Operator declaration rejection not deemed an interlocutory order
A civil engineering and plant hire firm defending a Heavy Vehicle National Law (HVNL) mass breach has lost a bid to appeal a New South Wales Local Court decision.
On July 31, 2018, Chalouhi Enterprises Pty Ltd was the ‘registered operator’ of a heavy vehicle, which was leased to and used by Roman Plant Hire Pty Ltd, when it was involved in an incident and directed to a Roads and Maritime Services (RMS) heavy vehicle inspection station, where it was found to exceed mass requirements.
Chalouhi was charged for non-compliance with mass requirements under section 96 of the HVNL.
Under HVNL, in certain circumstances, a registered operator may be taken to be the operator and to have committed the offence – this situation can be avoided with an ‘operator declaration’ identifying the actual operator.
A court attendance notice was served on October 9, 2018, with the hearing set for December 17 of that year.
It was adjourned to February 4, and then February 11, 2019, where Chalouhi entered a plea of not guilty and the matter was set down for a four-hour hearing on May 6, 2019.
OPERATOR DECLARATION
Chalouhi provided a declaration nominating Roman Plant Hire on March 13.
Its submission was rejected because it did not follow two orders: to submit it “as soon as practicable” after the court attendance notice was issued (on October 9, 2018), and at least 28 days before the charge was heard (17 December 2018, the date of the original hearing).
Chalouhi sought leave to appeal that decision, arguing the rule should apply to ‘at least 28 days before the charge is substantively heard’ rather than ‘at least 28 days before the matter is listed for first mention’, thus absolving it as the vehicle operator.
How a defective seat led to a truck driver injury compensation, here
The bid hinged on whether the Local Court’s ruling was an ‘interlocutory order’, a temporary order issued during litigation, which the Supreme Court has jurisdiction to overturn.
RMS opposed leave being granted, arguing Judge Barko’s decision was not an interlocutory order as it merely “answer[ed] a preliminary question of law and did not constitute an ‘order or judgment’”.
The Supreme Court agreed.
“The 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,” Justice Wright finds.
He adds: “As Chalouhi understood it, the Magistrate’s ruling was that Chalouhi was the ‘operator’ and such a finding precluded Chalouhi from arguing … that it was not the ‘operator’.
“[However] 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”, as the “law precludes the Local Court from finding a registered operator guilty as the operator, in certain circumstances”.
It was noted that, under s96, a party charged has the benefit of the reasonable steps defence for the offence.
Chalouhi’s summons seeking leave to appeal was dismissed and it was ordered to pay RMS’s costs.