Roads & Maritime Services v Staniforth

By a further amended summons (representing an amendment to the amended summons filed on 16 January 2017) the Roads & Maritime Services (‘the plaintiff’) sought an order under s 69 of the Supreme Court Act 1970 (NSW) in the nature of certiorari quashing orders of the Local Court sitting in Orange given on 12 September 2016 and 10 October 2016 (‘the orders’) for want of jurisdiction (the plaintiff withdrew an appeal under s 70 of the Local Court Act 2007 (NSW) against the orders and a further application seeking a declaration that the Local Court did not have jurisdiction to hear and determine what were described as the “application proceedings”).

The first defendant, Sascha Rosamond Staniforth (‘the first defendant’), and the second defendant, the Local Court of New South Wales, have entered submitting appearances and submit to the making of orders sought and the giving or entry of judgment with respect of all claims made, save as to costs. No appearances were entered by those parties when the matter was called today.

The background to the appeal may be briefly stated and is substantially derived from the affidavit of Emma Nichole Swords sworn in support of the summons on 9 February 2017, which attaches the initiating process brought by the first defendant before the Local Court, some material from the Local Court file and a transcript of proceedings before the Local Court on 12 and 19 September and 10 October 2016 respectively.

On 11 April 2016, the first defendant committed a traffic light offence and was issued with a penalty notice. After the issue of a reminder notice the first defendant paid the amount of the penalty recorded on the penalty reminder notice. In consequence, on 13 July 2016, the plaintiff notified the first defendant that her driver's licence was to be suspended for a period of three months commencing 17 August 2016 pursuant to s 36(4) of the Road Transport Act 2013 (NSW).

The first defendant commenced proceedings pursuant to s 45 of the Local Court Act on 15 August 2016 by the filing of an application notice (‘the application’). The application was lodged pursuant to s 267 of the Road Transport Act and sought the following orders:

There was a handwritten entry next to the orders sought on the document attached to Ms Sword's affidavit which read, “s 226-(d)-Appealable Decision of RMS”. (It is, for reasons I will later discuss, presumably a reference to s 266(1)(d) of the Road Transport Act.) There was no attribution given to that entry in the evidence in these proceedings nor does the record of the Local Court proceedings reveal any amendment to the relief sought on behalf of the first defendant in the Local Court.

The grounds for the application are stated as:

The letter there referred to was a letter from the manager of the Sanctions Unit of the plaintiff to the first defendant pursuant to s 36(4)(a) of the Road Transport Act (which relates to a person who has made an election under s 36 and incurs two or more demerit points during a 12 month good behaviour bond) and s 60 of that Act.

When the matter was before the Local Court, the first defendant’s solicitor indicated the matter was an appeal against the “offence” being a reference to the traffic light offence and submitted that the Court was not dealing with a licence suspension. The solicitor sought the matter be dealt with under s 10 of the Crimes (Sentencing Procedure) Act 1999. After considering those submissions the Local Court ordered:

The submissions of the plaintiff today reveal that order had the effect of lifting the suspension of the defendant’s licence under s 36(4) of the Road Transport Act.

The matter was re-listed before the Magistrate on 19 September 2016 in which case the Magistrate queried whether he had power to grant “the application”. He was advised by the solicitor for the applicant that he had no power to reverse the decision of the plaintiff to cancel the licence but “that’s not the application that was before your Honour”. The Magistrate was there assured that the matter was advanced under s 45 of the Local Court Act but that he was dealing with a matter which was within his power, namely “an offence”. The matter was re-listed on 10 October 2016, at which time the Magistrate either confirmed his earlier order under s 10(1)(a) of the Crimes (Sentencing Procedure) Act or made a fresh order under that section (nothing turns upon this distinction, although it may be queried whether the Magistrate had a power to replicate, as a fresh order, his earlier order under s 10(1)(a)) overall.

The grounds for appeal may be shortly stated:

The reasons for my decision in this matter are necessarily truncated having regard to the judgment being delivered ex parte when sitting as Duty Judge. They follow and will commence with a discussion of the relevant legislation.

Section 267 of the Road Transport Act provides that a person may appeal to the Local Court under Pt 7.8 of that Act against an “appealable decision” made in relation to a person by another person, by filing a notice for appeal with the Court. Appealable decisions are defined in s 266 (1) of the Road Transport Act. Section 266(1)(d) is in the following terms:

Section 40(1) of that Act is as follows:

That provision may be contrasted to s 36(4)(a) of the Road Transport Act which is expressed in the following terms:

Section 268 of the Road Transport Act provides that the Local Court is to hear and determine an appeal made to the Court under Pt 7.8.

Section 268(4) of the Road Transport Act provides:

As earlier noted, proceedings were commenced under Pt 4 of the Local Court Act. That Part is described as the “Special Jurisdiction” of the Local Court and relates to application proceedings. Pursuant to s 45 the proceedings under review commenced the filing of an Application Notice.

Section 44 of the Local Court Act provides as follows:

It must be acknowledged before proceeding further with these reasons that the Magistrate hearing this matter received very little assistance in the discharge of this matter and was in some respects invited to error.

It appears to me that both of the grounds relied upon by the applicant establish that the orders of the Court made by the Local Court on 12 September and 10 October 2016 under s 10(1)(a) of the Crimes (Sentencing Procedure) Act constitutes the jurisdictional errors by the Local Court exceeding its jurisdiction in the proceedings before that Court.

The proceedings before the Local Court constituted an appeal brought under s 267 of the Road Transport Act. That is clear from the application filed on 15 August 2016 and the application cover sheet from the Local Court records found as an attachment to the affidavit of Ms Swords.

The relief sought in the application was to challenge the penalty imposed upon the appellant for unlawfully proceeding through a red traffic light. The stated purpose for that action was to controvert or overcome the determination by the plaintiff to suspend the licence of the appellant under s 36 of the Road Transport Act.

If the suspension under s 36(4) of the Road Transport Act in fact constituted a decision, it was not an “appealable decision” under Pt 7.8 and, in particular, it was not an appealable decision for the purposes of s 266(1) of that Act (see in particular the limited scope for appeal in relation to licence suspension under s 266(1)(d)). In any event, I consider the plaintiff correct to submit that a suspension arising under s 36(4) does not constitute a decision by the plaintiff, as a suspension automatically arises or necessarily arises in consequence of the requirements of that provision; see by analogy in Road Transport Association of New South Wales v Wilson (2003) 58 NSWLR 240; [2003] NSWCA 279 at [13].

That difficulty no doubt resulted in the attack on the suspension under s 36(4) by means of the application being cast in terms of an appeal against the penalty arising from the traffic light offence. However such an approach is expressly precluded by the provisions of s 268(4)(b) of the Road Transport Act. That section provides that if the decision, that is appealed against was based on an offence committed, the appeal against the decision does not permit a review of the imposition of a penalty for the offence.

Whilst there is no direct evidence as to the offence, it is clear from the record of the proceedings before the Local Court and the accompanying applications (as well as the submissions of the plaintiff here today) that here there was a penalty imposed in consequence of a breach of r 59 of the Road Rules 2014 (NSW) which provides that, if traffic lights at an intersection are showing a red light, a driver must not enter the intersection (see the establishment of ‘Statutory rules’ under Ch 2 of the Road Transport Act and ‘Examples of statutory rule-making powers’ under Sch 1). It would appear that s 268(4) of the Road Transport Act was inserted to exclude, albeit in relation to an appeal against a suspension under s 40 of the Road Transport Act, a challenge to the underlying offence giving rise to additional demerit points then resulting in suspension.

The second ground concerns the exercise of a purported power by the Magistrate under s 10(1)(a) of the Crimes (Sentencing Procedure) Act. The plaintiff correctly contended that there was no charge before the Magistrate for the purposes of s 10(1)(a) which may have been dismissed under that provision. Further, the plaintiff pointed to the provisions of s 170 and s 172 of the Criminal Procedure Act 1996 (NSW) to contend that there was no Court Attendance Notice giving activation to the summary provisions of the Local Court Act which would have ignited powers of the Magistrate under s 10(1)(a). The proceedings were, it was correctly submitted, contrary to s 6(1) of the Criminal Procedure Act. The plaintiff contended that the absence of these procedures resulted in the proceedings, so far as they dealt with the offence, being invalid.

I do not propose to rule upon that latter contention as to invalidity as it is unnecessary to do so. The proceedings were initiated by the first defendant under the “special jurisdiction” of the Local Court under Pt 4 of the Local Court Act. The jurisdiction of the Local Court under those provisions is limited to any jurisdiction conferred on the Court or under any other Act or law under s 44. However, that section expressly removes the power of the Local Court to deal with criminal proceedings when exercising powers under that part (see s 44(a)). Insofar as the Local Court purported to deal with the traffic offence when dealing with application proceedings under Pt 4 of the Local Court Act it has exceeded its jurisdiction in consequence of the operation of s 44(a).

It appears to me therefore that there is a proper basis for the Court to make orders under s 69 of the Supreme Court Act insofar as the plaintiff sought an order in the nature of certiorari to set aside jurisdictional error.

Section 69 of that Act follows:

With respect to certiorari, reference may be made to the judgment of the High Court of Australia in Craig v State of South Australia (1995) 131 ALR 595; [1995] HCA 58 at 600-601:

Reference may also be made to Kirk v Industrial Relations Commission; Kirk Group Holdings v WorkCover Authority (2010) 239 CLR 531; [2010] HCA 1 at [71]-[73]:

Generally, I accept the further written submissions by Mr B Hearnden, solicitor, on behalf of the plaintiff, that the Local Court below disregarded the nature or limits of its jurisdiction, visa via the Special Jurisdiction conferred upon that court, for the following reasons:

On the face of the record, the judgment and orders of the Local Court demonstrated, for reasons given earlier in this judgment, jurisdictional error, by the Court below partly acting outside its general area of jurisdiction (in the orders made in application proceedings) and misconstruing the Local Court Act and Road Transport Act and, thereby, misconceiving the role or function of the Court in application proceedings.

The plaintiff is entitled to have the relief it seeks under s 69 of the Supreme Court Act. It was agreed by Mr B Hearnden that some refinement to the orders sought in the further amended summons may be desirable and, accordingly, I give leave to file short minutes of order in my chambers by 4pm on Monday next setting out the orders proposed. If the orders are in a suitable form I will propose to make the orders in terms in Chambers without further listing.