DAVID ALLEN MORRIS v ROADS AND TRAFFIC AUTHORITY; DEAN JAMES EVANS v ROADS AND TRAFFIC AUTHORITY; ROADS AND TRAFFIC AUTHORITY v DISTRICT COURT OF NEW SOUTH WALES and ORS SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL GLEESON CJ, NEWMAN and ABADEE JJ 25 October 1995, 1 February 1996 [1996] NSWCA 370 Administrative Law — Statutory appeals from administrative authorities to courts — jurisdiction of District Court — Justices Act 1902 (NSW), s122, MOTOR TRAFFIC ACT, s22(7). Procedure — stay of proceedings — Justices Act 1902, s122 and s125. DISTRICT COURT — JURISDICTION — APPEALS The Roads and Traffic Authority cancelled drivers' licences under the Motor Traffic Regulations. The licensees appealed unsuccessfully to the Local Court. They sought to appeal further to the District Court under s122 of the Justices Act — HELD — S122 did not cover the case and no further appeal lay to the District Court. DISTRICT COURT — JURISDICTION — STAY OF PROCEEDINGS — HELD — the District Court had no power to stay the orders of cancellation pending the resolution of the jurisdictional issue mentioned above. WORDS AND PHRASES — "punished". ORDERS Court of Criminal Appeal Questions in case stated answered as follows: "Q. Whether I was correct in law in finding that I had no jurisdiction to hear the appeals by reason of the terms of s122 of the Justices Act and/or s22(7) of the Traffic Act? A. Yes." Court of Appeal 1. Order the calling up from the District Court of New South Wales of the orders of his Honour Judge O' Reilly of 31 March 1995 purporting to stay orders cancelling the drivers' licences of David Allen Morris and Dean James Evans ("the Opponents"). 2. Order that the said orders referred to in (1) be quashed. 3. Order that the Opponents pay the costs of the proceedings in the Court of Appeal. Gleeson CJ JUDGMENT We have before us two sets of cases, both of which arise out of the same proceedings in the District Court. One matter, in the Court of Criminal Appeal, comes before that court by way of a case stated by O' Reilly DCJ. The other matter involves an application for an order in the nature of certiorari, quashing an order made by O'Reilly DCJ in the proceedings the subject of the stated case. We have heard both matters together, sitting as both the Court of Criminal Appeal and the Court of Appeal. In order to explain the issues that have arisen for determination, it is necessary to outline the nature of the proceedings before O'Reilly DCJ, and the manner in which he disposed of them. THE RELEVANT LEGISLATION AND REGULATIONS S6 of the Traffic Act 1909 requires that any person who drives a motor vehicle upon a public street must be licensed. A licence to drive, which is issued for a fixed term, may, during 2 UNREPORTED JUDGMENTS that term, be cancelled or suspended upon a variety of grounds, and in a variety of circumstances, provided for in the Act and in the regulations made under the Act. The Roads and Traffic Authority administers the licensing system. S3 of the Motor Traffic Act empowers the making of regulations with respect to the issue, duration, renewal, suspension and cancellation of licences. The Motor Traffic Regulations 1935 include the following provisions: 10(1) A licence or renewal of a licence shall not be granted to any person and any licence held by any person shall be cancelled if the Authority is of the opinion that: (a) having regard to such persons record as a driver of motor vehicles or his conduct or habits it would not be in the interests of public safety for him to hold a licence; (iii) any irresponsible conduct involving the use of motor vehicles, it would not be in the interest of the public for the person to hold the licence". The grounds referred to above apply equally to refusal to grant or review a licence and to cancellation of a licence. They include, but are not restricted to, conduct as a driver. The focal point for a determination whether to exercise the power to refuse to grant or renew, or to cancel, a licence, is the public interest, or the interests of public safety. S21 of the Traffic Act provides that, where the Authority decides to refuse to grant or renew a licence, or to cancel a licence, it must notify the person affected, giving reasons for its decision. S22 enables a person aggrieved by such a decision to appeal to a Local Court. It goes on to provide: DD eaeseeesceseeseeaeeeeseeetaeeeeeee (5) A Local Court shall hear and determine an appeal made to it under this section and may confirm (with or without variation) or disallow the decision appealed against, or make such other order in the circumstances as to the Court seems just. (6) For the purposes of varying under subs(5) a decision of the Authority the Court may exercise only such powers as the Authority could have exercised under this Act or the regulations when making that decision......... (7) The decision of a Local Court in respect of an appeal made under this section shall be final and shall be binding on the appellant and on the Authority". The other directly relevant piece of legislation is s122 of the Justices Act 1902. It provides as follows: "122(1) Every person who, for any offence, act, or omission, has, by the conviction or order of a Justice or Justices, founded on this or any other Act past or future, been adjudged to be imprisoned or otherwise punished, or to pay any fine or penalty, or to suffer any forfeiture, or to pay any sum of money (whether for costs or otherwise), every person who has, by the order of a Justice or Justices, been adjudged to pay any costs of a defendant, and every person who, under the provisions of any Act past or future, is entitled to appeal against any order of a Justice or Justices founded on such Act, may appeal to the District Court against such conviction or order, provided that a notice in writing stating his intention to appeal and the general grounds of such appeal is given by him or on his behalf to the clerk of the Court where the conviction or order was made, the clerk of any Local Court or the gaoler or officer by whom the person against whom the conviction or order was made is then held in custody within 21 days UWRYID ALLEN MORRIS v ROADS AND TRAFFIC AUTHORITY; DEAN JAMES EVANS 8 ROADS AND TRAFFIC AUTHORITY; ROADS AND TRAFFIC AUTHORITY v DISTRICT COURT OF NEW SOUTH WALES and ORS (Gleeson CJ) after the date on which the person is sentenced or the final order is made, or; where proceedings for relief under s112 have been commenced in respect of the conviction or order, within 7 days from the date on which the proceedings were determined; and the person who receives the notice shall forthwith forward to the registrar for the nearest proclaimed place and to the prosecutor or other party, and if the person who receives the notice is not the clerk of the Court where the conviction or order was made, to the clerk of the Court where the conviction or order was made, a copy of such notice". The principal issue that arises for determination is whether a person aggrieved by a decision to cancel a licence under Reg10(1)(a) or Reg10(1)(e)(iii), who has appealed unsuccessfully to a Local Court under s22 of the Traffic Act, may further appeal to the District Court under s122 of the Justices Act. That in turn depends, at least in part, upon whether such a person is a person "who, for any offence, act, or omission, has, by the... order of a Justice... been... punished". It also requires consideration of the effect of s22(7) of the Traffic Act. THE PROCEEDINGS BEFORE THE DISTRICT COURT We were told from the Bar table, by way of explanation of the background to this litigation, that Mr Morris and Mr Evans were alleged to have boasted, in an interview broadcast to the public, that they had driven through the Harbour Bridge Tunnel at very high speed. Whether that is true or not is immaterial to any decision we have to make. However, it appears that this is how the attention of the Authority was drawn to the two men. In May 1994, the Authority called upon the two to show cause why their driving licences should not be cancelled under reg1O(1)(a) and reg10(1)(e). In June 1994 the Authority cancelled their licences, on the ground of the licence-holders' driving habits and irresponsible use of a motor vehicle. Notice of such cancellation, and the grounds, was given, and each licensee was informed that an application for a new licence would not be considered for three years. The two licensees appealed to a Local Court. The appeal was heard in September 1994. The magistrate confirmed the Authority's decision to cancel the licences. (He also ordered, or purported to order, that the period of three years referred to above be reduced to one year. It has been unnecessary for us to go into the question of his power to do that.) More than two months later, in November 1994, the appellants lodged notices of appeal to the District Court under s122 of the Justices Act, together with applications for leave to appeal out of time. The Authority responded by filing, in the District Court, notices of motion seeking the dismissal of the applications for leave to appeal out of time. (Unless and until such leave was given, there were no appeals on foot.) The basis of those motions was that the District Court had no jurisdiction to entertain the proposed appeals. The appellants' applications for leave to appeal out of time, and the Authority's motions to dismiss the applications, came before O'Reilly DCJ. His Honour upheld the Authority's jurisdictional point, concluding that s122 of the Justices Act did not apply and that, in any event, s22(7) of the Traffic Act would preclude the proposed appeals. His Honour was then requested to state a case for the opinion of the Court of Criminal Appeal as to whether he was correct in law in finding that he had no jurisdiction to hear the proposed appeals. He did so. Pending the answer to the stated case, his Honour did not proceed to dismiss the applications for leave to appeal out of time and delayed making further orders. 4 UNREPORTED JUDGMENTS However, on the application of the appellants, he granted a stay, pending the hearing of the stated case, of the orders of the magistrate cancelling the appellants' licences. His Honour purported to do that under s125 of the Justices Act. The Authority contends that he had no power to do that, and its application to quash the stay order is the subject of the Court of Appeal proceedings. It is convenient to deal first with the issue as to the District Court's jurisdiction to entertain appeals from the magistrate (the subject of the stated case), and then to deal later with the issue as to Judge O'Reilly's power to grant a stay (the subject of the application to the Court of Appeal). THE JURISDICTION OF THE DISTRICT COURT TO ENTERTAIN AN APPEAL O'Reilly DCJ was correct to hold both that the cases did not fall within s122 of the Justices Act and, further, that, in any event, s22(7) of the Traffic Act meant that there was no right of appeal to the District Court. The meaning of s122 of the Justices Act has been considered in many cases (e.g. Ex parte Dwyer (1908) 8 SR (NSW) 329 R v Fraser [1977] 2 NSWLR 867, Ex parte Duffy re Automobile Advance Co (1958) 58 SR (NSW) 342, Dyke v Whittleton [1969] 2 NSWLR 494). The section has not been narrowly construed. Nevertheless, its width is confined by its language. Accepting that the appellants had been adversely affected by an order of a justice, there was no question of their having been adjudged to be imprisoned, or to pay any fine or penalty, or to suffer any forfeiture, or to pay any sum of money. It follows that their asserted right of appeal to the District Court depended upon a conclusion that they had, by the magistrate's order under s22(5) of the Traffic Act been punished for some offence, act or omission. The fact that any order of a magistrate may have serious adverse consequences for the person affected by it does not mean that the person is being punished for some offence, act or omission. For example, in R v Davis (1947) 64 WN (NSW) 149 it was held that a magistrate's order, under s3 of the Inebriates Act 1912 that a person be placed in an institution, did not give rise to a right of appeal under s122 of the Justices Act. When, pursuant to s22 of the Justices Act a magistrate hears and determines an appeal against a decision of the Authority to refuse to grant, or to cancel, a driver's licence upon one of the grounds which were relied upon in the present case, the considerations which the magistrate is obliged to take into account are identical with those which the Authority had been obliged to take into account. As the terms of the relevant regulations make clear, it is the safety of the public, or the public interest, which is the test to be applied by the Authority and, on appeal, by the magistrate. In cancelling, or declining to grant, a licence, the Authority is not engaged in a punitive exercise. There need be no element of personal fault involved. It may, for example, be proper to cancel a licence because of a person's medical condition. And in those cases where personal fault is involved, there may be no correspondence between the action that is dictated by a consideration of the public interest, and that which would be dictated by considerations of retribution. Recognising that there are circumstances in which the Authority's exercise of power under regl0 could never be described as involving any form of punishment, counsel was driven to argue that the question has to be determined on a case by case basis. On that approach, some appeals under s22 of the Traffic Act would carry a further right of appeal to the District Court and others would not. The answer to that argument is that the nature of the power being exercised by the Authority is the same in every case, even though there may be some cases UWRYID ALLEN MORRIS v ROADS AND TRAFFIC AUTHORITY; DEAN JAMES EVANS & ROADS AND TRAFFIC AUTHORITY; ROADS AND TRAFFIC AUTHORITY v DISTRICT COURT OF NEW SOUTH WALES and ORS (Gleeson CJ) where loss of, or failure to obtain, a licence is the consequence of some form of alleged misconduct. The role of the Authority is to act in the public interest, not to act as some kind of extrajudicial sentencing body. The Authority is part of the executive government, and even though the statute provides an appeal to a magistrate, its function under Reg10 is not the punishment of offenders; it is the protection of the public. In some cases, the protection of the public may require that offenders be kept off the road for a time, or permanently, but it is for the courts, not the executive government, to administer punishment. In addition to the impossibility of bringing the appeals within s122 of the Justices Act, the appellants were confronted with the terms of s22(7) of the Traffic Act. This was not a case in which the supervisory jurisdiction of the Supreme Court was being invoked on the ground of some excess of jurisdiction or denial of natural justice. This was an attempt to appeal on the merits, and by way of re-hearing, to the District Court. The case is very similar to Stinson v The Pharmacy Board of Queensland [1995] 1 QdR 567. The Court of Appeal of Queensland was concerned with the Pharmacy Act, which allowed a person whose application for registration as a pharmacist was refused by the Pharmacy Board to appeal to a judge of the District Court. The judge's decision was to be "final". It was held that the statute clearly intended to exclude any further right of appeal to the Supreme Court. The question was one as to the intention evinced by Parliament, and the word "final" was taken as a clear indication of an intention that there was to be no further appeal. (See also Farrant v Water Conservation and Irrigation Commission (1959) 59 SR (NSW) 283; Darling Casino Ltd v NSW Casino Control Authority, Court of Appeal, unreported, 8 November 1995.) I agree with the conclusion reached by O'Reilly DCJ, and would answer the question in the case stated as follows: "Q: Whether I was correct in law in finding that I had no jurisdiction to hear the appeals by reason of the terms of s122 of the Justices Act and/or s22(7) of the Traffic Act?. A. Yes". THE STAY OF PROCEEDINGS Although O'Reilly DCJ held that he had no jurisdiction to entertain the appeals which the appellants were seeking his leave to bring, (such leave being required because they were out of time), his Honour nevertheless made orders staying the cancellation of the appellants' licences pending the resolution, in the Court of Criminal Appeal, of the jurisdictional issues raised by his stated case. The Authority moves, in the Court of Appeal, to quash those orders. The scheme of the relevant provisions of the Justices Act is as follows. $122 (1) has been set out in full above. The time limits in it are material. $122 (1A) provides that if a person who is entitled to appeal under s122 (1) fails to give a notice of appeal within the prescribed time he may, within 3 months after the making of the relevant order, apply to the District Court for leave to appeal. S123 contains a number of presently irrelevant provisions concerning the granting of a stay to an appellant, pending the hearing of an appeal by the District Court. S124A deals with the powers of the District Court when dealing with an application for leave to appeal. It may, for example, grant the application for leave to appeal and forthwith hear and determine the appeal. O'Reilly DCJ did not exercise any of these powers, although he indicated that he intended to dismiss the application for leave to appeal. 6 UNREPORTED JUDGMENTS The power evidently relied upon by O'Reilly DCJ to stay the cancellation orders pending the decision on the stated case was that contained in s125. That section, so far as relevant, provides: "125.(1) The Court hearing an appeal under this Division shall determine the matter of every such appeal, and may adjourn the hearing thereof, and may by its order confirm, quash, set aside, vary, increase, or reduce, the conviction, order, sentence or adjudication appealed against, or make such other order in the matter; and as to costs to be paid to either party, including the Crown, as the Court seems just; and may in and by any such order, exercise any power which the Justice or Justices who made the conviction or order might have exercised, and any order so made shall have the same effect and shall be enforced in the same manner as if it had been made by such Justice or Justices". As counsel for the Authority correctly points out, there never was on foot any appeal of the kind referred to in s125. There were only two applications for leave to appeal. Furthermore, O'Reilly DCJ correctly declined to grant leave on the ground that he had no jurisdiction to hear appeals of the kind the appellants wished to bring. There was no statutory basis, either in s125 or in any of the other sections mentioned above, for the stay orders. They should be quashed. The Court of Appeal should make the following orders: 1. Order the calling up from the District Court of New South Wales of the orders of his Honour Judge O'Reilly of 31 March 1995, purporting to stay orders cancelling the drivers' licences of David Allen Morris and Dean James Evans ("the Opponents"). 2. Order that the said orders referred to in (1) be quashed. 3. Order that the Opponents pay the costs of the proceedings in the Court of Appeal. Newman J JUDGMENT I have had the opportunity of reading in draft the reasons of Gleeson CJ. I agree with both the reasons he gives and the orders he proposes. Abadee J JUDGMENT I have had the advantage of reading the reasons published by the Chief Justice and I agree with both his reasons and the orders he proposes. Court of Criminal Appeal Questions in case stated answered as follows: "Q. Whether I was correct in law in finding that I had no jurisdiction to hear the appeals by reason of the terms of s122 of the Justices Act and/or s22(7) of the Traffic Act? A. Yes." Court of Appeal 1. Order the calling up from the District Court of New South Wales of the orders of his Honour Judge O'Reilly of 31 March 1995 purporting to stay orders cancelling the drivers' licences of David Allen Morris and Dean James Evans ("the Opponents"). 2. Order that the said orders referred to in (1) be quashed. Order that the Opponents pay the costs of the proceedings in the Court of Appeal. » Counsel for Morris and Evans: BHK Donovan QC Solicitors for Morris and Evans: Maurice Marshan WRAID ALLEN MORRIS v ROADS AND TRAFFIC AUTHORITY; DEAN JAMES EVANS ¥ ROADS AND TRAFFIC AUTHORITY; ROADS AND TRAFFIC AUTHORITY v DISTRICT COURT OF NEW SOUTH WALES and ORS (Abadee J) Council for RTA: IG Harrison Solicitors for RTA: Hunt and Hunt 5 Solicitors for District Court: IV Knight, Crown Solicitor