Saba v Department of Transport and Main Roads
[2013] QDC 118
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- Saba v Department of Transport and Main Roads[2013] QDC 118
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Saba v Department of Transport and Main Roads[2013] QDC 118
Saba v Department of Transport and Main Roads[2013] QDC 118
DISTRICT COURT OF QUEENSLAND
CITATION: | Saba v Department of Transport and Main Roads [2013] QDC 118 |
PARTIES: | GEORGE SABA (appellant) and DEPARTMENT OF TRANSPORT AND MAIN ROADS (respondent) |
FILE NO/S: | BD4857/12 |
DIVISION: | Appellate |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court, Holland Park |
DELIVERED ON: | 24 May 2013 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 10 May 2013 |
JUDGE: | Dorney QC, DCJ |
ORDER: | It is ordered that:
|
CATCHWORDS: | Appeal – whether relevant “error” when characterisation of “facts” is one description open under the legislation – whether dealer plate “use” in “conduct of business” Justices Act 1886 (Qld) ss 222, 224(1)(a) Transport Operations (Road Use Management - Vehicle Registration) Regulation 2010 ss 64 (1), 64(5) Edwards (Inspector of Taxes) v Bairstow [1956] AC 14 Rowe v Kemper [2009] 1 Qd R 247 Vetter v Lake Macquarie City Council (2001) 202 CLR 439 Williams v Bill Williams Pty Ltd [1971] 1 NSWLR 547 |
COUNSEL: | Mr G Saba (Self-represented) Mr A Mason for the respondent |
SOLICITORS: | (Appellant self-represented) Department of Transport and Main Roads for the respondent |
Introduction
- [2]If a person drives a motor vehicle with a dealer plate attached to it for the general purpose of driving that vehicle to a workshop for repairs and, on the way, attends at a McDonald’s drive-in takeaway to obtain a bacon and egg “McMuffin”, is the person in breach of a provision which states that the vehicle is not to be used unless used in the conduct of (relevantly, here) the business of workshop repairs?
- [3]The appellant was such a driver on 17 August 2011 when he was stopped by two police officers on Logan Road, Brisbane while driving a white BMW to which was attached the dealer plate, bearing registration DE-992. He had not, at that time, attended at McDonald’s; but he had intended to, and did so immediately afterwards. Although he purported to file his Notice of Appeal out of time, he contemporaneously filed a Notice of Application for Extension of Time, both on 11 December 2012. Since the respondent did not oppose the extension, I will order, pursuant to s 224(1)(a) of the Justices Act 1886, an extension of time for filing, on the grounds set out in the application. The appealed orders cover both conviction and sentence.
Legislation
- [4]The offence with which the appellant was charged was pursuant to s 64(5) of the Transport Operations (Road Use Management - Vehicle Registration) Regulation 2010.
- [5]Section 64 of the Regulation creates several discrete offences concerning the use of dealer plates. The one chosen on which to prosecute the appellant here was s 64(5). It states:
“(5) A person must not use, or permit to be used, on a road a vehicle with a dealer plate attached to it unless the vehicle is used in the conduct of the business of the person in whose name the dealer plate is registered.”
- [6]Section 64(1) of the Regulation also creates an offence; but it was not the one with which the appellant was charged. It - if at all relevant – states, relevantly to the circumstances here, that a person must not use, or permit to be used, on a road a vehicle with a dealer plate attached to it unless the vehicle is being demonstrated for its sale or is travelling to a workshop or other facility for repairs: see paragraph (a) and sub-paragraph (c)(i).
- [7]Both provisions have a maximum penalty of “16 penalty units”.
Background
- [8]The learned Magistrate made a number of findings which are not in dispute. They are:
- (a)The relevant dealer plate was registered in the name of Sabaaiic Pty Ltd.
- (b)The business of Sabaaiic Pty Ltd was the building, repairing and panel beating of motor vehicles.
- (c)The appellant was driving the white BMW on Logan Road.
- (d)Logan Road was a “road” and the BMW was a “vehicle”.
- (e)The relevant dealer plate was attached to the vehicle.
- [9]Furthermore, the evidence shows that the McDonald’s was situated on Logan Road (its drive-in takeaway entry just near where the vehicle was stopped by the police). Before turning to the only real finding that was in dispute (namely, the characterisation or description of what use was being made of the vehicle, relevant to the conduct of the business of Sabaaiic Pty Ltd), the learned Magistrate’s reasons accepted both the nature of the business of Sabaaiic Pty Ltd as given in evidence by the appellant and, as also given in evidence by the appellant, that after the appellant “had completed his business” at McDonald’s he was going to, and did, attend at the location of the business of Sabaaiic Pty Ltd at 198 Paradise Road, Willawong, Queensland.
- [10]It is also important that, in the oral submissions made on behalf of the respondent in the appeal, it was, on questioning, not asserted that the actual travel of the motor vehicle, as driven by the appellant was – any relatively slight deviation to McDonald’s apart - other than by way of taking a direct route past McDonald’s to the location of the relevant business. There was nothing contrary to that in the learned Magistrate’s reasons and nothing contrary to it in the evidence led by the appellant when he gave evidence at trial. Further evidence – which can only be of a background nature - that the learned Magistrate accepted was that the appellant stated that, because of a medical condition, it was necessary for him to take food and drink at breakfast and that his purpose in going to McDonald’s was to obtain such food and drink on his way. The appellant’s evidence - which the learned Magistrate seems generally to have accepted – was, additionally: that the vehicle had “issues”; and that he was “just pulling” into McDonald’s, which was on his way to where the company’s garage was, when he was “pulled over” by the police officers. It may be that that directional response led to no examination at first instance, or on appeal, of any potential difficulty arising from the police officer stopping of the vehicle before it “left” Logan Road to enter McDonald’s. Further, the appellant states that when he got to the business address at Paradise Road he “started draining the fuel tank for the car” and “the boys did other work”.
- [11]Although not dealt with directly in the learned Magistrate’s reasons, in response to a question from the bench, the appellant, when asked whether his evidence was that he was using the company’s dealer plate to drive the “car for the purposes of showing (his) son in demonstration for the purposes of sale”, answered that he was and that “(his) son was with (him) as well”. It can be noted that, earlier in the appellant’s evidence, he had said that his son was sitting in the car with him and that his son was to buy the car, with the car being taken for “a test drive”. Finally, when, asked in cross-examination why “didn’t (he) take (another) car to get breakfast”, the appellant responded that the purpose was to take the vehicle to have it “test driven”, and then take it - since “it had some problem with the fuel tank” - to “the company place at Paradise Road where the company can drain the tank and sort it out”. But, in the end, it did not appear to be anyone’s case that circumstances outside the travel to the location of the business, visiting McDonald’s on the way, were relevant to the actual charge.
First instance finding on use of vehicle
- [12]In his reasons, the learned Magistrate concluded that the (prospective) attendance at McDonald’s had “absolutely no association (with) or part of the business” of Sabaaiic Pty Ltd and that, “therefore”, he was “drawn to the inescapable conclusion that the vehicle was not used in the conduct of the business”. This reasoning led to his ultimate conclusion that the complainant’s case was established beyond a reasonable doubt.
Appeal principles
- [13]As is summarised in Rowe v Kemper,[1] on the hearing of an appeal under s 222 of the Justices Act 1886, the District Court is to conduct a “real review” of the evidence, drawing its own inferences and conclusions, while giving due deference and attaching a good deal of weight to the Magistrate’s view, with the court’s intervention only being triggered by an error of the relevant kind: at 253 [3] and [5], per McMurdo P.
General Consideration
- [14]I have conducted a review of the evidence and I have read the reasons of the learned Magistrate for the decision that he reached. For the reasons next canvassed, I accept that his characterisation of what occurred was a reasonable conclusion of the application of s 64(5) of the Regulation to the facts as found, such facts being open to him and, in the circumstances, not requiring a fresh assessment by me. Accordingly, having detected no relevant error, the appeal cannot succeed.
General interpretive principles
- [15]Although journey claims under relevant workers’ compensation Acts contain the notion of interruptions to, or deviations from, a journey which would otherwise be a relevant journey and while they are not directly analogous to a case such as this, the High Court decision of Vetter v Lake Macquarie City Council[2] is relevantly instructive on the issue of construction of a statute which has some aspects of association with travel. In the joint decision of Gleeson CJ, Gummow and Callinan JJ, with which Hayne J generally agreed, it was stated that the trial judge had summarised the appellant’s evidence - noting that in respect of the evening of the accident she had visited her grandmother on her way home and stayed there for a time - in terms of the appellant being in the course of single journey when the relevant event occurred: at 445 [8]. The majority decision in the NSW Court of Appeal - which was overturned - had relevantly held that the journey was not a single journey between the appellant’s workplace and her home: at 447 [15]. In that High Court judgment, that was contrasted with the decision of Priestley JA (in dissent on this issue) who decided that, for an objective bystander, using ordinary language, it was open to describe the travel as “going to see her grandmother on her way home”, although he then stated that she made a second trip to her home: at 448-449 [18]. The joint decision held that it agreed with Priestley JA that it was possible to characterise the travel in the way he did, although that High Court judgment also held that the matter was not to be decided by asking whether there were one or two journeys: at 451-452 [28].
- [16]The important relevant reasoning in Vetter, as undertaken in the joint judgment referred to, concerned the issue of whether, for an occasion such as the journey under examination there, it may sometimes aptly be described in more than one way and that, if so, where the trial judge’s description or characterisation is one description which is reasonably available, then it is an error to overturn it where the appeal lies on a point of law: at 453 [31]. The question to be formulated is whether facts as found answer a statutory description, or satisfy statutory criteria, which is a decision that will “very frequently” be exclusively a question of law: at 450 [24]. Nevertheless, not all questions involving mixed questions of law and fact are, or need to be, susceptible of one correct answer only, since, not infrequently, informed and experienced lawyers will apply different descriptions to a factual situation: at 450 [24]. By reference to Lord Radcliffe’s speech in Edwards (Inspector of Taxes) v Bairstow,[3] a relevant error of law in this context can be identified as arising if “the true and only reasonable conclusion contradicts the determination”: at 450 [25].
- [17]Finally concerning Vetter, that joint decision adopted the observation of Mason JA in Williams v Bill Williams Pty Ltd[4] as the relevant enunciated principle: that is, if different conclusions are reasonably possible, the determination of which is the correct conclusion is a question of fact: at 451 [26].
- [18]Application of interpretive principles to offence as charged
- [19]It is important to note that the breach alleged was one of s 64(5), and not of s 64(1), of the Regulation. Thus, while it is possible to have recourse to the context in which s 64(5) appears, it must be noted the two sub-sections are separate offence provisions.
- [20]Accordingly, the focus in s 64(5) of the Regulation is on the “use” of the vehicle and whether such is “in the conduct of the business” of the person in whose name the dealer plate is registered. Section 64(1), in contrast, details numerous scenarios which may, or may not, be coincident with “use” in the “conduct” of the relevant business.
- [21]The business was indisputably in this case the rebuilding, repairing and panel beating of motor vehicles. Additionally, the findings by the learned Magistrate - which this court has concluded were open to him - accepted that, immediately after (and, inferentially, immediately before) attending at McDonald’s to obtain food and drink, the motor vehicle was being used to travel on the road to attend at the location of the business, for repairs.
- [22]There is no evidence that gainsays - and a considerable amount that inferentially establishes - the driving of the vehicle to McDonald’s “takeaway” as not involving the appellant either turning the vehicle’s engine off or leaving the driver’s seat of the vehicle. As such, there is little material difference between that and an occasion where a person stops the vehicle at a legal parking place outside the same McDonald’s and has his son (for instance) obtain the food and drink while the person remains in the driver’s seat with the engine on.
- [23]For my own part, I would have characterised, or described, the episode involving McDonald’s as obtaining food and drink while using the vehicle in the conduct of driving it along a route which led directly to the location of the relevant rebuilding, repairing and panel beating business of Sabaaiic Pty Ltd: that is, using it in the “conduct” of the business. Conduct, in context, must include getting the vehicle promptly to the place of repair. So characterised, I would have concluded that it did not breach s 64(5) of the Regulation. Insofar as “mischief” is an available interpretative tool here, the Legislature’s purpose can be divined as requiring registration and consequent insurance for, but also limiting it to, business “conduct”. That is, provided the use is conduct-related the attached dealer plate has a non-criminalising effect.
- [24]Despite that, I accept that the question to be decided in this case is largely one of degree upon which different legal minds may take different views and that it is reasonably possible to arrive at a conclusion that the learned Magistrate’s description or characterisation was one reasonably possible. On that outcome, in accordance with the analysis conducted in Vetter, there has been no relevant error of law established. But because this appeal is a rehearing, the absence of such an error does not conclude the question of relevant error (which can include that of fact, or mixed law and fact). Nevertheless, there still must be error. As the authorities instruct, due deference must be given to the learned Magistrate’s conclusions. Where, as described by Hayne J in Vetter,[5] the question of factual classification “was not a question which did not admit of the answer which was given by the primary” decider of fact, due deference does not lead to a determination that this subsidiary relevant error occurred.
Summary
- [25]Since I have concluded that there has been no relevant error made by the learned Magistrate at first instance, despite any characterisation or description that I myself may have accepted if I had been the court at first instance, the only conclusion open to me is to dismiss the appeal.
Orders
- [26]The orders that I intend to make are:
- That the appellant have leave to extend the time for filing the notice of appeal.
- That the appealed orders are confirmed and the appeal is dismissed.
- [27]As to costs, given the reasons which underlie the conclusion that I have reached, my inclination is that there ought be no order as to costs of the appeal. Nevertheless, I intend to give both parties seven days in which to file, and serve, any submissions that they may wish to make concerning costs.