RTA v Hillyard & Anor [2002] NSWSC 213

New South Wales Supreme Court

CITATION : RTA v Hillyard & Anor [2002] NSWSC 213 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 10279/02 HEARING DATE(S) : Monday 18 March 2002 JUDGMENT DATE : 25 March 2002

PARTIES : New South Wales Roads & Traffic Authority v Craig Hillyard and Magistrate North Sydney Local Court (Peter Norton LCM) JUDGMENT OF : Michael Grove J at 1

LOWER COURT Local Court JURISDICTION : LOWER COURT 00026796/01/148 FILE NUMBER(S) : LOWER COURT Mr Peter Norton LCM JUDICIAL OFFICER :

Miss R. Henderson (Plaintiff) COUNSEL : In Person (First Defendant) Submitting Appearance (Second Defendant) SOLICITORS : Hunt & Hunt (Plaintiff) CATCHWORDS : ROAD TRAFFIC - DRIVER LICENCE - SUSPENSION BY REASON OF ACCUMULATED DEMERIT POINTS - APPEAL TO LOCAL COURT - CERTIORARI - NO ERROR BY MAGISTRATE APPARENT ON RECORD OR OTHERWISE s69 Supreme Court Act Road Transport (General) Regulation 1999 LEGISLATION CITED : Road Transport (Driver Licensing) Act 1998 Crimes (Sentencing Procedure) Act 1999 Road Transport (General) Act 1999 DECISION : SUMMONS DISMISSED

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

MICHAEL GROVE J

Monday 25 March 2002

10279/02 - NEW SOUTH WALES ROADS & TRAFFIC AUTHORITY v CRAIG HILLYARD and MAGISTRATE OF THE NORTH SYDNEY LOCAL COURT(PETER NORTON, LCM)

JUDGMENT 1 HIS HONOUR: The plaintiff, New South Wales Roads & Traffic Authority (RTA) seeks an order in the nature of certiorari pursuant to s69 of the Supreme Court Act bringing up the proceedings and quashing an order made by the second defendant, the presiding magistrate at the North Sydney Local Court on 5 December 2001. 2 The first defendant was an appellant seeking relief in relation to the suspension of his driving licence by invoking jurisdiction vested and specified in clause 6(1)(c) of the Road Transport (General) Regulation 1999 namely: " Appeals to Local Court 6 (1) An affected person may appeal to a Local Court constituted by a Magistrate sitting alone against any of the following decisions of the Authority: (a) ……………. (b) ……………. (c) a decision to vary, suspend or cancel the person's driver licence under the Road Transport (Driver Licensing) Act 1998 or the Road Transport (Driver Licensing) Regulation 1999." 3 The clause also contains provision: "(7) A Local Court must hear and determine an appeal made to it under this clause 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. " 4 I should set out some background. On 4 October 2001 the RTA (by one of its officers) notified the first defendant that his licence would be suspended for three months on and from 8 November 2001 by reason of his having incurred demerit points under the scheme established under the Road Transport (Driver Licensing) Act 1998. Some structure was provided by s16 of that Act which specified that the incurring of twelve to fifteen demerit points in a three year period from the day upon which the last of a demerits points earning offence was committed, would result in suspension for three months. Longer periods of suspension were provided for greater point accumulation. 5 The relevant offences of the first defendant were tabulated in the notice which he received and they totalled thirteen points which were incurred for offences between 6 April 1999 and 19 February 2001. The last offence was described as "disobey traffic lights - camera detected" and it added three points. Had these demerit points not been incurred the first defendant's total would have remained below the suspension threshold of twelve points. 6 After hearing in North Sydney Local Court the second defendant allowed the appeal and quashed the order for suspension. That suspension was described as mandatory in a written submission and advanced by the RTA by reference to s16(2) of the Road Transport (Driver Licensing) Act 1998 but it was not suggested that the magistrate lacked jurisdiction to allow the appeal and quash the order made by the RTA. 7 A transcript of the hearing below was admitted by consent of the first defendant who has appeared in person both at the hearings in the Local Court and before this Court. The second defendant filed a submitting appearance in the usual form. 8 The transcript reveals, apparently by coincidence, that the same magistrate had dealt with the final offence (of 19 February 2001) which "triggered" the suspension. When that offence was before the Court it was found proved but dismissed pursuant to s10 of the Crimes (Sentencing Procedure) Act 1999. It was not disputed that dismissal under that provision did not avoid the accrual of demerit points in respect of the offence which had been found proved. 9 After some discussion the first defendant was sworn to give evidence and the magistrate asked him to refresh his memory about why the dismissal under s10 had been ordered. He said that he had been in Cairns at the time of the offence and was unable to identify the driver as he had "four different people driving" at the time. The first defendant conducted a courier business. The transcript recorded not only evidence but exchanges between the Bench, the first defendant and the representative of the RTA. There was mention of the accrual of points (for the offence then before the Court) and his Worship said "I appreciate he didn't nominate the driver". 10 I gather this was a reference to s43(4) of the Road Transport (General) Act 1999: "(4) Duty to inform if person not driver of vehicle committing camera-detected traffic light offence or camera-recorded speeding offence. A person who: (a) is served with a penalty notice or a summons in respect of a camera-detected traffic light offence or camera-recorded speeding offence; and (b) was not the driver of the vehicle to which the offence relates at the time the offence occurred, must, within 21 days after service of the notice or summons, supply by statutory declaration to the authorised officer under section 15 (in the case of a notice) or the informant (in the case of a summons) the name and address of the person who was in charge of the vehicle at the time the offence occurred. " 11 An exception is given possible account by s43(1): "43. (1) Responsible person for vehicle taken to have committed designated offences. If a designated offence occurs in relation to any registrable vehicle, the person who at the time of the occurrence of the offence is the responsible person for the vehicle is taken to be guilty of an offence under the provision concerned in all respects as if the responsible person were the actual offender guilty of the designated offence unless: (a) in any case where such an offence is dealt with under Division 1 – the person satisfies the authorised officer under section 15 that the vehicle was at the relevant time a stolen vehicle or a vehicle illegally taken or used; or (b) in any other case – the court hearing the proceedings for the offence is satisfied that the vehicle was at the relevant time a stolen vehicle or a vehicle illegally taken or used. " 12 In a written submission on behalf of RTA it was contended that the first defendant could have avoided the consequence (of the offence being proved) by demonstrating "reasonable diligence". Counsel at the hearing (who did not prepare the written submission) drew attention to the appearance of that phrase in s43(3) but it was acknowledged, as must necessarily be the case, that that sub-provision is limited to parking offences. 13 To the extent that counsel drew attention to various provisions in the maze of legislation and regulation, it appears that, other than in respect of a parking offence, the "responsible person in relation to any registrable vehicle" is taken to have committed a designated offence (of which it was assumed that disobeying traffic lights was one) unless the vehicle is shown to have been stolen or unlawfully used. See s43(1). I have presumed that my attention has been drawn to any provision relevant to the determination of the appeal. 14 It is reasonable to infer that if a person was in a position to fulfil the duty specified in s43(4) by supplying the name and address of the person in charge of the vehicle, proceedings might be brought against that nominated person and, presumably as a matter of prosecutorial discretion no proceedings brought against the "responsible person". Nevertheless, such a prosecutorial election would not seem to affect the limiting expression in s43(1). 15 As I have said, I have been sketching some background. The legal error sought to be attributed to the magistrate is his supposed acting in contravention of clause 6(3) of Schedule 2 of the Road Transport (General) Regulation 1999: " Appeals to Local Court 6. (1) …………………. (2) …………………. (3) Despite any other provision of this clause, an appeal under this clause does not permit review of: (a) the guilt or innocence of the person concerned; or (b) the imposition of a penalty or the level of a penalty imposed on the person concerned. " 16 It was submitted that the enquiry by the magistrate of the reason for the dismissal pursuant to s10 of the Crimes (Sentencing Procedure) Act and the observation that the first defendant had apparently not demonstrated "reasonable diligence" showed that the provision had not been observed. 17 I do not consider that such is demonstrated. The magistrate at no time challenged the validity of the finding of guilt or the penalty imposed in respect of the offence of 19 February 2001. He simply sought information as to the circumstances which had led to the orders and that is obviously quite a different matter. The prohibition is against review of guilt or penalty but there is no prohibition against the acquisition of appropriate information about the circumstances of the offence and that imposition of penalty. 18 I am conscious that the transcript shows that the learned magistrate expressed criticism about the fairness of attaching demerit points when an offence has been dismissed pursuant to s10 but there is no basis for concluding that he defied the statute, on the contrary, he recognized its authority expressly when he said "I should have the power not to award points but that has been taken from me." 19 As the matter attracted some attention I should mention that a submission by the RTA that "the only possible drivers were Mr Hillyard's employees" does not accord with the evidence, which was no more than earlier set out and left open the status of the four drivers who may have been employees and equally may have been contractors, subcontractors or even perhaps friends volunteering their services whilst the first defendant was in North Queensland. No doubt he should be taken to be capable of identifying the four, but he had no power necessarily to compel a confession from anyone that he or she was the offending driver. 20 The face of the record manifests no legal error by the magistrate and he was expressly empowered to make such order as in the circumstances he thought to be just: see clause 6(7) supra. 21 The summons is dismissed with costs.