Kumaragammage & Anor v Culbert & Anor [2000] NSWSC 129

New South Wales Supreme Court

CITATION : Kumaragammage & Anor v Culbert & Anor [2000] NSWSC 129 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 11160/1999 HEARING DATE(S) : 17-18 February 2000 JUDGMENT DATE : 9 March 2000

Prabha Kumaragammage (First Plaintiff) Don Kumaragammage (Second Plaintiff) PARTIES : v Patrick Culbert (First Defendant) Mr Johnson, LCM (Second Defendant) JUDGMENT OF : Master Malpass

LOWER COURT Local Court JURISDICTION : LOWER COURT Parramatta Local Court 20 April 1999 FILE NUMBER(S) : LOWER COURT Mr Graham Johnson JUDICIAL OFFICER :

N/A (First and Second Plaintiffs) Mr T A Game SC/Mr D Jordan (First COUNSEL : Defendant) N/A (Second Defendant)

Both in person (First and Second Plaintiffs) SOLICITORS : Smythe & Mallam (First Defendant) I V Knight - Crown Solicitor - Submitting appearance (Second Defendant) CATCHWORDS : Certiorari - public passenger service/tourist service - questions of statutory construction and evidence. Passenger Transport Act 1990, s 3, s 4, s 6, s 7, s 9, s 63. LEGISLATION CITED : Supreme Court Act 1970, s 69. Transport Licensing Act 1931. CASES CITED : N/A. DECISION : See paragraph 36.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

MASTER MALPASS

THURSDAY 9 MARCH 2000

11160/1999 PRABHA KUMARAGAMMAGE & ANOR v PATRICK CULBERT & ANOR JUDGMENT 1 The plaintiffs are husband and wife. They had operated what has been described as a shuttle bus service between the western suburbs of Sydney and the international and domestic air terminals. The first plaintiff was the owner of the business and the second plaintiff was its manager. In May 1997, the first plaintiff was granted an accreditation to operate a "Tourist Service". The first defendant issued a notice cancelling the accreditation (effective on 19 February 1998). 2 An appeal was brought against the cancellation. The operation of the bus service continued as usual. The appeal is yet to be heard. 3 On 2 March 1998, the second plaintiff sought accreditation to operate a "Tourist Service". It was said that this application has not been processed. 4 On 18 March 1999, the plaintiffs by bus or motor vehicle carried passengers for fare or other considerations. The journeys involved are set out in a document headed " 'Tomorrows Programme' 18/3/98". 5 On 26 March 1998, eight Informations were laid alleging offences under s 7 (1) of the Passenger Transport Act 1990 (the Act). There were four Informations against each of the plaintiffs. 6 The hearing of these matters came before Johnson LCM. During the course of the hearing, the plaintiffs signed written admissions in the following terms:- "1. On 18th of March 1998 Mrs Kumaragamage's accreditation to operate tourist service was cancelled. 2. On 18th of March 1998, neither Mr nor Mrs Kumaragamage held any accreditation to operate any public passenger service in NSW. 3. On the 18th of March 1998, the defendants by bus or motor vehicle carried passengers for fare or other considerations. 4. The journeys referred to paragraph 3, were set out in a document headed 'Tomorrows Programme' 18/3/98". 7 The learned Magistrate found that each offence had been proved beyond reasonable doubt and convicted the plaintiffs. 8 The proceedings before this Court were commenced by Summons filed on 17 May 1999. The relief claimed is in the following terms:- " 1 . An order in the nature of certiorari pursuant to Section 69 of the Supreme Court Act quashing the Orders made by the second defendant on 20th April 1999 convicting the both plaintiffs on 8 charges of breaching Section 7 (1)(a) of the Public Passenger Transport Act 1990 in that the both first and second plaintiffs carried on public passenger services without being accredited."