Supreme Court New South Wales Medium Neutral Citation: Boris Reznitsky v Roads & Traffic Authority of New South Wales & Ors [2011] NSWSC 775 Hearing dates: 21 July 2011 Decision date: 22 July 2011 Before: McCallum J Decision: Summons dismissed Catchwords: ADMINISTRATIVE LAW - application for judicial review of suspension of driver's licence for non-payment of victims' compensation levy imposed by virtue of conviction for criminal offence - plaintiff contesting underlying conviction - whether appeal against conviction finalised - whether suspension authorised Legislation Cited: Commonwealth of Australia Constitution Act Crimes Act 1900 Crimes (Appeal and Review) Act 2001 Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986 Fines Act 1996 Fines Regulation 2005 Local Courts Act 1982 Uniform Civil Procedure Rules 2005 Victims Support and Rehabilitation Act 1996 Cases Cited: Retznitsky v Quinn & Ors [2007] NSWSC 250 Category: Principal judgment Parties: Boris Reznitsky (plaintiff) Roads & Traffic Authority of New South Wales (first defendant) The State Debt Recovery Office (second defendant) The State of New South Wales (third defendant) Representation: Counsel Plaintiff self-represented Mr Brett Thomson (solicitor advocate) Solicitors Crown Solicitor's Office (for the defendants) File Number(s): 2011/91966 Publication restriction: None Judgment 1On 4 March 2011, Mr Boris Reznitsky's driver's licence was suspended for non-payment of an enforcement order issued under the Fines Act 1996. By summons filed 22 March 2011, Mr Reznitsky seeks judicial review of the licence suspension. 2The defendants to the summons are the Roads & Traffic Authority of New South Wales (first defendant), the State Debt Recovery Office (second defendant) and the State of New South Wales (third defendant). By notices of motion filed 6 May 2011, each of the first and third defendants moved the court for an order pursuant to rule 6.29 of the Uniform Civil Procedure Rules 2005 removing it as a party to the proceedings on the basis that there was no decision of either of those entities that could conceivably be amenable to judicial review. 3The second defendant has, by notice of motion of the same date, moved the Court for summary dismissal of the summons pursuant to rule 13.4 of the Rules or alternatively an order striking the summons out pursuant to rule 14.28 of the Rules. 4On 6 June 2011, Kirby J ordered that Mr Reznitsky's summons and the defendants' three notices of motion be heard together on 21 July 2011. This judgment determines all of the claims for relief in the proceedings. Circumstances in which Mr Reznitsky's licence was suspended 5In February 2002, Mr Reznitsky was arrested and charged with an offence of assault occasioning actual bodily harm and, in the alternative, common assault. On 21 January 2004, after thirteen days of hearing, a Magistrate of the Local Court found the first offence proved beyond reasonable doubt (see affidavit of Emma Bayley affirmed 2 May 2011 at page 26). The alternative charge of common assault was then withdrawn and dismissed. 6After inviting Mr Reznitsky to address the question of penalty, the Magistrate convicted Mr Reznitsky and, pursuant to section 9 of the Crimes (Sentencing Procedure) Act 1999, directed him to enter into a good behaviour bond for a term of 18 months. The bond was entered into that day (see affidavit of Emma Bayley affirmed 20 July 2011, Annexure A). 7At the time of the Magistrate's decision, a person convicted of such an offence was, by virtue of the conviction, liable to pay $30 to the State as a compensation levy under victims' compensation legislation: see section 79 of the Victims Support and Rehabilitation Act 1996 (as it then stood). 8Mr Reznitsky has not paid the compensation levy. He disputes the correctness of the Magistrate's finding that the offence was proved beyond reasonable doubt and has brought a series of proceedings challenging his conviction for the offence. In February 2004, Mr Reznitsky appealed against the conviction to the District Court. That appeal was determined by a Judge of the Court on 19 April 2005 (page 37 of Ms Bayley's first affidavit). The Judge dismissed the appeal and confirmed the conviction. 9Separately, during the conduct of the appeal to the District Court, Mr Reznitsky says that he took steps in October 2004 to make an application to this Court for an inquiry into his conviction under section 474D of the Crimes Act 1900 (as it then stood). It is unclear to me whether any such application was in fact duly made but, in any event, Mr Reznitsky states that he withdrew it in October 2005. 10Following the determination of the appeal to the District Court, a notice of penalty was generated in respect of the victims' compensation levy of $30 payable by virtue of the conviction. The notice specified 29 July 2005 as the final date for payment of that amount. Mr Reznitsky gave evidence on affidavit that he received no such notice. Separately, he appears to dispute that the appeal to the District Court was properly determined. Those contentions are considered below. 11As already noted, Mr Reznitsky's liability to pay the compensation levy arose by force of the application of section 79 of the Victims Support and Rehabilitation Act 1996 upon his conviction in the Local Court (confirmed in the District Court). Such a levy is taken to be a fine for the purposes of the Fines Act 1996: see the definition of "compensation levy" in section 3 of the Act and the definition of "fine" in section 4 of the Act. 12Upon default in payment of a fine by the due date, the State Debt Recovery Office may make a court fine enforcement order under the Fines Act (see s 14(1) of Act). 13On 19 August 2005 (after the final date for payment of the levy in accordance with the penalty notice issued by the District Court), an enforcement order was made against Mr Reznitsky on the strength of the conviction in the Local Court on 21 January 2004. The order required payment by 16 September 2005 of the amount of $120 (being the original $30 levy plus sanction and enforcement costs imposed in accordance with clause 4 of the Fines Regulation 2005). However, no further steps were taken in respect of that enforcement order until after a second enforcement order and Notice of Suspension of Licence (pertaining to matters unrelated to the present proceedings) was issued in late 2009. The second enforcement order was subsequently withdrawn, but appears to have had the effect of renewing the attention of the relevant authorities to the first enforcement order. 14The explanation for the fact that the enforcement order relating to the compensation levy was not acted upon between September 2005 and November 2009 appears to lie in the fact that Mr Reznitsky had, in May 2005, filed a summons in this Court. The jurisdiction sought to be invoked in those proceedings was not expressly identified. I assume (from Mr Reznitsky's reference in argument to an entitlement to bring an appeal without leave to this Court on a question of law) that he intended to invoke s 52 of the Crimes (Appeal and Review) Act 2001. The latest version of the summons in those proceedings (the "forth (sic) amended summons" filed on 3 October 2006) alleged that the conviction was liable to be "quashed for substantial miscarriage the justice (sic), error of the law, made contrary to the law and affected by the fraud". I will refer to those proceedings as the earlier Supreme Court proceedings. 15There were ten defendants to those proceedings. The first defendant was the Magistrate who convicted Mr Reznitsky at first instance. On 22 August 2005, Adams J ordered that her Honour be removed as a party. The circumstances in which that order was made are not revealed in the evidence before me. 16On 6 March 2007, Studdert J ordered that the claim against the tenth defendant (the State of New South Wales) in the fourth amended summons be struck out: see Reznitsky v Quinn & Ors [2007] NSWSC 150 at [27]. On 3 August 2007, Grove J ordered that the claims against the second to sixth defendants (all individuals) also be struck out. The only remaining defendants were also individuals apparently involved in the initial hearing in the Local Court, including the victim of the assault. 17On 10 December 2007, applications for leave to appeal against the judgments of Studdert J and Grove J were dismissed by the Court of Appeal. Mr Reznitsky contends, however, that the orders striking out his claims were interlocutory orders only and did not finalise the earlier Supreme Court proceedings. On 3 March 2008, after the orders had been made, he filed a notice of motion seeking summary judgment in the proceedings. He maintains that the proceedings remain on foot and that he is entitled to have that notice of motion heard. 18There matters rested until late 2009, when the separate enforcement order (unrelated to these proceedings) was issued. As already noted, the unrelated enforcement order was subsequently withdrawn, but appears to have revived enforcement action in respect of the compensation levy, prompting an exchange of correspondence between Mr Reznitsky and the relevant authorities. 19It is clear from that correspondence that Mr Reznitsky disputed his obligation to pay the levy because he did not accept the correctness of the underlying conviction. There is no suggestion in the correspondence that his failure to pay the levy was due to an absence of notice. 20On 26 November 2009, the State Debt Recovery Office wrote to Mr Reznitsky by email informing him of the details of the original levy. The email stated that enforcement action had been placed on hold to allow Mr Reznitski time to dispute the matter with the Local Court or to pay the order in full. It was indicated that enforcement action would resume after 17 December 2009 if not finalised by that date. 21The enforcement order was not paid within the additional time allowed and, on 11 February 2010, the State Debt Recovery Office notified Mr Reznitsky that it had directed the Roads and Traffic Authority to suspend his licence. On 26 February 2010, Mr Reznitsky filed an application in the Administrative Decisions Tribunal for review of that decision. His licence was then reinstated pending the determination of that application. 22The application to the Administrative Decisions Tribunal was dismissed on 9 March 2010. Following the dismissal of the application, the State Debt Recovery Office again wrote to Mr Reznitsky by letter dated 15 July 2010 informing him that further enforcement action would be suspended for four weeks to allow him time to arrange to pay the enforcement order. 23The failure to comply with the enforcement order within that further period ultimately resulted in the issue of the notice of licence suspension of which review is now sought. The notice was issued on 18 February 2011 and required immediate payment of the sum of $160, being the $120 in the enforcement order plus additional RTA costs of $40. 24The power to suspend a licence in such circumstances derives from sections 65 and 66 of the Fines Act . Pursuant to those provisions, the RTA is to take enforcement action against a fine defaulter when directed to do so by the State Debt Recovery Office. The RTA does not appear to have any independent discretion in that respect. 25Section 66 of the Fines Act requires the RTA to suspend the driver licence of a fine defaulter against whom it is required to take enforcement action for the balance of the period of the licence. That is what occurred in the present case. Grounds for review 26The thrust of Mr Reznitsky's case is that there was no power to suspend the licence. Mr Reznitsky contends that, before action can be taken to suspend a licence for failure to comply with an enforcement order, there must be a final, non-appellable court decision imposing the fine and service of written notice of that decision upon the person. He contends that there has been no such final decision in the present case. He contends that the appeal to the District Court was not properly determined. He further contends that the earlier proceedings in this court challenging the conviction entered in the Local Court have not yet been finalised and that there is no power to suspend his licence in the meantime. 27In my view, those contentions are misconceived. 28As to the determination of the appeal in the District Court, the judgment given on 19 April 2005 records that, during the hearing of the appeal and after the Judge had refused an application made by Mr Reznitsky for an adjournment, Mr Reznitsky left the court and did not return. The hearing was concluded in his absence. Mr Reznitsky says that, during the conduct of the appeal from the date it was lodged in February 2004 until the date of the hearing, he came to the conclusion that he did not trust the District Court and did not want to have his appeal heard there. He says, further, that he did not request that the appeal be listed for hearing when it was. 29At the hearing before me, Mr Reznitsky said that he had made a deliberate decision to remove the appeal from the District Court in its criminal jurisdiction to the Common Law Division of this Court. However, as I endeavoured to explain to Mr Reznitsky, his approach to that question (and his decision to leave the District Court during the hearing of the appeal) did not deprive that Court of its jurisdiction to determine the appeal. 30As to the earlier Supreme Court proceedings, there are several difficulties with Mr Reznitsky's position. First, the relief claimed in those proceedings was directed only to the conviction originally entered in the Local Court. Mr Reznitsky's reliance on the existence of the proceedings as an impediment to the enforcement of the compensation levy ignores the fact that the conviction entered at first instance was later confirmed in the District Court. Mr Reznitsky has not sought to have the decision of the District Court quashed or set aside. 31Further, even as to the conviction in the Local Court, the claim is manifestly hopeless. 32As already noted, the Magistrate who entered the conviction at first instance was initially named as first defendant but an order was made removing her as a party. Mr Reznitsky's notice of motion filed in early 2008 seeking summary judgment in the proceedings purported to revive a claim against the Magistrate, again naming her as first defendant, but the application was plainly incompetent in that respect having regard to the earlier order of the Court. 33Further, except for the seventh, eighth and ninth defendants, Mr Reznitsky's claims as against all other defendants have been struck out. Applications for leave to appeal against the two judgments striking out those claims were dismissed by the Court of Appeal. It follows that, even if the earlier Supreme Court proceedings remain on foot as against the individual witnesses named as seventh, eighth and ninth defendants, there is presently no competent claim before the Court to have the conviction of either the Local Court or the District Court quashed. 34In addition, although the decisions to strike out Mr Reznitsky's claims against some of the defendants might technically be characterised as interlocutory, the judgment of Studdert J (in substance adopted by Grove J) reveals that his Honour was of the view that there could be no arguable relief claimed against any of those parties under s 52 of the Crimes (Appeal and Review) Act. 35In his written submissions, Mr Reznitsky relies upon the fact that the enforcement action against him was at one point stayed internally pending the determination of his earlier proceedings in this Court. He pointed to the following record of the State Debt Recovery Office: 20/9/05 Court Appeal Notice from Downing Centre Local Court for Ref 2007500/02/2 EO stayed pending outcome in Supreme Court. 36However, as I have already recorded, the status of that decision (to stay enforcement action) was later superseded by the correspondence of 2009 and 2010. Most recently, a stay was recorded on 4 March 2010 pending the determination of the application to the Administrative Decisions Tribunal. After that application was dismissed on 9 March 2010, the enforcement action was revived, ultimately resulting in the suspension of the licence on 18 February 2011. 37In any event, Mr Reznitsky's submissions are based on an inversion of the true position. Whereas he maintains that no action may be taken in respect of the enforcement order so long as his so-called appeal in this Court remains on foot, the true position is that the conviction entered in the Local Court and confirmed in the District Court stands. There is no stay of that conviction, and no obligation of the State Debt Recovery Office to stay its enforcement action brought on the strength of that conviction. 38As to Mr Reznitsky's contention that he received no notice of the levy, the absence of notice would not in my view remove the liability to pay the levy, which arises by force of the Victims Support and Rehabilitation Act . 39A separate ground relied upon by Mr Reznitsky is that his initial conviction was unlawful since he was entitled to a trial by jury in accordance with section 80 of the Constitution . That ground is also misconceived. Mr Reznitsky was not tried under a law of the Commonwealth. It is beyond dispute that the Magistrate had jurisdiction to hear a charge under s 59 of the Crimes Act 1900: see s 9 of the Local Courts Act 1982 (as it then stood) and ss 7 and 260 and Table 2 to Schedule 1 of the Criminal Procedure Act 1986. 40It follows, in my view, that no ground has been established for the relief sought. The summons should be dismissed with costs. 41In the circumstances, it is not necessary to determine the notices of motion filed by the defendants. Orders 1. That the summons be dismissed. 2. That the plaintiff pay the defendants' costs of the proceedings. ********** 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. Decision last updated: 22 July 2011