Mack Fleet Pty Ltd v Transport for NSW [2020] NSWCA 149

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Mack Fleet Pty Ltd v Transport for NSW [2020] NSWCA 149 Hearing dates: 16 July 2020 Date of orders: 16 July 2020 Decision date: 21 July 2020 Before: Basten JA at [1]; Ward JA at [50]; Leeming JA at [51] Decision: (1) Direct that the name of the respondent be amended to Transport for NSW. (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) Order the applicant to pay the respondent's costs in this Court. Catchwords: CRIMINAL LAW – appeal – procedure – appeal from Local Court to District Court – appeal dismissed – request to judge to submit question of law to Court of Criminal Appeal – request declined – requirement to identify a question of law – Criminal Appeal Act 1912 (NSW), s 5B CRIMINAL LAW – use on road of heavy vehicle – whether vehicle unsafe – non-compliance with regulations setting standards for braking systems – separate offence of non-compliance with regulations – Heavy Vehicle National Law (NSW) s 89(2) JUDICIAL REVIEW – jurisdictional error –refusal of District Court judge to submit a question of law to the Court of Criminal Appeal – whether power coupled with duty to exercise power on request – whether request stated a question of law – challenge to determination of judge that no question of law raised PRACTICE AND PROCEDURE – criminal – power of judge of District Court to submit question of law to Court of Criminal Appeal – application out of time – identification of question of law – whether discretion to refuse request PRACTICE AND PROCEDURE – judicial review – application out of time – whether application had merit warranting extension of time – Uniform Civil Procedure Rules 2005 (NSW), r 59.10(1) Legislation Cited: Criminal Appeal Act 1912 (NSW), ss 5A, 5B District Court Act 1973 (NSW), s 176 Heavy Vehicle National Law (NSW), ss 60, 89; Sch 2, Pt 7 Interpretation Act 1987 (NSW), ss 5, 9 Uniform Civil Procedure Rules 2005 (NSW), r 59.10(1) Cases Cited: Elias v Director of Public Prosecutions (NSW) (2012) 222 A Crim R 286; [2012] NSWCA 302 Ex parte McGavin; Re Berne (1945) 46 SR (NSW) 58 Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 217 Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32 Lavorato v The Queen (2012) 82 NSWLR 568; [2012] NSWCCA 61 Robinson v Woolworths Ltd (t/as Woolworths Plus Petrol Werrington) (2005) 64 NSWLR 612; [2005] NSWCCA 426 Sasterawan v Morris (2007) 69 NSWLR 547; [2007] NSWCCA 185 The Owners of the Ship 'Shin Kobe Maru' v Empire Shipping Co Inc (1994) 181 CLR 404; [1994] HCA 54 Ward v Williams (1955) 92 CLR 496 Category: Principal judgment Parties: Mack Fleet Pty Ltd (Applicant) Transport for NSW (First Respondent) District Court of New South Wales (Second Respondent) Representation: Counsel: Mr G James QC (Applicant) Mr M Higgins (First Respondent)