Chalouhi Enterprises Pty Ltd v Roads and Maritime Services

1. [1]

   By its amended summons filed on 19 June 2019, the plaintiff, Chalouhi Enterprises Pty Ltd (Chalouhi), seeks leave, pursuant to s 53(3)(b) of the Crimes (Appeal and Review) Act 2001 (NSW) (the CAR Act), to appeal from a decision made by Barko LCM on 6 May 2019. The principal issue sought to be raised on appeal concerns whether the learned Magistrate erred in applying s 639 of the Heavy Vehicle National Law (NSW) (the HV Law) which, among other things, deems a registered operator of a heavy vehicle to be the operator of the vehicle and to have committed an offence in certain circumstances.

2. [2]

   The defendant, Roads and Maritime Services (RMS), opposed leave being granted primarily on the basis that s 53(3)(b) of the CAR Act only applies if an interlocutory order has been made by the Local Court. RMS contended that no interlocutory order was made in the present case and, thus, this Court has no jurisdiction to grant leave or to hear the appeal.

Background

1. [3]

   The background to this matter appears from the findings of Barko LCM and other undisputed material before the Court.

2. [4]

   On 31 July 2018, Chalouhi was the “registered operator” of a heavy vehicle, as defined in the HV Law, but the vehicle was leased to, and operated by, Roman Plant Hire Pty Ltd. On that date, the vehicle was involved in an incident and, as a result, the vehicle was directed to the RMS Heavy Vehicle Inspection Station, Wetherill Park, where it was found to have exceeded the applicable mass requirements, in contravention of s 96 of the HV Law.

3. [5]

   Under s 183(2)(c) of the HV Law, if an offence against s 96 is committed, the “operator” of the vehicle is taken to have committed the offence. Under s 639 of the HV Law, if an offence against the HV Law may be committed by the “operator” then the registered operator may, in certain circumstances, be taken to be the operator and to have committed the offence. This effect of s 639 can be avoided if a registered operator gives an “operator declaration” in accordance with s 639(4).

4. [6]

   On 5 October 2018, a Court Attendance Notice (CAN) was filed charging Chalouhi with not complying with a mass requirement in respect of the vehicle. The CAN identified the statutory provision describing the offence as s 183(2)(c) of the HV Law. The CAN was served on Chalouhi on 9 October 2018. The CAN stated that the matter was listed on 17 December 2018 at 9.30 am before the Downing Centre Local Court.

5. [7]

   At the hearing on 17 December 2018, the matter was adjourned to 4 February 2019, when it was then further adjourned to 11 February 2019. On 11 February 2019, Chalouhi entered a plea of not guilty and the matter was set down for a four hour hearing on 6 May 2019. On 11 February 2019, Chalouhi’s legal representative also informed the Court and RMS that it intended to give an operator declaration in accordance with s 639(4) of the HV Law.

6. [8]

   On 13 March 2019, the plaintiff served on RMS an operator declaration, for the purposes of s 639(4) of the HV Law, identifying Roman Plant Hire Pty Ltd as the operator of the vehicle on 31 July 2018.

7. [9]

   On 6 May 2019, the matter came on for hearing before Barko LCM in the Local Court.

The Local Court decision

1. [10]

   At the beginning of the Local Court hearing on 6 May 2019, Mr Barry of counsel, who appeared for Chalouhi on that occasion as he did in this Court, raised what was called a “preliminary point”. In essence, while it was accepted that Chalouhi was the registered operator of the vehicle and that there was “no issue in relation to the substantive offence itself”, [1] it was contended that Chalouhi was not the proper defendant and was not liable, because an operator declaration had been given in accordance with s 639(4) of the HV Law. As a result, it was contended that the deeming provision of s 639(2) of the HV Law, on which RMS relied, did not operate to render Chalouhi, as the registered operator, liable as the operator of the vehicle under s 183(2)(c).

2. [11]

   The learned Magistrate effectively held that, in order for Chalouhi to succeed on this preliminary point, it had to establish that it gave to “the Regulator” an operator declaration “as soon as practicable after the charge comes to the registered operator’s knowledge but at least 28 days before the charge is heard” as provided in s 639(4)(b)(ii).

3. [12]

   In substance, Barko LCM accepted that, because RMS was prosecuting the charge against Chalouhi under delegated authority from the National Heavy Vehicle Regulator, giving an operator declaration to RMS relevantly constituted giving it to “the Regulator” for the purposes of s 639(4) in the present case. This approach was not challenged in these proceedings.

4. [13]

   As to whether the operator declaration had been given within the timeframes specified in s 639(4)(b)(ii), his Honour’s findings were to the effect that:

   1. (1)

      the CAN was served on Chalouhi on 9 October 2018 and the charge came to the attention of Chalouhi on or soon after that date;

   2. (2)

      the first return date for hearing of the charge in the CAN was 17 December 2018 and, in these circumstances, the date “the charge is to be heard” and the date when “the charge is heard” were both 17 December 2018;

   3. (3)

      consequently, to be effective under s 639(4) the operator declaration had to be given:

   4. (4)

      the operator declaration was not given until 13 March 2019 which was:

5. [14]

   The Local Court transcript records his Honour’s decision as follows:

6. [15]

   After making those findings, his Honour clarified that his understanding of s 639(4) was that the operator declaration was required to be given at least 28 days before the first return date of the matter, not the date of the defended hearing. Chalouhi submitted that it had proceeded on the basis that the date “the charge is heard” in s 639(4)(b)(ii) was the date of the defended hearing and in those circumstances the operator’s declaration had been submitted “at least 28 days before the charge is heard.” Barko LCM also reiterated his view that the operator declaration had not, in any event, been given as soon as practicable after the charge in the CAN had come to Chalouhi’s attention.

7. [16]

   The following exchange then took place:

8. [17]

   There was a further exchange between counsel for Chalouhi and the learned Magistrate regarding a proposed mention date, among other things. Further towards the end of the hearing, his Honour is recorded as saying (although the transcript appears to be somewhat unreliable and it is not clear what was actually said):

9. [18]

   As foreshadowed before the Local Court, Chalouhi decided to lodge an appeal to this Court.

Chalouhi’s appeal

1. [19]

   The summons filed on 30 May 2019 purports to appeal against “the whole of the decision below” under s 53(3)(b) of the CAR Act. In the summons, Chalouhi seeks orders to the effect that: leave to appeal be granted; the appeal be allowed; the decision below be set aside; the proceedings below be dismissed; and, RMS pay Chalouhi’s costs of the proceedings below and of the appeal in this Court.

2. [20]

   The grounds of appeal set out in the summons are as follows:

3. [21]

   RMS raised the preliminary issue of whether the present appeal can be brought under s 53(3)(b) of the CAR Act. This depends on whether the Local Court made an interlocutory order in the present case. In order to consider that question, it is useful also to understand the nature and effect of the relevant provisions of the HV Law as well as the CAR Act.

Relevant statutory provisions

1. [22]

   Chalouhi brings the present appeal under s 53(3)(b) of the CAR Act. Section 53 relevantly provides:

2. [23]

   It was not in dispute that Chalouhi was a person involved in summary proceedings in the Local Court and, if an interlocutory order was made, it was relevantly made against Chalouhi. There was also no dispute that the application for leave to appeal was brought within time.

3. [24]

   The preliminary issue turns on whether there was “an interlocutory order [that] has been made by the Local Court”. Given the way in which the case was put by Chalouhi, various provisions of the HV Law are relevant.

4. [25]

   The prohibition underlying the offence with which Chalouhi was charged is found in s 96 of the HV Law which provides:

5. [26]

   As at 31 July 2018, [5] if a person committed an offence against s 96, the operator of the heavy vehicle could be taken to have committed an offence against s 183 of the HV Law in the circumstances set out in that section. As noted above, the CAN alleged that the offence with which Chalouhi was charged was the offence in s 183(2)(c) of the HV Law. Section 183 relevantly provided:

6. [27]

   “Operator” is defined in s 5 of the HV Law relevantly as follows:

7. [28]

   The liability of an “operator” can be extended to the “registered operator” of a heavy vehicle by s 639 of the HV Law. Section 639 relevantly provides:

8. [29]

   Before this Court, it was not in dispute that:

   1. (1)

      s 639 applies to offences under s 183 of the HV Law;

   2. (2)

      Chalouhi was the “registered operator” of the vehicle in question at the relevant time; and

   3. (3)

      the statutory declaration made by Mr John Faulkner, commercial manager of Chalouhi, on 12 March 2019 was an “operator declaration” as defined in s 639(7).

9. [30]

   In the Local Court, the question in relation to the operator declaration was whether it had been given within the timeframes specified in subs 4(b) of s 639 so that subs (2) of that section did not apply. In this Court, the issue was whether, in determining that question, the Local Court made an “interlocutory order” for the purposes of s 53(3)(b) of the CAR Act.

Did the Local Court make an interlocutory order?

1. [31]

   Mr Campbell, who appeared for RMS, submitted that no “interlocutory order” was made and relied on Salter v Director of Public Prosecutions (2009) 75 NSWLR 392; [2009] NSWCA 357 which considered what constitutes an “interlocutory order” for the purposes of s 53(3)(b). It was contended that in the present case all his Honour’s ruling had done was answer a preliminary question of law and did not constitute an “order or judgment” as it did not “command that anything be done (or not done)”. In the absence of such an order, it was submitted that leave to appeal should be refused and the appeal dismissed.

2. [32]

   Mr Barry of counsel, who appeared for Chalouhi, submitted that the learned Magistrate made an interlocutory order where his Honour ruled: “[a]ccordingly I’m satisfied that the provisions of [s 639(4)] have not been complied with, and that [Chalouhi] is, for present purposes, the registered operator of the heavy vehicle.” Chalouhi submitted that his Honour’s decision or ruling amounted to an order “because it effectively commands [Chalouhi] to proceed to trial”. [6]

3. [33]

   It was also submitted that it was the character of the question and the effect of the decision that distinguished an order from an incidental ruling. The ruling in this case, it was said, effectively determined the Local Court proceedings against Chalouhi. In this regard, it was contended that Barko LCM’s reference to Chalouhi being the “registered operator” was an error and he intended to refer, or should have referred, to it being the “operator”, reflecting the operation of s 639(2) in the absence of an operator declaration given within the timeframes specified in s 639(4). If, as Chalouhi understood it, the Magistrate’s ruling was that Chalouhi was the “operator”, it was then said that such a finding precluded Chalouhi from arguing, based on s 639(5)(c), that it was not the “operator”. In these circumstances, it was submitted that Chalouhi had, in effect, no defence available to it and, thus, the proceedings were effectively determined by the ruling.

4. [34]

   Chalouhi argued that Salter v Director of Public Prosecutions concerned a case where there was no dispute that the defendant was correctly identified, whereas the present case involved a ruling that led to the wrong person being found to be the operator and thus the appropriate defendant. Continued prosecution of the wrong person, it was contended, would be “an error of principle apt to cause irregularity or injustice” and therefore leave should be granted: Queanbeyan City Council v Environment Protection Authority [2011] NSWCCA 108.

5. [35]

   The proper construction of “order” in s 53(3)(b) of the CAR Act was considered by the Court of Appeal in Salter v Director of Public Prosecutions (2009) 75 NSWLR 392; [2009] NSWCA 357 and the authorities have been comprehensively reviewed by N Adams J in Russell v Scott [2017] NSWSC 1720 at [51] to [81]. Nothing in Russell v Scott suggests that the reasoning and conclusions in Salter would not be applicable in the present case.

6. [36]

   Salter concerned s 308H of the Crimes Act and, in particular, whether there should have been one charge or 22 separate charges laid in the matter. The Local Court, and Hulme J at first instance in the Supreme Court, held that 22 charges could be laid. On appeal, the question arose for the first time whether, in rejecting the challenge to the 22 charges, the Local Court had made an interlocutory order, within s 53(3)(b) of the CAR Act. There was no dispute that what had been done was interlocutory, the issue was the proper construction of “order” in that section.

7. [37]

   Spigelman CJ (with whom McColl and Campbell JJA agreed) held in Salter at [10] – [17], [24] and [26]:

8. [38]

   In Salter, Campbell JA observed at [32] that:

9. [39]

   The fact that the ruling in the present case concerned whether s 639(2) had the effect that Chalouhi, as the registered operator, could be liable as the operator and thus be an appropriate defendant in the proceedings, does not provide a proper basis for distinguishing this case from Salter. Whether there was no operative judicial act in the present case, as in Salter, does not turn upon whether Chalouhi was the correct defendant.

10. [40]

    Applying the principles set out in Salter, I am of the view that the Magistrate’s ruling on whether an operator declaration had been given within the timeframes specified in s 639(4)(b)(ii) in the present case was not an “interlocutory order”. It was no more than a preliminary decision or ruling that did not constitute or involve an operative judicial act. The ruling did not command that anything be done or not done. It did not determine the proceedings. The ruling was no more than a ruling which could be tested on appeal to this Court or the District Court after a conviction, if there were a conviction.

11. [41]

    The learned Magistrate correctly perceived that the appropriate course in the present case was for him to hear the matter to finality so that there would be an order against which Chalouhi could appeal. After he indicated that he was content for the parties to test whether his ruling was correct and Chalouhi indicated that it wished to appeal, Barko LCM said: “I think I'll have to hear the matter in its entirety, though. Then you can take it up.” [7] This would have been a correct course to take. If it had occurred, all the arguments available before the Local Court could have been raised and, if there was a conviction, it could have been appealed to the District Court or the Supreme Court.

12. [42]

    Unfortunately, the Magistrate was dissuaded from this course. In response to the enquiry whether there would, in light of his ruling, be a plea of guilty, his Honour was informed that Chalouhi would not be pleading guilty and the matter would continue to be defended. [8] It was then suggested that a “single decision” could be appealed to the Supreme Court. In these circumstances, the matter was adjourned to allow this Court to “deal with this legal issue”.

13. [43]

    From the Magistrate’s enquiry and the position adopted by Chalouhi that there would not be a plea of guilty and the matter would continue to be defended, it can be seen that it was not perceived, at that time, that the Magistrate’s ruling had effectively determined the proceedings before him. This provides further support for the conclusion that the ruling did not constitute or involve an operative judicial act.

14. [44]

    At this point it is appropriate to deal with Chalouhi’s submission in this Court that the ruling did determine the proceedings in the Local Court in a practical sense and, thus, amounted to an “order” for the purposes of s 53(3)(b) of the CAR Act. As noted above, this submission depended in part upon the reference in Barko LCM’s ruling to Chalouhi as the “registered operator” being an error and he should have said that Chalouhi was the “operator”, because of the finding that the operator declaration was not given within the timeframes specified in s 639(4).

15. [45]

    It was observed that, in earlier submissions before the Local Court, Chalouhi had touched upon the operation of s 639(5)(c) of the HV Law. On this basis, it was submitted that Chalouhi did not have the option of defending the proceedings on the basis of that subsection, after Barko LCM’s ruling on whether an operator declaration had been given within the timeframes specified in s 639(4)(b)(ii). As Chalouhi understood it, the Magistrate’s ruling was that Chalouhi was the “operator” and such a finding precluded Chalouhi from arguing, based on s 639(5)(c), that it was not the “operator”. In these circumstances, it was submitted that Chalouhi had, in effect, no defence available to it and the ruling effectively determined the proceedings. On this basis, it was submitted, the ruling could be said to be an operative judicial act and, therefore, an “order”.

16. [46]

    This submission should not be accepted for a number of reasons. First, it does not appear to me that Barko LCM’s reference in his ruling to Chalouhi being the registered operator was necessarily or actually an error. His statement that Chalouhi was the registered operator was correct and Chalouhi’s status as the registered operator was relevant in the proceedings in the Local Court having regard, among other things, to subs (2), (3), (4), (5) and (6) of s 639. What flowed from his ruling and the observation that Chalouhi was the registered operator of the vehicle were matters that would, in the ordinary course, be considered in light of further submissions in the proceedings, if they had continued.

17. [47]

    Secondly, s 639(5)(c) precludes the Local Court from finding a registered operator guilty as the operator, in certain circumstances. How s 639(2) and (4)(b)(ii) interrelate with s 639(5)(c) was never argued before the Local Court, despite s 639(5)(c) having been mentioned prior to the Magistrate’s ruling in relation to s 639(4)(b)(ii). What had been said earlier concerning s 639(5)(c) appears to have been in the context of a review of s 639 more generally and was limited to the following:

18. [48]

    The question of whether s 639(5) is applicable, when an otherwise valid operator declaration is given outside the timeframes set out in s 639(4) for the purposes of s 639(2), was not a question that was argued or determined in the Local Court. If it is the case that the words “an operator declaration as mentioned in subsection (4)” in the chapeau to s 639(5) refer to any operator declaration, as mentioned in subs (4) and as defined in subs (7), whether or not it is given within the timeframes in subs (4)(a) or (b), then Chalouhi would be able to defend the proceedings on the basis that, as stated in s 639(5)(c), the Local Court:

19. [49]

    It follows from this that the Magistrate’s ruling concerning whether the operator declaration was given within the timeframes in s 639(4)(b)(ii) did not, without more, effectively determine the proceedings in the Local Court. Consequently, it should not be accepted that the ruling amounted to an operative judicial act and an “order” within the meaning of s 53(3)(b) of the CAR Act.

Conclusion and orders

1. [50]

   For all of these reasons, Barko LCM’s ruling to the effect that the operator declaration was not given within the relevant timeframes specified in s 639(4) was not an “interlocutory order” within s 53(3)(b) of the CAR Act. Consequently, this Court does not have jurisdiction to hear and determine the application for leave to appeal or the appeal.

2. [51]

   Further and for the sake of completeness, I shall briefly consider whether, if I am wrong and the Court does have jurisdiction to hear and determine the application for leave to appeal, leave to appeal should be granted.

3. [52]

   In my view, leave to appeal should not be granted for a number of reasons. First, grounds 1, 2, 3 and 4 (which have been set out above) all concern or turn on the issue of whether the words "at least 28 days before the charge is heard" in s 639(4)(b)(ii) of the HV Law mean at least 28 days before the matter is first listed before the Local Court, whether for mention or the substantive hearing, as held by the learned Magistrate. The difficulty is that there are two timeframes in s 639(4)(b)(ii) within which an operator declaration must be given:

   1. (1)

      “as soon as practicable after the charge comes to the registered operator’s knowledge”; and

   2. (2)

      “at least 28 days before the charge is heard”.

4. [53]

   Barko LCM expressly found not only that the operator declaration had not been given at least 28 days before the charge was heard but also that it had not been given as soon as practicable after the charge came to the registered operator’s knowledge. The learned Magistrate’s view that s 639(4)(b)(ii) established two timeframes, with both of which Chalouhi had to comply in order to have the benefit of subs (4), is supported by the Court of Appeal’s decision in Choy v Tiaro Coal Ltd (in liq) (2018) 98 NSWLR 493; [2018] NSWCA 2015 concerning similar wording in the Supreme Court (Corporations) Rules 1999 (NSW) (the Corporations Rules). In that case, r 2.7(1) of the Corporations Rules required a plaintiff to serve specified documents “[a]s soon as practicable after filing an originating process and, in any case, at least 5 days before the date fixed for hearing”. Leeming JA (Gleeson and Payne JJA agreeing) rejected the submission that these words establish two timeframes, compliance with either of which would satisfy the rule. At [31], Leeming JA said:

5. [54]

   In my view and contrary to a submission advanced by Chalouhi, the use of the conjunction “but” in s 639(4)(b)(ii) instead of “and, in any event,” in r 2.7 does not lead to a different conclusion in the present case from that reached in Choy. On a natural reading of s 639(4)(b)(ii), a registered operator is not given a choice whether to give the operator declaration “as soon as practicable after the charge comes to the registered operator’s knowledge” or “at least 28 days before the charge is heard” but must comply with both for subs (4) to operate. The use of “but” in this context indicates that what follows is a cumulative qualification on the preceding timeframe not an alternative.

6. [55]

   Further, while a “question of law alone”, within s 53(3)(b) of the CAR Act, might possibly be said to arise in relation to the construction of the words “at least 28 days before the charge is heard” upon which grounds 1, 2, 3 and 4 are based, no challenge has been made and no question of law alone arises, or is said to arise, in relation to the finding that the operator declaration had not been given as soon as practicable after the charge came to the registered operator’s knowledge. This finding is a finding of fact and any challenge to it would raise only a question of fact or, at most, a mixed question of fact and law. In these circumstances, even if the Magistrate erred in his construction of the words “at least 28 days before the charge is heard”, the finding that the operator declaration had not been given within the other timeframe specified in s 639(4)(b)(ii) would still remain. It follows from this, that grounds 1, 2, 3 and 4 lack practical utility or should be rejected because:

   1. (1)

      those grounds deal with, or are based upon, only one of the timeframes in s 639(4)(b)(ii); and

   2. (2)

      the conclusion that the operator declaration was not given within the time required by s 639(4)(b)(ii) was correct having regard to the finding (which has not been and could not be challenged in this Court) that the operator declaration was not given as soon as practicable after the charge came to the registered operator’s knowledge.

7. [56]

   Secondly, grounds 5 and 6 concern the construction and operation of s 639(5)(c), which was not argued before Barko LCM, as explained earlier in these reasons, and upon which the Magistrate did not have the opportunity to rule, since the proceedings were not heard to finality but were adjourned.

8. [57]

   Thirdly, it is well established that generally an applicant for leave must demonstrate something more than that the court at first instance was arguably wrong in the conclusion arrived at, and leave should only be granted in matters that involve issues of principle, questions of general public importance or an injustice which is reasonably clear, in the sense of going beyond what being merely arguable: Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 at [46] (Campbell JA, Young and Meagher JJA agreeing). In the present case, it does not appear to me that Chalouhi has shown something more than that Barko LCM was arguably wrong in respect of only one aspect of s 639(4)(b)(ii). [9] Nor do I accept that there are issues of principle or questions of public importance or any injustice that can be said to arise in the present proceedings, where:

   1. (1)

      there is an unchallenged finding that the operator declaration was not given as soon as practicable after the charge came to the registered operator’s knowledge and, thus, s 639(4)(b)(ii) was not complied with, whether or not the operator declaration was given “at least days before the charge is heard”; and

   2. (2)

      the operation and effect of s 639(5)(c) was not argued and determined in the Local Court.

9. [58]

   It is unfortunate that, in this instance, no definitive guidance can be given in relation to the construction of the phrase “28 days before the charge is heard” in s 639(4)(b)(ii). This is, however, the case for at least two reasons. First, this Court does not have jurisdiction to hear and determine the application for leave to appeal, for the reasons I have outlined above. Accordingly, it is not appropriate to purport to rule on a question of construction that is not properly before the Court. Secondly, even if the Court did have jurisdiction, it would not be necessary to determine this question as the operator declaration was not given as soon as practicable after the charge came to the registered operator’s knowledge and thus the requirements of s 639(4)(b)(ii) have not been met in any event.

10. [59]

    There are no circumstances which were drawn to my attention, or of which I am aware, that would make it appropriate to depart from the usual order that costs follow the event. Consequently, I propose to order that the plaintiff pay the defendant’s costs of the proceedings.

11. [60]

    In these circumstances, the Court orders:

    1. (1)

       The plaintiff’s summons seeking leave to appeal filed on 30 May 2019 is dismissed.

    2. (2)

       The plaintiff is to pay the defendant’s costs as agreed or assessed.