Boensch v Commissioner of Fines Administration

[2017] NSWCA 13

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Boensch v Commissioner of Fines Administration [2017] NSWCA 13
Hearing dates:	9 February 2017
Decision date:	09 February 2017
Before:	McColl JA at [1]; Basten JA at [2]; Simpson JA at [21]
Decision:	(1)   Summons dismissed.  (2)   Order the applicant to pay the respondents’ costs in this Court.
Catchwords:	APPEAL AND REVIEW – judicial review – review of District Court judgment dismissing application for annulment of penalty notice enforcement order – whether jurisdictional error by District Court in failing to be satisfied that applicant “hindered” from taking action in relation to the penalty notice WORDS AND PHRASES – “hindered” –Fines Act 1996 (NSW) s 49(1)(a)(ii)
Legislation Cited:	Crimes (Appeal and Review) Act 2001 (NSW), s 8 District Court Act 1973 (NSW), s 176 Fines Act 1996 (NSW), ss 41, 42, 49. 50 Justices Act 1902 (NSW), s 100K Local Court Act 2007 (NSW), s 70 Supreme Court Act 1970 (NSW), s 69
Cases Cited:	Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Director of Public Prosecutions v Emanuel [2009] NSWCA 42; 193 A Crim R 552 Downey v Acting District Court Judge Boulton (No 5) (2010) 78 NSWLR 499; [2010] NSWCA 240 Hoffenberg v District Court of New South Wales [2010] NSWCA 142 Miller v Director of Public Prosecutions (NSW) [2004] NSWCA 90; 145 A Crim R 95
Category:	Principal judgment
Parties:	Franz Boensch (Applicant) Commissioner of Fines Administration (First Respondent) District Court of NSW (Second Respondent)
Representation:	Counsel: Applicant self-represented Mr K Averre   Solicitors: Applicant self-represented Hunt & Hunt (First Respondent) Lea Armstrong, Crown Solicitor (Second Respondent)
File Number(s):	2016/259269
Decision under appeal	Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 18 May 2016 Before: Colefax SC DCJ File Number(s): 2015/325202

Judgment

1. McCOLL JA: I agree with the reasons of Basten JA and the orders his Honour proposes.

2. BASTEN JA: On 20 July 2015 a police officer issued a traffic infringement notice to the applicant for riding his motorcycle in excess of 30 kph above the speed limit. The offence rendered him liable for a fine and suspension of his driver licence for three months. He did not pay the fine or take any other step in relation to the notice, which he said he lost.

3. On 7 October 2015 a penalty notice enforcement order was made by the Commissioner of Fines Administration (“the Commissioner”) pursuant to ss 41 and 42 of the Fines Act 1996 (NSW).

4. On 15 October 2015 the applicant applied to have the order annulled. The circumstances in which the Commissioner must, or may, annul an order are set out in s 49(1) of the Fines Act, which reads as follows:

49   Determination of applications by Commissioner

(1)   When dealing with an application for annulment, the Commissioner:

(a)   must annul the penalty notice enforcement order if the Commissioner is satisfied that:

(i)   the person was not aware that a penalty notice had been issued until the enforcement order was served, but only if the application was made within a reasonable time after that service, or

(ii)   the person was otherwise hindered by accident, illness, misadventure or other cause from taking action in relation to the penalty notice, but only if the application was made within a reasonable time after the person ceased being so hindered, or

(iii)   the penalty reminder notice was, or both the penalty notice and the penalty reminder notice, in relation to a particular offence were, returned as being undelivered to its sender after being sent to the person at the person’s recently reported address (within the meaning of section 126A) and notice of the enforcement order was served on the person at a different address, and

(b)   may annul the penalty notice enforcement order if:

(i)   the Commissioner is satisfied that a question or doubt has arisen as to the person’s liability for the penalty or other amount concerned, but only if the person had no previous opportunity to obtain a review of that liability, or

(ii)   having regard to the circumstances of the case, the Commissioner is satisfied that there is other just cause why the application should be granted.

5. The application to the Commissioner was rejected. On 5 November 2015 the applicant lodged an application with the Local Court to have his annulment application determined by the Court, pursuant to s 50(1) of the Fines Act. On 29 January 2016 that application was dismissed. On 2 February 2016 the applicant lodged an appeal with the District Court, pursuant to s 70 of the Local Court Act 2007 (NSW) and in accordance with the Crimes (Appeal and Review) Act 2001 (NSW). On 18 May 2016, Colefax DCJ dismissed the appeal.

6. There is no right of appeal from the order of the District Court. However, the applicant was entitled to seek review of the decision of the District Court in this Court, pursuant to the supervisory jurisdiction conferred by s 69 of the Supreme Court Act 1970 (NSW). That jurisdiction is, however, constrained by s 176 of the District Court Act 1973 (NSW) which precludes an adjudication on appeal to the District Court being removed into the Supreme Court. That section is understood to exclude relief based on error of law on the face of the record. The applicant must, therefore, establish that there was jurisdictional error on the part of the District Court. [1]

   1. See Downey v Acting District Court Judge Boulton (No 5) (2010) 78 NSWLR 499; [2010] NSWCA 240; Director of Public Prosecutions v Emanuel [2009] NSWCA 42; 193 A Crim R 552 at [18] (Spigelman CJ) and [45] (in my judgment). See also Hoffenberg v District Court of New South Wales [2010] NSWCA 142 at [3]-[5].

7. The grounds of the application to this Court were expressed in the following terms:

“1   His Honour erred in law in that he misapplied the applicable statutory test in coming to the conclusion that the Plaintiff was not hindered by illness, misadventure or other cause from taking action in relation to the penalty notice.

2   His Honour erred in determining that a person not stopped from carrying out employment could not be hindered from taking action in relation to a penalty notice.

3   His Honour should have held that the unchallenged evidence of the Plaintiff necessarily led to a conclusion that the Plaintiff was hindered from taking action in relation to the penalty notice such as to satisfy the requirements for an annulment of the penalty notice enforcement order.”

8. The circumstances in which an order must be annulled are where (i) the person was not aware that a penalty notice had been issued, (ii) where the person was “otherwise hindered” from taking action in relation to the penalty notice and (iii) where the reminder notices had been returned as being “undelivered”. There is no doubt that the applicant was aware that a penalty notice had been issued: it was handed to him by the police officer at the roadside and he said that he put it in his pocket, but it was not there when he arrived home. The third ground was not relied upon. Each of the grounds set out in the summons refers to the second criterion, namely that the person was “otherwise hindered” from taking action.

9. The grounds did not suggest that Judge Colefax failed to identify the relevant statutory criterion; rather, ground 1 said that the judge “misapplied the applicable statutory test”. That does not, in its terms, identify jurisdictional error.

10. The second ground asserted that the judge determined that “a person not stopped from carrying out employment could not be hindered from taking action in relation to a penalty notice.” There are two problems with that proposition. First, that is not what the judge said in his reasons; rather, having noted that, on and from 10 August 2015 the applicant was “pre-occupied” with a medical condition, the reasons continued:

“There is no evidence that it pre-occupied him to the extent of preventing him from carrying out his employment and, if he were not stopped from carrying out his employment, there was nothing to preclude him attending to the penalty notice.”

11. The second, and fatal flaw, in the ground is that it identifies no form of jurisdictional error. Indeed, even if the applicant were entitled to rely upon an error of law on the face of the record (which, in this jurisdiction, he is not) no error is revealed. As with the Commissioner, the Court could only make an order annulling the enforcement order if affirmatively satisfied as to one of the matters identified in s 49. It was obliged to annul the order only in circumstances identified in s 49(1). The applicant bore the burden of satisfying the Court as to the relevant criterion. A failure to satisfy that burden of proof does not, of itself, demonstrate error of law, as explained by Glass JA in Azzopardi v Tasman UEB Industries Ltd. [2] Something more is required.

    2. (1985) 4 NSWLR 139 at 156D-F.

12. The third ground contains the same fatal flaw: it is not an error of law for the tribunal of fact to fail to accept evidence proffered by the party bearing the onus of proof.

13. The reference by the applicant to his own “unchallenged evidence” was a reference to an affidavit which he filed in the District Court dated 17 May 2016. Annexed to the affidavit was a medical certificate from a doctor at a medical centre at Top Ryde and the records from the emergency department at Westmead Hospital, where the applicant was admitted (and from which he was discharged) on 10 August 2015 suffering from left-sided epistaxis (being severe nose bleeding). He suffered from hypertension.

14. The explanation given for taking no steps in relation to the penalty notice prior to 10 August 2015 was simply that he did not have a copy of the notice and could not identify the officer who had issued it. With respect to the period after 10 August, up to the time when he received the copy of the enforcement order on 12 October, he merely stated that he had attended Westmead Hospital on 10 August and was “pre-occupied” with his health issue over the following month. No explanation was given as to the period of a further month from around 10 September until 12 October.

15. The submission that the judge was required, in the proper exercise of his jurisdiction, to be satisfied by this evidence that the applicant was otherwise hindered by “illness … or other cause” from taking action in relation to the penalty notice was untenable.

16. In his submissions, the applicant referred to a decision of this Court in Miller v Director of Public Prosecutions (NSW). [3] The circumstances of that case were significantly different from the present in two main respects. First, the case concerned an application to annul a conviction entered in circumstances where the appellant had failed to appear in the Local Court. The appellant then applied for annulment of the conviction on grounds identified in s 100K of the Justices Act 1902 (NSW) (since repealed), the equivalent provision now being found in s 8 of the Crimes (Appeal and Review) Act. The structure of the section was similar to s 49(1) of the Fines Act, and, in particular, the language reflected that of s 49(1)(a)(ii), in relation to being “otherwise hindered”.

    3. [2004] NSWCA 90; 145 A Crim R 95 (Sheller and Beazley JJA, Young CJ in Eq).

17. Secondly, Miller in this Court was an appeal from a judgment of the Common Law Division. The right of appeal to the Common Law Division was not limited to a question of law alone, but, with leave, permitted a ground involving a question of mixed law and fact. It is unnecessary to recount either the circumstances giving rise to the appeal, or the reasoning of Sheller JA (with whom other members of the Court agreed). The applicant relied upon the case for the following propositions. First, Sheller JA stated:[4]

“The use of the word ‘hindered’ is instructive. It does not only mean ‘prevented’ but also ‘impeded’ or ‘obstructed’. There are no doubt many ways in which this can happen and it is not desirable, even if possible, to catalogue them here.”

4. Miller at [25].

18. In further reasons given by Young CJ in Eq, the following passage occurred:

“Further, it is significant that the word ‘hindered’ is used. Although Martin J said in Hogben v Chandler [5] that ‘hindered’ ‘is a somewhat vague term’, it nonetheless clearly means something less than prevention, namely making something more or less difficult but not impossible. [6] Alternatively, as Lord Dunedin put in the same case, the word has ‘the general sense of in any way affecting to an appreciable extent’, the activity in question, a statement which was approved by Mason J in the High Court in Devenish v Jewel Food Stores Pty Ltd. [7] ”

5. [1940] VLR 285 at 288.

6. Tennants (Lancashire) Ltd v CS Wilson & Co Ltd [1917] AC 495 at 518 (Lord Atkinson).

7. (1991) 172 CLR 32 at 45.

19. All this may be accepted: it does not, however, demonstrate error of law, let alone jurisdictional error, on the part of the judge in the present case. Although it is true that in the sentence set out at [10] above, he stated that there was “nothing to preclude” the applicant attending to the penalty notice, it is clear from the context and the reference to “no evidence” that the judge was saying that there was no evidence of relevant interference with day-to-day activities after 10 August. In any event, the judge concluded that the applicant could have taken steps, without hindrance, before 10 August. As he put it in somewhat colourful terms:

“A failure by a person to lift a finger to make any inquiry does not constitute being hindered by any external events, such as accident, illness, misadventure or other cause.”

20. It is clear that the judge had identified and applied the statutory test. There was no failure to exercise that jurisdiction. No error of law, let alone jurisdictional error, having been identified, the jurisdiction of this Court to intervene is not engaged. The summons must be dismissed. The circumstances of the case do not warrant a departure from the usual order as to costs; accordingly, the applicant must pay the respondents’ costs in this Court.

21. SIMPSON JA: I also agree.

**********

Endnotes

Decision last updated: 09 February 2017