New South Wales Supreme Court CITATION : BROWN v. RTA [2004] NSWSC 494 HEARING DATE(S) : 19/04/04; 29/04/04 JUDGMENT DATE : 29 April 2004 JURISDICTION: Common Law JUDGMENT OF : Greg James J at 1 DECISION : Summons dismissed; no order for costs either of the summons or on the motion. CATCHWORDS : Traffic law - summons for declaration of entitlement under driver points suspension scheme - suspension automatic effect of loss of points - no acquired right of immunity preventing suspension effect - no power to stay suspension by consent or order of court. Road Transport (Driver Licence) Amendment (Demerit Points) Regulation 2002 Road Transport (Driver Licence) Act 1998 LEGISLATION CITED : Road Transport (Driver Licence) Regulation 1999 Interpretation Act 1987 Landlord & Tenant (Amendment) Act 1948 RTA v. Wilson [2003] NSWCA 279 RTA v. Weir [2004] NSWSC 154 Matheson v. Burton (1990) 170 CLR 1 CASES CITED : Whan v. McConaghy (1984) 153 CLR 631 Wilde & Anor v. Australian Trade Equipment Co. Pty. Limited (1981) 145 CLR 590 NSWCC v. Chen & Ors (Howie, J., unreported 4 May 2001) Logwon Pty. Limited v. Warringah Shire Council (1993) 33 NSWLR 13 PARTIES : BROWN, Leigh Robert v. ROADS & TRAFFIC AUTHORITY FILE NUMBER(S) : SC No. 30116 of 2003 COUNSEL : Plaintiff: J. Griffiths, SC. Defendant: T. Lynch SOLICITORS : Plaintiff: Minter Ellison Defendant: Hunt & Hunt IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION GREG JAMES, J. THURSDAY 29 APRIL 2004 No. 30116 of 2003 LEIGH ROBERT BROWN v. ROADS & TRAFFIC AUTHORITY JUDGMENT 1 HIS HONOUR: The plaintiff, by summons, sought orders that the Road Transport (Driver Licence) Amendment (Demerit Points) Regulation 2002 did not affect rights and privileges asserted to have been acquired by him under s.16(8) of the Road Transport (Driver Licence) Act 1998 when he entered into a good behaviour election/acknowledgment dated 7 March 2003; that the offence by the plaintiff of exceeding a speed limit on 8 December 2003 did not breach the election; and that it be declared that the Notice of Suspension of driver's licence dated 19 August 2003 from the Roads & Traffic Authority to the plaintiff is ultra vires and should be quashed or set aside. An order was also sought for costs. 2 The facts underlying the claim are essentially agreed. The matter is of some urgency having regard to the view I have formed concerning an interlocutory consent order between the parties and its effect, if any, on the suspension of the plaintiff from driving. These matters will be deal with later in the judgment when I turn to orders sought in a notice of motion filed in court. I have concluded that the orders sought should not be made. In my reasons however, I will have to outline in summary form the statutory scheme and the relevant events. 3 The affidavit of the plaintiff discloses that the plaintiff, a licensed driver, had accumulated some 13 demerit points by March 2002. He was afforded, under the statutory scheme, the option of entering into the good behaviour election/acknowledgment to which the summons refers. 4 His entry into that good behaviour election gave to him the benefit of avoiding the automatic suspension to which he was otherwise liable by reason of his accumulation of those demerit points. It had the consequence however, that should he accumulate two or more demerit points during the period of the operation of the good behaviour election, he would be required under the scheme to undergo double the period of suspension. 5 At the time at which he entered into that election, the offence of exceeding a speed limit by not more than 15 kilometres per hour attracted only one demerit point. He entered into the election on 7 March 2002. 6 With effect from 1 December 2002, by Schedule 1 of the Road Transport (Driver Licence) Regulation 1999, the regulation which regulated the quantum of demerit points for offences, was amended so that the offence of exceeding a speed limit by not more than 15 kilometres an hour attracted two demerit points rather than the one demerit point it had attracted at the time of the plaintiff entering into the election. 7 In January 2003, the plaintiff received notification he had committed such a speeding offence on 8 December 2002. The matter went before a magistrate on 11 August 2003. The charge of having committed that offence was dismissed by the magistrate, although he found guilt had been proved. In consequence, the authority recorded two demerit points against the plaintiff in the demerit point register, a copy of which is in evidence before me, as Exhibit 1. 8 On or about 23 August, the plaintiff received a Notice of Suspension of Driver's Licence dated 19 August 2003 from the defendant. That document informed him that his licence "will be suspended on and from 23 September 2003 for a period of 6 months". The document informed him that he must not drive during the suspension period. It also informed him that he had the right of appeal against the decision to suspend his licence to a Local Court. It concluded, "If the appeal is dismissed and the RTA's suspension action is confirmed by the court, the six months suspension period will commence from the date the appeal is heard". 9 That reference to a right of appeal and the deferral of the commencement of the suspension was to an appeal and deferral referred to in the Regulations and the then believed effect of the Act and Regulations. Pursuant to that belief, the plaintiff then appealed to the Local Court on 18 December 2003. That court decided it did not have jurisdiction to hear such an appeal. It applied the then recent decision of the Court of Appeal in RTA v. Wilson [2003] NSWCA 279. In that decision, the Court of Appeal held that the operation of the provisions of the Act was self-executing and automatic, so there was no decision of the Authority involved. Thus there was nothing to appeal from and so no right of appeal, notwithstanding the reference to an appeal in the Regulations and to the prospect of the suspension being deferred pending the determination of an appeal. 10 The effect of that decision was to hold that suspension arose by the direct effect of the Act and Regulations. Later, in this judgment, I will refer in some detail to the relevant provisions. 11 There is no issue before me as to the correctness of that decision. I must apply it. It is plain that applying that decision there is no power in a Local Court nor anywhere else to entertain an appeal. It is not necessary that I consider any question in this judgment of whether there is or was any way in which the commencement and running of the suspension might be deferred pending any purported and incompetent appeal although the better view may be that no deferral is available in such a case for reasons which will become apparent. 12 Similarly, there is no challenge to the decision of Shaw, J. in RTA v. Weir [2004] NSWSC 154 that the finding by the magistrate of the offence being proven, although dismissing the charge, results in the incurring of the demerit points in question. 13 The challenge is, however, based squarely upon the proposition that the alteration in the number of demerit points in respect of the offence of speeding found proven against the plaintiff by the change in the Regulations was such as to affect a right accrued by the applicant at the time of entering into the election. That right was such, it was submitted, as to ensure that he might only be dealt with during the period of the suspension on the basis of the value in demerit points of offences he might commit during that period as those values stood at the time he entered into the election. 14 Having regard to the statutory provisions to which I will later refer, it is clear that the entry into the election was not the making of some sort of contract. It was available under the Act and Regulations as an opportunity to avoid a suspension operating in circumstances where, in the event of future offences to which two demerit points might attach being committed, a longer period of suspension would be served than would otherwise have been the case. 15 Mr. Griffiths, SC, appearing for the plaintiff, has referred me, in his helpful written submissions, to the provisions of the Interpretation Act and in particular, s.5(2) and s.30(1)(B) and s.30(1)(C). The effect of those provisions is that the amendment or repeal of an Act or statutory rule does not affect the previous operation of the Act or statutory rule or anything duly suffered, done or commenced under the Act or statutory rule or any right, privilege, obligation or liability acquired or accrued or incurred under the Act or statutory rule. The section goes on to provide that any penalty or investigation, legal proceeding or remedy may be instituted, continued or enforced as if the Act or statutory rule had not been amended or repealed. The sections enact a principle of statutory construction which must yield to express words or necessary intendment. In my view, nothing so provided is here applicable to assist the plaintiff having regard to these statutory provisions. The Act and the statutory rule continue to operate. So far as the plaintiff had a right, privilege or obligation to continue to drive, that is utterly unaffected. He had no accrued privilege or right conferring an immunity from the consequence of the future offence. What has happened is merely that the number of demerit points for an offence has changed, and consequently, that has had an effect upon the plaintiff, who had committed the offence, as and from the time of that offence, the consequence is, he is no longer able to enjoy the benefit of a concession extended to him, but which only had been so extended on the basis that he refrained from committing an offence for which he might be so penalised. In my view, the intended effect was clear and the words of the Act leave no room for the plaintiff's contention. 16 I am unable to conclude that there is any right or privilege acquired or accrued under the legislation in respect of any possible future increase in the number of demerit points applicable to any offence such that the plaintiff might become immune from the effect of the increased penalty. In my view, there is nothing in the case of Matheson v. Burton (1990) 170 CLR 1 which assists the plaintiff's submission. In that case, there was a statutory right provided to an occupant of premises, to continue in possession of those premises, enjoying the like right as the tenant would have had had the tenant not died, under the provisions of s.83A(1)(d) of the Landlord and Tenant (Amendment) Act 1948 as amended. The right was a right to stay in the house rather than become a trespasser. The amendment of that provision did not cause the abolition of that right as it had already accrued. All that happened was the amendment of the sub-paragraph avoided the creation of such rights in the future right. That is an entirely different thing to what is here advanced. Nor is the reasoning to be found in the passages cited in the judgments of Windeyer, J., 12 to 13, and Gibbs, J. at 23 to 24 analogous to or applicable to the present situation such as to assist the argument of the plaintiff. 17 In particular, I am unable to accept the submission contained in paragraph 11 of the submissions filed on behalf of the plaintiff. 18 So much is sufficient to dispose of the plaintiff's principal claim for relief, however during the hearing of the matter, another matter arose which has occasioned some considerable debate resulting in the proceedings being adjourned until today and which has occasioned the urgency to which I have referred. 19 As Wilson (supra) explains, the consequences of incurring demerit points are defined by the direct operation of the Act. It is the scheme of the Act and Regulations that the Authority must maintain the demerits points register. Section 4(2) requires the Authority to record in that register against the person, the number of demerit points specified in the regulation, in the circumstances set out in the three paragraphs there specified. The offences for which demerit points are incurred are set out in s.5 as being those described in the regulations, or notified in the gazette as recognised. 20 Section 16 provides for the consequences of incurring demerit points. Demerit points under s.16(1) are to be registered in respect of the day on which the offence was committed. Section16(2) provides:- "The Authority must give a Notice of Licence Suspension to a person who incurs twelve or more demerit points within the three year period ending on the day on which the person last committed an offence." 21 Section 16(3) gives some discretion to the Authority, but only in the most limited circumstances not here relevant. Section 16(4) is mandatory and binding upon the Authority. It provides:- "The Notice of Licence Suspension must specify the date on which the suspension is to take effect and must contain any other matters specified by the regulations. The date specified must not be earlier than 28 days after the notice is given." 22 Section 16(5) provides that:- "The period of licence suspension under subsection (2) is the period applicable under a table". 23 The table is therein set out. Provision is made in subsection (8) for the election to which I have referred. 24 Subsection (9) is mandatory also:- "If a person who makes an election in accordance with subsection (8) incurs two or more demerit points during the 12 months good behaviour period, the Authority must give a person a notice suspending the driver's licence commencing on the date specified in the notice, for twice the period that would have applied to the person under this section if the person had not made the election." 25 Subsection (10) makes reference to the commencement of the period of suspension and in particular, that the points are taken to be deleted on the commencement of the period of suspension, but it is qualified by subsection (11). 26 There is nothing, it appears to me, in the statute which gives rise to any power in the Authority to do other than the Act provides. 27 However, in order that these proceedings might be dealt with without undue haste and because the matter arose in vacation, the parties entered into an agreement that the suspension should be stayed. A draft consent order was filed in this court, the order was made and entered on 22 December 2003 that, on the condition that the plaintiff prosecute these proceedings expeditiously and undertake to agree to undergo a suspension of his driver's licence for a period of 93 days (being the number of days between the date of this consent order and 23 March 2004), if he is unsuccessful in these proceedings, the Notice of Suspension be stayed with effect on and from the consent order until final determination of these proceedings. I do not consider that the order can so operate to suspend the effect of the Act's provisions. 28 A motion has now been filed in court today seeking that the undertaking and the consent order be set aside. It relies on Part 40 Rule 9. The short submission made in support of it is that was entered into entirely by mistake, the parties believing that the order as in my view, is not the case, would have the effect of permitting the plaintiff lawfully to drive pending the final determination of this matter. I see no statutory authority nor basis for that view. It has been argued to the contrary on behalf of the Authority by Mr. Lynch, who has, as has Mr. Griffiths, provided me with most helpful written submissions, that since the order is the order of a superior court of unlimited jurisdiction, it is a valid order and must be taken to be such and has the effect of suspending the operation of the statute for all purposes. 29 Except for the exercise of a discretion to permit the order and undertaking to be withdrawn, it is not necessary for me to determine the extent that they might have a binding effect upon the parties personally or by way of estoppel or by way of contract since no such effect could occur in the teeth of the statute and, in my view, the statute is so clear. In my view, notwithstanding what I have been taken to in Whan v. McConaghy (1984) 153 CLR 631 concerning stays of execution; and in Wilde and Anor v. Australian Trade Equipment Co. Pty. Limited (1981) 145 CLR 590 concerning the validity of orders asserted to be made without jurisdiction, this order was incapable of preventing the operation of the statute, incapable of relieving the Authority from the responsibility cast on it by the statute and incapable of relieving the plaintiff from the effect of the giving of the Notice of Suspension. 30 In that context, I turn to consider whether the undertaking and the order should be set aside. I am prepared to do so even on the basis that there might have been a binding effect between the parties. 31 There is much discussion in many of the cases including New South Wales Crime Commission v. Chik Chen & Ors (Howie, J., unreported 4 May 2001); Logwon Pty. Limited v. Warringah Shire Council (1993) 33 NSWLR 13; and other cases of the circumstances in which a court might set aside an order of that court even if made by consent. It is plain that there is a jurisdiction even in the case of final orders made by way of contract or compromise. The applicable principles will usually be those relating to the setting aside of a contract. 32 Here, however, another question arises. Whatever may have been the circumstances in the past, to leave on the record an order of the court which, in my view, is ineffective and which challenges the operation of a statute, the operation of which is required by the statute to bind in a mandatory fashion a governmental agency, ie., the Authority to whom the section is expressly addressed, as well as the other party to the order, would at the least, propound a public embarrassment. Further, it would have, in my view, no practical effect, except so far as a sanction might be concerned and then only so far as it might have afforded a basis for the prosecution of the affected individual for contempt in the event that he were now to drive contrary to the agreement. Such a prosecution might be attended with all manner of complexities. 33 Further, it is in my view, embarrassing that the order should be kept upon the record where it has, it is common ground, been entered into by both sides entirely mistaking the legal position. It may be that the plaintiff enjoys a windfall in that he has been able to drive without being prosecuted, a matter of practical if not legal immunity. It may be that he could be prosecuted. I say nothing about any of that. But I do say for the future, the order should not stand. Therefore, in accordance with paragraph one of the motion, I set aside the order and the plaintiff's undertaking as and from today, but not retrospectively. 34 On the issue of costs, I note that the decision of the Court of Appeal in Wilson (supra) leaves standing in the regulations an apparent right of appeal which is unavailable to the community. The Authority, even if it, entirely reasonably, was only doing what the Act apparently required, by letter, has told members of the public that there is such a right of appeal and has referred to the prospect of suspension of the suspension when that nugatory right is invoked. This must be most embarrassing to the Authority. 35 I am sure it will take immediate steps to ensure that if it is the intention of the legislature there be rights of appeal, and deferral of suspension they be conferred in a manner that can be enjoyed. Further, it is quite apparent that the Authority and the plaintiff have acted throughout in good faith seeking to do the best they can do in circumstances where the drafting of the Act and regulations has produced an unforeseen consequence for both the Authority and the community. 36 In those circumstances, I recommend that as soon as possible, attention be given to redrafting the statutory provisions and the regulations to ensure that the intent that there be a real right of appeal and the ability to obtain a deferral of the suspension pending the enjoyment of that right. I make those remarks at this point since it appears to me that having regard to the mistake being mutual, albeit of law rather than of fact, and having regard to the terms of the letters the Authority was bound to send, there should be no order for costs of the principal proceedings or of the motion. 37 I dismiss the summons and make no order for costs either of the summons or on the motion. ********** Last Modified: 06/07/2004 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.