New South Wales Supreme Court CITATION : Freeman v Van De Hoek [2008] NSWSC 316 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S) : 7 April 2008 JUDGMENT DATE : 10 April 2008 JURISDICTION : Common Law JUDGMENT OF : Harrison AsJ (1) The orders of his Honour Magistrate Lucas dated 21 November 2007 are set aside. DECISION : (2) The matter is remitted to the Local Court to be determined according to law. (3) The first defendant is to pay the plaintiff's costs as agreed or assessed. CATCHWORDS : APPEAL - JUDICIAL REVIEW - s 178 Criminal Procedure Act 1986 Criminal Procedure Act 1986 LEGISLATION CITED : Liquor Act 1982 Supreme Court Act 1970 CATEGORY : Principal judgment Craig v South Australia (1994-95) 184 CLR 163 CASES CITED : DPP v Stevens [2007] NSWSC 1350 Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 Darryl Lindsay Freeman, Delegate of the Director of Liquor, Gaming and Racing (Plaintiff) PARTIES : Mark Van De Hoek (First Defendant) Magistrate Lucas (Second Defendant) FILE NUMBER(S) : SC 16341/2007 COUNSEL : K M Richardson (Plaintiff) J B Costigan (First Defendant) Crown Solicitor (Plaintiff) SOLICITORS : DC Balog & Associates (First Defendant) Submitting Appearance Crown Solicitor (Second Defendant) LOWER COURT JURISDICTION : Licensing Court of NSW LOWER COURT FILE NUMBER(S) : 271069.00 LOWER COURT JUDICIAL OFFICER : Lucas LCM LOWER COURT DATE OF DECISION : 21 November 2007 IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ASSOCIATE JUSTICE HARRISON THURSDAY, 10 APRIL 2008 16341/2007 - DARRYL LINDSAY FREEMAN, DELEGATE OF THE DIRECTOR OF LIQUOR, GAMING AND RACING v MARK VAN DE HOEK & ANOR JUDGMENT (s 178 Criminal Procedure Act 1986) 1 HER HONOUR: By summons filed 18 December 2007, the plaintiff seeks firstly, a declaration that the second defendant fell into jurisdictional error in failing to admit into evidence material that was relevant to whether the Licensing Court had jurisdiction to hear and determine the proceedings commenced by the Court Attendance Notice filed by the plaintiff against the first defendant (the proceedings); and in determining that the Licensing Court did not have jurisdiction to hear and determine the proceedings (the decision); secondly, an order that the proceedings be remitted under s 146 of the Liquor Act 1982 to the Licensing Court of NSW for determination in accordance with the decision of the Supreme Court; and thirdly, in the alternative, an order quashing the decision of the second defendant and an order that the proceedings be remitted to the Licensing Court of NSW for determination in accordance with law. 2 The plaintiff is Darryl Lindsay Freeman (Mr Freeman), Delegate of the Director of Liquor, Gaming and Racing. The first defendant is Mark Van De Hoek (Mr Van De Hoek). The second defendant is his Honour Magistrate Lucas (the Magistrate) who has filed a submitting appearance. Mr Freeman relied on the affidavit of Amrita Banerjie sworn 30 January 2008. 3 On 21 November 2007, the Magistrate in the Licensing Court dismissed the proceedings on the basis that it had been commenced outside the 12 months limitation period. Background 4 Mr Freeman as the delegate of the Director of Liquor and Gaming was the prosecutor named in a Court Attendance Notice (CAN) listed for hearing on 21 November 2007 in the Sydney Licensing Court. The CAN related to an offence alleged to have been committed on or about 30 June 2006. 5 It was common ground between the parties that the limitation period for proceedings in relation to the offence was 12 months. Grounds of appeal 6 The grounds of appeal are firstly, that the Magistrate misconstrued the terms of s 178 of the Criminal Procedure Act 1986 as having the effect of deeming when proceedings are commenced regardless of when the CAN was in fact "filed in the Registry"; secondly, the Magistrate erroneously failed to consider that when the CAN was filed in the Registry for the purposes of s 178 is a question of fact; thirdly, the Magistrate erroneously did not allow the adducing of any evidence on the question of fact as to when the CAN had in fact been filed in the Registry; and fourthly, the Magistrate erroneously concluded that the Licensing Court did not have jurisdiction to hear the matter. Appeal and judicial review 7 The plaintiff has sought to appeal on a question of law and has also sought judicial review. 8 Section 146 of the Liquor Act provides: "146 Appeal to Supreme Court on question of law (1) A person aggrieved by an adjudication of the Licensing Court may appeal therefrom to the Supreme Court of New South Wales on a question of law. (2) On the determination of an appeal under subsection (1), the Supreme Court shall: (a) remit the matter to the Licensing Court for determination in accordance with the decision of the Supreme Court, or (b) make such other order in relation to the appeal as it thinks fit. (3) An appeal under subsection (1) shall be made in accordance with the rules of court of the Supreme Court. …" 9 Section 69(3), (4) and (5) of the Supreme Court Act 1970 provide: "(3) It is declared that the jurisdiction of the Court 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. (4) For the purposes of subsection (3), the face of the record includes the reasons expressed by the court or tribunal for its ultimate determination. (5) Subsections (3) and (4) do not affect the operation of any legislative provision to the extent to which the provision is, according to common law principles and disregarding those subsections, effective to prevent the Court from exercising its powers to quash or otherwise review a decision." 10 The scope for intervention by way of relief in the nature of certiorari with regard to administrative tribunals is taken from Craig v South Australia (1994-95) 184 CLR 163 at 179: "If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it." 11 This was later clarified in the case of Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351: ""Jurisdictional error" can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig , is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it." The proceedings in the Local Court 12 The CAN related to an offence under s 111 of the Liquor Act. 13 Section 145(1) of the Liquor Act provides that proceedings under the Act may be disposed of summarily by the Licensing Court or by a Local Court. Section 145(2) provides that proceedings referred to in subs (1) may be instituted within the period of 12 months that next succeeds the act or omission giving rise to the proceedings. 14 Section 172(1) of the Criminal Procedure Act reads: "(1) Proceedings for an offence are to be commenced in a court by the issue and filing of a court attendance notice in accordance with this Division." 15 Section 178 of the Criminal Procedure Act sets out when proceedings are taken to have commenced. It reads: "All proceedings are taken to have commenced on the date on which a court attendance notice is filed in the registry of a relevant court in accordance with this Division. 16 The jurisdiction of the Licensing Court depended upon whether the CAN had been "filed in the registry" within 12 months of the offence. The hearing before the Magistrate 17 At the hearing of this appeal Counsel for the plaintiff and defendant placed different interpretations upon what the Magistrate said. Hence, it is necessary to reproduce the relevant portions of the transcript. 18 On 21 November 2007, at the outset of the hearing, Mr Costigan who appeared for the accused Mr Mark Van De Hoek in the Local Court, made two submissions to the Magistrate concerning the deficiencies of the CAN. Ms Banerjie appeared for the Delegate. The first submission fell by the wayside and is not relevant to this appeal. Mr Costigan's second submission was "that for competent proceedings to be brought as against a defendant they must comply with 145, sub s 2, that is, that they must be proceedings instituted within the period of 12 months that next succeeds the act or omission giving rise to the proceedings." (t 1.57-58; 2.1-3). 19 The CAN, which was before the Magistrate referred to an offence, which occurred on 30 June 2006. 20 At (t 4.1-49) the following exchange took place: "COSTIGAN: That is that on the face of the court attendance notice, and this is a reference back to compliance with s 145(2), it would appear that the court attendance notice, which bears the stamp of the Licensing Court of New South Wales, was filed in the registry on 27 July 2007. That being, even if the court attendance notice is competent, being 13 months, being one month over the 12 month time limitation. HIS HONOUR: Yes. The prosecutor, Mr Freeman, on the court attendance notice before the court appears to have laid it outside the 12 months allegation, the act or omission that institutes the offence. BANNERJIE: That is correct. HIS HONOUR: Do you want that short adjournment to consider your position? BANNERJIE: Yes. SHORT ADJOURNMENT HIS HONOUR: Ms Bannerjie, your submissions please? BANNERJIE: I had a look at the document and I believe that it is an inadvertent mistake by the registrar. I'd like to call the registrar to give some evidence in relation to that. HIS HONOUR: Even if you call the registrar how on earth could it beat the Criminal Procedure Act that says that it's taken to be the date? COSTIGAN: Section 178. HIS HONOUR: Mr Costigan made two submissions, I don't ask you to address on his first one. BANNERJIE: Yes. HIS HONOUR: But certainly in the second one it appears to me, and my understanding the law, that it is fatal. BANNERJIE: It does seem that way. Indeed, your Honour. HIS HONOUR: All right. BEING NO JURISDICTION THE COURT ATTENDANCE NOTICE LAID OUT OF TIME THE MATTER IS DISMISSED." 21 At (t 6-23-53; 7.9-23) the Magistrate continued: "Dealing with the matter before the court being an application for costs. Mr Costigan and Ms Bannerjie has answered in respect of the matter. Firstly there is a number of matters I believe must place on the record. … The second matter, in which the matter has been dismissed. It is my view it was totally fatal, it being laid outside the twelve-month period in which the act or omission, as the Act said, within the Liquor Act , the act or omission, directly from 145(2): "Proceedings referred to in subs (1)". I am satisfied for these purposes, 111 of the Liquor Act is a matter under subs (1): "may be instituted within the period of 12 months that next succeeds the act or omission giving rise to the proceedings". The act or omission alleges on 20 June 2006. … Ms Bannerjie is placed on record that it is an error, one that has slipped through. In my experience here, it is one that has slipped through. I, since my appointment to this jurisdiction, have not seen another one. However, the allegation is on 30 June 2006, there was not until the 27th of the 7th 2007 that the court attendance [notice] was laid. Even, as Ms Bannerjie suggested, the registry staff be called, it could not possibly be considered, in my view, that the matter was not laid around for approximately one month after the event, and it is clearly a matter pursuant to s 178 of the Criminal Procedure Act that that once stamped it is taken to laid. In regard to these proceedings, it was fatal from the word go once that 27 September (sic) Licensing Court registry seal had been attached." 22 The plaintiff submitted that the Magistrate asked himself the wrong question. According to Mr Freeman's Counsel, the Magistrate asked himself the question "Does the court file contain a record of the filing of the CAN in the registry?" but the question the Magistrate should have asked was "Was the CAN filed in the registry within the time prescribed by s 145(2) of the Liquor Act?" The defendant contended that the question "when the CAN was filed in the Registry" is a question of fact and that there is no error of law for this court to determine. 23 Both parties referred to DPP v Stevens [2007] NSWSC 1350 which concerned the interpretation of s 179 of the Criminal Procedure Act. The DPP v Stevens was decided a week after the case currently before this Court was determined. The DPP v Stevens is apposite. The Magistrate in DPP v Stevens accepted the submission of Counsel for the accused that to determine whether the proceedings were commenced in time he should consider only the documents on the court file and the court record. 24 In DPP v Stevens Walmsley AJ stated at [37] to [42]: "37 The plaintiff submitted there had been a constructive failure to exercise jurisdiction. In Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416 at 420, Jordan CJ said: "[T]he mere fact that a tribunal has made a mistake of law, even as to the proper construction of a statute, does not necessarily constitute a constructive failure to exercise jurisdiction: R v Minister of Health [1939] 1 KB 232 at 245-6. But there are mistakes and mistakes; and if a mistake of law as to the proper construction of a statute investing a tribunal with jurisdiction leads it to misunderstand the nature of the jurisdiction which it is to exercise, and to apply "a wrong and inadmissible test": Estate and Trust Agencies (1927) Ltd v Singapore Improvement Trust [1937] AC 898 at 917; or to "misconceive its duty," or "not to apply itself to the question which the law prescribes" : The King v War Pensions Entitlement Appeal Tribunal (1933) 50 CLR 228 at 242-3; 16 Austn Digest 808; or "to misunderstand the nature of the opinion which it is to form" : The King v Connell (1944) 69 CLR 407 at 432, in giving a decision in exercise of its jurisdiction or authority, a decision so given will be regarded as given in a purported and not a real exercise of jurisdiction, leaving the jurisdiction in law constructively unexercised, and the tribunal liable to the issue of a prerogative writ of mandamus to hear and determined the matter according to law: R v Board of Education [1910] 2 KB 165." 38 The record of what occurred before the magistrate persuades me that when he decided the prosecutor had not proved the three CANs had been filed at the Sutherland Local Court within six months from the date of the relevant events, he asked himself this question: "Does the court file contain a record of the filing of the CANs within the time prescribed by section 179 Criminal Procedure Act ?" 39 Whereas, the question he should have asked was: "Were the CANs filed within the time prescribed by section 179 Criminal Procedure Act ?" 40 There is nothing in the legislative framework that required the magistrate to restrict his consideration to the documents physically on the court file when deciding whether the CANs had been filed in time. No doubt, in the ordinary course, a Local Court file will contain the CAN filed by the relevant police officer. But there will be occasions when, for administrative reasons, or through error, it will not. The prosecutor would (if able) be at liberty to call or tender such evidence at his or her disposal as is relevant to the issue of whether, and if so when, the CAN was filed. 41 The question as seen by his Honour was not so much how service is to be proved, but whether, according to the court file alone, service had been proved. His Honour did not say why he considered he was obliged only to have regard to the court file on the service issue, especially given he did not confine his consideration to file documents on the costs issue. He merely appears to have accepted counsel's argument, which was based on the erroneous assumption that resort could only be had to the court file to determine whether or not the CANs had been filed. 42 As I conclude the magistrate did not consider the correct question, his Honour has not applied himself to the question prescribed for him by the law. This was, I consider, a constructive failure to exercise his jurisdiction. His duty to make a decision as to the validity of the proceedings remains, constructively, unperformed: Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at 616; [53] (Gaudron and Gummow JJ)." 25 Returning to the appeal before me, the Magistrate made a finding that the CAN was laid on 27 July 2007. The Magistrate took the view that pursuant to s 178 of the Criminal Procedure Act that once the CAN is stamped it is taken to be laid. By laid, I think the Magistrate meant "filed in the Registry". That is, once the CAN is stamped with a date, that date is taken to be the date upon which it was filed in the Registry. The Magistrate decided that s 178 by its terms does not allow for evidence to be called to ascertain the date that the CAN was filed in the Registry. 26 In my view the wording of s 178 does not preclude the calling of evidence to establish the date on which the CAN was filed in the Registry. As s stated in DPP v Stevens, there is nothing in the legislative framework that required the Magistrate to restrict his consideration to the documents physically on the court file when deciding whether the CAN had been filed in time. No doubt, in the ordinary course, a Local Court file will contain the CAN filed by the relevant prosecutor. But there will be occasions when, for administrative reasons, or through error, it will not. The prosecutor would (if able) be at liberty to call or tender such evidence at his or her disposal as is relevant to the issue of whether, and if so when, the CAN was filed. The Magistrate asked himself the question "Does the court file contain a record of the filing of the CAN within the time prescribed by s 145(2) of the Liquor Act 1982?" The question the Magistrate should have asked was "Was the CAN filed within the time prescribed by s 145(2) of the Liquor Act?" 27 In my view, as the Magistrate did not consider the correct question, his Honour has not applied himself to the question prescribed for him by the law. This was, I consider, a constructive failure to exercise his jurisdiction. As in DPP v Stevens duty to make a decision as to the validity of the proceedings remains, constructively, unperformed – Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at 616; [53] (Gaudron and Gummow JJ). 28 I find that the Magistrate fell into jurisdictional error in determining that he was without jurisdiction to hear and determine the proceedings. The orders of his Honour Magistrate Lucas dated 21 November 2007 are set aside. The matter is remitted to the Local Court to be determined according to law. 29 Costs are discretionary. Costs usually follow the event. The first defendant is to pay the plaintiff's costs as agreed or assessed. The Court orders: (1) The orders of his Honour Magistrate Lucas dated 21 November 2007 are set aside. (2) The matter is remitted to the Local Court to be determined according to law. (3) The first defendant is to pay the plaintiff's costs as agreed or assessed. ********** 22/04/2008 - Name of Act changed from the Criminal Procedure Act 1986 to the Liquor Act 1982. - Paragraph(s) 26 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.