Reported Decision : 63 NSWLR 596 New South Wales Supreme Court CITATION : ROADS & TRAFFIC AUTHORITY v. WOOD [2005] NSWSC 554 HEARING DATE(S) : Monday 23 May 2005 JUDGMENT DATE : 23 June 2005 JURISDICTION : Common Law JUDGMENT OF : Hall J at 1 DECISION : The order the Local Court made at Burwood on 28 February 2005 dismissing the proceedings commenced by the Court Attendance Notice filed by the plaintiff against the defendant on 13 July 2004 be set aside; that the Local Court at Burwood resume the hearing of the proceedings commenced by the filing of the Court Attendance Notice referred to above and to determine them according to law; no order as to costs. CATCHWORDS : Statutory interpretation - transitional provisions - summons - court attendance notice - issue and filing of court attendance notice - "any act, matter or thing" - "a thing" - "an expression" - corresponding provision Justices Act 1902 Justices Legislation (Repeal & Amendment) Act 2001 LEGISLATION CITED : Criminal Procedure Act 1986 Road Transport (General) Act 1999 Criminal Procedure Amendment (Justices & Local Courts) Act 2001 Mellor v. ACR Trading Pty. Limited (unreported, James, J. 13 June 1991) CASES CITED : Young v. Kenny (unreported, Abadee, J., 4 September 1992) Makucha v. Council of the Shire of Albert (Court of Appeal, unreported 101/91, May 1992) ROADS & TRAFFIC AUTHORITY PARTIES : v. WOOD, David Alan FILE NUMBER(S) : SC 11101/2005 Plaintiff: T. Lynch COUNSEL : Defendant: --- Plaintiff: Hunt & Hunt SOLICITORS : Defendant: --- LOWER COURT JURISDICTION : Local Court LOWER COURT JUDICIAL OFFICER : Pierce, SM IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION HALL, J. THURSDAY 23 JUNE 2005 No. 11101 of 2005 ROADS & TRAFFIC AUTHORITY v. DAVID ALAN WOOD JUDGMENT 1 HALL, J: The plaintiff, Roads & Traffic Authority, proceeds by way of summons filed on 24 March 2005 and seeks orders in respect of the decision and order of the Local Court at Burwood (his Honour Mr. Pierce, SM.) which order dismissed proceedings commenced in the Local Court by a Court Attendance Notice filed on behalf of the plaintiff against the defendant on 13 July 2004. The plaintiff Authority seeks that that order be set aside and a further order be made that the Local Court resume the hearing of the proceedings. 2 On the hearing of these proceedings on Monday 23 May 2005, there was no appearance by the defendant or by a legal representative on his behalf. 3 The summons raises a question of statutory interpretation which arises as a consequence of the repeal, with effect from 7 July 2003, of the Justices Act 1902 by the Justice Legislation (Repeal Amendment) Act 2001. The issue raises the question as to whether the proceedings were validly commenced by the Court Attendance Notice having regard to the provisions of the relevant legislation. Outline of legislative provisions 4 Under the Justices Act 1902, proceedings for an offence were commenced by the laying of an information (s.52) upon which a justice might, inter alia, issue a summons which, upon service, required a defendant's attendance at court: s.60, Justices Act 1902. 5 Since 7 July 2003, the corresponding procedure is governed by the amending provisions to the Criminal Procedure Act 1986. That procedure is to be found in the Act (ss.172 and following), the prescribed procedure being the issuing, filing and service of a "Court Attendance Notice": s.177, Criminal Procedure Act 1986. See also Clause 38, Schedule 2 to the Criminal Procedure Act 1986. 6 The relevant provisions of the Road Transport (General) Act 1999 (s.43) deal with the liability of persons who are responsible for a vehicle for designated offences. The relevant offence for the purpose of these proceedings is what is defined as a camera recorded offence which is defined in s.43(11)(c) of that Act as including:- "(c) A speeding offence in respect of which the penalty notice or the summons indicates that the offence was detected by an approved speed measuring device and recorded by an approved camera recording device (within the meaning of the Road Transport (Safety in Traffic Management) Act 1999. " 7 A "designated offence" is defined in s.43(11) of that Act as including a "camera recorded offence". 8 The offence involved in the proceedings before the Local Court concern the defendant, Mr. David Alan Wood. The Court Attendance Notice issued to him indicated that the offence was "… a camera recorded speeding offence – exceed speed 15 kph and detected by an approved speed measuring device …". 9 Schedule 2, Savings, Transitional and other Provisions, to the Criminal Procedure Act 1986, contains (in Part 7 of the Schedule) provisions consequent upon the enactment of the Criminal Procedure Amendment (Justices & Local Courts ) Act 2001 and Justices Legislation (Repeal & Amendment) Act 2001. Clause 29 entitled, Construction of Certain References, provides:- "(1) Accept as provided by this clause, a reference in any other Act or instrument:- … (c) to any act, matter or thing referred to in a repeal provision or a renumbered provision extends to the corresponding act, matter or thing and referred to in the corresponding provision of the amended Criminal Procedure Act or amended Local Courts Act." (emphasis added) 10 Part 7 of the Schedule also contains Clause 38 which, in part, states:- Translation of old references to new references "References in an Act (other than this Act), in any instrument made under an Act or in any other instrument, to an expression listed in Column 1 of the Table to this clause are taken to be references to the expression listed next to that expression in Column 2 of the Table." 11 The Table forming part of Clause 38 then lists under the headings respectively "old expression" and "new expression", a total of 10 references. These include under "old expression", "Justices in Petty Sessions" corresponding to which (under the heading "new expression") appears the words "Local Court". Similarly, under Column 1, the expression or reference "laying an information for an offence if the reference is to an offence required to be dealt with by a Local Court" has a corresponding entry under the new expression in Column 2, namely, "Issuing and filing a Court Attendance Notice". 12 It can be seen that both Clauses 29 and 38 refer to "references". Clause 29(1)(c) provides that "any act, matter or thing" referred to in the repealed provision "… extends to" the corresponding act, matter or thing, whereas Clause 38 speaks in terms of the "translation" of "expressions" which, by a deeming-type provision, are taken to be references to the expression listed next to that expression in Column 2 of the Table". 13 The question which fell for determination in the Local Court and in the present proceedings before this Court is whether the reference to "the summons" in s.43(11)(c) can, in effect, be read as now referring to a Court Attendance Notice by operation of the abovementioned transitional provisions. The plaintiff Authority argued that "the summons" referred to in s.43(11)(c) is a matter or thing for the purposes of Clause 29(1)(c). In other words, is the reference in s.43(11)(c) to "the summons", to now be taken as a reference to a Court Attendance Notice being a "matter or thing" referred to in the relevant repealed provision of the Justice Act 1902? 14 Clause 29 and Clause 38 are intended to operate, inter alia, with respect to references in other legislation so that the new provisions under the amended Criminal Procedure Act apply to the operation of such legislative references. Clause 29 separately applies to both "a repealed provision" (see Clause 29(1)(a) and (b)) and also to "any act, matter or thing referred to in a repeal provision …". 15 On the other hand, Clause 38 deals with references to "an expression" in such legislation rather than specifically to repealed provisions. Those expressions are set out in Column 1. Expressions set out in Column 1 of the Table include the doing of certain acts such as "laying an information" or "making a complaint" or "issue of an attendance notice". 16 I will return to the interpretation and operation of Clauses 29 and 38 below. 17 It is sufficient here to observe that the learned Magistrate considered that Clause 38 of Schedule 2 was the more relevant of the two clauses. The magistrate's decision 18 The decision of the learned magistrate is contained in the transcript of proceedings of 28 February 2005. There is reference within it to one of the perceived "difficulties" with the argument put on behalf of the Authority, namely that the reference to the word "thing" in clause 29(1)(c) was "general in nature" and was "too wide to appropriately catch the difficulty that exists in that there is now no longer a summons" (p.5). 19 The learned magistrate also observed that whilst, in accordance with Clause 29(2), regulations may be enacted, there has been no regulation dealing with the point in question. His Honour stated that Clause 29 was "not the most relevant clause but rather Clause 38". His Honour correctly observed that the reference in the Table, Column 1 of Clause 38(2) "issue and filing of Court Attendance Notice", was a reference to a process or an action and was not the same thing as reading "Court Attendance Notice" for the word summons in legislation such as s.43 of the Road Transport (General) Act 1999. The following passage is taken from the ex tempore judgment which the learned magistrate gave):- "… the result, in my view, is that s.43 of the Road Transport (General) Act, particularly in sub-section (11) read with sub-section (1) simply provides … a matter of almost a jurisdictional thing, it provides in effect that there is no offence as against the registered owner unless the magic words, that is approved radar and what not are being used, appear in a Summons or a penalty notice. They don't appear in a Summons, you can't read CAN or Summons contrary to the submissions that were put in by the RTA in my view. … I repeat, provisions which make a person who is not the actual offender liable, should be strictly complied with and any ambiguity should be resolved as against the person seeking to rely upon it contra proferentem." 20 In the proceedings before me, the plaintiff, the RTA, has submitted that the Local Court erred in finding that a summons was not a "thing" or alternatively a "matter" for the purposes of Schedule 2, Clause 29(1)(c) of the Criminal Procedure Act 1986. The Authority contended that by virtue of the provisions of Clause 29(1)(c) the term "the summons" referred to in s.43(11) of the Road Transport (General) Act 1999 now extends to a "Court Attendance Notice". Determination 21 The interpretation and operation of the provisions of Schedule 2 – Savings, Transitional and Other Provisions to the Criminal Procedure Act 1986 – contain comprehensive provisions dealing with the repeal of provisions of the Justice Act 1902 and the amendments to the Criminal Procedure Act 1986. In Part 1, regulations may be made and these which may include provisions of a savings or transitional nature consequent on the enactments referred to in Part 1, Regulation 1(1), paragraph 2. 22 Part 7 is specifically directed to consequential provisions by reason of the enactment of the Criminal Procedure Amendment (Justices & Local Courts) Act 2001 and the Justices Legislation (Repeal & Amendment) Act 2001. In this context, Clauses 29 and 38 are intended to serve the same purpose, namely, to ensure that references in the previous legislation are effectively picked up by the new provisions. 23 Clause 29 deals with references to repealed provisions or to "any act, matter or thing" referred to in such repealed provisions, whereas Clause 38 does not in terms deal with repealed provisions or "acts, matters or things" referred to in them but to "an expression" in other State Acts, being the expressions listed in Column 1 to the Table. 24 There is a distinction between a document in the nature of originating process, be it a Statement of Claim, a Summons or a Court Attendance Notice and the actions, processes and/or procedures of filing or issuing such originating process. Clause 38 of Schedule 2 applies to the latter. 25 In the context of s.43(11)(c), the phrase "the summons" is plainly a reference to a document having an understood meaning and function. In Mellor v. ACR Trading Pty. Limited (unreported 13 June 1991), the Supreme Court (James, J.) addressed the distinction between an information and a summons. The Court accepted that the laying of an information before a justice, not the subsequent issuing of a summons by that justice, was essential to the jurisdiction of a magistrate to try the offence charged in the information:- "… the issue of the summons is merely machinery to give the defendant notice of the proceedings and to get him before the Court. This was the position at common law and remains the position under the Justices Act. These submissions are supported by the judgment of Jordan, CJ. on behalf of the Full Court in Ex parte Walker: re Goodfellow (1944) 45 SR 103 at 106-107. See also Electronic Rentals Pty. Limited v. Anderson (1970-1971) 124 CLR 27 at 40-41." 26 See also Young v. Kenny (unreported, Abadee, J. 4 September 1992) at p.2). 27 The expression "summons" has been defined as "the process by which a proceeding is commenced or by which (generally a step therein is taken, eg., a chamber summons, a county court summons, a magistrate's summons": Stroud's Judicial Dictionary of Words and Phrases, 6th ed. Greenberg & Millbrook, Sweet & Maxwell (2000) and as "formerly a document issued from the office of a court of justice, calling upon the person to whom it is directed to attend before a judge or officer of the court": Concise Law Dictionary, 9th ed., S. Bone, Sweet & Maxwell (2001). A summons, accordingly, is a notice of proceedings and is an authoritative document which requires the attendance of the person summoned to attend before the court on the specified date, time and place. 28 The reference to the summons in s.43(11)(c) is a reference to a document of the nature described in the preceding paragraph and is, I believe, relevantly, a "thing" as referred to in Clause 29(1)(c) of Schedule 2 to the Criminal Procedure Act 1986. 29 This interpretation is consistent with the application of similarly statutory provisions, which were the subject of decision in Makucha v. Council of the Shire of Albert (Court of Appeal, No. 101/91, unreported BC 9203222, May 1992). There, the Supreme Court of Queensland, Court of Appeal, held that applications for re-zoning were acts, matters or things to be undertaken with respect to a planning scheme. On that basis, the Planning and Environment Court in that case accordingly had jurisdiction. The relevant provision there considered provided: - "The Court has jurisdiction to hear and determine proceedings for a declaration in respect of:- … (b) any act, matter or thing to be undertaken in respect of the planning, scheme or the use of land; …" 30 Applications for re-zoning were then matters or things within the meaning of that provision. 31 Similarly, a summons under the Justices Act 1902, which indicates an alleged offence detected by an approved speed measuring device could be said to be a matter or thing referred to in the repealed provision and accordingly fall within the meaning of Clause 29(1)(c) of Schedule 2. Accordingly, a reference to the summons in s.43(11)(c) of the Act in question extends to the corresponding document that indicates the "camera recorded offence", namely a Court Attendance Notice. 32 On the correct construction of the transitional provisions in issue, I am of the opinion that the learned Magistrate was in error in failing to so find. 33 I accordingly make the following orders:- 1. That the order the Local Court made at Burwood on 28 February 2005 dismissing the proceedings commenced by the Court Attendance Notice filed by the plaintiff against the defendant on 13 July 2004 be set aside. 2. That the Local Court at Burwood resume the hearing of the proceedings commenced by the filing of the Court Attendance Notice referred to in one above and to determine them according to law. 34 The plaintiff did not seek an order for costs. I accordingly make no order as to costs. ********** 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. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.