Alison Clisdell v Charly Tannous

[2006] NSWSC 524

CITATION:	ALISON CLISDELL v CHARLY TANNOUS [2006] NSWSC 524
HEARING DATE(S):	31 May 2006
JUDGMENT DATE :	2 June 2006
JUDGMENT OF:	Latham J
DECISION:	The appeal is allowed; The order of Bradd LCM made in proceedings at Parramatta Local Court on 10 October 2005 dismissing the summary proceedings against the defendant is set aside; The decision of Bradd LCM in the proceedings that the plaintiff pay the costs of the defendant, assessed at $6,600 is set aside; The matter is remitted to the Local Court at Parramatta to be dealt with according to law; The defendant is to pay the plaintiff's costs in these proceedings
CATCHWORDS:	Appeal from dismissal of Local Court proceedings - construction of Magistrate's reasons - whether alternative basis for dismissal disclosed by Magistrate's reasons - construction of Tow Truck Industry Act 1998
LEGISLATION CITED:	Crimes (Local Courts Appeal and Review) Act 2001 Tow Truck Industry Act 1998 Interpretation Act 1987 Suitors Fund Act 1951
CASES CITED:	Gibb v Federal Commissioner of Taxation (1966) 118 CLR 628 R v Young (1999) 46 NSWLR 681 R v Kain [2004] NSWCCA 143 R v A [2004] NSWCCA 292 Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Ltd [2006] NSWSC 343 Pettit v Dunkley (1971) 1 NSWLR 376 Housing Commission of NSW v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378
PARTIES:	Plaintiff - Alison Clisdell Defendant - Charly Tannous
FILE NUMBER(S):	SC 15195/2005
COUNSEL:	Plaintiff - JK Kirk Defendant - GO Blake SC
SOLICITORS:	Plaintiff - IV Knight (Crown Solicitor) Defendant - Sage Solicitors

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

LATHAM J

2 JUNE 2006

15195/2005 ALISON CLISDELL v CHARLY TANNOUS

JUDGMENT

1 By Summons filed on 7 November 2005, the plaintiff seeks an order pursuant to s 59(2) of the Crimes (Local Courts Appeal and Review) Act 2001 (the LCAR Act) setting aside the order of a magistrate made at Parramatta Local Court on 10 October 2005. The magistrate’s order dismissed summary proceedings against the defendant for two offences of failing to comply with a notice issued under s 78 of the Tow Truck Industry Act 1998 (the TTI Act). The plaintiff also seeks an order setting aside the order for costs made against the plaintiff and an order remitting the matter to Parramatta Local Court to be dealt with according to law.

2 The resolution of this appeal pursuant to s 56(1)(c) of the LCAR Act ultimately turns on a relatively narrow basis. The appeal is confined to a question of law alone. The question of law identified by the plaintiff is whether the magistrate erred in finding that there was no power under the TTI Act for the Tow Truck Authority of NSW to appoint an officer of that Authority as an “authorised officer” for the purposes of s 78 of the TTI Act. On the hearing of the appeal, it transpired that the defendant in effect conceded that such a finding had been made and that it constituted error (albeit the analysis of the statutory regime which exposed that error was somewhat differently expressed by the defendant than that pressed upon the Court by the plaintiff), but contended that the magistrate’s reasons disclose an alternative basis upon which the decision to dismiss the proceedings can stand.

3 In view of the concession made by the defendant on the question of law identified by the plaintiff, I see no purpose to be served by any detailed discussion of the origins of the power vested in the Authority under the TTI Act to appoint an “authorised officer”. I deal with that issue briefly below. The substantive issues for determination are whether, on a proper construction of the magistrate’s reasons, there was an alternative basis for the dismissal of the charge, and if so, whether that alternative basis discloses an error of law.

The Statutory Framework

4 The relevant provisions within the TTI Act are ss 3(1), 8(1) and (2), 78(1), 85(1) and 97(1).

3 Definitions
(1) In this Act:

Authorised officer means:

(a) an officer of the TTA, or
(b) an officer of the RTA, or
(c) an officer of the Department of Transport, who is authorised in writing by the TTA for the purposes of this Act.
8 Functions of TTA
(1) The TTA has the functions conferred or imposed on it by or under this or any other Act or law.
(2) In particular, the TTA has the following functions:
(a) to regulate the tow truck industry in accordance with this Act and the regulations
78 Requirement to provide information and records
(1) The TTA, an authorised officer or a police officer may, by notice in writing given to a person, require the person to furnish to the TTA or the officer such information or records (or both) as the TTA or the officer requires by the notice in connection with any matter arising under or in connection with this Act.
85 Offences
(1) A person who, without lawful excuse, neglects or fails to comply with any requirement made of the person under this Division is guilty of an offence.
97 Delegation
(1) The TTA may delegate any of its functions (other than this power of delegation) to any of the following persons:
(a) an officer of the TTA,
(b) an officer of the RTA,
(c) an officer of the Department of Transport,
(d) any other person (or class of persons) prescribed by the regulations.

5 The plaintiff submits that the power to appoint may be implied by the definition of "authorised officer" in s 3, in combination with other provisions referring to "authorised officers" in the Act, taken together with s 8 of the Act. In particular, the plaintiff points to the function conferred upon the TTA by s 8(2)(a) of the Act, that is, “to regulate the tow truck industry in accordance with this Act and the regulations”, a function which could not be performed absent the power to appoint "authorised officers". Alternatively, the plaintiff relies upon s 50(1)(e) of the Interpretation Act 1987 which provides that statutory corporations "may do and suffer all other things that bodies corporate may, by law, do and suffer and that are necessary for, or incidental to, the exercise of its functions". By s 7 of the TTI Act, the TTA is a statutory corporation. Therefore, the TTA has the power to appoint persons as authorised officers in order to carry out its functions as a statutory corporation.

6 The defendant disputes that the definition section within the TTI Act is capable of having any substantive effect : see Gibb v Federal Commissioner of Taxation (1966) 118 CLR 628. However, the defendant accepts that s 8(1) and (2)(a), in combination with s 78(1), or s 78(1) alone, impliedly confer a power upon the TTA to appoint an authorised officer to give a notice under s 78. The defendant also accepts that an alternative source of power resides in s 50(1)(e) of the Interpretation Act 1987.

7 As noted above, it is strictly unnecessary to decide whether s 3 of the TTI Act plays any part in the construction of the implied power to appoint authorised officers. It is sufficient for present purposes to note that the TTI Act provides for the exercise of powers or functions by authorised officers of a far-reaching nature, including entry into premises and the tow truck of a licensee, giving directions to a licensee to carry out towing work, the compulsory acquisition of information pertaining to records, licences and drivers certificates, giving directions at the scene of a motor vehicle accident, the issue and execution of search warrants, and the service of penalty notices. In the absence of a power to appoint authorised officers, many of the functions integral to the regulation of the tow truck industry would simply fail to be performed. The purposes of the Act would thereby be defeated. The Act should therefore be construed in order to prevent such an outcome ; R v Young (1999) 46 NSWLR 681.

The Local Court Proceedings

8 The plaintiff was the first witness to give evidence in the prosecution case on 10 October 2005. The plaintiff gave her occupation as "Investigations Officer with the Tow Truck Authority" (T/S p. 1, line 40) and proceeded to read from a statement dated 1 November 2004. At line 22 of p 2 of the transcript, the plaintiff commenced reading "I am employed as an Investigations Officer of the Tow Truck Authority, Ministry of Transport" and continued reading from paragraph 28 of the statement, namely that "on 17 September 2004 I prepared a notice pursuant to section 78(1) of the Tow Truck Industry Act for the accused to provide information and records." A copy of the notice served on the defendant via facsimile became Exhibit 1 in the proceedings. The plaintiff gave evidence that the original notice was posted to the defendant on the same day.

9 The plaintiff was cross-examined, principally in respect of the transmission of the notice to the defendant on 17 September 2004 at approximately 5 p.m. There were no questions directed to the plaintiff relating to the length of her employment as an Investigations Officer, nor was the plaintiff questioned in relation to her appointment as an "Authorised Officer". The entirety of the thrust of the cross-examination appears to relate to the sufficiency of the evidence concerning service of the notice.

10 The next witness called by the prosecution was Mr Terence Patrick Hickey. He gave his occupation as General Manager of the Tow Truck Authority. He was asked "in relation to [the plaintiff], is she an employee of the Tow Truck Authority?" Mr Hickey replied "yes". Mr Hickey then gave the plaintiff’s position as Investigations Officer. Immediately thereafter, the following is recorded in the transcript:-

Q. And is she an authorised officer?
OBJECTION

Q. Do you have a certificate of her appointment or anything like that, any other …
A. I've got a letter here, I haven't brought the Registrar, but I've got a letter here of when her status as an approved officer -- authorised officer was --

Q. Could I just have access to that for a moment please. Are you able to tell us whether she's an officer of the TTA, Ms Clisdell ?
OBJECTION

PROSECUTOR : I tender that
AUTHORISATION LETTER UNDER SECTION 3(1) OF THE ACT TENDERED. OBJECTION TO TENDER. LEGAL ARGUMENT. TENDER PRESSED. TENDER WITHDRAWN.

Q. Are you able to tell the court how an officer is appointed ?
OBJECTION
SHORT ADJOURNMENT

Q. I just show you these two documents. Have you seen those two documents before?
A. Yes

Q. And are they letters of authorisation signed by you?
OBJECTION. DOCUMENTS SPEAK FOR THEMSELVES.
MFI A TWO LETTERS OF AUTHORISATION

MATTER INTERPOSED

PROSECUTOR : If I could just have those documents. I tender these two documents your Honour again.
MFI A TENDERED. OBJECTION TO TENDER ON THE SAME BASIS AS BEFORE.
LEGAL ARGUMENT CONTINUES.

PROSECUTOR : Your Honour, I've got nothing further. Would your Honour just state onto the record your reasons for -- --

HIS HONOUR: For disallowing this particular -- --

PROSECUTOR : Yes your Honour.

11 Without further ado, the magistrate gave reasons for the rejection of the tender of MFI A. Before setting out those reasons in full, it is pertinent to note that three separate attempts were made to tender the documents, described as two letters of authorisation. The basis upon which the tender was objected to on the first occasion does not appear from the transcript, other than by way of "legal argument". The second occasion upon which the prosecutor sought to tender the documents was, according to the transcript, met with an objection that the "documents speak for themselves". The third attempt to tender the documents was met with an objection "on the same basis as before". It is not possible to determine from the transcript whether the "same basis" refers to the second attempt to tender the documents or the first attempt to tender the documents.

12 In short, there is nothing in the transcript itself which elucidates the argument advanced by the defendant before the magistrate. That, of course, is not an uncommon feature of transcripts produced from tape recordings of Local Court proceedings. However, it assumes some significance in the circumstances of this appeal, in so far as the defendant’s senior counsel (who appeared for the defendant below) has asserted in submissions before this Court, that his objections to the tender of the documents were not based upon any lack of power in the TTI Act to appoint an “Authorised Officer”. Rather, the objections were based upon the absence of any evidence that the plaintiff was within one of the categories referred to in s 3 of the TTI Act, at the time of the instrument of authorisation (31 August 2004).

13 This Court has observed in another context that exchanges between the Bench and counsel in the course of proceedings do not form part of the reasons : see R v Kain [2004] NSWCCA 143 at par. 56; R v A [2004] NSWCCA 292 at par. 12. Similar observations were made by Johnson J. in Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Ltd NSWSC 343 at par 19. Even were it appropriate to have regard to the submissions made during legal argument in an attempt to construe the magistrates’ reasons for his determination, such an approach is not possible in the circumstances of this case, without resorting to speculation. There is no evidence before me, capable of establishing the basis of the defendant's objections to the tender of MFI A. Accordingly, the reasons provided by the magistrate must be construed on their face.

14 Those reasons were as follows: --

I have before me two documents, both are headed Instrument of Approved Officer. They are both substantially the same form except for the name of an appointee, purported appointee, and I will read one of them out, it says,
"I, Terry Hickey, General Manager of the Tow Truck Authority of New South Wales do by this instrument in accordance with section 3 subsection (1) of the Tow Truck Industry Act 1998 appoint Alison Clisdell as an authorised officer of the Tow Truck Authority for the period from 30 August 2004 to 1 September 2007."
The purported instrument is purported to be made in accordance with section 3 subsection (1) of the Tow Truck Industry Act. Section 3 subsection (1) of the Tow Truck Industry Act is the definition section and as such it does not include a power of appointment, it merely defines an authorised officer as an officer of the TTA or an officer of the RTA or an officer of the Department of Transport.
The purported instrument does not state that Ms Alison Clisdell is an officer of the TTA or an officer of the RTA or an officer of the Department of Transport and does not provide a statutory basis for appointment. There appears to be a hiatus in the Act in that there is no power in the Act for the General Manager to, by instrument, make appointments and consequently any purported appointment is null and void. And the tender is not permitted.

15 After the magistrate had provided these reasons, the prosecutor is recorded as saying "there's nothing further your Honour." Mr Hickey was retired and excused, whereupon the magistrate asked the prosecutor to concede that there was no case. The prosecutor replied "on that basis your Honour, we have to." Following dismissal of the proceedings, there was a successful application for costs.

The Construction of the Magistrate’s Reasons

16 The reasons commence with the magistrate’s construction of s 3(1) of the TTI Act, specifically that s 3 is a definition section, which does not include a power of appointment. This construction echoes the written submissions filed in this appeal by the defendant. The last paragraph of the reasons contains two propositions. Firstly, that the instrument of appointment failed to state that the plaintiff is an officer of the TTA, or an officer of the RTA, or an officer of the Department of Transport. Secondly, that there was no power to be found within the Act allowing for the appointment by the General Manager of an "Authorised Officer". As for the second proposition, it has been acknowledged for the purposes of this appeal that this aspect of the magistrate’s reasons contain an error of law. As for the first proposition, there is no requirement within the Act for the instrument of appointment to state that the "Authorised Officer" comes within one of those categories nominated by s 3. I do not understand the defendant to have submitted otherwise.

17 The defendant’s contention on this appeal is that the first proposition ought be read as a finding by the magistrate that the instrument of appointment failed to state that the plaintiff was an officer of the TTA at the relevant time, namely as at the date of execution of the instrument by the General Manager, and that in the absence of any other evidence to that effect, the instrument of appointment was invalid. I have considerable difficulty accepting the defendant’s submission in this regard. The magistrate expresses this proposition in the present tense. Admittedly, the present tense is consistent with a conclusion that the instrument of appointment did not disclose on its face that the plaintiff was an officer of the TTA on 31 August 2004 being the date of execution of the instrument. However, there is no reference in the magistrate’s reasons to employment at the relevant date, in so far as that date was considered critical (according to the defendant's submissions) to the validity of the instrument of appointment.

18 Moreover, there was no reference to the absence of other evidence in the proceedings which may have saved the validity of the appointment. There was evidence from the plaintiff and from Mr Hickey to the effect that the plaintiff was an officer of the TTA as at 1 November 2004 and 10 October 2005. The requirement to give sufficient reasons is not satisfied in circumstances where there was evidence before the magistrate of the plaintiff’s position within the TTA, yet her employment within the TTA at a specific date was thought critical to the outcome of the prosecution. This is particularly so, given that one of the primary purposes of the requirement to give reasons is so that the aggrieved party may exercise a right of appeal : Pettit v Dunkley (1971) 1 NSWLR 376 ; Housing Commission of NSW v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378. According to the defendant’s written submissions in this Court, the instrument of appointment constituted insufficient evidence of a valid appointment, that is, the defendant did not, and does not maintain that the instrument of appointment itself must contain evidence of the plaintiff’s status as at 31 August 2004. Of course, had the magistrate articulated his reasons in that way, the prosecution would no doubt have called further evidence in order to remedy the alleged defect. That the prosecution did not understand this alleged basis of the magistrate’s reasons is manifested by the prosecutor's concession that there was no case to answer.

19 In any event, the first sentence of the last paragraph of the magistrate’s reasons should be construed in context. When one has regard to the sentence as a whole, it is clear that the magistrate is referring to the capacity of the instrument to provide a statutory basis for appointment. The remainder of the paragraph takes up that theme, that is, that there is no other provision in the Act giving rise to a power to appoint. In my view, the prosecutor's concession was entirely consistent with the only basis for the magistrate’s ruling, namely that there was no power of appointment within the Act.

The Disposition of this Appeal

20 The defendant’s written submissions filed in this Court contend that there was insufficient evidence of a valid appointment for a number of reasons, namely :-

(a) that there was no evidence that the plaintiff was an officer of the TTA or the RTA or Department of Transport as at 31 August 2004.

(b) that the instrument of appointment did not authorise the plaintiff "for the purposes of the Act".

(c) that the instrument of appointment referred to a period commencing one day prior to the date of its execution.

(d) that there was no evidence that Terry Hickey was the General Manager of the TTA as at 31 August 2004.

(e) that there was no evidence that on or prior to 31 August 2004, the TTA had delegated its function of appointing authorised officers generally or particularly for the purpose of s 78 of the Act to Terry Hickey or the General Manager of the TTA.

(f) that there was no evidence that the plaintiff was in possession of an identification card issued by the TTA as required by s 98(1) of the Act.

21 On the basis of the evidence before me on this appeal, none of these grounds were part of the proceedings before the magistrate on 10 October 2005. In so far as the defendant now wishes to assert that the decision of the magistrate should be affirmed on grounds other than those relied upon below, a Notice of Contention pursuant to Part 51B r 18 of the Supreme Court Rules has not been filed, nor was an extension of time sought within which to file such a notice. Rather, the defendant submits that s 65(1)(b) of the LCAR Act allows this Court to dismiss the appeal.

22 Section 65 of the LCAR Act provides that a conviction, order or sentence is not to be set aside merely because of an omission or mistake in the form of the conviction or order, or because of an error of law in the order or sentence, if it appears to the court that there were sufficient grounds before the Local Court to have authorised the conviction, order or sentence free from the omission, mistake or error. Subsection 2 allows the appeal court to make amendments to the conviction, order or sentence or to remit the matter to the Local Court to make the conviction, order or sentence authorised by law, and to amend it accordingly.

23 Section 65 is of no assistance to the defendant. There is no omission, mistake or error in the form of the order made by the magistrate. The remedies provided by subsection 2 indicate the limits of the power under s 65, namely the correction of technical errors in circumstances where the outcome of the proceedings in the Local Court have not been attended by legal error.

24 Accordingly, the only basis for the disposition of the appeal is set out in the summons filed by the plaintiff. The appeal is allowed. I make the following orders :-

1. The order of Bradd LCM made in proceedings at Parramatta Local Court on 10 October 2005 dismissing the summary proceedings against the defendant is set aside.

2. The decision of Bradd LCM in the proceedings that the plaintiff pay the costs of the defendant, assessed at $6,600 is set aside.

3. The matter is remitted to the Local Court at Parramatta to be dealt with according to law.

4. The defendant is to pay the plaintiff's costs in these proceedings. I grant to the defendant, a certificate pursuant to s 6 of the Suitors Fund Act 1951.

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