Dixon v Attorney General of NSW

By summons filed on 6 September 2018, Allan Dixon (the plaintiff) seeks an order setting aside the decision of Allen LCM made on 7 June 2018 and associated relief. His Honour found that the Local Court had no jurisdiction to hear an application to quash a habitual traffic offender declaration under s 220 of the Road Transport Act 2013 (NSW) (the RT Act). The plaintiff relies on this Court’s jurisdiction pursuant to s 55 of the Crimes (Appeal and Review) Act 2000 (NSW) (CARA) and ss 65 and 69 of the Supreme Court Act 1970 (NSW).

The Attorney-General of New South Wales (the first defendant) agreed that the Court below was in error in finding that it had no jurisdiction and supported the plaintiff’s application. The Local Court of New South Wales (the second defendant) has filed a submitting appearance.

Before setting out the relevant facts I propose to summarise the relevant legislative provisions.

The matters in issue turn on the construction of the RT Act which was amended on 28 October 2017 by the Road Transport Amendment (Driver Licence Disqualification) Act 2017 (NSW) (the 2017 Amendment Act). It is convenient to refer to the RT Act before the 2017 Amendment Act as the Old RT Act and the RT Act after the 2017 Amendment Act as the New RT Act.

The Old RT Act made provision, in Division 3 of Part 7.4, for the automatic declaration of persons as habitual traffic offenders and, in certain circumstances, for courts to have the power to quash such declarations. Similar provisions were contained in the statutory predecessors to the Old RT Act. The power of courts to quash such declarations was provided for in s 10EA of the Traffic Act 1909 (NSW) (which had been inserted into that Act by the Traffic Amendment (Penalties and Disqualifications) Act 1998 (NSW)); s 31 of the Road Transport (General) Act 1999 (NSW); and s 202 of the Road Transport (General) Act 2005 (NSW).

Section 217 of the Old RT Act provided:

Section 216 defined “relevant offence”. It was common ground that each of the three offences of which the plaintiff was convicted (see below) was a “relevant offence” within the meaning of s 216 of the Old RT Act.

Section 220 of the Old RT Act conferred power on a court that convicts a person to quash the declaration as follows:

The 2017 Amendment Act repealed Part 7.4, Division 3 of the Old RT Act. It contained savings provisions as referred to below. In the Second Reading Speech for the Bill that became the 2017 Amendment Act, the Attorney General, Mr Speakman, said that the bill would abolish the habitual offender scheme and indicated that the evidence suggested that lengthy disqualification did not have a deterrent effect: New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 12 September 2017 at 14772. The Second Reading Speech did not, however, contain any statement which was germane to the issue in the present case.

Sch 4 of the New RT Act includes the following savings provisions:

The New RT Act contains s 221B, which confers power on the Local Court to remove licence disqualifications after relevant offence-free period. The definition of the term “relevant offence-free period” in s 221A is, relevantly:

Before turning to the decision of the Court below, I propose to summarise the relevant facts.

The plaintiff was convicted of three offences which were committed on 22 October 2011 (refuse urine test), 7 April 2016 (drive with illicit substance present) and 19 July 2016 (drive whilst disqualified) respectively. In respect of the offence committed on 19 July 2016, the Local Court ordered that the plaintiff was disqualified from driving for a period of 12 months commencing on 18 July 2016. As each of the three offences were “relevant offences” within the meaning of s 216 of the Old RT Act, the plaintiff was, on 7 November 2016, by operation of s 217 of the Old RT Act, declared an habitual traffic offender (the Declaration). The Declaration was to operate for a period of 5 years dating from 18 July 2017, being the date on which the earlier period of disqualification expired. The Declaration was made while the Old RT Act was in force.

On 22 February 2018 the plaintiff’s solicitor, Mr Tonkin (a solicitor employed by the Aboriginal Legal Service), attempted to file, by email, an application to quash the Declaration. By this time, the New RT Act had come into force. In the email, Mr Tonkin referred to cl 65(2), Sch 4 of the 2017 Amendment Act (set out above). On 23 February 2018, he received the following response from the Registry of the Local Court at Bathurst:

On 27 March 2018, Ms Winborne, who had become the plaintiff’s solicitor, filed a notice of motion in the Local Court at Bathurst applying to quash the Declaration and seeking that the matter be listed in order that the Local Court’s jurisdiction could be determined following argument. The motion was listed for hearing on 17 April 2018 but was subsequently adjourned to 7 June 2018. Although the New South Wales Police and the Roads and Maritime Services (RMS) were notified of the application, neither appeared. On 7 June 2018 Ms Winborne sought to file in court an application that the court find that it had jurisdiction to hear the plaintiff’s application to quash the Declaration. Allen LCM proceeded to hear Ms Winborne in the absence of a contradictor.

After hearing submissions, Allen LCM delivered reasons ex tempore in which his Honour found that there was no jurisdiction to determine the plaintiff’s application that the Declaration be quashed. The reasons for this decision will be summarised below.

Allen LCM referred to the repeal of Part 7.4, Division 3 of the Old RT Act. His Honour expressed the view, based on s 30 of the Interpretation Act 1987 (NSW), that the effect of the provisions in Sch 4 to the New RT Act was to preserve the Court’s right to deal with applications to quash habitual traffic offender declarations as long as an application had been filed prior to 28 October 2017 (being the date of repeal of Part 7.4 of the Old RT Act). Section 30 of the Interpretation Act provides for the effect of repeal of Acts.

The Court below found that the plaintiff could not rely on Division 3A of the New RT Act, and in particular s 221B, to remove his existing disqualification. His Honour also considered that, although the transitional provisions would authorise a court to quash a declaration, there was no provision which authorised a person to apply for such an order. The Court below also expressed the view that the interpretation for which the plaintiff contended would, if accepted, lead to applications being made to quash habitual traffic offender declarations ad infinitum.

The plaintiff raises the following ground of appeal:

In my view it is plain that the legislative intention of the 2017 Amendment Act was to preserve a court’s power to quash a declaration in respect of an habitual traffic offender. So much is clear from cl 36 of Sch 4 to the New RT Act, which expressly contemplates that such a declaration might be “annulled, quashed or set aside”. Clause 65(2) expressly preserves the power of a court to quash such a declaration “[d]espite the repeal of Division 3 of Part 7.4 [of the Old RT Act].”

The Court below appears to have considered that the effect of the provisions in Sch 4 to the New Act was to preserve a court’s power to quash such a declaration, but only as long as the application had been made before 28 October 2017. His Honour was in error in finding that there was any such limitation on the right of a person who was subject to an habitual traffic offender declaration to apply to have it quashed. Section 30 of the Interpretation Act applies, as with other provisions in the Interpretation Act, “except in so far as the contrary intention appears . . . in the Act . . . concerned”: s 5(2) of the Interpretation Act. For the reasons given above, the 2017 Amendment Act expressly preserved the right of a person subject to such a declaration to apply to have it quashed and did not impose any limitation on the timing of such an application.

Further, the Court below considered that, notwithstanding that the Local Court had power to quash the Declaration, the plaintiff had no right to apply for the court to exercise its power to do so unless the matter was already before the court. It appears that the Court below considered that, even before the 2017 Amendment Act became operative, the practice of persons such as the plaintiff making applications for an habitual traffic offender declaration to be quashed, was irregular. His Honour appeared to consider that s 220 of the Old RT Act did not contemplate an application being made to the Local Court to quash a declaration and, accordingly, the Local Court could not quash the declaration at a time other than when the “relevant offence” was “before” the Court.

The question turns on whether Parliament intended, when it conferred a power on courts, including the Local Court, to quash such a declaration, that the person who was the subject of a declaration would have the right to apply to have it quashed and, if so, whether there was any temporal limitation on the exercise of any such right.

It is apparent from the express words of s 220 that a court’s power to quash the declaration could be exercised “at the time of the conviction or at a later time”. I regard these words as sufficient to indicate that a court’s power to quash a declaration is not limited to the time of the conviction and can be exercised at any time thereafter. This construction is also consistent with authority on corresponding provisions in the statutory predecessors to the Old RT Act: RTA v Papadopoulos (2010) 77 NSWLR 189; [2010] NSWSC 33 at [56] (James J), which concerned s 202 of the Road Transport (General) Act 2005 (NSW); and Damaris v Falzon [2009] NSWSC 18 at [15]; (2009) 52 MVR 84 (Rothman J), which concerned s 31 of the Road Transport (General) Act 1999 (NSW) . The Court below was in error in finding that the Local Court could not quash a declaration at a time other than when the “relevant offence” was “before” the Court.

The conclusion that there is no such temporal limitation is also supported by the use of the indefinite article in s 220 in the words “a court that convicts the person of a relevant offence”. The declaration will only be made after the person is convicted of a third relevant offence. The use of the indefinite article in s 220 indicates that any one of up to three courts which has convicted the person of a relevant offence has jurisdiction to quash the declaration. It follows that the person need not apply to the court which has ordered the conviction for the third relevant offence for an order to quash the declaration. In these circumstances, it cannot be the case that Parliament intended to limit the right of a person to apply to quash the declaration to an occasion where the matter was already before the court.

The remaining question is whether the person the subject of the declaration is entitled to apply for it to be quashed. This question must be answered in the affirmative having regard to s 44 of the Local Court Act 2007 (NSW) which provides:

The term “criminal proceedings” is defined in s 3 of the Local Court Act and does not, in my view, include an application to quash a habitual traffic offender declaration. Part 3 of the Local Court Act relates to its civil jurisdiction. As jurisdiction is conferred on the Local Court by s 220 of the Old RT Act (and preserved by the savings provisions referred to above) and the proceedings are neither criminal nor within Part 3 of the Local Court Act, Part 4 of the Local Court Act applies to them by reason of s 44.

Section 43 of the Local Court Act defines “application proceedings” as “proceedings to which this Part applies”; and “applicant” as “a person by whom application proceedings are commenced”. What these provisions indicate is that Parliament intended that there be an applicant for orders to quash a habitual traffic offender declaration. In the context of such declarations, the person the subject of the declaration has the right to be the applicant and to commence application proceedings.

This interpretation is consistent with the principle of legality that statutes are to be construed against the background of existing law, which includes legal assumptions. If these assumptions are to be displaced, the legislature is required to express its intention expressly or by necessary implication: Al-Kateb v Goodwin (2004) 219 CLR 562 at 577; [2004] HCA 37 (Gleeson CJ). The legal assumptions which comprise the background of existing law include the assumption that investment of a court with jurisdiction is intended to include all the court’s procedures. This assumption was articulated by the High Court in Electric Light and Power Supply Corp Ltd v Electricity Commission of New South Wales (1956) 94 CLR 554 at 560; [1956] HCA 22 in the following terms:

It cannot be supposed that Parliament intended to confer jurisdiction on courts, including the Local Court, to quash a habitual traffic offender declaration but intended to leave it to the Local Court to decide whether to invoke its own jurisdiction to quash such a declaration. The principles of natural justice would, in any event, require the court to give the person in respect of whom the declaration was made an opportunity to be heard. In my view, s 44 of the Local Court Act puts the matter beyond doubt. A person the subject of an habitual traffic offender declaration is entitled to apply to a relevant court to have the declaration quashed.

The plaintiff requires an extension of time to bring an appeal pursuant to s 55 of CARA as the summons was filed more than 28 days after 7 June 2018: Pt 51B, r 6 of the Supreme Court Rules 1970 (NSW). No extension is required for an application pursuant to ss 65 or 69 of the Supreme Court Act as the relevant time limit for such applications is three months: Uniform Civil Procedure Rules 2005 (NSW), r 59.10. The first defendant did not oppose an extension of time. It is plainly in the interests of justice that time be extended because of the importance of the matter raised in the summons. Further, the delay (such as it was) was the result of the time taken to obtain the transcript of the reasons of the Court below.

As I would prefer to determine the matter pursuant to s 69 of the Supreme Court Act, no extension of time is required.

For the reasons given above, I am satisfied that the decision of the Court below that it lacked jurisdiction to hear the plaintiff’s application to have the Declaration quashed was legally erroneous. The Local Court has jurisdiction by reason of cl 65 of Sch 4 of the New RT Act, which, in cases such as the present, preserves the Local Court’s jurisdiction conferred by s 220 of the Old RT Act.

Mr Williams, who appeared on behalf of the first defendant, contended that there was some ambiguity associated with the hearing and decision in the Court below which made it more appropriate that this Court make orders under s 69 of the Supreme Court Act, rather than s 55 of CARA. He referred to the circumstances that the matters before the Court below included a notice of motion for a declaration that the Local Court had jurisdiction to deal with the plaintiff’s application to quash the Declaration. He submitted that the Local Court did not have power to make such a declaration, although it was required to determine whether it had jurisdiction. Mr Williams also submitted that it was questionable whether a determination that the Local Court did not have jurisdiction was an “order” within the meaning of s 70 of the Local Court Act.

Mr Styles, who appeared on behalf of the plaintiff, explained that the reason the summons identified s 55 of CARA as the principal avenue for relief was because the plaintiff’s legal representatives were cognisant of the authorities that relief in the nature of prerogative relief (such as might be granted pursuant to s 69 of the Supreme Court Act) may be refused on discretionary grounds if a statutory appeal is, or would have been, available: Hill v King (1993) 31 NSWLR 654, at 656-659. It was, in the circumstances of the present case, not inappropriate for the plaintiff to seek relief on alternative bases.

It is not necessary to decide whether this Court has jurisdiction under Part 5 of CARA (in light of ss 43 and 70 of the Local Court Act) in the present case since I accept Mr Williams’ submissions that this Court’s jurisdiction under s 69 of the Supreme Court Act provides a more suitable foundation for granting the appropriate relief. The error made by the Court below as to its jurisdiction constitutes both a jurisdictional error and an error of law on the face of the record which, by reason of s 69(4), includes the reasons given by the Court below. It is not necessary to make an order in the nature of mandamus since it is sufficient to quash the decision of the Court below (being an order in the nature of certiorari) and remit the matter to that Court for determination according to law.

As referred to above, neither the NSW Police, nor the RMS appeared in the Local Court on either 17 April 2018 or 7 June 2018, although notice had been given to them of the plaintiff’s applications. Ms Winbourne’s submissions in the Court below were both comprehensive and correct. However, it would have been of considerable assistance to the Court below to know that the Crown accepted the construction of the legislation for which the plaintiff contended. Where there is a real issue whether a court has jurisdiction to hear an application made and a statutory or public instrumentality is a relevant party, it is desirable that the Crown Solicitor be notified in order that assistance can be provided by the Crown to the court on the question of jurisdiction.

The parties have agreed that there ought be no order as to costs.

For the reasons given above, I make the following orders: