Supreme Court New South Wales Medium Neutral Citation: Roads & Maritime Services v Staniforth [2017] NSWSC 158 Hearing dates: 21 February 2017 Date of orders: 21 February 2017 Decision date: 21 February 2017 Jurisdiction: Common Law Before: Walton J Decision: The plaintiff is entitled to have the relief it seeks under s 69 of the Supreme Court Act. It was agreed by Mr Hearnden that some refinement to the orders sought in the further amended summons may be desirable and, accordingly, I give leave to file short minutes of order in my chambers by 4pm on Monday next setting out the orders proposed. If the orders are in a suitable form I will propose to make the orders in terms in Chambers without further listing. Catchwords: ADMINISTRATIVE LAW – further amended summons seeking relief in nature of certiorari – application proceedings in Local Court – application notice under s 45 of Local Court Act – application under s 267 Road Traffic Act – appealable matters – review of penalty notice sought by defendant– proceedings in Local Court constitutes appeal against offence – orders under s 10(1)(a) Crimes (Sentencing Procedure) Act – defendant's purpose of application proceedings removal of suspension of driving licence – suspension not appealable – application proceedings not permit review of imposition of penalty for an offence – no Court Attendance Notice – contrary to s 6 of Criminal Procedure Act – exclusion of criminal proceedings under Pt 4 of Local Court Act – jurisdictional error – errors of law – partly acting outside general area of jurisdiction – misconstruing statutes – misconceiving role or function of Court in application proceedings – direction for filing of draft orders Legislation Cited: Criminal Procedure Act 1996 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Local Court Act 2007 (NSW) Road Rules 2014 (NSW) Road Transport Act 2013 (NSW) Supreme Court Act 1970 (NSW) Cases Cited: Craig v State of South Australia (1995) 131 ALR 595; [1995] HCA 58; Kirk v Industrial Relations Commission; Kirk Group Holdings v WorkCover Authority (2010) 239 CLR 531; [2010] HCA 1; Road Transport Association of New South Wales v Wilson (2003) 58 NSWLR 240; [2003] NSWCA 279 Category: Procedural and other rulings Parties: Roads & Maritime Services (Plaintiff) Sascha Rosamond Staniforth (First Defendant, submitting appearance) Local Court of New South Wales (Second Defendant, submitting appearance) Representation: Solicitor: Mr B Hearnden for the Plaintiff File Number(s): 2016/332054 EX TEMPORE DECISION – REVISED 1. By a further amended summons (representing an amendment to the amended summons filed on 16 January 2017) the Roads & Maritime Services ('the plaintiff') sought an order under s 69 of the Supreme Court Act 1970 (NSW) in the nature of certiorari quashing orders of the Local Court sitting in Orange given on 12 September 2016 and 10 October 2016 ('the orders') for want of jurisdiction (the plaintiff withdrew an appeal under s 70 of the Local Court Act 2007 (NSW) against the orders and a further application seeking a declaration that the Local Court did not have jurisdiction to hear and determine what were described as the "application proceedings"). 2. The first defendant, Sascha Rosamond Staniforth ('the first defendant'), and the second defendant, the Local Court of New South Wales, have entered submitting appearances and submit to the making of orders sought and the giving or entry of judgment with respect of all claims made, save as to costs. No appearances were entered by those parties when the matter was called today. 3. The background to the appeal may be briefly stated and is substantially derived from the affidavit of Emma Nichole Swords sworn in support of the summons on 9 February 2017, which attaches the initiating process brought by the first defendant before the Local Court, some material from the Local Court file and a transcript of proceedings before the Local Court on 12 and 19 September and 10 October 2016 respectively. 4. On 11 April 2016, the first defendant committed a traffic light offence and was issued with a penalty notice. After the issue of a reminder notice the first defendant paid the amount of the penalty recorded on the penalty reminder notice. In consequence, on 13 July 2016, the plaintiff notified the first defendant that her driver's licence was to be suspended for a period of three months commencing 17 August 2016 pursuant to s 36(4) of the Road Transport Act 2013 (NSW). 5. The first defendant commenced proceedings pursuant to s 45 of the Local Court Act on 15 August 2016 by the filing of an application notice ('the application'). The application was lodged pursuant to s 267 of the Road Transport Act and sought the following orders: That the decision of the Roads and Maritime Services to suspend on cancel my licence be varied by way of: 1. An extension of time to appeal the offence to disobey traffic lights 2. Appeal of penalty notice 4935135471 dated 11 April 2016. ("the application proceedings"). 1. There was a handwritten entry next to the orders sought on the document attached to Ms Sword's affidavit which read, "s 226-(d)-Appealable Decision of RMS". (It is, for reasons I will later discuss, presumably a reference to s 266(1)(d) of the Road Transport Act.) There was no attribution given to that entry in the evidence in these proceedings nor does the record of the Local Court proceedings reveal any amendment to the relief sought on behalf of the first defendant in the Local Court. 2. The grounds for the application are stated as: "if this Penalty Notice is upheld and the points lost is maintained the applicant will lose her licence for six months – see attached letter from RMS dated 13 July 2016." 1. The letter there referred to was a letter from the manager of the Sanctions Unit of the plaintiff to the first defendant pursuant to s 36(4)(a) of the Road Transport Act (which relates to a person who has made an election under s 36 and incurs two or more demerit points during a 12 month good behaviour bond) and s 60 of that Act. 2. When the matter was before the Local Court, the first defendant's solicitor indicated the matter was an appeal against the "offence" being a reference to the traffic light offence and submitted that the Court was not dealing with a licence suspension. The solicitor sought the matter be dealt with under s 10 of the Crimes (Sentencing Procedure) Act 1999. After considering those submissions the Local Court ordered: "application granted… disobey Red light is found proved, dismissed s 10(1)(a)". 1. The submissions of the plaintiff today reveal that order had the effect of lifting the suspension of the defendant's licence under s 36(4) of the Road Transport Act. 2. The matter was re-listed before the Magistrate on 19 September 2016 in which case the Magistrate queried whether he had power to grant "the application". He was advised by the solicitor for the applicant that he had no power to reverse the decision of the plaintiff to cancel the licence but "that's not the application that was before your Honour". The Magistrate was there assured that the matter was advanced under s 45 of the Local Court Act but that he was dealing with a matter which was within his power, namely "an offence". The matter was re-listed on 10 October 2016, at which time the Magistrate either confirmed his earlier order under s 10(1)(a) of the Crimes (Sentencing Procedure) Act or made a fresh order under that section (nothing turns upon this distinction, although it may be queried whether the Magistrate had a power to replicate, as a fresh order, his earlier order under s 10(1)(a)) overall. 3. The grounds for appeal may be shortly stated: 1. The Local Court was not dealing with an appeal against an "appealable decision" of the plaintiff and therefore had no jurisdiction to make any order with respect to the suspension. No appealable decision had been made by the plaintiff in relation to the first defendant and none was ever identified. No appeal lay from the suspension of the licence or the penalty for a Traffic Light offence under Pt 7.8 of the Road Transport Act and the appeal was otherwise prohibited by s 268(4) of that Act. 2. The Local Court did not have an offence before and therefore had no jurisdiction to make an order that a "charge be dismissed" under s 10(1)(a) of the Crimes (Sentencing Procedure) Act. There was no charge for an offence before the Local Court, the first defendant had not entered any plea and there had not been any findings of guilt of an offence. The first defendant had paid a penalty notice. There was no evidence that any election had been made by the first defendant to have the matter dealt with by the Local Court and no proceedings for the offence had been commenced. 3. In the case of criminal proceedings for a summary offence, such as disobeying a red light, proceedings are commenced by filing a Court Attendance Notice. It was further contended that an order can only be made by a Court for sentencing a person that has been charged and found guilty of an offence. 4. Criminal proceedings are specifically excluded from the operation of Part 4 Application Proceedings by s 44(a) of the Local Court Act. 1. The reasons for my decision in this matter are necessarily truncated having regard to the judgment being delivered ex parte when sitting as Duty Judge. They follow and will commence with a discussion of the relevant legislation. 2. Section 267 of the Road Transport Act provides that a person may appeal to the Local Court under Pt 7.8 of that Act against an "appealable decision" made in relation to a person by another person, by filing a notice for appeal with the Court. Appealable decisions are defined in s 266 (1) of the Road Transport Act. Section 266(1)(d) is in the following terms: "a decision of the Authority to give the person a notice of licence suspension or cancellation under section 40 (1) or a notice of licence ineligibility under section 41 (1)." 1. Section 40(1) of that Act is as follows: "The Authority may give a notice of licence suspension or cancellation to the holder of a learner licence or a provisional licence who incurs the threshold number of demerit points within the 3-year period ending on the day on which the person last committed an offence for which demerit points have been recorded against the person." 1. That provision may be contrasted to s 36(4)(a) of the Road Transport Act which is expressed in the following terms: (4) If a person who has made an election under this section incurs 2 or more demerit points during the 12 months' good behaviour period, the Authority must give the person one of the following notices: (a) a notice suspending all driver licences held by the person, commencing on a day specified in the notice (being a day that is not earlier than 28 days after the notice is given), for twice the period of suspension or licence ineligibility that would have applied to the person if the person had not made the election. 1. Section 268 of the Road Transport Act provides that the Local Court is to hear and determine an appeal made to the Court under Pt 7.8. 2. Section 268(4) of the Road Transport Act provides: If the decision that is appealed against was based on an offence committed (or alleged to have been committed) by the appellant under the road transport legislation or any other law, the appeal against the decision does not permit review of: (a) the guilt or innocence of the appellant for the offence, or (b) the imposition of a penalty or the level of a penalty imposed on the appellant for the offence. Note: The effect of this provision is that, for example, in an appeal against a suspension or cancellation action taken under section 40 against the holder of a provisional driver licence because of demerit points, the Local Court cannot revisit the issue of an offence in relation to which the demerit points were incurred or the imposition of a penalty in relation to such an offence. In any such case, the Local Court may exercise only the powers that the Authority could exercise under section 40 (see subsection (3)). 1. As earlier noted, proceedings were commenced under Pt 4 of the Local Court Act. That Part is described as the "Special Jurisdiction" of the Local Court and relates to application proceedings. Pursuant to s 45 the proceedings under review commenced the filing of an Application Notice. 2. Section 44 of the Local Court Act provides as follows: 44 Application of Part This Part applies to any proceedings with respect to matters for which jurisdiction is conferred on the Court by or under any other Act or law, other than: (a) criminal proceedings, or (b) proceedings with respect to any matter for which jurisdiction is conferred on the Court by Part 3. 1. It must be acknowledged before proceeding further with these reasons that the Magistrate hearing this matter received very little assistance in the discharge of this matter and was in some respects invited to error. 2. It appears to me that both of the grounds relied upon by the applicant establish that the orders of the Court made by the Local Court on 12 September and 10 October 2016 under s 10(1)(a) of the Crimes (Sentencing Procedure) Act constitutes the jurisdictional errors by the Local Court exceeding its jurisdiction in the proceedings before that Court. 3. The proceedings before the Local Court constituted an appeal brought under s 267 of the Road Transport Act. That is clear from the application filed on 15 August 2016 and the application cover sheet from the Local Court records found as an attachment to the affidavit of Ms Swords. 4. The relief sought in the application was to challenge the penalty imposed upon the appellant for unlawfully proceeding through a red traffic light. The stated purpose for that action was to controvert or overcome the determination by the plaintiff to suspend the licence of the appellant under s 36 of the Road Transport Act. 5. If the suspension under s 36(4) of the Road Transport Act in fact constituted a decision, it was not an "appealable decision" under Pt 7.8 and, in particular, it was not an appealable decision for the purposes of s 266(1) of that Act (see in particular the limited scope for appeal in relation to licence suspension under s 266(1)(d)). In any event, I consider the plaintiff correct to submit that a suspension arising under s 36(4) does not constitute a decision by the plaintiff, as a suspension automatically arises or necessarily arises in consequence of the requirements of that provision; see by analogy in Road Transport Association of New South Wales v Wilson (2003) 58 NSWLR 240; [2003] NSWCA 279 at [13]. 6. That difficulty no doubt resulted in the attack on the suspension under s 36(4) by means of the application being cast in terms of an appeal against the penalty arising from the traffic light offence. However such an approach is expressly precluded by the provisions of s 268(4)(b) of the Road Transport Act. That section provides that if the decision, that is appealed against was based on an offence committed, the appeal against the decision does not permit a review of the imposition of a penalty for the offence. 7. Whilst there is no direct evidence as to the offence, it is clear from the record of the proceedings before the Local Court and the accompanying applications (as well as the submissions of the plaintiff here today) that here there was a penalty imposed in consequence of a breach of r 59 of the Road Rules 2014 (NSW) which provides that, if traffic lights at an intersection are showing a red light, a driver must not enter the intersection (see the establishment of 'Statutory rules' under Ch 2 of the Road Transport Act and 'Examples of statutory rule-making powers' under Sch 1). It would appear that s 268(4) of the Road Transport Act was inserted to exclude, albeit in relation to an appeal against a suspension under s 40 of the Road Transport Act, a challenge to the underlying offence giving rise to additional demerit points then resulting in suspension. 8. The second ground concerns the exercise of a purported power by the Magistrate under s 10(1)(a) of the Crimes (Sentencing Procedure) Act. The plaintiff correctly contended that there was no charge before the Magistrate for the purposes of s 10(1)(a) which may have been dismissed under that provision. Further, the plaintiff pointed to the provisions of s 170 and s 172 of the Criminal Procedure Act 1996 (NSW) to contend that there was no Court Attendance Notice giving activation to the summary provisions of the Local Court Act which would have ignited powers of the Magistrate under s 10(1)(a). The proceedings were, it was correctly submitted, contrary to s 6(1) of the Criminal Procedure Act. The plaintiff contended that the absence of these procedures resulted in the proceedings, so far as they dealt with the offence, being invalid. 9. I do not propose to rule upon that latter contention as to invalidity as it is unnecessary to do so. The proceedings were initiated by the first defendant under the "special jurisdiction" of the Local Court under Pt 4 of the Local Court Act. The jurisdiction of the Local Court under those provisions is limited to any jurisdiction conferred on the Court or under any other Act or law under s 44. However, that section expressly removes the power of the Local Court to deal with criminal proceedings when exercising powers under that part (see s 44(a)). Insofar as the Local Court purported to deal with the traffic offence when dealing with application proceedings under Pt 4 of the Local Court Act it has exceeded its jurisdiction in consequence of the operation of s 44(a). 10. It appears to me therefore that there is a proper basis for the Court to make orders under s 69 of the Supreme Court Act insofar as the plaintiff sought an order in the nature of certiorari to set aside jurisdictional error. 11. Section 69 of that Act follows: 69 Proceedings in lieu of writs (1) Where formerly: (a) the Court had jurisdiction to grant any relief or remedy or do any other thing by way of writ, whether of prohibition, mandamus, certiorari or of any other description, or (b) in any proceedings in the Court for any relief or remedy any writ might have issued out of the Court for the purpose of the commencement or conduct of the proceedings, or otherwise in relation to the proceedings, whether the writ might have issued pursuant to any rule or order of the Court or of course, then, after the commencement of this Act: (c) the Court shall continue to have jurisdiction to grant that relief or remedy or to do that thing; but (d) shall not issue any such writ, and (e) shall grant that relief or remedy or do that thing by way of judgment or order under this Act and the rules, and (f) proceedings for that relief or remedy or for the doing of that thing shall be in accordance with this Act and the rules. (2) Subject to the rules, this section does not apply to: (a) the writ of habeas corpus ad subjiciendum, (b) any writ of execution for the enforcement of a judgment or order of the Court, or (c) any writ in aid of any such writ of execution. (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. 1. With respect to certiorari, reference may be made to the judgment of the High Court of Australia in Craig v State of South Australia (1995) 131 ALR 595; [1995] HCA 58 at 600-601: In considering what constitutes "jurisdictional error", it is necessary to distinguish between, on the one hand, the inferior courts which are amenable to certiorari and, on the other, those other tribunals exercising governmental powers which are also amenable to the writ. Putting to one side some anomalous exceptions, the inferior courts of this country are constituted by persons with either formal legal qualifications or practical legal training. They exercise jurisdiction as part of a hierarchical legal system entrusted with the administration of justice under the Commonwealth and State constitutions. In contrast, the tribunals other than courts which are amenable to certiorari are commonly constituted, wholly or partly, by persons without formal legal qualifications or legal training. While normally subject to administrative review procedures and prima facie bound to observe the requirements of procedural fairness, they are not part of the ordinary hierarchical judicial structure. In what follows, the anomalous courts or tribunals which fall outside the above broad descriptions can be ignored. Since the District Court of South Australia is undoubtedly a court, the primary focus of discussion will be upon what constitutes jurisdictional error on the part of an inferior court. An inferior court falls into jurisdictional error if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist. Such jurisdictional error can infect either a positive act or a refusal or failure to act. Since certiorari goes only to quash a decision or order, an inferior court will fall into jurisdictional error for the purposes of the writ where it makes an order or decision (including an order or decision to the effect that it lacks, or refuses to exercise, jurisdiction) which is based upon a mistaken assumption or denial of jurisdiction or a misconception or disregard of the nature or limits of jurisdiction. Jurisdictional error is at its most obvious where the inferior court purports to act wholly or partly outside the general area of its jurisdiction in the sense of entertaining a matter or making a decision or order of a kind which wholly or partly lies outside the theoretical limits of its functions and powers. An inferior court would, for example, act wholly outside the general area of its jurisdiction in that sense if, having jurisdiction strictly limited to civil matters, it purported to hear and determine a criminal charge. Such a court would act partly outside the general area of its jurisdiction if, in a matter coming within the categories of civil cases which it had authority to hear and determine, it purported to make an order of a kind which it lacked power to make, such as an order for specific performance of a contract when its remedial powers were strictly limited to awarding damages for breach. Less obviously, an inferior court can, while acting wholly within the general area of its jurisdiction, fall into jurisdictional error by doing something which it lacks authority to do. If, for example, it is an essential condition of the existence of jurisdiction with respect to a particular matter that a certain event or requirement has in fact occurred or been satisfied, as distinct from the inferior court's own conclusion that it has, there will be jurisdictional error if the court or tribunal purports to act in circumstances where that event has not in fact occurred or that requirement has not in fact been satisfied even though the matter is the kind of matter which the court has jurisdiction to entertain. Similarly, jurisdictional error will occur where an inferior court disregards or takes account of some matter in circumstances where the statute or other instrument establishing it and conferring its jurisdiction requires that that particular matter be taken into account or ignored as a pre-condition of the existence of any authority to make an order or decision in the circumstances of the particular case. Again, an inferior court will exceed its authority and fall into jurisdictional error if it misconstrues that statute or other instrument and thereby misconceives the nature of the function which it is performing or the extent of its powers in the circumstances of the particular case. In the last-mentioned category of case, the line between jurisdictional error and mere error in the exercise of jurisdiction may be particularly difficult to discern. [Footnotes omitted]. 1. Reference may also be made to Kirk v Industrial Relations Commission; Kirk Group Holdings v WorkCover Authority (2010) 239 CLR 531; [2010] HCA 1 at [71]-[73]: [71] … The court in Craig explained the ambit of jurisdictional error in the case of an inferior court in reasoning that it is convenient to summarise as follows. [72] First, the court stated, as a general description of what is jurisdictional error by an inferior court, that an inferior court falls into jurisdictional error "if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist" (emphasis added). Secondly, the court pointed out that jurisdictional error "is at its most obvious where the inferior court purports to act wholly or partly outside the general area of its jurisdiction in the sense of entertaining a matter or making a decision or order of a kind which wholly or partly lies outside the theoretical limits of its functions and powers" (emphasis added). (The reference to "theoretical limits" should not distract attention from the need to focus upon the limits of the body's functions and powers. Those limits are real and are to be identified from the relevant statute establishing the body and regulating its work.) Thirdly, the court amplified what was said about an inferior court acting beyond jurisdiction by entertaining a matter outside the limits of the inferior court's functions or powers by giving three examples: … (c) misconstruction of the relevant statute thereby misconceiving the nature of the function which the inferior court is performing or the extent of its powers in the circumstances of the particular case. The court said of this last example that "the line between jurisdictional error and mere error in the exercise of jurisdiction may be particularly difficult to discern". [73] As this case demonstrates, it is important to recognise that the reasoning in Craig that has just been summarised is not to be seen as providing a rigid taxonomy of jurisdictional error. The three examples given in further explanation of the ambit of jurisdictional error by an inferior court are just that — examples. They are not to be taken as marking the boundaries of the relevant field. So much is apparent from the reference in Craig to the difficulties that are encountered in cases of the kind described in the third example. [Foot notes omitted]. 1. Generally, I accept the further written submissions by Mr B Hearnden, solicitor, on behalf of the plaintiff, that the Local Court below disregarded the nature or limits of its jurisdiction, visa via the Special Jurisdiction conferred upon that court, for the following reasons: 1. To determine a criminal matter and impose sentence under the Crimes (Sentencing Procedure) Act in application proceedings; 2. To review the imposition of a penalty (under a penalty notice) imposed on the first defendant for an offence committed in breach of the Road Rules (Pt 6 Traffic Lights, Traffic Arrows and Twin Red Lights) in such proceedings; and 3. To "determine an offence" in the application procedures and impose a sentence. 1. On the face of the record, the judgment and orders of the Local Court demonstrated, for reasons given earlier in this judgment, jurisdictional error, by the Court below partly acting outside its general area of jurisdiction (in the orders made in application proceedings) and misconstruing the Local Court Act and Road Transport Act and, thereby, misconceiving the role or function of the Court in application proceedings. 2. The plaintiff is entitled to have the relief it seeks under s 69 of the Supreme Court Act. It was agreed by Mr B Hearnden that some refinement to the orders sought in the further amended summons may be desirable and, accordingly, I give leave to file short minutes of order in my chambers by 4pm on Monday next setting out the orders proposed. If the orders are in a suitable form I will propose to make the orders in terms in Chambers without further listing. ********** 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: 28 February 2017