Burridge v Chief Magistrate of the Magistrates Court of the Australian Capital Territory (No 2)
[2018] ACTCA 43
•5 October 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Burridge v Chief Magistrate of the Magistrates Court of the Australian Capital Territory (No 2) |
Citation: | [2018] ACTCA 43 |
Hearing Date: | 9 August 2018 |
DecisionDate: | 5 October 2018 |
Before: | Elkaim, Loukas-Karlsson and Charlesworth JJ |
Decision: | See [97] |
Catchwords: | APPEAL AND NEW TRIAL – IN GENERAL AND PARTICULAR GROUNDS - Appeal against primary judgment – notice of infringement – whether a valid delegation has been made – writ of prohibition |
Legislation Cited: | Australian Road Rules Evidence Act 2011 (ACT) |
Cases Cited: | Burridge v Chief Magistrate of the Magistrates Court of the Australian Capital Territory [2016] ACTSC 332; 317 FLR 26 Burridge v Chief Magistrate of the Magistrates Court of the Australian Capital Territory [2017] ACTCA 24 |
Texts Cited: | D Pearce and R Geddes, Statutory Interpretation in Australia (Lexis Nexis, 8th Ed, 2014) |
Parties: | Lindsay John Burridge (Appellant) Chief Magistrate of the Magistrates Court of the Australian Capital Territory (First Respondent) James McCue (Second Respondent) |
Representation: | Counsel Self-represented (Appellant) Ms K McCann (Second Respondent) |
| Solicitors Self-represented (Appellant) ACT Government Solicitor (First Respondent) ACT Director of Public Prosecutions (Second Respondent) | |
File Number: | ACTCA 20 of 2017 |
Decision under appeal: | Court/Tribunal: Supreme Court of the ACT Before: Mossop AsJ Date of Decision: 18 November 2016 Case Title: Burridge v Chief Magistrate of the Magistrates Court of the Australian Capital Territory Citation: [2016] ACTSC 332 |
ELKAIM AND LOUKAS-KARLSSON JJ
This is an appeal from a decision of Mossop AsJ (as he then was) delivered on 18 November 2016 (Burridge v Chief Magistrate of the Magistrates Court of the Australian Capital Territory [2016] ACTSC 332; 317 FLR 26).
Mossop AsJ’s decision arose from an Originating Application for Judicial Review, filed on 15 July 2015, of a decision of Chief Magistrate Walker made on 10 June 2015. Although the Chief Magistrate is listed as the first respondent, the matter has been appropriately run by the second respondent. In these reasons the second respondent will be referred to as “the respondent”. The first respondent is taken to have submitted to the orders of the Court.
Leave to pursue the appeal, on limited and prescribed grounds, was granted by Murrell CJ on 19 May 2017 (Burridge v Chief Magistrate of the Magistrates Court of the Australian Capital Territory [2017] ACTCA 24).
The Amended Notice of Appeal was filed on 14 July 2017 and lists three grounds of appeal. They are:
Ground 1: The primary judge erred in failing to find that the Magistrates Court lacked jurisdiction because the informant had not been validly delegated power to lay the Information; the evidence did not establish a valid delegation and the primary judge erred in finding that the onus lay on the applicant to prove want of authority.
Ground 2: The primary judge erred in failing to find that the Information was defective and did not attract the jurisdiction of the Magistrates Court; it was not merely a matter of the Information containing inadequate particulars of the type that could be remedied by the provision of particulars.
Ground 3: The primary judge erred in finding that s 75 of the Road Transport (General) Act 1999 (ACT) means that it is not necessary that an Information or summons state the location where an alleged offence occurred.
The above three grounds reflect the limits of the leave given by Murrell CJ on 19 May 2017.
Background
On 25 March 2014, the appellant is alleged to have been speeding in his motor vehicle, contrary to r 20 of the Australian Road Rules. A summons in respect of the charge (CC 2014/5882) was served on the appellant on 15 June 2014. The appellant appeared in the Magistrates Court on 8 August 2014 and entered a plea of ‘not guilty’.
On 15 August 2014, the informant wrote to the appellant making a demand under s 60(1)(a) of the Road Transport (General) Act 1999 (ACT) (‘RTG’) that he identify the driver of the vehicle at the time the alleged offence occurred.
The appellant’s failure to respond to the letter led to him being charged with a further offence, namely a failure to give a written statement about the driver to a police officer when required (CC 2014/10654). On 14 November 2014, the appellant entered a plea of ‘not guilty’ to this charge.
On 23 April 2015, the matter came before Chief Magistrate Walker for hearing. Her Honour refused the appellant’s application to dismiss the proceedings and to set aside a subpoena. The proceedings were heard in part and adjourned to allow further argument as to the validity of the summons. The subpoena and CC 2014/10654 are not relevant to this appeal.
10. On 10 June 2015, Chief Magistrate Walker found that the summons in respect of CC 2014/5882 had been validly issued and served. This led to the Originating Application for Judicial Review.
11. On 18 November 2016, Mossop AsJ made the following orders:
(1)The proceedings are dismissed.
(2)The plaintiff is to pay the defendants’ costs of the proceedings.
(3)Order 2 does not take effect for a period of 14 days and if, within that period, either party notifies the Registrar in writing that it wishes to be heard in relation to costs, does not take effect until further order of the Court.
12. On 28 April 2017, the appellant filed an Application for Leave to Appeal out of time. This was determined by Murrell CJ on 19 May 2017.
13. Notwithstanding the specific delineation of the permitted grounds of appeal by Murrell CJ, the appellant’s written (both typed and handwritten) submissions make no attempt to specifically address each ground. Instead, they involve a wide-ranging discussion of broad aspects of the law, sometimes allowing specific consideration of each ground to surface. It is generally difficult to align the submissions with the permitted grounds of appeal.
14. The appellant also specifically asserts error outside the permitted grounds. For example, at [29] of his written submissions the appellant complains about the admission of certain evidence and the weight given to it by Mossop AsJ. Another example is at [45] where the appellant continues to agitate his complaints about the subpoena addressed to his wife.
15. The submissions also include some indications of legal confusion on the appellant’s part. For example, he relies on s 97 of the Evidence Act 2011 (ACT) to suggest the informant had a tendency to act in a particular way (written submissions at [40]).
16. In addition, the appellant plainly ignored Murrell CJ’s implied warning against personal criticism of the primary judge (at [13]). The appellant persisted in this approach. He referred, for example, to his Honour embarking on a “judicial frolic”. This comment is in stark contrast to the careful and comprehensive judgment in the Court below.
17. It is to be noted that, like this Court, his Honour was faced with discerning the points in issue in the application from amongst the wide-ranging submissions made to him. Relevantly, at [31], his Honour identified the issues before dealing with them.
18. Issue (d) corresponds to Ground 1 in the appeal, Issues (b), (c) and (e) correspond to Ground 2 and Issue (a) corresponds to Ground 3. It is important to recall that the leave given by Murrell CJ did not extend, despite the appellant’s submissions, to any other issue that was raised before the primary judge.
19. Before addressing each issue Mossop AsJ conducted a comprehensive and patently correct review of the factual and legal background to the application before him. We agree with his Honour.
20. Notwithstanding what has been said above, and as will be described below, the appeal must ultimately succeed. This is not because of any error identified in the decision of the primary judge, but rather because of a fortuitous (for the appellant) event that occurred in the preparation and running of the appeal.
Ground 1 (Issue (d))
21. This ground alleges that there had not been a valid delegation to the informant to lay the Information. Chief Magistrate Walker found that there had been a valid delegation. Unfortunately, there is no transcript of her Honour’s reasons although the chronology set out by the primary judge at [10] states:
The submissions filed by the respondent say: “10 June 2015 her Honour found that the presumption of regularity applies, the summons was validly issued and served in time...”
22. The informant, Constable McCue, provided a statement saying that, on 10 June 2014, he was “fulfilling the role of Delegate of the Chief Police Officer in relation to traffic infringements” (AB 300). The primary judge, at [106] was critical of this informal means of establishing the delegation. In the previous paragraphs, his Honour had set out the path for the delegation stemming from the Road Transport (General) Chief Police Officer Delegation 2006 (No 2) (ACT), which was in force until 2015.
23. Notwithstanding the unsatisfactory nature of the proof of the delegation, his Honour found at [106] that “the onus in these proceedings is on the plaintiff to prove his case and he has not established any want of authority on the part of Mr McCue”.
24. His Honour specifically stated at [107] that he rejected the plaintiff’s submission that the delegated authority “must be duly evident at the occasion of the exercise of the authority to establish its validity”. His Honour said that the submission was contrary to the decision of Brennan J in Re Reference under Ombudsman Act s 11 (1979) 2 ALD 86. It is worth quoting from this decision:
“Validity” is concerned with the legal effect of an act, with the correspondence between the effect which an act is proposed to have and the effect which the law attributes to it. When the law attributes to an act the same effect as the effect which an act is proposed to have, the act is said to be valid for the purpose of achieving that effect.
25. The appellant relied heavily in his arguments on Clark v Bluett [2016] ACTSC 312; 313 FLR 321 (‘Clark’), a decision of the Supreme Court of the Australian Capital Territory. The appellant criticised the primary judge for not following this decision or at least distinguishing it (written submissions at [13]). The decision in Clark was delivered on 27 October 2016. Mossop AsJ delivered his decision on 18 November 2016. Neither party referred his Honour to Clark or made any further submission reliant upon this case. The criticism is unwarranted.
26. There is another more fundamental reason for Clark not being applicable to the present case. In Clark, there was a successful challenge to the validity of evidentiary certificates made under the Firearms Act 1996 (ACT). Importantly, there was a concession by the Crown that the necessary “train of appointment had not been established in the evidence”.
27. There was no such concession in this case; the Crown consistently asserted that the delegation to Constable McCue was valid. Notwithstanding his Honour’s criticism of the evidence, as noted above, the appellant at no stage either proved, or obtained any concession that the delegation was irregular. In other words, as found by the primary judge, the appellant had failed to discharge the onus that was squarely upon him to establish “any want of authority on the part of Mr McCue”.
28. It is necessary at this stage to introduce the event referred to above which changed the course of the appeal from almost certain failure to unexpected success.
29. As usual, the parties exchanged and filed written submissions in support of their respective positions. The respondent’s submissions attached, as Annexure A, a copy of a delegation dated 11 January 2006 made by the Chief Police Officer. The document, which became Exhibit A in the appeal, was thought to have been in evidence before Mossop AsJ but was not included in the Appeal Book. It was, therefore, conscientiously annexed to the submissions in order to assist the Court in its deliberations.
30. There is no doubt that the primary judge saw the document. He describes it in detail at [105]:
The Road Transport (General) Chief Police Officer Delegation 2006 (No 2), which remained in force until revoked in 2015, delegated the functions of the Chief Police Officer under, inter alia, s 53 of the RTG Act to persons holding certain positions in the Prosecution and Judicial Support “Business Area” of the Australian Federal Police. The positions were the superintendent, Operations Manager, Team Leader Brief Management, Team Leader Traffic Representations and Projects Officer. The position numbers were set out. Section 185 of the Legislation Act provides that a reference to the occupant of a position (however expressed) includes a reference to anyone for the time being occupying the position.
31. The appellant told this Court that he had not seen the document before he received the respondent’s submissions (Appeal Transcript 8.43 and 26.41). This is consistent with the Crown informing the Court that the document was not contained in any of the affidavits before the primary judge (Appeal Transcript 31.5).
32. This raises the question of how the primary judge was able to deal with the document without it ever having been part of the evidence before him. The only logical answer is that, as he was entitled to, the primary judge identified the document through a search of the ACT Legislation Register. This is consistent with his Honour’s observation that the delegation was revoked in 2015. This fact does not appear on Exhibit A.
33. Having seen the document the primary judge went on to say this at [106]:
There is some evidence that the informant, Mr McCue, was occupying one of the positions referred to in the instrument of delegation. A statement of the informant, annexed to the affidavit of Diana Likeman dated 17 September 2015, provided that he was “fulfilling the role of Delegate of the Chief Police Officer in relation to traffic infringements”. That evidence is clearly an unsatisfactory means of proving a delegation to the informant. However, the onus in these proceedings is on the plaintiff to prove his case and he has not established any want of authority on the part of Mr McCue.
34. His Honour’s finding that the appellant had not proved his case was a finding made, as it is now apparent, without the appellant having had the benefit of seeing Exhibit A. Because the onus was on the appellant to prove his case it might be thought that, in the same way that the document was available to his Honour through a search, it would have been available to the appellant. The appellant, however, is and was a self-represented litigant with limited resources. This is evident from parts of his submissions being handwritten and his reliance on receiving the hard copy of the respondent’s submissions before he could reply to them.
35. In our view, the appellant should have been in a position to make submissions on Exhibit A particularly as it was a document referred to in the judgment. There is an apparent denial of procedural fairness. One solution would be to remit the matter to the primary judge to hear further submissions with the appellant now having the benefit of access to Exhibit A.
36. This Court has, however, now heard submissions from both the appellant and the respondent on Exhibit A and is in a position to deal with those submissions. The respondent was asked if any objection was taken to the argument now being made by the appellant. Appropriately, and fairly, because the document had been inserted into the appeal papers by the respondent, it did not object to the argument. To remit the matter would constitute an unnecessary waste of costs and time.
37. When the appellant noticed the document attached to the respondent’s submissions he raised its significance in his Submissions in Reply. He added to his position in his oral submissions. The respondent was able to reply to the significance of Exhibit A both in oral submissions during the appeal hearing and in written submissions which it filed following the hearing. There can be no doubt that the matter has been fully ventilated by both parties.
38. The point taken by the appellant, and arising from the document, is significant and, as will be seen below, has dictated the result of the appeal. It is worth noting that although the argument was not made before the primary judge, its subject matter does fall within the permitted grounds of appeal.
39. The new argument can be simply stated: the delegation (Exhibit A) relied upon by the respondent to show that Constable McCue, in laying the Information, had acted in accordance with a valid delegation, was actually invalid or non-existent.
40. The delegation (Exhibit A) is made under s 18 of the RTG. The appellant submitted that the appropriate delegation should have been made under s 54. If it was not, there was either no delegation at all, or an invalid delegation.
41. Section 18 is as follows:
18 Delegation of Chief Police Officer’s functions
The Chief Police Officer may delegate the Chief Police Officer’s functions under the road transport legislation to—
(a) a police officer; or
(b) a public employee; or
(c) a person prescribed by regulation.
42. Section 54 states:
54 Delegation of administering authority’s functions
(1) The administering authority for an infringement notice offence may delegate the authority’s functions under this part to—
(a) the road transport authority; or
(b) a person prescribed by regulation; or
(c) a person who is an authorised person under section 19; or
(d) an authorised officer under the Heavy Vehicle National Law (ACT).
Note For the making of delegations and the exercise of delegated functions, see the Legislation Act, pt 19.4.
(2) A person mentioned in subsection (1) (a) or (b) may delegate functions delegated to the person under subsection (1) to anyone else.
43. Section 54 falls within Part 3 of the RTG. The heading for Part 3 is “Infringement notices for certain offences”. The offence in the current case is a “certain offence”. The appellant submitted that, therefore, any specific requirements imposed by Part 3 must be complied with in pursuit of any offence governed by this Part.
44. The appellant submitted that because the delegation (Exhibit A) was not made under s 54, it could not have given validity to the actions taken by Constable McCue in the course of his dealing with Infringement Notices.
45. The appellant submitted that the general nature of s 18 could not be relied upon because s 54 was a specific provision dealing with Infringement Notices and therefore could not be supplanted by a delegation under s 18. He relied on the maxim generalia specialibus non derogant and referred the Court to D Pearce and R Geddes, Statutory Interpretation in Australia (Lexis Nexis, 8th Ed, 2014), in particular at [4.40]:
The principle that provisions of general application give way to specific provisions when in conflict is discussed fully in 7.18-7.21 relating to repealing Acts. However, the approach is also applicable to the resolution of internal conflicts between sections within an Act: Perpetual Executors and Trustees Association of Australia Ltd v Federal Commissioner of Taxation (1948) 77 CLR 1 at 29. An Act may well contain provisions of a general nature and also provisions relating to a particular subject matter. It is commonsense that the drafter will have intended the general provisions to give way should they be applicable to the same subject matter as is dealt with specifically: Refrigerated Express Lines (A’Asia) Pty Ltd v Australian Meat and Live-stock Corporation (1980) 29 ALR 333 at 347.
46. Spigelman CJ, in the New South Court of Appeal described the effect of the above maxim, in The Ombudsman v Laughton [2005] 64 NSWLR 114; NSWCA 339 in this way:
19. The maxim of statutory construction generalia specialibus non derogant reflects an underlying principle that a legislature, which has created a detailed regime for regulating a particular matter, intends that regime to operate in accordance with its complete terms. Where any conflict arises with the general words of another provision, the very generality of the words of which indicates that the legislature is not able to identify or even anticipate every circumstance in which it may apply, the legislature is taken not to have intended to impinge upon its own comprehensive regime of a specific character.
20. In a passage quoted with approval by Barton ACJ in Maybury v Plowman (1913) 16 CLR 468 at 474, Wood V-C said in Fitzgerald v Champneys (1861) 2 John & H 31 at 54; 70 ER 958 and 968:
“The reason in all these cases is clear. In passing the special Act, the legislature had their attention directed to the special case which the Act was meant to meet, and considered and provided for all the circumstances of that special case; and, having so done, they are not to be considered by a general enactment passed subsequently, and making no mention of any such intention, to have intended to derogate from that which, by their own special Act, they had thus carefully supervised and regulated.”
21. This approach applies with particular force where the tension or conflict arises between two sections of the same Act and the need to read the Act as a whole requires a process of reconciliation of the character to which I have referred.
47. Spigelman CJ went on to say that in certain circumstances the maxim created difficulties. Basten JA took up this theme and stated at [40]:
The maxim relied upon by the Tribunal, that a general provision cannot derogate from a special or more specific provision is, as the Chief Justice recognises, sometimes difficult to apply. Where appropriate, it is preferable to apply the provisions of the Interpretation Act 1987 (NSW), being the statutorily prescribed approach to statutory interpretation. The well-established approach to the construction of protective provisions, such as s 35A of the Ombudsman Act 1974, accords with the requirement of s 33 of the Interpretation Act that a purposive approach be adopted in construing a provision of an Act, in preference to a construction that would not promote the purpose underlying the Act.
48. The Australian Capital Territory equivalent of s 33 of the Interpretation Act 1987 (NSW) is s 138 of the Legislation Act 2001 (ACT) (‘Legislation Act’) which is as follows:
138 Interpretation best achieving Act’s purpose
(1) In working out the meaning of an Act, the interpretation that would best achieve the purpose of the Act is to be preferred to any other interpretation.
(2) This section applies whether or not the Act’s purpose is expressly stated in the Act.
49. Looking more closely now at ss 18 and 54: Section 18 falls within Part 2 of the RTG. The heading for the Part is “Administration of road transport legislation”. “Road transport legislation”, as shown by s 6, is really a ‘catch all’ phrase bringing together a number of Acts and Regulations concerned with road transport.
50. Section 18 is plainly a general provision allowing the Chief Police Officer to delegate his or her functions “under the road transport legislation” to a police officer, a public employee or a person prescribed by regulation.
51. Section 54, as noted above, falls within Part 3 of the RTG which is devoted to Infringement Notices. Part 3 creates a specificity (to Infringement Notices) which is missing from Part 2. There is a plain intent, on the part of the Legislature, to deal specifically with Infringement Notices outside of the general provisions that are dealt with by Part 2 of the RTG.
52. Part 3 deals in detail with different aspects of Infringement Notices including, for example, their service, their penalties, waiver of penalties, demerit points and enforcement procedures.
53. The respondent replied that the delegation need not be under s 54 but could be validly made under s 18. The argument was put in this way:
So to the extent that an argument was put that because this delegation was not made under section 54, it would be invalid. I would say that argument is incorrect because this delegation or a delegation for present purposes did not need to be under section 54 because section 18 as it is, enabling the Chief Police Officer to delegate his or her functions under road transport legislation to a police officer. Part of that function I submit is as an administering authority and, as we know, for section 53 an administering authority may lay an Information, and so the function has been appropriately delegated to a police officer who may exercise that function because of section 18. Section 54 does provide a power for an administering authority which may include the Chief Police Officer, may include the RTA for example to delegate certain functions under Part 3 to the relevant bodies in that section. (Transcript page 38)
54. The respondent’s position, as summarised above, is that the issue is not a simple competition between ss 18 and 54. It is also necessary to have regard to the provisions of s 53. This section states:
53 Procedure if liability disputed
(1)This section applies if a person disputes liability for an infringement notice offence by giving the administering authority a notice in accordance with section 51 (Disputing liability for infringement notice offence).
(2)The administering authority may—
(a) for a heavy vehicle infringement notice offence—bring a proceeding against the person under the Heavy Vehicle National Law (ACT) within 60 days after being given the notice; or
NoteFor proceedings for heavy vehicle infringement notice offences, see the Heavy Vehicle National Law (ACT), s 707.
(b) in any other case—lay an Information in the Magistrates Court against the person for the offence within 60 days after being given the notice.
(3) The administering authority must discontinue a proceeding brought against the person for the offence if, before the hearing of the proceeding—
(a) 1 of the following happens:
(i) the person pays the infringement notice penalty;
(ii) the person enters into an infringement notice management plan in relation to the offence;
(iii) an infringement notice in relation to the offence is added to an existing infringement notice plan; and
(b) the person pays—
(i) any costs prescribed by regulation for beginning the proceeding; and
(ii) any disbursements incurred by the administering authority up to the day payment is made.
(4)If subsection (3) applies, section 39 (Infringement notice—effect of penalty payment etc) also applies to the person in relation to the offence, even though 1 of the things mentioned in subsection (3) (a) happened in relation to the offence after a proceeding or Information mentioned in subsection (2) had been brought or laid against the person for the offence.
(5) If the administering authority does not bring a proceeding or lay an Information mentioned in subsection (2) against the person for the offence within 60 days after being given the notice, the administering authority must—
(a)tell the person, in writing, that no further action will be taken against the person for the offence; and
(b) take no further action against the person for the offence.
(6) To remove any doubt, subsection (2) does not permit the administering authority to bring a proceeding or lay an Information against a person for an offence after the end of the time within which, apart from this section, a prosecution may be brought against the person for the offence.
NoteFor the time within which a prosecution for an infringement notice offence other than a heavy vehicle infringement notice offence must be begun, see s 31. For proceedings for heavy vehicle infringement notice offences, see the Heavy Vehicle National Law (ACT), s 707.
55. The appellant disputed liability entitling the administering authority, under s 53(2), to lay an Information in the Magistrates Court. This is the action purported to have been taken by Constable McCue.
56. In written submissions filed after the hearing the respondent expanded its submissions to state that there was no inconsistency between ss 18 and 54 and moreover suggested the creation of an “absurd” result:
An interpretation which has s 54 prevailing over s 18, would mean the CPO would have to exercise the functions under Part 3 personally, or delegate to one of the entities, but could not delegate those functions to police officers. There is nothing in Part 3 which would indicate the purpose of the legislation was to restrict the exercise of the functions under Part 3 to the CPO in a personal capacity, to the exclusion of all police officers. Such a result would be manifestly absurd: the CPO cannot enforce the road transport legislation alone and none of those entities has the role, resources, or other powers provided to police officers to enforce the road transport legislation. Where an apparent meaning leads to a result that is manifestly absurd or is unreasonable, the court in working out the meaning of the Act must reject that interpretation and find the meaning of the Act in the interpretation that would best achieve the purpose of the Act.
57. The difficulty with this submission is that it simply does not reflect the Act. Firstly, there would be no reason for the delegation provisions in Part 3 if it was intended that the broad delegation power in ss 17 and 18 would suffice for the purpose of dealing with infringements. Secondly, there is no reason that appropriate delegations could not be made to a police officer under s 54. Part 3 is very careful to ensure that Informations are dealt with within its provisions.
58. Section 53(2)(b) is specific in stating that an Information is laid by the administering authority. Section 54 is also specific in stating to whom the administering authority for an Infringement Notice offence may delegate its functions. Section 54(2) says that a person to whom the authorities functions have been delegated under s 54(1)(a) or (b) may delegate those functions “to anyone else”. The submission that only the Chief Police Officer could delegate the functions of the administering authority to police officers is simply without foundation. There is no absurd result. There is a result that reflects the plain intent of the Act.
59. Mossop AsJ made the very point at [98] of his judgment:
The point raised by the plaintiff appeared to be that the Information failed to identify how the informant became the administering authority for the purposes of s 53(2). That is significant because it is only the administering authority that is permitted to lay an Information.
60. The last part of the submission, quoted in [56] above, is also essentially a submission that asks the Court to apply s 138 of the Legislation Act. There is no need to apply this section. The RTG is plain in its language and format: specific powers are needed for the exercise of the functions in Part 3 going beyond the general power of delegation in s 18.
61. In a ‘back up’ submission the respondent relied on s 242 of the Legislation Act to submit that if “the court were to determine that the Delegation is invalid, it is submitted that the act of the second respondent in laying the Information is saved by virtue of s 242(1)” of this Act. Section 242 states:
242 Delegation not affected by defect
(1) A delegation, or anything done under a delegation, is not invalid only because of a defect or irregularity in or in relation to the delegation.
(2) Anything done by or in relation to the delegate while the delegate purports to exercise the delegation is not invalid only because—
(a) the delegation had been amended or revoked; or
(b) the occasion for the delegate to exercise the delegation had not arisen or had ended.
62. Perusal of the delegation indicates that the Chief Police Officer specifically delegated her functions under, inter alia, s 53. The delegation states:
I, AUDREY FAGAN, Chief Police Officer for the Australian Capital Territory, the administering authority for infringement notices as described in sub-section 8(2) of the Road Transport (Offences) Regulation 2005, delegate my functions under sections 28, 30 31, 51, 52, 53 and 56 of the Act to the police officers occupying the positions in the Table, below.
63. Following the above delegation there is a Table setting out the persons to whom the delegation has been made. They do not overtly include Constable McCue or any police officer of his rank (namely his substantive rank of Senior Constable).
64. In his statement Constable McCue says at [6]:
On Tuesday 10 June 2014, I commenced operation on duty at Judicial Operations, City Police Station, where I was rostered to perform Acting Sergeant duties, fulfilling the role of Delegate of the Chief Police Officer in relation to traffic infringements. (AB 300)
65. Importantly, the portion just quoted from Constable McCue’s statement does not describe him as occupying any of the positions listed in the Table beneath the delegation. The Table, however, includes this note:
Section 185 of the Legislation Act 2001 - a reference to the occupant of a position (however expressed) includes a reference to anyone for the time being occupying the position.
66. Constable McCue, in his statement, says that he is “fulfilling the role of Delegate of the Chief Police Officer...” It does not say that he is fulfilling the role, or occupying the position of, any of the persons listed in the Table.
67. There are some other relevant provisions in the RTG. The Road Transport Authority is established by s 16. The authority’s functions may be delegated, under s 17, to the Chief Police Officer. The Chief Police Officer, under subsection (2)(a), may in turn delegate the functions that have been delegated to him or her, to a police officer.
68. However, the Road Transport Authority is not the “administering authority” referred to in s 53. The administering authority is defined in the Dictionary as “for an infringement notice offence, means the entity that, under the regulations, is the administering authority for the offence”.
69. Regulation 8(2) of the Road Transport (Offences) Regulation 2005 (ACT) appoints the Chief Police Officer as the administering authority for relevant Infringement Notice offences.
70. At Appeal Book 303 there is a delegation made by the Chief Police Officer, specifically under s 54(1) delegating to the “road transport authority” all of her powers under Part 3 of the RTG. The effect of this delegation, noting the Chief Police Officer constitutes the administering authority, is to give the Road Transport Authority all of the powers of the administering authority under Part 3.This is the delegation contemplated by s 54(1)(b).
71. In Exhibit A it can be seen that the Chief Police Officer, as the administering authority for Infringement Notices, has delegated her functions under a number of sections, notably including s 53, to the persons occupying the positions in the Table referred to above.
72. Returning now to Constable McCue’s statement, he said that he was “fulfilling the role of Delegate of the Chief Police Officer in relation to traffic infringements”. He makes no mention of any intermediate delegation or position which would place him within the bounds of s 53 or s 54.
73. What is missing is therefore any assertion that Constable McCue was occupying any of the positions in the Table or that he was acting pursuant to a delegation from the Road Transport Authority (which had the benefit of the delegation from the Chief Police Officer).
74. Put another way, Exhibit A was put forward as the delegation described by Constable McCue in his statement. This cannot be correct, however, because of the missing step linking any of the persons in the Table to Constable McCue or Constable McCue stating he was acting in any of the positions set out in the Table.
75. It is to be further noted that although Constable McCue says in his statement that he is “currently attached to the Traffic Representations in Judicial Operations” ([5]) this cannot be seen as filling the position of “Team Leader, Traffic Representations” (one of the positions in the Table).
76. There is, therefore, a gap in the train of the delegation. Mossop AsJ correctly emphasised, at [106], that the onus was on the appellant to establish any “want of authority”. The question then arises as to whether the appellant is still required to establish that there was no delegation to Constable McCue either from one of the persons listed in the Table or that Constable McCue was not acting in one of the listed positions.
77. In our view the appellant has discharged his onus. Exhibit A and the statement of Constable McCue were put forward as the complete answer to the issue of the delegation. For the reasons set out above, these documents do not fulfil this task and must be seen as confirming the absence of a delegation as alleged by the appellant. The nature of this conclusion is important. The Court’s conclusion is that there has not been a delegation to Constable McCue. This is to be distinguished from a delegation which for some inherent reason is defective. If the latter was the case s 242 of the Legislation Act would have come to the respondent’s aid. Section 242 cannot, however, mend a non-existent delegation.
78. The scope of s 242 was considered by Refshauge J in Lewis v Chief Executive Department of Justice and Community Safety & Ors [2013] ACTSC 198. Commencing at [111] his Honour said:
111. These provisions appear to be a legislative expression of at least an aspect of what is known as the de facto officer’s doctrine, namely that “[t]he acts of a de facto public officer done in apparent execution of his office cannot be challenged on the grounds that he has no title to the office” as stated by McHugh JA in G J Coles & Co Ltd v Retail Trade Industrial Tribunal (1986) 7 NSWLR 503 at 525, and approved by the High Court in Cassell v The Queen (2000) 201 CLR 189 at 193; [19].
112. The limits of the doctrine are said not to be clear. See E Campbell, “De Facto Officers” (1994) 2 Australian Journal of Administrative Law 5; O Dixon, “De facto officers” (1938) 1 Res Judicatae 285. What limits there are, or should be, on the statutory validation in s 242 of the Legislation Act are not clear. It is, for example, not limited to formal defects, such as those which do not invalidate bankruptcy notices under the bankruptcy legislation: Adams v Lambert (2006) 228 CLR 409 at 415-6; [18]. The statutory provision is cast in wide terms, using the words “anything done under a delegation” and the broad connector “or in relation to the delegation”. As to the latter, an expression “of wide import” see, inter alia, Victoria v Commonwealth (1971) 122 CLR 353 at 359 (Windeyer J).
113. The precise limits of s 242 of the Legislation Act must await for another day. It appears to have very wide application. In any event, I am satisfied that it would validate any report that was made by Mr Giucci under s 59 of the Sentence Administration Act were his appointment to an office, by which he was delegated to exercise the power under that section, to be found to be invalid in fact.
79. Refshauge J, as can be seen above, has pointed out the width of s 242, and in particular that it refers to “anything done under a delegation” and also extends to a defect in “relation to” the delegation. The wording is to be distinguished from curing an absence of a delegation. That is the situation here. This is not a case of curing a defect in a delegation or something done in relation to the delegation. This is a case of there being no delegation in the first place. There is no delegation for s 242 to cure.
80. Accordingly, the entitlement of Constable McCue to have laid the Information in his asserted delegated capacity has been shown to be missing.
81. It is to be stressed that this conclusion is confined to the Information in this case. It is not a general ruling on all Informations arising from all speeding infringements. It is only in this matter that no delegation has been identified. Further the effect of this decision extends only to the Information laid by Constable McCue. It makes no finding at all about the summons.
82. The next issue concerns the nature of the orders to be made to reflect the above conclusion. The application to the primary judge was for judicial review seeking a writ of prohibition against the Chief Magistrate from hearing two Informations that had been laid before her. The application was dismissed.
83. Our finding is that Constable McCue did not have the delegated power necessary for him to have laid the Information before the Chief Magistrate. Although no error has been identified in the primary judge’s reasoning the effect of the unusual circumstances which attended the running of the appeal is that the appeal must be allowed.
84. The orders of the primary judge must accordingly be set aside. The order of this Court, in lieu of the orders below, should be that the Chief Magistrate not proceed with the hearing of CC 2014/5882 and that a writ of prohibition should issue should issue restraining the Magistrates Court determining the charge against Mr Burridge.
85. It is now not necessary to deal with the remaining grounds in the appeal. However, some short comments will be made about them to emphasise that they would not have succeeded.
Ground 2 (Issues (b), (c) and (e))
86. In essence, this ground asserts that the Information was so inherently defective that the Magistrates Court lacked jurisdiction to deal with it. The appellant alleges that the Information was defective because it did not state “the length of road where the driver is driving” (dealt with separately under Ground 3), it had not been sworn, signed and dated by the informant, it had been signed by an unidentified Deputy Registrar, there had not been a valid delegation to the informant (dealt with separately under Ground 1) and, generally, it lacked certain particulars.
87. The appellant seems to address this ground, at least in part, from [19] of his written submissions. The appellant concedes that an Information may be oral or in writing. If it is in writing, however, it must comply with the approved form. Thus, for example, if the form provides for the making of an oath or affirmation, or the affixing of a signature, then the Information cannot be valid, absent the oath, affirmation or signature.
88. Mossop AsJ, at [91] accepted that the Information, without a signature, might be defective. He went on to say:
Having regard to the fact that in the present case Mr Burridge in fact appeared before the Chief Magistrate, it is not appropriate that I express a concluded opinion upon whether, by reason of the approval of form AF 2012-123, Informations which were permitted to be laid orally were required to be laid in writing using the approved form.
89. His Honour then dealt with a secondary argument:
The other argument put by the plaintiff was that the informant’s signature upon the summons was the equivalent of the signature of an authorised person upon an indictment without which the proceedings were a nullity. This was based upon the decision of the New South Wales Court of Appeal in R v Janceski [2005] NSWCCA 281; (2005) 64 NSWLR 10 (Janceski). Leaving aside the question of the approved form, there is no requirement that the Information be in writing. Rather s 30(3) requires that if a summons is to be issued in the first instance the Information may be made orally and without oath. In those circumstances the informant’s signature upon a summons could not be a pre-requisite to the exercise of jurisdiction by the Court in the same way that the signature of an authorised person upon an indictment was found to be in Janceski.
90. We agree with his Honour to the following effect:
(a)The appellant appeared before the Magistrate.
(b)An Information may be laid orally or in writing.
(c)The use of the wrong form, or the absence of a signature, did not affect the jurisdiction of the Magistrates Court to deal with the appellant who was in court for the very purpose of dealing with the alleged offence.
91. Ground 2 would have failed.
Ground 3 (Issue (a))
92. His Honour dealt with this ground from [77]. The summons alleges that the appellant exceeded the speed limit “in the Australian Capital Territory on 25 March, 2014 in a non-school zone”. No clue is given as to the particular roadway that was involved, let alone which portion of the roadway. It is not unusual for there to be a different speed limits on the same road.
93. The appellant primarily relied on the decision of the High Court in John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508. His Honour discussed the case from [63] together with a number of other authorities, in particular Smith v Moody (1903) 1 KB 56 and Davies v Ryan (1933) 50 CLR 379.
94. His Honour concluded, at [76]:
This review of the authorities illustrates that Davies v Ryan has been accepted in this Court and on appeal in the Full Court of the Federal Court, while Smith v Moody has been distinguished or not followed. No decision of a Full Court of the High Court has overruled Davies v Ryan, no decision of the ACT Court of Appeal has held that Davies v Ryan or Lillyman should not be followed. In those circumstances Davies v Ryan should be followed in preference to Smith v Moody. This means that the description of an offence in an Information is sufficient in law if it adopts the words of the statute creating the offence or similar words. Any requirement for further particulars may be necessitated by the rules of procedural fairness, but the absence of those particulars from the Information itself does not render the charge a defective one. John L is not to the contrary of this approach because it was a decision which applied the common law and did not involve circumstances where statutory provisions the equivalent of ss 27(2) or 28 applied.
95. We have sympathy for a person who receives an Infringement Notice, or summons, alleging a speeding offence but giving them no more detail than that it occurred in the Australian Capital Territory. However this brevity, as concluded by the primary judge, would not have affected the validity of the charge or summons. A court could, however, decline to proceed with the charge if the prosecuting authority, having been asked for particulars of precisely where the offence was alleged to have occurred, did not give those particulars. In such a case the court could refuse to deal with the matter because procedural fairness had not been accorded to the person charged.
96. Accordingly Ground 3 would have failed.
Final orders
97. Charlesworth J agrees with the orders proposed. Accordingly, the Court makes the following orders:
(a)The appeal is allowed.
(b)The orders made by Mossop AsJ on 18 November 2016 are set aside.
(c)A writ of prohibition is issued restraining the Magistrates Court from determining charge CC 2014/5882 against Mr Burridge.
| I certify that the preceding ninety-seven [97] ([1]-[97]) numbered paragraphs are a true copy of the Reasons for Judgment of their Honours Justice Elkaim and Justice Loukas-Karlsson. Associate: Date: 5 October 2018 |
CHARLESWORTH J
I have had the advantage of reading the reasons for judgment of Elkaim and Loukas-Karlsson JJ in draft. I agree that the appeal should be allowed, although for reasons that differ in a minor respect. I wish also to express additional reasons for rejecting the argument of the second respondent concerning the proper construction of s 18 and s 54 of the RTG.
The function exercised or purportedly exercised by the informant, Constable McCue, was a function of the administering authority. The relevant functions are those conferred upon the administering authority under Pt 3 of the RTG, particularly s 53(2). For reasons given in the joint judgment, the power conferred by s 53(2) may only be delegated in accordance with s 54 of the RTG.
Constable McCue does not meet (and does not purport to meet) any one of the descriptions in s 54(1)(a) to (d). Accordingly, he is not a person to whom the functions of the administering authority may be delegated under s 54(1).
Constable McCue is a person to whom the administering authority’s functions may be sub-delegated under s 54(2). However, on the proven facts, he does not hold (and nor does he purport to hold) a sub-delegation made pursuant to that sub-section.
I differ from the other members of the Court in that I do not consider it necessary to ask whether Constable McCue is a person who occupies any one of the positions referred to in the Table set out in the instrument of delegation forming Exhibit A. I consider that question to be immaterial.
On its face, Exhibit A states or assumes that all of the positions referred to in the Table are occupied by police officers. On the proper construction of the RTG, s 18 does not provide the source of power for the Chief of Police to delegate the functions of the administering authority under Pt 3. Those powers cannot be delegated by the Chief of Police to a police officer under s 18, whether or not the police officer occupies one of the positions in the Table. Proof of whether or not Constable McCue was a person referred to in the Table cannot cure the patent legal defect in Exhibit A.
I would add that, if there be an evidentiary gap in relation to whether Constable McCue occupies one of the positions set out in the Table, that gap would present a forensic problem for Mr Burridge, not the second respondent, assuming the question was a material one. As I have said, the question is immaterial and so the identified gap in evidence should not stand in the way of Mr Burridge succeeding on the appeal.
Nothing in the course of argument on this appeal detracts from the principle that Mr Burridge bears the onus of proving Constable McCue’s want of authority to lay the Information in respect of the charge CC2014/5882. Mr Burridge’s submissions to the contrary should be rejected.
The difficulty for the second respondent is that it produced, on this appeal, sufficient evidence to enable Mr Burridge to rebut the presumption on the facts and the law. He is able to do so because the instrument of delegation upon which the second respondent relied has been shown to be defective and it may be readily inferred that the proper mechanism for delegation has not been validly employed in respect of Constable McCue.
I join in the reasons given by Elkaim and Loukas-Karlsson JJ for rejecting the second respondent’s submission that a delegation to Constable McCue could validly be made pursuant to s 18 of the RTG as a distinct and alternative delegation power. To their Honour’s reasons, I add the following.
The second respondent’s submissions concerning the construction of the RTG were premised in large part on the circumstance that the Chief of Police is also the “administering authority” in relation to the offences with which Mr Burridge is charged. From that premise it was argued that s 18 and s 54 ought to be construed as alternate sources of power by which the functions conferred on the administering authority under Pt 3 of the RTG may be delegated. On the second respondent’s construction, the powers of the administering authority under Pt 3 may be delegated by the Chief of Police to broader classes of persons than those specified in s 54(1). To illustrate, the Chief of Police may, on the second respondent’s argument, delegate functions under Pt 3 of the RTG to “a public employee” under s 18(b).
It is important to recognise that the identification of the Chief of Police as the administering authority in respect of Mr Burridge’s charges arises from regulations made under the RTG, and not from anything contained in the RTG itself. To follow the second respondent’s submission to its logical conclusion, should the regulations be amended to define the administering authority as a person other than the Chief of Police, the power of delegation under s 18 would not be available to be exercised by that person. The functions under Pt 3 could not, for example, be delegated by that person to a public employee.
It is difficult to discern any policy consideration underlying such a differential scheme. In my view, the second respondent’s submissions impermissibly depend on regulations made under the RTG as informing the proper construction of the RTG itself. To the extent that s 54(1) operates to limit the persons to whom functions under Pt 3 may be delegated, the limitation ought to be given effect. It ought to be construed as having equal application and force irrespective of the identity of the person prescribed in the regulations to be the administering authority from time to time. There is nothing absurd in that result.
Moreover, contrary to the second respondent’s submissions, s 54 of the RTG does not operate to preclude the functions of the administering authority being discharged under a valid instrument of delegation to a police officer. Indeed, the evidence before Mossop AsJ and before this Court on appeal showed that the Chief of Police has previously delegated her functions under Pt 3 of the RTG to the road transport authority and at least one valid instrument of delegation was then made by the road transport authority to a police officer under s 54(2). That police officer was not Constable McCue.
| I certify that the preceding fourteen [14] ([98]-[111]) numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Charlesworth. Associate: Date: |
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