New South Wales Supreme Court CITATION : Damaris v Falzon [2009] NSWSC 18 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S) : 1 December 2008 JUDGMENT DATE : 4 February 2009 JURISDICTION : Common Law JUDGMENT OF : Rothman J (i) An order in the nature of certiorari, pursuant to s 69 of the Supreme Court Act 1970, calling up the record of the Local Court sitting in its criminal jurisdiction in proceedings of Police v Michael Damaris and the orders of his Honour Magistrate Falzon of 8 November 2007 refusing to determine the plaintiff's application dated 4 October 2007 to quash an habitual traffic offender declaration and marking the papers 'no jurisdiction'. (ii) An order in the nature of certiorari quashing the decisions of the learned Magistrate referred to in order 1. DECISION : (iii) An order that the matter be remitted to the Local Court to be dealt with in accordance with law. (iv) An order that the fourth defendant pay the plaintiff's costs of these proceedings as agreed or assessed, excluding those of 10 November 2008 (as to which the plaintiff has been ordered to pay the fourth defendant's costs). (v) To the extent otherwise entitled, the defendants have an indemnity certificate under the Suitors' Fund Act 1951. CATCHWORDS : ADMINISTRATIVE LAW – orders in the nature of certiorari and mandamus – jurisdictional error – determination that Local Court did not have jurisdiction to quash declaration of habitual traffic offender after severity appeal to District Court – jurisdiction possessed by court that convicts – severity appeal does not affect jurisdiction of Local Court - TRAFFIC OFFENCE – declaration of habitual traffic offender – application to quash – jurisdiction possessed by court that convicts – in this instance jurisdiction possessed by Local Court, notwithstanding severity appeal to the District Court Budget Nursery Pty Ltd v Commissioner of Taxation (1989) 42 A Crim R 81 Crimes (Appeal and Review) Act 2001 Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED : Ex parte Day; Re Crampton (1943) 43 SR (NSW) 349 Road Transport (Driver Licensing) Act 1988 Road Transport (General) Act 1999 Suitors' Fund Act 1951 Supreme Court Act 1970 CATEGORY : Principal judgment Anthony Hordern & Sons Ltd v Amalgamated Clothing & Allied Trades Union of Australia [1932] HCA 9; (1932) 47 CLR 1 CASES CITED : R v Wallis [1949] HCA 30; (1949) 78 CLR 529 Saraswati v R [1991] HCA 21; (1991) 172 CLR 1 Michael Damaris (Plaintiff) Magistrate Paul Falzon (First Defendant) PARTIES : Judges of the District Court of New South Wales (Second Defendant) Sergeant Andrew Setter (Third Defendant) Director of Public Prosecutions (Fourth Defendant) FILE NUMBER(S) : SC 30064/2008 P Bruckner (Plaintiff) Submitting Appearance (First Defendant) COUNSEL : Submitting Appearance (Second Defendant) Submitting Appearance (Third Defendant) C A Webster (Fourth Defendant) Kelvin Solari Solicitors (Plaintiff) Submitting Appearance (First Defendant) SOLICITORS : Submitting Appearance (Second Defendant) Submitting Appearance (Third Defendant) Office of the Director of Public Prosecutions (Fourth Defendant) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATIVE LAW LIST ROTHMAN J 4 FEBRUARY 2009 30064/2008 Michael Damaris v His Honour Magistrate Paul Falzon & Ors JUDGMENT 1 ROTHMAN J: Mr Michael Damaris sought orders in this Court determining which of the Local Court or the District Court has jurisdiction to hear and determine an application by him to quash a declaration that he is an habitual traffic offender in relation to road traffic offences. Orders were issued ex tempore on 1 December 2008 at which time I reserved reasons. I now publish those reasons. The fourth defendant, the Director of Public Prosecutions (DPP), appeared. The first, second and third defendant, most properly, filed submitting appearances, save as to costs. 2 Briefly, Mr Damaris drove whilst disqualified and, in accordance with the legislation then in effect, was convicted and sentenced in the Local Court. As a consequence of that conviction, and his sentence, the legislation required a further period of disqualification from driving for Mr Damaris as an "habitual traffic offender". Mr Damaris appealed the sentence imposed to the District Court. The sentence imposed by the Local Court was quashed and the District Court imposed a different sentence. 3 Mr Damaris sought to have, in turn, each of the Local Court and District Court quash his "habitual traffic offender" status and, in turn, each Court determined that it did not have jurisdiction so to do. In essence, Mr Damaris seeks to have this Court determine which, of the Local Court or District Court, has the jurisdiction to hear and determine his application to quash the status that he currently "enjoys". Facts 4 The circumstances that led to the conviction of Mr Damaris are, for present purposes, irrelevant. It is sufficient, for present purposes, to note that on 22 June 2003, Mr Damaris drove a motor vehicle whilst disqualified. On 10 July 2003, His Honour Local Court Magistrate Shepherd convicted Mr Damaris and sentenced him to imprisonment for 8 months, with a non-parole period of 6 months. He was also disqualified from holding or obtaining a drivers' licence from the expiry of his existing disqualification for a further 2 years, expiring 3 November 2007. At that time, the Local Court made no orders relating to the period of disqualification, pursuant to the operation of the legislation, as an habitual traffic offender, over and above the disqualification period for the offence itself. The terms of the legislation will be dealt with later in these reasons for judgment. 5 It is not in issue that the effect of the habitual traffic offender legislation, in the absence of specific orders by the Local Court at the time of conviction and sentence, was to implement a further period of disqualification of five years. 6 On 10 July 2003, the date of the original sentence by Shepherd LCM, Mr Damaris appealed to the District Court. On 26 August 2003, Sides QC DCJ heard and determined the appeal and wholly suspended the sentence of imprisonment, but confirmed the disqualification period of two years, expiring 4 November 2007. His Honour Judge Sides QC also reduced the period of disqualification as a statutory habitual traffic offender to two years, expiring 4 November 2009. 7 On 4 October 2007, application was purportedly made to quash the declaration as an habitual traffic offender. The matter was heard before His Honour Magistrate Falzon, who determined that there was no jurisdiction in the Local Court and referred the papers to the District Court. On 15 November 2007, Sides QC DCJ determined that the order that he had made earlier, reducing the period of disqualification as a statutory habitual traffic offender, was without power and, because he considered that the District Court had no jurisdiction, refused the application to quash the habitual traffic offender declaration. 8 The summons, filed in this Court, originally sought inconsistent orders, namely, orders against the Local Court and orders against the District Court. The Court directed the plaintiff to elect against which of the two courts it sought orders. The plaintiff made clear that it sought orders against the Local Court, failing which it sought orders against the District Court. The alternative orders would be a matter, which, pursuant to s 48 of the Supreme Court Act 1970, would be in the original jurisdiction of the Court of Appeal. Legislation 9 It is unnecessary to recite all of the legislation that affected Mr Damaris and rendered him liable to additional disqualification as an habitual traffic offender. It is sufficient for present purposes to recite that, in 2003, when the Local Court first dealt with Mr Damaris on any relevant charge, he was convicted (and sentenced) under s 25A of the Road Transport (Driver Licensing) Act 1988, which conviction, together with previous convictions, rendered s 28 of the Road Transport (General) Act 1999 applicable to Mr Damaris. (The relevant offences were a conviction on 25 May 2000 for Drive While Disqualified [offence committed on 24 December 1999]; a conviction for Drive While Disqualified [offence committed on 23 May 2000]; and the latest offence, Drive While Disqualified, convicted on 10 July 2003 [offence committed on 22 June 2003].) 10 The Road Transport (General) Act 1999 (the 1999 Act) was replaced in 2005 (the 2005 Act), but the relevant terms are identical. The terms of section 28 of the Road Transport (General) Act 1999 [Section 199 of the 2005 Act] are: "A person is, by this section, declared to be an habitual traffic offender if: (a) a court in this State convicts the person of a relevant offence, and (b) the person has, in the period of 5 years before the conviction, also been convicted of at least 2 other relevant offences committed on different occasions." 11 The term "relevant offence" was defined in s 27 of the Road Transport (General) Act 1999 [and is defined by section 198 of the 2005 Act]. It is unnecessary to repeat the definition, but I reiterate that each of the three offences referred to in paragraph [9] above are caught by the definition. 12 The provisions of ss 30 to 32 of the 1999 Act [ss 201 to 203 of the 2005 Act], relevantly, are in the following terms: "30 Period of disqualification of habitual traffic offender (1) If a person is declared by section 199 to be an habitual traffic offender, the person is disqualified by the declaration (and without any specific order of a court) for a period of 5 years from holding a driver licence, except as provided by this Division. (2) If the court that convicts the person of the offence giving rise to the declaration thinks fit, the court may order a longer period of disqualification (including disqualification for life). (3) If the court that convicts the person of the offence giving rise to the declaration determines that a 5-year disqualification is a disproportionate and unjust consequence having regard to the total driving record of the person and the special circumstances of the case, the court may order a shorter period of disqualification (but not shorter than 2 years). (4) If a court orders a shorter or longer period of disqualification, the court must state its reasons for doing so. (5) A declaration of an habitual traffic offender ceases to be in force when the period of disqualification imposed by the declaration is completed. (6) The period of any disqualification under this Division does not commence until all other disqualifications, and all other periods of licence cancellation or suspension, imposed on the person by or under this or any other Act have been completed. (7) Further declarations have effect under this Division even though they occur while an existing declaration is in force, and the consequent periods of disqualification do not commence until all existing disqualifications under this Division have been completed. It does not matter that some of the relevant offences giving rise to a further declaration also gave rise to an earlier declaration. (8) If, while an existing disqualification under this Division is in force, the person is disqualified by a court or automatically under another provision of this or any other Act, that further disqualification does not commence until all existing disqualifications under this Division have been completed. (9) Any period for which a stay of execution is in force under section 63 of the Crimes (Local Courts Appeal and Review) Act 2001 is not to be taken into account when calculating the length of a period of disqualification under this Division." "31 Quashing of declaration and bar against appeals (1) The declaration of a person as an habitual traffic offender by section 199 may be quashed by a court that convicts the person of a relevant offence (at the time of the conviction or at a later time) if it determines that the disqualification imposed by the declaration is a disproportionate and unjust consequence having regard to the total driving record of the person and the special circumstances of the case. (2) If a court quashes a declaration under this section, the court must state its reasons for doing so. (3) However, a declaration or disqualification under this Division cannot be appealed to any court whether under this or any other Act." "32 Disqualification in addition to any other penalty A disqualification under this Division is in addition to any penalty imposed for the offence giving rise to the declaration." Analysis of Provisions 13 There are a number of aspects of these provisions of the 1999 Act that require emphasis. It is clear from the terms of s 30(2), s 30(3) and s 31(1) that the imposition of a greater or lesser period of disqualification and/or the quashing of the declaration is a jurisdiction granted to "the court that convicts the person" of the relevant offence. 14 Further, the provisions of s 27 of the 1999 Act [s 198 of the 2005 Act] make clear that, relevantly, "convict" includes a finding of guilt, without proceeding to conviction under s 10 of the Crimes (Sentencing Procedure) Act 1999, or its predecessors. 15 In the current circumstances, it was the Local Court that convicted Mr Damaris and, pursuant to the provisions of sections 30 and 31 of the 1999 Act, it is the Local Court that has the power and the jurisdiction to vary the period of disqualification applicable under section 28 of the 1999 Act and to quash the declaration of Mr Damaris as an habitual traffic offender. 16 The appeal by Mr Damaris to the District Court was an appeal confined to sentencing and the District Court did not at any stage act in the capacity of a court that imposed a conviction on Mr Damaris: see s 11(1) of the Crimes (Appeal and Review) Act 2001; Ex parte Day; Re Crampton (1943) 43 SR (NSW) 349; and Budget Nursery Pty Ltd v Commissioner of Taxation (1989) 42 A Crim R 81. 17 The DPP submits that the District Court would have had jurisdiction, if Mr Damaris had filed an all grounds appeal or an appeal against conviction. It is unnecessary for the Court, in the present circumstances, to deal with the circumstances in which the District Court would have had jurisdiction. It is sufficient to comment that some appeals against conviction would not result in the appeal Court being the court that convicted a person of the offence. For example, an appeal on a question of law to the Supreme Court, which resulted in the dismissal of the appeal, would not, without more, be such as to enliven the jurisdiction to quash the declaration as an habitual traffic offender under the Act. 18 On the other hand, it would seem, without finally deciding the question, that an appeal, which resulted in the District Court making orders, the effect of which was to convict a person of the relevant offence, would qualify the District Court, under the relevant provisions, as the court that convicted the person of the offence. Much would depend on the nature of the orders made on any appeal and it is inappropriate, given that the question does not directly arise in these proceedings, for the Court to comment further. Furthermore, it is unnecessary to determine whether, at a hearing of a severity appeal before the District Court, if the District Court were to quash a conviction recorded and impose a bond under s 10, it would be the Local Court or the District Court that was imposing the conviction. It would seem in that circumstance that the Local Court would be the Court that convicted, and the District Court would have ordered the non-recording of that conviction. 19 Lest it be unclear from the foregoing analysis, I accept that the terms of s 31(3) of the 1999 Act is a specific provision disentitling an appeal from a declaration or disqualification effected by s 28 or s 30 of that Act. Again, this is not a question that directly arises in these proceedings. No declaration or disqualification was made, and no purported appeal has been made therefrom. However, the provisions of the subsection are specific to a disqualification of an habitual traffic offender and override the general appeal provisions otherwise contained within the Crimes (Appeal and Review) Act 2001, or its predecessors: Saraswati v R [1991] HCA 21; (1991) 172 CLR 1; Anthony Hordern & Sons Ltd v Amalgamated Clothing & Allied Trades Union of Australia [1932] HCA 9; (1932) 47 CLR 1; R v Wallis [1949] HCA 30; (1949) 78 CLR 529. Jurisdictional Error 20 Not every error of law will give rise to the issue of mandamus, or prohibition. However, an error of law on the face of the record will give rise to certiorari. For present purposes, s 69(4) of the Supreme Court Act extends the face of the record to include reasons for judgment. 21 Certiorari may not be a sufficient remedy for the plaintiff in these proceedings. Again, it is unnecessary to determine finally that issue. The error of law, namely, the determination that, an appeal against sentence having been determined, the Local Court did not have jurisdiction to hear and determine the application to quash the disqualification as an habitual traffic offender, was an actual or constructive failure to exercise the jurisdiction conferred on the Local Court and jurisdictional error has occurred. As a consequence, mandamus (or orders in the nature thereof) will issue. 22 For the foregoing reasons, the Court issued orders on 1 December 2008 in the following relevant terms: (i) An order in the nature of certiorari, pursuant to s 69 of the Supreme Court Act 1970, calling up the record of the Local Court sitting in its criminal jurisdiction in proceedings of Police v Michael Damaris and the orders of his Honour Magistrate Falzon of 8 November 2007 refusing to determine the plaintiff's application dated 4 October 2007 to quash an habitual traffic offender declaration and marking the papers 'no jurisdiction'. (ii) An order in the nature of certiorari quashing the decisions of the learned Magistrate referred to in order 1. (iii) An order that the matter be remitted to the Local Court to be dealt with in accordance with law. (iv) An order that the fourth defendant pay the plaintiff's costs of these proceedings as agreed or assessed, excluding those of 10 November 2008 (as to which the plaintiff has been ordered to pay the fourth defendant's costs). (v) To the extent otherwise entitled, the defendants have an indemnity certificate under the Suitors' Fund Act 1951. ********** 11/02/2009 - "against which of the two 'counts' it sought orders" amended to "against which of the two courts it sought orders" - Paragraph(s) 8 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.