New South Wales Supreme Court CITATION : RTA v Castrodes & Anor [2003] NSWSC 990 HEARING DATE(S) : 28 October 2003 JUDGMENT DATE : 3 November 2003 JURISDICTION: Common Law JUDGMENT OF : Master Harrison DECISION : (1) The appeal is upheld; (2) The decision of Magistrate Reimer dated 17 July 2003 is quashed; (3) The first defendant is to pay the plaintiff's costs; (4) The first defendant is to have a Certificate under the Suitors' Fund Act, if appropriate. CATCHWORDS : Appeal decision of Local Court Magistrate - suspension of driving licence Road Transport (General) Regulation 1999 LEGISLATION CITED : Supreme Court Act - s 69 Suitors' Fund Act CASES CITED : R v Electricity Cmrs; Ex Parte London Electricity Joint Committee Co Ltd [1924] 1 KB 171 Road and Traffic Authority (Plaintiff) PARTIES : Reynaldo Castrodes (First Defendant) The Magistrate Local Court, Kyogle (Second Defendant) FILE NUMBER(S) : SC 11830/2003 COUNSEL : N/A Mr B Hearnden Hunt & Hunt (Plaintiff) SOLICITORS : No Appearance (First Defendant) Submitting Appearance (Second Defendant) LOWER COURT Local Court JURISDICTION : LOWER COURT N/A FILE NUMBER(S) : LOWER COURT Reimer LCM JUDICIAL OFFICER : IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION MASTER HARRISON MONDAY, 3 NOVEMBER 2003 11830/2003 - ROADS AND TRAFFIC AUTHORITY v REYNALDO CASTRODES & ANOR JUDGMENT (Appeal decision of LCM – suspension of driving licence) 1 MASTER: By summons filed 23 July 2003 the plaintiff seeks firstly, an order in the nature of certiorari quashing each of the determinations of Magistrate Reimer dated 17 July 2003 that he had jurisdiction to hear and determine the appeal lodged on 5 June 2003 against the plaintiff's suspension of the first defendant's licence No 1384 7801, with effect from 10 March 2003, and disallowing that suspension of the plaintiff's licence; and secondly, that the Local Court appeal be dismissed for want of jurisdiction. The plaintiff is the Roads and Traffic Authority (RTA). The first defendant is Reynaldo Castrodes. The third defendant is the Magistrate, Local Court of Kyogle. The plaintiff relied on the affidavit of Brett Kenneth Hearnden sworn 22 July 2003, Stephen Geoffrey Colman sworn 30 July 2003 and Lillian Elias sworn 25 August 2003. There was no appearance of the first defendant at this hearing. The second defendant has filed a submitting appearance. The list judge referred this matter to a Master for hearing. 2 The first defendant appealed against the RTA's decision to suspend his driving licence. The Magistrate upheld the appeal. The plaintiff relied on s 69 of the Supreme Court Act 1970. Section 69 states that the Court has jurisdiction to grant any relief or remedy in the nature of a writ of certiorari includes jurisdiction to quash the ultimate determination of a court or tribunal in any proceedings if that determination has been made on the basis of an error of law that appears on the face of the record of the proceedings. 3 In accordance with the general test of Lord Atkin in R v Electricity Cmrs; Ex Parte London Electricity Joint Committee Co Ltd [1924] 1 KB 171, at 205, certiorari is available where ever any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority. 4 On 6 December 2002, the first defendant was a driver of a motor vehicle which was on the incorrect side of the road when it collided with another vehicle travelling in the opposite direction. As a result of the accident the first defendant was charged with negligent driving occasioning grievous bodily harm. 5 On 28 February 2003, the manger of the Medical Unit of the RTA advised the first defendant that it considered that he was not medically fit to safely drive a motor vehicle and that his licence was to be suspended. The grounds upon which he was said to be medically unfit were that he was not a fit and proper person to continue to hold a driver's licence, given that while driving a motor vehicle on 6 December 2002 it was reported that he occasioned grievous bodily harm to some other person as a result of having become incapable of controlling the motor vehicle. 6 On 10 March 2003, the first defendant's licence was suspended. On 15 May 2003, the charges were heard at Kyogle Local Court by Magistrate Linden who dismissed the charges. On 18 March 2003 the first defendant surrendered his licence (see Ex A). The first defendant does not currently hold a valid driver's licence. 7 On 17 July 2003, on the basis that the charges had been dismissed, the first defendant appealed to the Local Court to have the suspension of his licence cancelled. The only evidence that the plaintiff produced at the hearing was a reference from his employer. The matter was heard by Reimer LCM who allowed the appeal. 8 The relevant part of Regulation 6 of the Road Transport (General) Regulation 1999 provides that: "(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) a decision not to take into account some or all of the period the person has held a licence to drive a motor vehicle in another country under clause 8(3) of the Road Transport (Driver Licensing) Regulation 1999 , (b) a decision not to grant an application for the issue, variation or renewal of a driver licence under the Road Transport (Driver Licensing) Regulation 1999 , (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. … (4) Notice of any such appeal specifying the grounds of the appeal must be lodged with the clerk of the Local Court to which the appeal is being made not later than 28 days after the date on which the appellant was notified pursuant to clause 5. … (7) A Local Court must hear and determine an appeal made to it under this clause any 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. (7A) A local Court may only allow an appeal against a decision to suspend a person's driver licence under the Road Transport (Driver Licensing) Regulation 1999 on the grounds referred to in clause 39(1A) of that Regulation if the Court is satisfied: (a) that there is nothing in the person's medical condition to suggest that the person is, or will again become, incapable of controlling a motor vehicle, and (b) that the incident that led to the suspension of the licence: (i) was caused by something other than the person's medical condition at the time, or (ii) was caused by the person's medical condition at that time, being a condition to which the person is no longer subject. (7B) The fact that a person has been acquitted of an offence arising out of the incident that led to the suspension of the person's driver licence, following the person's allegation that the incident was caused by the person's medical condition at that time, is irrelevant to the Local Court's consideration of the matters referred to in subclause (7A)(b)." 9 The Magistrate's reasons are as follows: "Well, it relates only to and I don't know, there's no evidence before me as to what the defence was in relation to the matter other than I am told that the matter was dismissed on the basis that he fell asleep but the, in following Sir Garfield Barwick's decision in Jiminez apparently, but this relates to an identifiable medical condition, and I don't know, there's no evidence before me about an identifiable medical condition. The fact that a person has been acquitted out of an offence arising out of the incident that led to the suspension of the person's driver's licence following the person's allegation that the incident was caused by the person's medical condition. Everybody has a medical condition sometime during the night when they fall asleep. It's not a medical condition, it's a fact of life. I would have thought. There is no evidence here about any medical condition." 10 The plaintiff submitted firstly that the Magistrate had no power to extend the time period for the first defendant to appeal the licence suspension notified to him by letter dated 26 February 2003, and thus no jurisdiction to entertain the appeal commenced on 5 June 2003. The plaintiff alternatively submitted that there was no evidence before the Magistrate as to the first defendant's medical condition as at 17 July 2003, or otherwise, and in the circumstances it was not open to the Magistrate to be satisfied in the terms required by either clause 6(7A)(a) or (b). 11 The relevant legislation does not provide for an extension of the time in which to appeal. Understandably the first defendant waited until the outcome of his charges was determined before he lodged his appeal but this occurred well outside the 29 day period provided for by Regulation 6(4). Clause 7 stipulates what types of orders the Magistrate may make when he or she hears or determines the appeal. In my view it does not empower the Magistrate to extend the time to lodge an appeal. 12 Secondly, the Magistrate held that there was no evidence about any medical condition. The onus lies on the plaintiff to satisfy clause 7A. The first defendant did not give evidence. 13 The appeal is upheld. The decision of the Magistrate dated 17 July 2003 is quashed. 14 Costs are discretionary. Normally costs follow the event. The first defendant is to pay the plaintiff's costs. The first defendant is to have a Certificate under the Suitors' Fund Act 1951, if appropriate. The Court orders: (1) The appeal is upheld. (2) The decision of Magistrate Reimer dated 17 July 2003 is quashed. (3) The first defendant is to pay the plaintiff's costs. (4) The first defendant is to have a Certificate under the Suitors' Fund Act , if appropriate. ********** Last Modified: 11/11/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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