Department of Transport and Main Roads v Blenner's Transport Pty Ltd; Department of Transport and Main Roads v Blennerhassett [2015] QMC 9

MAGISTRATES COURTS OF QUEENSLAND CITATION: Department of Transport and Main Roads v Blenner’s Transport Pty Ltd; Department of Transport and Main Roads v Blennerhassett [2015] QMC 9 PARTIES: DEPARTMENT OF TRANSPORT AND MAIN ROADS (Complainant) v BLENNER’S TRANSPORT PTY LTD (Defendant) Tran AND DEPARTMENT OF TRANSPORT AND MAIN ROADS (Complainant) v LESLIE JOHN BLENNERHASSETT (Defendant) FILE NO/S: MAG-00117310/14(1); MAG-00117347/14(1); MAG- 00117361/14(4); MAG-00117481/14(0); MAG- 00117334/14(7); MAG-00117350/14(2); MAG- 00117477/14(2); MAG-00117485/14(5) DIVISION: Magistrates Court PROCEEDING: Application to transfer proceedings ORIGINATING COURT: Dalby Magistrates Court DELIVERED ON: 18 June 2015 DELIVERED AT: Dalby HEARING DATE: 16 April 2015 MAGISTRATE: K Ryan ORDER: (a) The application to transfer is refused. (b) The Complaints and Summonses numbered MAG- -- 1 of 12 -- 2 00117310/14(1); MAG-00117347/14(1); MAG- 00117361/14(4); MAG-00117481/14(0); MAG- 00117334/14(7); MAG-00117350/14(2); MAG- 00117477/14(2); MAG-00117485/14(5) are to be heard together. (c) The Complaints are set for pre-trial hearing on 17 and 18 September 2015. (d) The Complaints are set for hearing on 6, 7, 8 and 9 October 2015. CATCHWORDS: CRIMINAL PROCEEDINGS – COMPLAINT AND SUMMONS – Application to transfer; Whether ‘more convenient’ to transfer; influencing persons; extended liability offences JUSTICES ACT 1886 – COMPLAINTS HEARD TOGETHER – Consent of parties LEGISLATION: Justices Act 1866 Transport Operations (Road Use Management) Act 1995 Transport Operations (Road Use Management – Fatigue Management) Regulation 2008 CASES: Chief Constable of Norfolk v Clayton [1983] 2 AC 473 Hobler v Francis [1911] St R Qd 17 Hodder v The Australian Workers’ Union (1985) 4 FCR 541 McCready v Bendigo Health [2014] VSC 565 R v Pepperill (1981) 54 FLR 327 R v Yanner [1998] 2 Qd R 208 COUNSEL: Mr M Nicholson for the Complainant Ms K Mellifont QC for the Defendants SOLICITORS: Department of Transport and Main Roads for the Complainant Sparke Helmore for the Defendants Background [1] Each defendant is charged by way of separate Complaints and Summonses with four extended liability breaches of Section 57B of the Transport Operations (Road Use Management) Act 1995 (“the Act”). -- 2 of 12 -- 3 [2] These breaches arise out of the failure of drivers of the Defendant company Blenner’s Transport Pty Ltd to comply with fatigue management pursuant to the Transport Operations (Road Use Management – Fatigue Management) Regulation 2008 (“the Regulation”) as was then in force. Mr Blennerhassett is the managing director of Blenner’s Transport Pty Ltd and is charged as an “influencing person”. [3] Section 57B(2) of the Act states – “(2) If the person in control of a heavy vehicle commits an extended liability offence, each influencing person is also taken to have committed the offence.” [4] For the purposes of Section 57B (and relevant in this case) an extended liability offence means – “(c) an offence committed by the person in control of a fatigue regulated heavy vehicle because there has been a contravention of a fatigue management requirement in relation to the vehicle;” [5] An influencing person means – “(a) (i) the owner of the heavy vehicle….. (iii) a person, other than the owner or registered operator, who controls or directly influences the operation of the heavy vehicle.”1 [6] In this case, it is alleged the “person in control” is each driver, the “owner of the heavy vehicle” is Blenner’s Transport Pty Ltd and the “person…who controls or directly influences the operation of the heavy vehicle” is Mr Blennerhassett. [7] Three of the Complaints and Summonses naming Blenner’s Transport Pty Ltd as Defendant rely on separate breaches of Section 53(2)(a) of the Regulation by individual drivers as do three of the Complaints and Summonses naming Mr Blennerhassett as Defendant. [8] Section 53 of the Regulation as is relevant to this case provides – “(1) Schedule 2, table 1 sets out the BFM hours for a solo driver of a fatigue regulated heavy vehicle. (2) In any period stated in column 1, the solo driver – (a) must not work for more than the work time stated in column 2; and Must have the rest of the period off work, with at least the rest time stated in column 3. 1 Section 57AB, Transport Operations (Road Use Management) Act 1995 -- 3 of 12 -- 4 [9] The remaining two Complaints and Summonses (one each against Blenner’s Transport Pty Ltd and Mr Blennerhassett) rely on a breach of Section 76(1)(e) of the Regulation. [10] Section 76(1)(e) (as is relevant to this case) provides – “(e) Information must be written on a daily sheet in the way stated in the instructions in the work diary for recording information on daily sheets.” [11] I am advised the complainant Department has commenced similar proceedings in 10 other Magistrates Courts districts throughout Queensland, being Bowen, Bundaberg, Charters Towers, Holland Park, Mackay, Maryborough, Richlands, Rockhampton, Townsville and Tully. The complainant submits that it is appropriate that all complaints against both Defendants should be transferred to one Magistrates Court pursuant to Section 139(2) of the Justices Act (Qld) 1886 so that the trial of all complaints can be dealt with properly before one court. [12] Helpfully, the Applicant/Complainant has provided as Attachment A to its original submissions on this application, a schedule of breaches alleged to have been committed in different court districts by drivers employed by the Defendant company, which would give rise to the extended liability sections of the Act. These are reproduced as follows – Court Driver Section of the Regulation Bowen Adam Timothy Burke 48(2)(b) Bowen Adam Timothy Burke 48(2)(a) Bowen Bartholomew Paul John Rolfe 53(2)(a) Bowen Christopher Glen Creighton 53(2)(a) Bundaberg Paul Stephen Meredith 53(2)(b) Charters Towers Jimmy Ristovski 76(1)€ Dalby Brett Leigh Koitka 53(2)(a) Dalby Jimmy Ristovski 76(1)(e) Dalby Phillip Stephen Jones 53(2)(a) Dalby David Richard East 53(2)(a) Holland Park David Richard East 53(2)(a) Mackay Bradley Lyle Longman 53(2)(b) Mackay David Richard East 53(2)(a) Maryborough John Phillip Membrey 53(2)(a) Richlands Ian Colin Bray 71(1) Rockhampton Jason William Phillips 53(2)(b) -- 4 of 12 -- 5 Rockhampton Marcus Donald Koitka 53(2)(a) Rockhampton Marcus Donald Koitka 53(2)(a) Rockhampton Stephen Guy Leighton 53(2)(a) Rockhampton Casey James Alexander Richards 53(2)(b) Townsville Bartholomew Paul John Rolfe 53(2)(a) Townsville Brett Leigh Koitka 53(2)(a) Townsville Stephen James Bowen 53(2)(a) Townsville Jeffrey Allan Timms 53(2)(a) Townsville Ian Colin Bray 53(2)(a) Tully Gregory Gordon Moore 53(2)(b) [13] For criminal liability to attach to each Defendant, the prosecution must prove the substantive offence was committed by each driver. I also note that each Defendant has been charged pursuant to section 57B of the Act with the extended liability offence, resulting in a total of 52 separate Complaints and Summonses being issued, 26 against each Defendant. There is also a stand alone charge against the Defendant company of a breach of section 140(3) of the Regulation for failing to comply with fatigue management accreditation. [14] It would be prudent at this stage to record that on 20 August 2014, an application to transfer the Dalby Complaints and Summonses to Townsville was refused by me in this court. In refusing the application at that stage I stated – “Once proofs of evidence are obtained and provided and the parties have the opportunity of disclosure and the inevitable discussions and concessions as to which charges are to be proceeded with or are to be heard together, then a further application for transfer to one venue can be made.” [15] The Applicant/Complainant had submitted in support of its previous application to transfer (and by extension maintains its submission) that – “At its highest, the Prosecution case reveals the company was operated by Mr Blennerhassett to maximise profit, with little regard for fatigue management legislation. In order to avoid detection, Mr Blennerhassett attempted to maintain plausible deniability through wilful blindness to systematic breaches of the Regulation by drivers in order to avoid personal liability.” (emphasis added) -- 5 of 12 -- 6 [16] It would appear that the reasoning behind the Applicant/Complainant’s application to transfer is to show evidence of (as put by the Defendants) a ‘culture of non- compliance’ of the Defendant company and Mr Blennerhassett. [17] The application before me today is to have the Dalby matters transferred to Brisbane. Similar applications will then be made in the other Magistrates Court Districts to have the respective Complaints and Summonses also transferred to Brisbane. The present application is opposed by the Defendants. Ms Mellifont has indicated to the court that should the Applicant/Complainant’s application be granted in the Dalby court, any application to transfer the other matters will not be opposed by the Defendants. [18] Ms Mellifont has also advised the court that should the Applicant/Complainant’s application be refused, the Defendants would consent to the four Dalby Complaints and Summonses against each Defendant being heard together, that is, there would be two trials, one regarding the four complaints against the company and the second regarding the four complaints against Mr Blennerhassett. Section 139(2) Justices Act 1886 [19] Section 139(2) of the Justices Act 1886 makes clear that any decision to transfer proceedings remains in the court’s discretion. It states – “(1) Where a complaint for a simple offence or breach of duty is before a Magistrates Court at any place at which that complaint may lawfully be heard and determined and it appears to the court, either of its own motion or upon the submission of the complainant or defendant made in writing to or by appearance before the court, that the hearing would more conveniently take place at another place in Queensland, the court may, before any evidence is adduced, adjourn the hearing to such other place and to a time to be then stated or to be determined as hereinbefore in this Act provided.” (emphasis added) [20] This means that even if I were to transfer the Dalby proceedings to Brisbane, there is no guarantee that any of my fellow magistrates, sitting in their own districts, would also grant such an application. Further, I note that my brother Magistrate Strofield, sitting in Holland Park, refused such an application and set the Complaints and Summonses before his court for pre-trial applications and a multi- day trial in May 2015. [21] There were no written reasons for his decision. In any event, I am cognisant of the fact that I am not bound by his decision. I further note that the Holland Park complaints have now been withdrawn. [22] There are no decided cases as to the meaning of “more convenient” as it appears in Section 139(2) of the Justices Act 1886. -- 6 of 12 -- 7 [23] I have been referred to a number of cases which discuss the considerations which are relevant to an application for a change of venue. Muir J in R v Yanner [1998] 2 Qd R 208 listed the following – (a) The cost and inconvenience involved, including disruption to court schedules and the wast of court resources; (b) Delay; (c) Ensuring that a fair trial is had and seen to be had; (d) The system of administration of justice in Queensland which establishes court districts and enables the crown to select the district in which criminal proceedings will be commenced; (e) That the result of acceding to the application will be to move the trial from the locality in which the offence was allegedly committed. [24] The Defendants also rely on the decision of Lukin J, in Hobler v Francis2 where it was held that the defendant (who was the applicant seeking transfer) ‘had not shown that there was a manifest preponderance of convenience” to transfer the proceedings; the case of Hodder v The Australian Workers’ Union3, where the court followed Hobler v Francis in applying the ‘preponderance of convenience’ test; and the case of McCready v Bendigo Health4 where the consideration was the ‘balance of convenience’. [25] The Applicant/Complainant submits the following factors support a ‘balance of convenience for transfer’ – (a) Cost and inconvenience The cost in transferring all applications to one court would result in one trial, as opposed to 53 identical trials across the State. Court resources required would likely be 53 times greater if the application to transfer was not granted. (b) Delay It is likely the various Courts across the state will be unable to hear 53 separate trials immediately, including applications to exclude evidence. There will likely be much less delay if the application to transfer is granted. (c) Ensuring a fair trial is had and seen to be had (including fairness to the Prosecution) There is likely to be no unfairness to the Defence in one hearing. However, refusing the application would make the Prosecution job in having numerous witnesses attend 53 separate hearings much more difficult (both in terms of cost and actual attendance – for example, various warrants in the event witnesses don’t attend). 2 [1911] St R Qd 17 3 (1985) 4 FCR 541 4 [2014]VSC 565 -- 7 of 12 -- 8 (d) Result of acceding to the application will be to move the trial from the locality in which the offence was allegedly committed. The only connection with each relevant locality is that the relevant driver was driving through the District when the offence occurred. The majority of evidence adduced will focus on reasonable steps, with witnesses giving evidence of events that occurred in Tully or Brisbane. [26] However, I refer to the decision of Muirhead J in R v Pepperill (1981) 54 FLR 327, which followed Re Thomas [1928] SASR 210, when His Honour considered the question of transferring proceedings pursuant to Section 139(2) of the Justices Act 1886. He held – “the principle of an impartial and unimpeded hearing was of the highest importance, to which consideration of inconvenience and added expense were secondary; the object is not only the protection of the individual affected, but prevention of interference with the administration of justice.” (emphasis added) Cost and inconvenience [27] As previously noted, there is no guarantee, despite no opposition by the Defendants, that my fellow magistrates would exercise their discretions in transferring the respective Complaints and Summonses to Brisbane for hearing. [28] It is unfortunate that the Holland Park Complaints have been withdrawn as any decision on pre-trial applications made by Magistrate Strofield in the Holland Park proceedings would have been persuasive and, if appealed, would have been binding on those that followed. This would have resulted in the truncating of the ’53 identical trials across the State’ referred to by the Applicant/Complainant, by clarifying the issues to be decided by the court. [29] This then, would have reduced the allocated time required with an equivalent reduction in cost. Delay [30] The Complaints and Summonses in the Dalby proceedings were filed on the 12 June 2014 and first mentioned in this court on 5 August 2014. Eight months has already elapsed (to the date of the hearing of this application), pending the delivery of the prosecution brief, which I now understand has been provided. [31] The Dalby proceedings are therefore ready for trial. Should the application to transfer be granted, this would lead to further delay whilst applications to transfer are made in the remaining Magistrates Court jurisdictions for transfer, followed by a hearing in Brisbane (should those applications be acceded to and which is not guaranteed), to decide whether all Complaints and Summonses should be heard together, arguments about admissibility of evidence and other pre-trial issues. -- 8 of 12 -- 9 [32] I consider that, on balance, the transfer of the Dalby proceedings to Brisbane would likely lengthen the period of delay before the several Complaints and Summonses are heard in Brisbane, if indeed it is ultimately found by the deciding Magistrate that the matters be heard together. Ensuring a fair trial is had and seen to be had [33] The Applicant/Complainant has provided a table of witnesses5, their locations and the distance those witnesses would need to travel to appear in the Dalby Magistrates Court on the hearing of the subject Complaints and Summonses. This table is misleading, in that were the present proceedings not to be transferred to Brisbane, then only seven of those 40 witnesses appear to be required to establish the substantive offences. [34] Six of the seven appear to reside or are located under 250 km from Dalby, whilst the seventh, does not appear on the Applicant/Complainant’s list of distances at all. Of the remainder of those shown on that list, many appear to be located some thousand or more kilometres from Dalby and I expect from Brisbane. [35] The Applicant/Complainant submits that apart from those seven required to establish the substantive offences in the Dalby proceedings, expert evidence will be called from MT Data and My Fleet with regard to GPS and vehicle monitoring, separate evidence from a witness relating to automatic numberplate recognition pictures and five investigators, I presume from the Department of Transport and Main Roads. These latter persons, I further presume are located in Brisbane, although this is not altogether clear. [36] For the purposes of the present application, I am satisfied that the costs associated with having all relevant witnesses appear in the Dalby Magistrates Court would not be an onerous one on the prosecution. Result of acceding to the application will be to move the trial from the locality in which the offence was allegedly committed [37] The Applicant/Complainant submits that the only connection to the location in which the Complaints and Summonses were filed is that that each driver was travelling through that location at the time of the alleged offences. [38] They further submit that “the majority of evidence adduced will focus on ‘reasonable steps’, with witnesses giving evidence of events that occurred in Tully or Brisbane.” In referring to “reasonable steps”, the Applicant/Complainant is, I understand, referring to the defence contained in Section 57B(2AA)(b) of the Act which provides – 5 Attachment A to the Applicant/Complainants Reply filed on 17 March 2015 -- 9 of 12 -- 10 (a) If the influencing person was in a position to influence the conduct of the person in control of the vehicle, it is a defence for him to establish that: (i) He did not know of the contravention; and (ii) He could not reasonably be expected to have known of the the contravention; And (iii) He took all reasonable steps to prevent the contravention; or (iv) There were no steps the person could reasonably be expected to have taken to prevent the contravention. [39] In ‘(a)nticipating that the defendants may raise this defence’, the Applicant/Complainant has included in its submission on this application, evidence it proposes to call from eleven witnesses who are employed or were formerly employed by the Defendant company, an auditor and recruitment officer and driver assessor to rebut the “anticipated” defence. [40] This evidence will go to whether there was a “culture of non-compliance” by the Defendant’s company and/or Mr Blennerhassett. It is submitted that in order to prove this “culture”, all Complaints and Summonses should be heard together in one place. [41] As a result, the Applicant/Complainant has also made submissions relating to the jurisdiction of the court to order that a number of complaints be heard together. As noted above, this court is unable to determine the outcome in the proceedings currently before the diverse Magistrates Court jurisdictions throughout Queensland. It is only able to determine the application as it pertains to the Dalby proceedings. [42] Further, other than “compliance” being listed as one of the objectives set out in Section 4 of the Act, there appears to be no specific offence relating to a “culture of non-compliance” under the Act. The Defendants in the Dalby proceedings have been charged pursuant to section 57B of the Act with extended liability offences as “influencing persons” arising out of alleged breaches by drivers. There are no provisions in the legislation allowing the introduction or proof of other similar offences in determining liability or penalty in the Dalby proceedings. Section 43, Justices Act 1866 [43] I have received a number of submissions with regard to the operation of Section 43 of the Justices Act 1866, which provides – (1) Every complaint shall be for 1 matter only, and not for 2 or more matters, except— (a) in the case of indictable offences—if the matters of complaint are such that they may be charged in 1indictment; or (b) in cases other than cases of indictable offences—if the matters of complaint— (i) are alleged to be constituted by the same act or omission on the part of the defendant; or -- 10 of 12 -- 11 (ii) are alleged to be constituted by a series of acts done or omitted to be done in the prosecution of a single purpose; or (iii) are founded on substantially the same facts; or (iv) are, or form part of, a series of offences or matters of complaint of the same or a similar character; or (c) when otherwise expressly provided. (2) When 2 or more matters of complaint are joined in the 1 complaint each matter of complaint shall be set out in a separate paragraph. (3) At the hearing of a complaint in which 2 or more matters of complaint have been joined but which does not comply with the provisions of this section— (d) if an objection is taken to the complaint on the ground of such noncompliance—the court shall require the complainant to choose 1 matter of complaint on which to proceed at that hearing; or (e) if no such objection is taken to the complaint—the court may proceed with the hearing and may determine the matters of complaint, and may convict or acquit the defendant in accordance with such determination. (4) If, at the hearing of a complaint, it appears to the court that a defendant may be prejudiced or embarrassed in the defendant’s defence because the complaint contains more than 1 matter of complaint or that for any other reason it is desirable that 1 or more matters of complaint should be heard separately, the court may order that such 1 or more matters of complaint be heard separately. [44] In its submissions filed in the Court on 27 March 2015, the Complainant states at paragraph 17 – “The Prosecution make application for the hearing of all 8 offences against both Defendants to be joined in one hearing.” [45] It is noted that the Application filed in this Court on 3 December 2014 does not seek such an order, but seeks the following – (a) All Complaints are transferred to the Brisbane Magistrates Court; (b) Any further order the Court deems appropriate. [46] Both parties have referred me to the decision in R v Davidson6, in which Williams J expressed the view that Magistrates, “in such cases and in similar situations” should be guided by the observations of Lord Roskill in Chief Constable of Norfolk v Clayton7. In summary those observations are – 6 [1985] 1 Qd R 332 7 [1983] 2 AC 473 -- 11 of 12 -- 12 (a) If consent to a joint hearing is not forthcoming, the justices should consider the rival submissions and rule as they think right in the overall interests of justice. (b) The absence of consent is not a complete and automatic bar to hearing more than one information at the same time, when the facts are sufficiently closely connected to justify this course and there is no risk of injustice to the defendant. (c) Justices should consider whether it would be fair and just to the defendant to allow a joint trial, and “only if the answer is clearly in the affirmative should they order joint trial in the absence of consent by the defendant”. [47] In this case, however, the Defendants, through Ms Mellifont, have indicated they would agree to joint trials being held with regard to each Defendant. Nevertheless, Williams J (in Davidson) warns that when there is to be a joint hearing of separate charges – “the magistrate should exercise great care to ensure that there is no confusion of issues or any misapplication of the evidence admissible on only one charge to another or others.” [48] Having considered the factors placed before me, I am satisfied that the Applicant/Complainant has not satisfied the court that it would be ‘more convenient’ for the Dalby proceedings to be heard in Brisbane. The application to transfer is refused. [49] With regard to the issue as to whether the Dalby Complaints should be heard together, I am satisfied that the matters of complaint are sufficiently connected and that it would be “fair and reasonable” for the Complaints to be heard together. Further, there has been consent by the Defendants to this course. Orders [50] The orders of the court are – (a) The application to transfer is refused. (b) The Complaints and Summonses numbered MAG-00117310/14(1); MAG-00117347/14(1); MAG-00117361/14(4); MAG- 00117481/14(0); MAG-00117334/14(7); MAG-00117350/14(2); MAG-00117477/14(2); MAG-00117485/14(5) are to be heard together. (c) The Complaints are set for pre-trial hearing on 17 and 18 September 2015. (d) The Complaints are set for hearing on 6, 7, 8 and 9 October 2015 at Toowoomba court house. (e) Leave to apply with three (3) days’ notice. -- 12 of 12 --