Sudholz v Ball Refrigerated P/L
[2007] QMC 2
•11 December 2007
MAGISTRATES COURTS OF QUEENSLAND
CITATION:
Sudholz v Ball Refrigerated P/L & Ors [2007] QMC 002
PARTIES:
PETER LISLE SUDHOLZ
(respondent/ complainant)
v
BALL REFRIGERATED PTY LTD
(applicant/ defendant)
PETER BALL
(applicant/ defendant)
PETER BRUCE CALLANDER
(applicant/ defendant)
FILE NO/S:
MAG200334/06(0)
DIVISION:
Magistrates Court
PROCEEDING:
Complaint
ORIGINATING COURT:
Magistrates Court at Brisbane
DELIVERED ON:
11 December 2007
DELIVERED AT:
Brisbane
HEARING DATE:
22 October 2007
MAGISTRATE:
Previtera T
ORDER:
-That the search warrants issued by the Richlands Magistrates Court on the 12th December 2005 are valid.
-That the execution of the warrants on the premises of Mr. Peter Ball and Mr. Peter Callander on 14th December 2005 was lawful.
-That the seizure of the documents and items from the premises of Mr. Peter Ball and Mr. Peter Callander on 14th December 2005 was lawful.
And it is directed
-That the complainant file and serve further and better particulars in relation to each of the complaints against the respondent Ball Refrigerated Pty Ltd by 4.00pm on the 1st February 2008.
-That the matter of the complaints be adjourned for a directions hearing at 9.00am on 11th February 2008.CATCHWORDS:
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE – INFORMATION – particulars of offence
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – WARRANTS, ARRESTS, SEARCH, SEIZURE AND INCIDENTAL POWERS – whether search warrant is valid; whether execution was lawful; whether seizure was lawful
COUNSEL:
W Rayneef appeared for the respondent/ complainant
P Freeburn SC appeared for the applicant/ defendants
SOLICITORS:
Crown Law for the respondent/ complainant
Phillips Fox for the applicant/ defendants
BACKGROUND
The respondent Ball Refrigerated Pty Ltd is a corporate employer of heavy vehicle transport drivers. The respondents Peter John Ball and Peter Bruce Callander are the Managing Director and Operations Manager, respectively, of Ball Refrigerated Pty Ltd.
On the 14th December 2005, officers of the complainant, with assistance from the Queensland Police Service, executed search warrants[1] (which issued from the Richlands Magistrates Court on the 12th December), at the residences of Mr. Ball and Mr. Callander respectively. Numerous documents were removed from each residence and the searches were video-taped.
[1] Exhibits PJB1 and PJB2 of the affidavit of Peter John Ball sworn 27th September 2007.
In December 2006, complaints alleging;
(a)breaches by Ball Refrigerated Pty Ltd of Section 72 of the Transport Operations (Road Use Management – Fatigue Management) Regulation 1998 (“TORUM-FM Reg”); and
(b)breaches by Peter John Ball and Peter Bruce Callander of Section 57(2) of the Transport Operations (Road Use Management) Act 1995 (“TORUM”) were filed in the Magistrates Court at Brisbane.
Section 72 of the TO (RUM –FM) Reg 1998 provides:
“72. Special obligation of employers
An employer must not allow an employed driver to drive a heavy vehicle for the employer if the employer knows, or reasonably ought to know, that by driving the vehicle the driver would, or would be likely to, commit a core driving hours offence.
Maximum penalty—60 penalty units.”
All of the complaints against Ball Refrigerated Pty Ltd specify that the company allowed their drivers to drive when they “reasonably ought to have known that the drivers would commit, or be likely to commit, a core driving hours offence”.
A core driving hours offence is defined in s 69 TORUM-FM Reg as an offence against any of s 15, s 16, s 17, s 23, s 24 or s 25 TORUM –FM Reg. These sections prescribe “maximum driving times” and “maximum work times” which drivers cannot exceed without penalty; and “minimum rest times” which must be observed to avoid penalty. For example, in any 24 hour period, a driver cannot drive for more than a total of 12 hours;[2] cannot drive, in any event, for more than 5 hours continuously[3]; and must rest for a minimum of ten (10) hours in any 24 hour period, including one (1) period of six (6) consecutive hours[4].
[2] S.15(1) TO(RUM-FM) Reg 1998.
[3] S.15(4) TO(RUM-FM) Reg 1998.
[4] S.17(1)(b) TO(RUM-FM) Reg 1998.
In relation to the complaints against Mr. Ball and Mr. Callander, Section 57(2) TORUM provides;
“57 Executive officers must ensure corporation complies
with transport Act
…
(2) If a corporation commits an offence against a provision of a
transport Act, each of the corporation’s executive officers also
commits an offence, namely, the offence of failing to ensure
the corporation complies with the provision.
Maximum penalty—the maximum penalty for the
contravention of the provision by an individual.
THE APPLICATION BEFORE THE COURT
The respondents requested particulars of the complaints on each of 22 December 2006, 21 February 2007 and 30 April 2007. On 3 of May 2007, upon application by the respondents to the court, the complainant was ordered to provide particulars. Particulars dated 28 May 2007 were thereafter provided.
The respondents, in arguing the insufficiency of the particulars provided, now seek orders that the complaints be struck out or stayed: alternatively, that the material obtained upon execution of the two warrants, and the video evidence taken in the course of execution of the warrants, be excluded from evidence (because the warrants are invalid; and/or the Department’s execution of the warrants was unlawful); that any items and documents taken by the Department be returned to the respondents; and an order for costs.
THE ISSUE OF PROPER PARTICULARS
[10] The statement of principle in Fox v. H Wood (Harrow) Ltd (1963) 2 QB 601 is accepted; that is, “An allegation that a person ought to have known something has implicit in it, not only an allegation that he did not know something which is an allegation of a state mind, but also an allegation that facts and circumstances existed from which he ought to have acquired, either by observation or inference, the knowledge[5] of which he was deficient and that some fault, in this case amounting to contributory negligence, lies upon him in having failed to note, or draw an inference from, particular facts or circumstances. Of such facts and circumstances particulars ought to be given.”[6]
[5] Emphasis added.
[6] Per Diplock LJ at page 604.
[11] Consequently, it is accepted that it is necessary to state in the complaint (or, if ordered, further particulars) the fact that the respondents “reasonably ought to have known…” as well as the facts, matters and circumstances from which the knowledge ought to have been acquired.[7]
[7] Paragraph 10, page 3 of the complainant’s submissions.
[12] It is also accepted that, in relation to the act/s of the company “allowing” the driver to drive the heavy vehicle carrying cargo and following instructions issued by the company, the time of each discrete act is the “moment each journey in which offences were committed was commenced”[8].
[8] Paragraph 9 of the Particulars dated 28th May 2007.
[13] Whilst the annexure to the particulars document relating to offences against Ball Refrigerated Pty Ltd specifies named drivers on nominated journeys for which commencement and conclusion times, and road distances, are stated;
(a)the particulars provided in paragraph 7 of the Particulars document would apply to every journey undertaken by every driver, in the course of the company’s enterprise, necessarily including journeys where drivers would not, or would not be likely to commit a subject offence;
(b)there are no particulars by which the complainant alleges that the company reasonably ought to have known[9] that each of the drivers on the first of their nominated journeys would, or would be likely to commit a subject offence. Knowledge of consignment collection and delivery points and the road distance of the journey, in paragraph 11 of the Particulars[10], without more, is not sufficient in this court’s view, given the quasi-criminal nature of the proceedings[11] and the matters referred to in (a) above. There are no particulars, for example, that the facts constituting the commission of the subject offence involve drivers either exceeding maximum driving/work times or by ignoring minimum rest times.
(c)The reference in Paragraph 11 of the particulars to information from drivers’ log books and global positioning system data[12] is information only available subsequent to any journey to which they relate, such that it cannot be sufficient particularity in relation to at least the first of each of the offences of the nominated drivers.
(d)such particulars as are provided are vague, non-specific, open-ended, objectionable and nothing more than bald assertions applied globally to all of the drivers without specifying, for example, which offences of which drivers the company ought reasonably to have known would, or would be likely to occur; for example, by reason of the contents of their log books. Given that drivers have 21 days within which to provide their log book of a journey to their employer[13], it is quite possible that a nominated driver may have undertaken a number of journeys before his log book of the initial journey/s came to the attention of his employer.
[9] Paragraphs 10 and 11 of the Particulars dated 28th May 2007.
[10] Paragraph 11 (a) (b) and (c) of the Particulars dated 28th May 2007.
[11] Compared with the civil standard eg; in Hoey v. Martin’s Stock Haulage (Scone) Pty Ltd (2003) ACTSC 41 (23 May 2003).
[12] Paragraph 11 (d) and (e)
[13] S. 55 TORUM – FM Reg. 1998.
[14] For all of those reasons, this court considers that the particulars in relation to the complaints against Ball Refrigerated Pty Ltd do not contain the facts, matters and circumstances by which the company ought reasonably to have known that a particular driver on a particular journey would, or would be likely to commit a core hours driving offence.
[15] However, on the basis of the public and community interest in fatigue management regulation for drivers, particularly in relation to the driving of heavy vehicles, this court will refrain from either striking out or staying those complaints; and will instead order that the complainant provide particulars, in relation to each of the separate complaints against Ball Refrigerated Pty Ltd, (rather than globally as attempted in the Particulars document); of the facts and circumstances by which the company ought to have known that the particular driver on the particular journey, would, or would be likely to commit a core hours driving offence.
[16] In relation to the complaints against Mr. Ball and Mr. Callander; and having regard to the further particulars, submissions of the parties and s 57(2) TORUM, this court does not propose to order the provision of any further particulars by the complainant of the complaints against either executive officer. Such particulars as have been provided in the Particulars documents are considered sufficient.
THE VALIDITY OF THE SEARCH WARRANTS
[17] The subject search warrants were issued under Section 28 of the TORUM, which provides:
28Warrants to enter
……….
(4)The magistrate may issue a warrant only if satisfied there are reasonable grounds for suspecting—
(a) there is a particular thing or activity (the evidence) that may provide evidence of an offence against a transport Act;
…………………………
(5)The warrant must state—
(a)that an authorised officer may, with necessary and reasonable help and force, enter the place and exercise the officer’s powers under this Act; and
(b)the offence for which the warrant is sought; and
(c)the evidence that may be seized under the warrant;
.....
[18] The respondents argue, in reliance on Stevenson Transport Pty Ltd v. State of Queensland & Ors[14] and Wright v. Qld Police Service[15] that the warrants are invalid because they are bad for generality and do not meet the requirements in s 28(5)(b) and (c).[16]
[14] QSC 14 February 2003 (Holmes J).
[15] QSC 2002 46 (Holmes J).
[16] See paragraphs 24 – 42 of the respondent’s written submissions.
[19] In each of the above cases, the warrants were declared invalid and the seizure of documents was declared unlawful.
[20] In relation to the validity of warrants, Holmes J, in Wright v. Qld Police Service explained the law as follows:
“……In Ex Parte Bradrose Pty Ltd and Albezia Pty Ltd the principle that the description of the offence should be such as to enable the persons affected “to know the exact object of the search” was adopted….In more recent times, … the question has been stated more broadly as whether the warrant discloses the nature of the offence “so as to indicate the area of search”…..it seems clear that the insertion merely of the name of offence and section could not meet it…The question of whether a warrant meets the requirements of the Act must, in my view, be answered objectively by reference to its contents. A reader without ancillary information would not have known from its fact by whom the offence was alleged to have been committed, let alone where and when..”[17]
In Wright v. Qld Police Service the warrant, in describing the offence the subject of the warrant, simply stated “Section 123 Criminal Code – Perjury”. No person/persons alleged to have committed the offence were named. No particulars of the offence were stated. Her Honour went on to say “…one would expect, as a minimum, where a specific offence is alleged, that the name of the alleged offender would be given. While it is conceivable that in other circumstances the suspect’s identity may not be known, one would then expect, at least, some details of the offence. “
[17] Per Holmes J in Wright v. Qld Police Service.
[21] Likewise, in Stevenson Transport Pty Ltd v. State of Queensland, no offender was named. The warrant in that case also referred to an offence which is not known to law, that is, being in control of a vehicle in contravention of sections in Part 2 of the TORUM –FMReg. Furthermore, whilst there was reference to Part 3 of the same regulation, there was no indication of what offences within that Part might have been committed. “..for neither group of offences…is there any reference to the capacity in which the offences are alleged to have been committed.”[18]
[18] Per Holmes J Stevenson Transport Pty Ltd v. State of Queensland at page 8 paragraph 14.
[22] The warrants to be considered in this case, however, can be contrasted with the warrants in the above cases. Firstly, the subject warrants clearly name each of the respondents as alleged offenders and the capacity in which they are alleged to have offended. Whilst the warrants do not contain the names of individual drivers, the nature of the inquiry (as one of investigation of overloading and fatigue management offences) is such that it is conceivable that their identities may not be known. That being the case, however, the warrants specify some details of the offences.
[23] Secondly, the subject warrants, unlike the warrants in Stevenson Pty Ltd v. State of Queensland and Wright v. Qld Police Service, actually limit the documents the subject of the search; that is, to documents relating to loads and movement of heavy vehicles and documents relating to heavy vehicle drivers and the activities of the company and executive officers in relation to loads and movements of heavy vehicles. It is not the case that the warrant is too general such that “every document used or created in the respondents’ transport business”[19] is the subject of the warrant.
[19] See the respondents’ submissions.
[24] Thirdly, this court is of the view that the documents the subject of the warrants are limited to the time period between 14th December 2004 and 13th December 2005; although the somewhat sloppy preparation of the warrant in stating the limited time span as part of the paragraph relating to the last category of documents sought may have given rise to some confusion.
[25] For all of those reasons, the court is of the view that the warrant enables the respondents to know the exact object of the search and the court, being satisfied that the warrants meet the requirements of s 28(5)(b) and (c), declares the warrants valid.
THE LAWFULNESS OR OTHERWISE OF THE EXECUTION OF THE SEARCH WARRANTS
[26] S 30 of TORUM provides:
“30. General powers after entering places
(1)This section applies to an authorised officer who enters a
place with the occupier’s consent or a warrant.
(2)The officer may, for monitoring or enforcing compliance with
this Act—
(a)search any part of the place; or
(b)inspect, measure, test, photograph or film[20] the place or
anything in the place; or
……
(e)take the persons, equipment and materials the officer
reasonably requires for exercising a power under this
Act into the place; or
(f) require a person in the place to give the officer
reasonable help to exercise the powers mentioned in
paragraphs (a) to (e).[20] Emphasis added.
[27] This court is of the view that the execution of the warrants is not invalid, as argued by the respondents, simply because the whole of the dwelling house of each executive officer was searched; a video-recording was made of the searches; and 16 officers were in attendance for the purposes of the search at Mr. Ball’s residence. There is no allegation of a search of any places not listed in the warrant and there is nothing inappropriate, illegal or unlawful in the numbers of officers who attended the premises. Indeed, all or any of the conduct complained against is conduct permitted by s 30(1)(a)(b) and (e) of TORUM.
[28] There is an allegation, however, that personal property of Mr. Ball and family members, not specified in the warrant, was nonetheless removed from the dwelling as a result of the search on 14th December 2005. Whilst this court accepts that the issue and execution of search warrants “authorise the invasion of interests which the common law has always valued highly and which, through the writ of trespass, it went to great lengths to protect”[21]; the court has regard to the fact that the personal property was returned to the family between the 16th December and 21st December 2005. In the absence of any other evidence, the court is satisfied that the removal of the personal documents/items as a result of the search was a mistake on the part of the officers, rather than the result of a deliberate or reckless disregard of the law and/or the powers conferred in the search warrants.
[21] George v. Rockett (1990) 170 CLR 104 at 110-111.
[29] There is evidence, however, that Raymond Lindsay Locke, the officer authorised by the warrants to enter the searched premises, demonstrated an aggressive attitude at the commencement of the search at Mr. Ball’s residence, through his use of the words ”I’ll be giving it to these pricks too. I’ll be giving it to these pricks. You either help us out…Or see you later. Yes, You take your pick”. The court does not hold the view, however, that the use of this inappropriate language by Mr. Locke, whilst evincing an unprofessional approach to his duties, renders the execution of the warrant unlawful.
[30] The court, therefore, makes the following orders:
ORDERS
- That the search warrants issued by the Richlands Magistrates Court on the 12th December 2005 are valid.
- That the execution of the warrants on the premises of Mr. Peter Ball and Mr. Peter Callander on 14th December 2005 was lawful.
- That the seizure of the documents and items from the premises of Mr. Peter Ball and Mr. Peter Callander on 14th December 2005 was lawful.
IT IS DIRECTED;
- That the complainant file and serve further and better particulars in relation to each of the complaints against the respondent Ball Refrigerated Pty Ltd by 4.00pm on the 1st February 2008.
- That the matter of the complaints be adjourned for a directions hearing at 9.00am on 11th February 2008.
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