Mack Fleet Pty Ltd v Transport for NSW

1. [1]

   BASTEN JA: The applicant, Mack Fleet Pty Ltd, was convicted in the Local Court on 21 February 2019 on one count of using or permitting to be used a heavy vehicle that was unsafe, in contravention of s 89(1) of the Heavy Vehicle National Law (NSW). The applicant lodged an appeal in the District Court against its conviction. On 6 August 2019, that appeal was dismissed by Judge King SC. There is no appeal from that judgment. However, on 11 September 2019, outside the 28 day limitation period identified in s 5B(2) of the Criminal Appeal Act 1912 (NSW), the applicant requested the judge to submit a question of law to the Court of Criminal Appeal. On 11 November 2019, having heard submissions from the applicant, Judge King refused the request, not being persuaded it raised a question of law.

2. [2]

   On 6 April 2020 the applicant sought judicial review of the decision to refuse to submit a question of law under s 5B of the Criminal Appeal Act. The application to this Court was comfortably outside the three month period fixed by the Uniform Civil Procedure Rules 2005 (NSW), r 59.10(1).

3. [3]

   There was no formal application for an extension of time, and no explanation of the delay. However, considering that the application should be refused on the merits, the appropriate course was to refuse an extension of time on that basis. The following orders were made at the conclusion of the hearing:

   1. (1)

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

   2. (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. (3)

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

Scope of power conferred by s 5B

1. [4]

   The applicant’s case turned on the proposition that the conferral on the District Court of a power to submit a question of law to the Court of Criminal Appeal was accompanied by an obligation to exercise the power at the request of a party to the proceeding in the District Court. The critical provision, s 5B, reads as follows:

2. [5]

   Both subs (1) and subs (2) use the word “may” in conferring a power. By way of contrast, the limitation period fixed by subs (2) is stated in mandatory terms, using the word “must”, but is subject to a power to extend time conferred on the appeal court, not the judge asked to submit the question. Nevertheless, the appellant’s argument required that the terms “may submit” in subs (1) and “may be submitted” in subs (2) be read as imposing an obligation on the Court.

3. [6]

   Two principles of construction work against that submission. First, since 1858, legislation in this State has declared that in any Act, the word “may”, if used to confer a power, indicates that the power may be exercised or not, at discretion. [1] That principle is now found in s 9(1) of the Interpretation Act 1987 (NSW). It is a legal principle, which must be applied unless a contrary intention appears from the Act in which the word is found: Interpretation Act, s 5(2).

4. [7]

   A second apposite principle of construction, not based in statute but declared by the High Court, is that it is “quite inappropriate to read provisions conferring jurisdiction or granting powers to a court by making implications or imposing limitations which are not found in the express words.” [2]

5. [8]

   These two principles work together in this case; they tell against reading the conferral of power under s 5B, which in terms is discretionary, as limited so that the court has no discretion to refuse to exercise the power.

6. [9]

   However, there is another principle which appears to support a contrary conclusion. Thus, in Ward v Williams, [3] the High Court stated: [4]

7. [10]

   It is not apparent, however, that this carefully nuanced statement of principle has application in the present case. In Ward v Williams, the magistrate was interposed between an authority seeking to require defects in a building to be remedied, and the owner of the building. The principle will also operate in disputes between private individuals. For example, the law confers a right of compensation for damage suffered by a person injured by the negligent driving of a motor vehicle. The determination of the factual issues as to liability based on breach of a duty of care, is a function commonly reposed in a court. It involves questions of judgment. Once liability is established, damages follow virtually as of right. However, the assessment of the damages is another function involving evaluative judgment, which may be reposed in the court.

8. [11]

   A second example, Hall v A & A Sheiban Pty Ltd, [6] was a sexual harassment case. The Full Court of the Federal Court held that the trial judge had erred, having found the complaints of sexual harassment made out, in refusing to award compensatory damages for the harm suffered by the complainants. As explained by French J with respect to the statutory scheme for ordering relief, “[i]t is plain in this case, however, that the only appropriate form of redress for such loss or damage as has been suffered by the applicants, is compensation by way of damages.” [7] The reasoning of the trial judge that public exposure of the conduct of the respondents would provide “sufficient relief for the complainants” was, as French J further held, to rely on the punitive impact of the declarations and findings, whereas, “that can only be incidental to the purposes of the legislation which are, in essence, remedial.” [8]

9. [12]

   This example suggests that, rather than speaking of a duty to award compensation for established loss and harm resulting from unlawful conduct, the remedial purpose of the law demonstrated that particular (punitive) considerations fell outside the proper exercise of the power and were therefore irrelevant.

10. [13]

    In relation to the operation of s 5B, the power conferred on the District Court is far removed from the kinds of power under consideration in Ward v Williams and in Hall. The District Court is not required to exercise any form of judgment as to the entitlement of a party to particular relief nor, in exercising a power either of its own motion or on request of a party, is the court granting relief.

11. [14]

    The statutory context demonstrates a different subject-matter and purpose. The subject-matter is a criminal case which has been heard by a magistrate and is subject to only one right of appeal: there is no right of appeal from the decision of the District Court. Identification of the statutory purpose requires reference to some legislative history. Historically, there are three main control mechanisms imposed by legislation conferring a limited right to seek redress in a higher court. One mechanism is to limit an appeal to a question of law. (That common provision complements the general supervisory jurisdiction of the Supreme Court.) A second mechanism is to confer a right of appeal subject to a requirement to obtain leave from the court to which the appeal is to be taken. A third mechanism confers no right on an aggrieved party to institute an appeal, but rather confers a power on the lower court to refer or submit a question of law to, or state a case for determination of a question of law by, a superior court. By declining to grant any unilateral and uncontrolled right of appeal to a party, the statute vests control of any further proceeding in the court in which the case was heard.

12. [15]

    Section 5B of the Criminal Appeal Act is an example of the third mechanism. Adoption of that mechanism renders it most unlikely that Parliament intended that the court submitting or referring the question had a duty to take that step whenever requested to do so by a party, even if the request were made in a timely fashion. Such a reading would convert the third mechanism into the first, namely a right of appeal on a question of law, absent even a leave requirement.

13. [16]

    There have been numerous cases in this jurisdiction in which it has been accepted or assumed that a virtually unqualified obligation is imposed on the District Court by s 5B. The origin of that approach is to be found in the judgment of Jordan CJ in Ex parte McGavin; Re Berne. [9] The Chief Justice stated that it was “the duty of a chairman of quarter sessions to submit to the Court of Criminal Appeal any question of law which either party to the appeal may raise and ask to be so submitted, unless, in his opinion, the question is so obviously frivolous and baseless that its submission would be an abuse of process.”

14. [17]

    There are a number of reasons not to see that brief statement as determinative of the current effect of s 5B. First, s 5B was not in the same form in 1945 as it is today. It then had a deeming provision which required the question of law to be dealt with as if it were an appeal to the Court of Criminal Appeal. That provision at least blurred the distinction between the conferral on a party of a right of appeal and the conferral on the court of a power to submit a question of law. Secondly, at that time the question could not be submitted after the proceeding in the District Court had been finally determined. Thirdly, the briefly stated reason for adopting such a construction does not sit comfortably with the more nuanced approach to the principle of statutory construction, not expressly identified in Re Berne, but expounded a decade later in Ward v Williams.

15. [18]

    The need to treat the succinct statement of principle in Re Berne with caution was identified by this court eight years ago in Elias v Director of Public Prosecutions (NSW): [10]

16. [19]

    In Ward v Williams the principle did not result in a finding of a power coupled with a duty; having weighed the competing considerations, the High Court concluded: [11]

17. [20]

    No doubt the power to submit a question of law under s 5B, or to decline to do so, must be exercised judicially and on the basis of proper considerations which reflect the context and statutory purpose of the power. However, it is within the jurisdiction of the judge who has determined a case to consider whether, in his or her opinion, the question sought to be submitted is indeed a question of law, and was (or would be) material in determining the issues requiring resolution. If not so satisfied, the proper course would be to decline to exercise the power. In considering those matters, the precise terms in which the question was formulated, if not formulated by the judge, would be a matter of some importance. Where the judge has no wish to seek the determination of any question of law, but is requested to submit a question in a form which does not, in the judge’s view, satisfy the requirements of the section, there can be no obligation either to submit the question or to enter into negotiations with the requesting party as to the form of the question.

18. [21]

    As explained in Lavorato v The Queen, [12] the process of dealing with a request should not be complex or lengthy. Such a process is, on any view, a disruption of the criminal jurisdiction of the District Court, if made during the proceeding. Further, delay in making the request, in formulating a question or demonstrating how the question arose at the hearing of the appeal, may all constitute reasons for the District Court to decline to accede to the request, or to entertain the request further. While the appeal court may be able to extend the 28 day limitation period, the existence of the tight temporal limitation is not to be disregarded by the District Court.

Formulation of question of law

1. [22]

   In the present case, the question formulated by the applicant first appeared in the letter of 11 September 2019 from the applicant’s solicitor to the judge. The relevant paragraph read:

2. [23]

   There followed an explanation as to the reason for the delay, namely that a transcript of the judgment had not been received until after the 28 day period had expired. That explanation provided no justification for the delay, given that the question sought to be referred had already been articulated in the course of the trial; there was no suggestion that any assistance had been obtained from the transcript of the judgment in formulating the question.

3. [24]

   The letter annexed a draft stated case which identified the question in the following terms:

4. [25]

   Quite apart from the errant syntax, there is a long history of judicial criticism of that form of question. A question commencing “Did I err in law” tends not to identify a question of law: see Robinson v Woolworths Ltd (t/as Woolworths Plus Petrol Werrington). [13] That critique was repeated in Sasterawan v Morris [14] where it was said:

5. [26]

   This Court returned to the issue of formulation of questions in Elias v Director of Public Prosecutions:

6. [27]

   The question in issue in Elias was identified and considered in the following terms:

7. [28]

   The question articulated in the present case was syntactically incoherent. Furthermore, in commencing “Did I err in law in concluding …”, it failed to identify the specific error alleged. If the question had been properly stated it might have been in the following form:

8. [29]

   This form of the question raises its own difficulties. As explained in Kostas v HIA Insurance Services Pty Ltd: [18]

9. [30]

   It follows that in every case it will be possible to identify a question of law in the terms of “was the evidence accepted by the court capable of supporting the conviction.” A reading of s 5B which obliges the District Court judge hearing an appeal to refer every such question to the Court of Criminal Appeal for determination would turn a provision designed to be under the control of the court into a universal right of appeal on a question of law. That would subvert the purpose of the section by giving it an entirely different function. Such a construction should not be accepted.

Alleged error

1. [31]

   The question posed in the present case was rejected by the trial judge as “simply lacking in any merit as it does not involve a question of law.” For several reasons, that conclusion was not attended by jurisdictional error, or indeed any kind of legal error.

2. [32]

   First, the critical criterion identified in the Heavy Vehicle National Law (NSW) as constituting the offence was the “use … on a road [of] a heavy vehicle that is unsafe”: s 89(1). While s 89(2) says that a heavy vehicle is unsafe “only if the condition of the vehicle, or any of its components or equipment” makes the use of the vehicle unsafe or endangers public safety, the braking system was clearly part of the vehicle. Further, its effective operation was self-evidently essential if the vehicle were to be used safely on a road. The fixing of a standard for the purposes of determining safety is a valuable, if not essential, tool.

3. [33]

   That is not to say that all standards concerned with the operation of heavy vehicles identify safety limits. It may be accepted that some of the standards set out by the regulation do not relate to the safety of individuals or the public at large: the requirement to have a light over a registration plate may fall into that category. However, it is not possible to regard Pt 7 of Sch 2 of the regulation (headed “Braking systems”) as otherwise than setting standards designed to ensure that the vehicle may be safely used. Relevantly for present purposes, it was open to the judge to so treat it.

4. [34]

   It is possible that the standards with respect to braking systems fixed minimum acceptable standards for heavy vehicles. However, it is not necessary to find that a minor breach of a particular standard could render the vehicle unsafe: the judge expressly concluded that the breach was not minor. It is sufficient to conclude (i) that the standard provided relevant evidence which the judge was entitled to rely upon in assessing the safety of the vehicle, and (ii) that evidence of a not insignificant breach is capable of forming the basis of a finding that use of the vehicle was unsafe. There was no suggestion that the breach in the present case was otherwise than significant.

5. [35]

   The inspectors testing the vehicle found a peak deceleration of the vehicle was some 3.4 ms-2 over four axles. The primary judge held that that was “essentially, expressed in another way, some 20 to 25% less than the requirement of a peak deceleration of 4.4 ms-2.”

6. [36]

   If anything, that understates the effect of the breach of r 87. A steady rate of deceleration of 3.4 ms-2 as opposed to 4.4 ms-2 means that if the heavy vehicle had been travelling at 16 ms-1 (roughly 60 km/h), after 1 second its speed would be some 12.6 ms-1 rather than 11.6 ms-1, after two seconds it would be some 9.2 ms-1 rather than 7.2 ms-1, after three seconds it would be around 5.8 ms-1 rather than 2.8 ms-1 and after 4 seconds the vehicle would still be travelling, rather than having stopped. The time and distance required to bring the vehicle to a stop would be considerably greater than would have been the case if the vehicle had complied with r 87(4). The effect on safety is obvious.

7. [37]

   Otherwise the word “unsafe” is undefined and cannot be said to have any technical or particular meaning as a matter of law.

8. [38]

   It may be that evidence could be called which demonstrated that the vehicle was unsafe according to some different standard, even if it satisfied the requirements of the regulation. However, that was not this case. The point is rather that there was no error in the judge adopting a significant breach of the regulation as a test of unsafe use.

9. [39]

   The applicant submitted that this approach was flawed because there was a separate offence under the National Law (s 60(1)) of using a heavy vehicle that contravenes a heavy vehicle standard applying to the vehicle. The primary submission appeared to be that set out in writing in the following terms:

10. [40]

    There is no principle of statutory construction which would require the interpretation of statutory offences as all independent and self-contained. Everyday experience in relation to criminal offences denies that possibility. Even the principle against double punishment constitutes an acknowledgment that a person may be charged and convicted for two offences involving the same conduct.

11. [41]

    In any event, s 60 and s 89 involve different concepts and are therefore in principle discrete provisions which can have differential operation. Although the standards appear to an inexpert eye to be comprehensive, there may be aspects of vehicles which could render them unsafe to use without contravening a particular standard. The drafter may well have assumed such a possibility and made allowance for it. In any event, there is no principle of statutory construction which requires that unsafeness may not be judged according to compliance or contravention of a standard.

12. [42]

    The applicant submitted further:

13. [43]

    This submission must be rejected for a number of reasons. First, even if contravention of a standard will not “necessarily” lead to a vehicle being unsafe, that does not entail a requirement for further evidence of a different kind. The submission leaves open an available basis for conviction (the contravention being sufficient but not necessary) but is expressed in terms which mask the absence of any error of law. The sufficiency of the evidence in a particular case will be a matter for the judge.

Jurisdictional error

1. [44]

   On an application for judicial review, the applicant must establish jurisdictional error on the part of the District Court judge. (There is a privative clause in s 176 of the District Court Act 1973 (NSW) which precludes an application for certiorari for error of law on the face of the record.) There is no reason to suppose that the District Court judge misapprehended the function he was invited to exercise, nor the legal standard he was required to apply. The application of the standard involved a degree of judgment on his part. That element of judgment is only reviewable if shown to be legally unreasonable in its exercise. No ground of review was formulated in those terms, nor was the basis for such a ground articulated.

2. [45]

   The judge was entitled to consider that contravention of a standard for braking efficiency prescribed by a regulation, a clear purpose of which was to protect public safety, could, as a matter of fact, render a heavy vehicle “unsafe”. The word unsafe had no technical or special meaning; no question was formulated identifying any legal element in the application of the term.

3. [46]

   The request was made after the time for stating a case had expired. The judge had no power to extend the time; the only question was whether he was obliged to state the case presented to him so as to allow the applicant to seek an extension of time from the Court of Criminal Appeal. The judge was fully entitled to reject the request on the basis that, in his view, the Court would be unlikely to extend time to permit the agitation of such a question. He permitted counsel to make submissions to him in an oral hearing as to why the request should be accepted. No adequate explanation of the delay was proffered. That there were available grounds for refusing the application, in addition to that relied upon by the judge, would count against an extension of time. However, the reason given by the judge revealed no error as to the scope of his jurisdiction.

Conclusions

1. [47]

   The proposition that the District Court judge committed a jurisdictional error in refusing to submit a question of law for determination of the Court of Criminal Appeal ultimately turned on two propositions, namely that (i) the power to submit a question was engaged because a question of law had been formulated, and (ii) once the power was engaged, he had no discretion to decline to exercise the power.

2. [48]

   As explained above, in relation to (i) the proposed question did not in truth involve a question of law. In relation to (ii), there was a further false assumption that the question arose in the present case. Finally, the judge was correct to reject the proposition that the language used by Jordan CJ in Re Berne was necessarily determinative of his jurisdiction in the present circumstances.

3. [49]

   For these reasons, orders were made at the conclusion of the hearing dismissing the summons with costs.

4. [50]

   WARD JA: For the reasons set out by Basten JA, with which I agree, I concurred in the refusal of an extension of time for the filing of the summons seeking review of the decision of Judge King SC refusing to submit a question of law for determination by the Court of Criminal Appeal in the proceeding before his Honour. Were the extension of time to have been granted, the application would have failed on its merits, for the reasons explained by Basten JA. The arithmetical explanation of the import of non-compliance with the relevant standards in this case on deceleration (and hence on the question of safety) amply confirms the primary judge’s finding that use of the vehicle was unsafe.

5. [51]

   LEEMING JA: I agree with Basten JA.