Cafarelli v The State of Western Australia - [2013] WASC 37

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: CAFARELLI -v- THE STATE OF WESTERN AUSTRALIA [2013] WASC 37

CORAM: HALL J

HEARD: 20 NOVEMBER 2012 AND ON THE PAPERS

DELIVERED : 12 FEBRUARY 2013

FILE NO/S: SJA 1112 of 2012

BETWEEN: CALOGERO CAFARELLI
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE M D WHEELER
File No  :PE 24954 of 2012

Catchwords:

Appeal from refusal to grant extraordinary drivers licence - Appeal not competent under Criminal Appeals Act 2004 (WA) - Appeal to District Court time barred - Whether review order available

Legislation:

Nil

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Ms H C Richardson

Solicitors:

Appellant: In person
Respondent: State Solicitor for Western Australia

Case(s) referred to in judgment(s):

Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163
Jackson v Chrisp [2012] WASCA 158
Kirk v Industrial Court of NSW [2010] HCA 1; (2010) 239 CLR 531
Rayney v AW [2009] WASCA 203

HALL J: The appellant, Calogero Cafarelli, is disqualified from driving as a result of being convicted of a number of traffic offences between 2007 and 2012. In July 2012 he obtained work with a demolition contractor but continuation of that work required him to have a drivers licence, so on 6 July 2012 he filed an application with the Magistrates Court for an extraordinary licence under s 76 of the Road Traffic Act 1974 (WA) (RTA).
On 15 August 2012 the application was heard by a magistrate and refused. The magistrate noted that Mr Cafarelli had one of the worst driving records he had seen. The magistrate had regard to the factors in s 76(3) of the RTA and said that there were no conditions that could be imposed on an extraordinary drivers licence that would satisfy him that the safety of the public would be adequately protected.
Mr Cafarelli's first response was to make an uncouth and very disrespectful comment to the magistrate. His next, and presumably more considered, response was to file an appeal notice with this court on 14 September 2012.
The problem with Mr Cafarelli's appeal is that an appeal under pt 2 of the Criminal Appeals Act 2004 (WA) (CAA), which this appeal purports to be, can only be brought against a 'decision' of a court of summary jurisdiction. For the purpose of the CAA the word 'decision' is defined in s 6 as meaning:
[A]ny of the following -
(a)a judgment entered under the Criminal Procedure Act 2004 section 128(2) or (3);
(b)a decision ordering a permanent stay of a prosecution;
(c)a decision to convict an accused of a charge, whether after a plea of guilty or after a trial;
(d)a decision to acquit an accused of a charge;
(e)a decision to acquit an accused of a charge on account of unsoundness of mind;
(f)a sentence imposed, or order made, as a result of a conviction or acquittal;
(g)a refusal to make an order that might be made as a result of a conviction or acquittal;
(h)a decision as to costs;
(i)a decision made under the Criminal Investigation Act 2006 section 151;
A decision to refuse an application for an extraordinary drivers licence is not a 'decision' for the purposes of the CAA. The appeal is therefore incompetent.
There is an avenue for appealing from a refusal of an extraordinary drivers licence. It lies to the District Court pursuant to s 8 and s 40 of the Magistrates Court (Civil Proceedings) Act 2004 (WA) (MCCPA). However, any such appeal must be commenced within 21 days and that time expired on 5 September 2012. That time limit is a statutory one and there is no power of the District Court to grant an extension of time: Jackson v Chrisp [2012] WASCA 158 [127] ‑ [128]. Accordingly, it would be pointless to remit this matter to the District Court to be dealt with as if it was an appeal under the MCCPA.
At a directions hearing on 20 November 2012 the above matters were explained to Mr Cafarelli. He said that the reason why he had filed an appeal in this court rather than the District Court was that he had been told that the former was the proper course by a clerk at the Magistrates Court Registry. I said that if this was so and if Mr Cafarelli had lost his opportunity to appeal as a result of incorrect information provided to him it may be possible to consider whether the matter could be dealt with as an application for a review order under the Magistrates Court Act 2004 (WA) (MCA): see s 36(6).
I ordered the appellant to file and serve an affidavit setting out the circumstances under which he filed the appeal notice and requiring the respondent to file submissions as to whether it was open or appropriate for the court to treat the appeal as an application for a review order under s 36.
On 27 November 2012 Mr Cafarelli filed an affidavit in which he stated as follows:
1.After leaving the court for the extraordinary drivers licence application that was denied, I went downstairs to pay my time to pay monthly instalment.
2.While there, I asked the clerk how long I had if I wished to appeal the decision, and she advised me that I had 28 days and should appeal it to the Supreme Court, as I did.
Section 36(1)(c) of the MCA provides that a person who is aggrieved by an act, order or direction done or made by a court officer may apply to the Supreme Court for a review order. Such a review order can be sought on the ground that it was done or made without jurisdiction or power or is an abuse of process or on any ground that might have justified an order of certiorari. Review orders may also be sought in respect of a failure to act or a proposed act by a court officer, but those types of review order are not relevant here. The purpose of s 36 is to replace and provide a statutory alternative to the common law relating to judicial review of the acts or omissions of officers of the Magistrates Court. A review order can only be made if there is an arguable error of the kind referred to in s 36: Rayney v AW [2009] WASCA 203.
In his notice of appeal Mr Cafarelli sets out seven proposed grounds. They are not really grounds at all. Rather, they set out his personal circumstances and, in particular, why he requires a drivers licence in order to work. None of this suggests that the magistrate did not have jurisdiction to make a decision on the application or that there was an abuse of process.
Jurisdictional error sufficient to justify an order of certiorari can occur where relevant considerations are disregarded or irrelevant considerations are taken into account if the relevant Act requires that such considerations be taken into account or excluded as a condition of jurisdiction: Kirk v Industrial Court of NSW [2010] HCA 1; (2010) 239 CLR 531, 574 (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) and Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163, 200.
The relevant considerations, when considering an application for an extraordinary drivers licence are set out in s 76(3) and s 76(3)(b) of the RTA. Section 76(3) provides that the court may have regard to the following factors:
(a)the safety of the public generally;
(b)the character of the applicant;
(c)the circumstances of the case;
(d)the nature of the offence or offences giving rise to the disqualification; and
(e)the conduct of the applicant subsequent to the disqualification.
There is no doubt that the magistrate took the above factors into account. He gave particular weight to the appellant's past record, in particular the nature and repetition of his driving offences. There is no error in his Honour's reference to those matters and the weight he gave to them was not a matter going to jurisdiction.
Section 76(3)(b) provides that the court shall not make an order granting an extraordinary drivers licence unless it is satisfied that the refusal would deprive the person of the means of obtaining urgent medical treatment, would place undue financial burden on the person or his or her family or would deprive the person of the only practicable means of travelling to his or her place of employment. Whilst it is necessary to establish one of these criteria in order to obtain an extraordinary drivers licence the fact that one is established does not necessarily lead to a conclusion that an extraordinary drivers licence should be granted. It is a necessary, but not on its own a sufficient, condition because even if a person meets one of these criteria the court must still be satisfied that it is otherwise appropriate to grant an extraordinary drivers licence.
In this case the magistrate accepted that Mr Cafarelli needed a licence in order to work and that he met the qualifying provision in s 76(3)(b). However, his Honour was not satisfied that having regard to public safety, and in particular the appellant's history of offending, that a grant of an extraordinary licence was appropriate.
It is evident from this that the magistrate took into account the relevant considerations specified in s 36. There is no allegation that any irrelevant consideration was taken into account and no such considerations appear from the transcript. In these circumstances, there are no grounds to justify the issue of a review order in respect of the magistrate's refusal to issue an extraordinary drivers licence.
As regards the incorrect advice that the appellant says he was given by a clerk at the Magistrates Court, it is doubtful whether the giving of such advice could be considered a public power amenable to judicial review. In any event, no order that this court could make in respect of that advice could revive an appeal to the District Court which is now time barred. Furthermore, even if the appellant had not been given incorrect advice and had gone on to lodge an appeal in the District Court within the time allowed there is no realistic prospect that such an appeal would have succeeded.
For the above reasons this appeal must be dismissed and the alternative of a review order under s 36 of the MCA is not open. The orders are therefore as follows:
1.leave to appeal be refused.
2.the appeal be dismissed.