AJ.
It is clear that Barr AJ's orders did not have the effect of "quashing" the summons embodying the application under s 246(1) that had already been determined by Rothman J. The purpose of that application was fully effectuated when Rothman J ordered the issue of the five further summonses. No further claim was then maintainable by reference to the application. As a result of Rothman J's order, the charges "specified in" the s 246(1) application came to be embodied in the five summonses later served on the Company for the purpose of informing it that it was required to appear to answer to those charges. But the charges continued, in my view, to be the charges "specified in" the already determined s 246(1) application. They, unlike the application itself, were not spent as a result of the making of Rothman J's order. Rather, they continued in existence and were conveyed by the summonses served on the Company.
The "quashing" effected by Barr AJ's order was therefore a quashing of all charges in the two summonses his Honour ordered dismissed and those of the charges in the other three summonses that he ordered struck out. The case was accordingly one within the part of the second limb of s 5C of the Criminal Appeal Act referring to s 246(1) of the Criminal Procedure Act and the quashing of "any charge specified in such an application" - provided that the proceedings are properly regarded as "proceedings to which the Crown was a party". It is to that matter that I now turn.
The Officer is obviously a party to the proceedings. The question is whether he is properly regarded as an agent or instrumentality of the Crown or a person acting for the Crown or performing a Crown function.
The Officer's status as an authorised officer may be taken to derive from s 121 of the Road Transport (General) Act which empowers Roads and Maritime Services, by instrument in writing, to appoint a specified person to be an "authorised officer". Section 122(1) says that an authorised officer "has the powers conferred on authorised officers by the road traffic legislation". Section 123 allows Roads and Maritime Services to delegate any of its powers to authorised officers. Section 128 (in which Roads and Maritime Services is referred to as "the Authority") is as follows:
"(1) The Authority may exercise any power conferred by or under an applicable road law on an authorised officer, other than a power that requires the physical presence of an authorised officer.
(2) Accordingly, in this Act (except this Part) references to an authorised officer include references to the Authority."
Section 128 serves to confirm that authorised officers, once appointed by Roads and Maritime Services, are the direct repositories of powers conferred by the legislation and that they have those powers independently of any delegation or authorisation by Roads and Maritime Services. The section also makes it clear that, if the legislation gives a power to an authorised officer, Roads and Maritime Services may exercise that power, so that the capacity of Roads and Maritime Services to exercise it exists concurrently with an authorised officer's capacity to do so. The statutory source of an authorised officer's power and its separateness from a power of Roads and Maritime Services are again recognised.
Section 46 of the Transport Administration Act1988 created Roads and Maritime Services as a corporation and declares it to be "a NSW Government Agency". By s 13A(1) of the Interpretation Act 1987, therefore, Roads and Maritime Services "has the status, privileges and immunities of the Crown".
For the purposes of s 5C of the Criminal Appeal Act, it may readily be accepted that, if the proceedings had been brought by Roads and Maritime Services, they would be "proceedings to which the Crown is a party". The circumstance that they were brought by the Officer as an "authorised officer" does not lead to the same conclusion. I quote again from the judgment of the majority in John L Pty Ltd v Attorney-General (NSW) (at 518-519):
"In the context of a provision conferring rights of appeal against a decision quashing an information or an indictment, there is no reason to give the reference to 'the Crown' being 'a party' a wider meaning than that which the words are, as a matter of ordinary language, apposite to convey. The proceedings were not brought in the name of the Crown, or by the Attorney-General or even by an officer such as the Director of Public Prosecutions in the exercise of a statutory entitlement to prosecute criminal proceedings on behalf or in the name of the Crown. They were brought by Mr Clayton as 'a person' (s 56(1)) and could be maintained by him, in that capacity, regardless of whether he remained in the employment of the Department of Consumer Affairs (contrast, eg, proceedings to which 'the Minister' (s 56B) or 'the Commissioner with the consent of the Minister' (s 56A(1)) is a party). They were not proceedings to which the Crown was a party in any accepted meaning of the words 'Crown' and 'party'."
Ove Arup Pty Ltd v Industrial Court of New South Wales (above) concerned proceedings bought by an officer whose position was distinguished by Basten JA from that described in the last part of the quoted passage, in that the officer could not continue to act as prosecutor if he or she lost officer status. That is also the position in this case. If the Officer ceased to be an authorised officer, he would no longer have the power to prosecute.
That circumstance was among factors that led Basten JA to conclude in Ove Arup Pty Ltd v Industrial Court of New South Wales that the particular proceedings were proceedings to which the Crown was a party. His Honour was of the opinion that that an officer carrying out statutory functions in the public interest effectively represents the authority to which he is subject, by way of control and direction, which is taken to be the real party to the proceedings. Since, in that case, the authority in question was an agency of the Crown, the conclusion was that the Crown was a party to proceedings in fact initiated by the officer.
In this case, it is by no means clear, in the light of the provisions I have mentioned, that the Officer is in any way subject to the control and direction of Roads and Maritime Services in the performance of his functions and the exercise of his powers. As I have said, his status as an authorised officer alone causes him to be the repository of powers conferred by the legislation; and there is no suggestion that Roads and Maritime Services or anyone else can direct or control him in what he does. It is true that Roads and Maritime Services can itself exercise the same power, but that does not imply any curtailment of an officer's power. The legislation does not appear to deal with a situation where an authorised officer and Roads and Maritime Services both exercise the same power in relation to the same subject matter at the same time but in inconsistent ways.
I should, at this point, refer, for the purposes of comparison, to s 5D of the Criminal Appeal Act sub-section (1) of which allows the Attorney-General or the Director of Public Prosecutions to appeal to the Court of Criminal Appeal against any sentence pronounced by the court of trial "in any proceedings to which the Crown was a party". These are the words used also in s 5C. In s 5D, however, their meaning is affected by sub-section (2):
"In this section, a reference to proceedings to which the Crown was a party includes a reference to proceedings instituted by or on behalf of:
(a) the Crown, or
(b) an authority within the meaning of the PublicFinance and Audit Act 1983,
or by an officer or employee of such an authority acting in the course of his or her employment. "
It is noteworthy that s 5C makes no similar provision and, in particular, does not deem proceedings brought by an officer or employee of the Crown or of a government authority to be proceedings "to which the Crown was a party".
On the material available to me, I am not persuaded that the proceedings brought against the Company in the Supreme Court's summary jurisdiction by an authorised officer under the road transport legislation are "proceedings to which the Crown was a party". This is because the authorised officer by whom the proceedings are brought, although performing functions under legislation for public purposes, does not appear to have such a connection with the Crown as to cause the proceedings brought by him to belong to or be controlled by the Crown.
If that assessment is correct, the second limb of s 5C of the Criminal Appeal Act provides no avenue of appeal for the Officer in the present case. It is therefore necessary to deal with the questions posed by s 17(1) of, and items (a) and (a1) of the Third Schedule to, the Supreme Court Act without the assistance of any implication drawn from that second limb.
As I have said, Basten JA suggested in Parker v Comptroller-General of Customs (above) that, in the light of John L Pty Ltd v Attorney-General (NSW), the expression "information" should be understood as extending to the means by which a public prosecution is commenced seeking a conviction for an offence. That, in my view, is the correct construction.
The High Court, in John L Pty Ltd v Attorney-General (NSW), did not deal in any direct way with the question whether proceedings commenced solely by application under s 246(1) were proceedings "on" an "information presented or filed for the prosecution of offenders". In Taylor v Environment Protection Authority (above), however, the question was whether a requirement that proceedings be commenced by "information" had been satisfied where an equivalent of s 246(1) application was the only originating process employed. And that question was answered in the affirmative.
Having regard to that decision of the Court of Criminal Appeal, I am of the opinion that where, as here, there is no explicit requirement for an "information" and the only initiating procedure adopted is a s 246(1) application (with or without supporting affidavit), that application should be regarded as an "information presented or filed by law for the prosecution of offenders" as referred to in items (a) and (a1) of the Third Schedule to the Supreme Court Rules. I find particularly persuasive the exposition by Sperling J in the passage extracted at [24] above which, in turn, refers to statements of relevance by Bray CJ in Hanley v Steel (1973) 5 SASR 242 and by Gleeson CJ in R v Hull (1989) 16 NSWLR 385. In addition, it may be noted that, in John Nominees Pty Ltd v Dixon [2003] WASCA 51, Parker J observed (at [28]) that a process labelled "complaint" by the Justices Act 1902 (WA) was "more in the nature of an information laid before Justices under earlier procedures in the UK". This is no doubt a reference to the procedure described in the following extract from Stephen's Commentaries on the Laws of England, 8th ed (1880), vol 4, ch 11, at 330-331 quoted by Mason CJ, Brennan and Toohey JJ in Plenty v Dillon [1991] HCA 5; (1991) 171 CLR 635 at 643:
"Where a written information has been laid before any
justice of the peace for any county or place in England or
Wales, of any offence committed within his jurisdiction,
and made punishable on summary conviction, - he is to issue
his summons to the party charged, requiring him to appear
and answer the charge: and, if the summons be disobeyed, he
may then issue a warrant to apprehend him, and bring him
before the court."This, with substitution of "application" for "information" (and adjustment of the references to court and geography), is, to my mind, an exact description of the procedure provided for in s 246(1) of the Criminal Procedure Act. That Act, although using terminology that involves the making of an application to a court, creates a process by which an information is laid before or presented to the court. The purpose of the initiating document is to invoke the jurisdiction of the court to summon a person to answer to a charge preferred by the initiating document. Although called an application, the initiating document is, of its nature, an information.
I am satisfied, therefore, that an "application" to the Supreme Court made and filed under s 246(1) of the Criminal Procedure Act, by means of a summons in compliance with Part 75 rule 7 of the Supreme Court Rules, is, as referred to in each of item (a) and item (a1) of the Third Schedule to the Supreme Court Act, an "information presented or filed as provided for by law for the prosecution of offenders".
That conclusion means that s 17(1) of the Supreme Court Act causes s 101 of that Act not to apply to the orders made by Barr AJ on 20 November 2012.
The orders are as follows:
1. Order that the appeal be dismissed as incompetent.
2. Order that the appellant pay the respondent's costs of the notice of motion and the appeal.
**********
0
11
13