Chief Executive Department of Transport v Glasgow & Anor
[2001] QSC 378
•1 October 2001
SUPREME COURT OF QUEENSLAND
CITATION: Chief Executive Department of Transport v Glasgow & Anor
[2001] QSC 378
PARTIES: BRUCE GILMORE WILSON, CHIEF EXECUTIVE, DEPARTMENT OF TRANSPORT
(respondent/applicant)
v
DAVID GLASGOW S.M
(first respondent)
EDWARD FRANCIS KEPPER
(appellant/second respondent) FILE NO/S: SC No 7913 of 2001
DIVISION: Trial Division
DELIVERED ON: 1 October 2001
DELIVERED AT: Brisbane
HEARING DATE: 25 September 2001
JUDGE: Thomas JA
ORDER: 1. Application for judicial review of the decision of Mr
David Glasgow SM dated 21 June 2000 granted;
2. Paragraphs [1], [2] and [4] of the order of Mr David
Glasgow SM dated 21 June 2000 be set aside.
3. Declaration that the purported cancellation of Edward
Francis Kepper’s license was invalid.
CATCHWORDS: TRAFFIC LAW – LICENSING OF DRIVERS – QUEENSLAND – DISQUALIFICATION, AND CANCELLATION AND SUSPENSION OF LICENSES – PROCEDURE – INFORMATION AND COMPLAINT – APPEALS AND PREROGATIVE WRITS - where second respondent’s license cancelled pursuant to s 24(5) of the Transport Operations (Road Use Management- Driver Licensing) Regulation 1999 (the Regulations) – where second respondent’s appeal rights expired because he did not receive notice of cancellation under s 24(5) of the Regulations – where second respondent appealed cancellation out of time
JUDICIAL REVIEW LEGISLATION – MAGISTRATES, ORDERS IN RELATION TO – PREROGATIVE WRITS AND ORDERS – CERTIORARI – GROUNDS FOR CERTIORARI TO QUASH – EXCESS OR WANT OF JURISDICTION – ERROR OF LAW ON FACE OF RECORD – application to review an order in the Magistrate’s
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Court dismissing an appeal by the second respondent against the cancellation of his license – where the Magistrate’s order amounted to a declaration of right - where this exceeded jurisdiction conferred by s 29 of the Regulations – whether error apparent on the face of the record in relation to the balance of the order – whether appropriate to grant prerogative relief – declaratory relief available in Supreme Court
STATUTES – INTERPRETATION ACTS AND CLAUSES
– QUEENSLAND – PARTICULAR WORDS AND PHRASES – where the written notice under s 24(5) required a person be ‘informed’ of appeal rights – whether postage sufficient service - whether compliance with ss 39-39A of the Acts Interpretation Act sufficient – where the expressions in ss39-39A are not attracted by a provision such as 24(5) which requires that a license holder be “informed”
Acts Interpretation Act 1954 (Qld), ss39-39A Judicial Review Act 1991 (Qld), s 20, s 41(2) Justices Act 1886 (Qld)
Magistrates Court Act 1921 (Qld), s 4
Statutory Instruments Act 1992 (Qld), s 14
Supreme Court Act 1995 (Qld), s 128
Traffic Act 1949 (Qld), s 48
Transport Operations (Road Use Management) Act 1995
(Qld), s 123(4)
Transport Operations (Road Use Management-Driver
Licensing) Regulation 1999 (Qld), s 24, s 24(5), s 26, s 29, s
29(6)
Chief Executive Queensland Department of Transport v
Cornack & Anor (1998) 27 MVR 443, considered
Craig v State of South Australia (1995) 184 CLR 149, considered
Forster v Jododex Australia Pty Ltd (1972) 27 CLR 421, considered
Ketchell v Wynch [2001] QCA 391; Appeal No 5994 of 2001,
21 September 2001, considered
COUNSEL: M O Plunkett for the applicant
J Koorman for the first respondent
P C Lafferty for the second respondent
SOLICITORS: Crown Solicitor (Queensland) for the applicant
O’Shea & Dye for the second respondent
[1] THOMAS JA: This is an application by the Chief Executive of the Department of
Transport for judicial review. Relief (the equivalent of certiorari) is sought under
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Part 5 of the Judicial Review Act 1991 of an order in the Magistrate’s Court made on 21 June 2001.
[2] It will be convenient to refer to the appellant as “the Department” and to the respondent as “Kepper.” The Transport Operations (Road use Management – Driver Licensing) Regulation 1999 will be referred to as “the 1999 Regulation”.
[3] This matter concerns the purported cancellation of Kepper’s driver’s licence because of his accrual of more than the prescribed number of demerit points over a prescribed period. Curiously, the order which the Department asks to be quashed is an order dismissing an appeal brought by Kepper against the cancellation of his licence.
[4] The formal order of the Magistrates Court is recorded in these terms:
“The Appeal of Edward Francis Kepper
Date Of Birth: 24/4/75
Was determined in the Townsville Magistrates Court and
1. I find the appellant’s licence was not cancelled pursuant to s.24(5) of the transport operations (Road Use Management - Drivers Licensing) Regulations 1999 on the 17/4/2000.
2. I find the appellant’s licence is current at the date of my order (21 June
2001)
3. I dismiss the appeal.
4. I order the respondent to pay the appellant’s costs to be agreed, or failing agreement to be determined by this court.”
[5] The following chronology contains the relevant jurisdictional facts:
23March 2000 Department sends letter (called a “return notice”1) by certified mail to Kepper’s last notified address. It may be inferred that the notice stated that Kepper’s licence was to be cancelled, that he was required to return his licence (or statutory declaration stating why he could not do so) to the chief executive by 17 April 2000, and informing Kepper of his rights of appeal under s 29 of the 1999 Regulation
25 March 2000
(approx.)
The notice was delivered by the postal service to the stated address. Kepper’s mother refused to receive it. It was then returned “unclaimed” to the Department by the postal authorities.
17 April 2000 Licence cancellation date
8 May 2000 Expiry of Kepper’s appeal rights
29 May 2000 Kepper intercepted by police when driving, and upon producing his licence was informed (after a police check) that
See para [18] below.
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it had been cancelled. He “surrendered” his licence to the police.
15 June 2000 Kepper files Notice of Appeal against cancellation (under s
29)
[6] It is common ground that the “return notice” was never received by Kepper and that he was unaware of any cancellation or purported cancellation of his licence until 29
May by which time his appeal rights had expired. It may be noted in passing that despite his understandable belief that he still held a valid licence, he was subsequently charged, convicted and fined in respect of his unlicensed driving on
29 May.
[7] Both counsel submitted that a short point of law arises which will determine the present application, namely whether s 24(5) of the 1999 Regulation requires the Department to cause the license-holder to be actually “informed” of the matters specified in that subsection. For the reasons hereunder I have some doubt as to whether that question properly arises on the present application in respect of any error apparent on the face of the record. However, in view of foreshadowed applications by both parties for declaratory relief in civil jurisdiction in the event that a determination of the point was not appropriate under the Judicial Review Act, I shall in due course deal with the question that the parties seek to have determined. Firstly however it is desirable to examine my jurisdiction to proceed, and the context in which the point arises.
Jurisdictional questions
[8] In hearing and determining an appeal under s 29 of the 1999 Regulation, the power exercised by a Magistrate is judicial not administrative. The task is the familiar one of finding the relevant facts from evidence in the ordinary way, and applying specific statutory and other legal criteria to the facts as found. The magistrate’s decision was therefore not one to which s 20 of the Judicial Review Act applies2. If a remedy lies under the Judicial Review Act it must be by means of a statutory order to review under part 5 of that Act. This depends upon whether this court would formerly have had jurisdiction to grant relief in such circumstances by way of certiorari. The jurisdiction of this court to grant certiorari in relation to decisions or orders of lower courts which have fallen into jurisdictional error is well established3, and of course it does not encompass “errors within jurisdiction”. However it is not necessary to pursue that question here.
[9] On its face the order made by the Magistrate went beyond the dismissal of the appeal. It incorporated certain “findings” as part of the order. At first glance it might be thought that these are merely findings which accidentally intruded into the order, but on closer examination this is not the case. Notwithstanding their disarming presentation as “findings” they are in substance a declaration of right in favour of Kepper to the effect that his licence had not been validly cancelled and
Cf Chief Executive Queensland Department of Transport v Cornack and Anor, (1998) 27 MVR 443, Chesterman J, at 6.
Craig v State of South Australia (1995) 184 CLR 163, 177 et seq; Hot Holdings Pty Ltd v Creasy
(1996) 185 CLR 149, 158 et seq.
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that it was still current. The appeal was plainly dismissed on the basis that there was no valid cancellation against which to appeal. I do not consider that the Magistrate was entitled to proceed in this way. Neither s 29 of the 1999 Regulation nor any other provision confers jurisdiction upon the Magistrate’s Court to pronounce upon the validity or invalidity of a cancellation under s 24 of that Regulation. The jurisdiction conferred by s 29 is to set aside a cancellation if satisfied of certain matters including hardship to the licensee. It hardly needs to be added that the Magistrate’s Court does not have general equitable or declaratory jurisdiction.4 If either party had wished to obtain a determination as to the validity of the cancellation of Kepper’s licence on 17 April 2000 (as distinct from appealing under s 29), a declaration of right could have been sought in the Supreme Court5.
[10] The power and duty of a tribunal or court to make “findings” and to detail them in the published reasons for judgment is very different from the power of a tribunal or court to make an order. Generally speaking, findings are part of the reasoning that leads to the formal order, rather than a part of it. In the present case, the statement that “the appellant’s licence is current at the date of my order” is obviously intended to have the effect of a declaration of right, and has been so interpreted by the parties.
[11] Unless and until set aside, the cancellation recorded in the Department’s records was effective6. It is common ground that Kepper was out of time for bringing an appeal against the cancellation. The time limit for such an appeal is 21 days after the date of cancellation.7 In fact the Notice of Appeal was not brought until more than eight weeks after the purported cancellation. The time limit for performance of an act which is a necessary condition of the existence of such an appeal must be strictly complied with. There is no statutory provision for extension of time, and in the absence of such a provision time may not be extended.8 In such event, plainly the Magistrate was obliged to dismiss the appeal for want of jurisdiction. However in making a determination of right as to the validity of an administrative decision the magistrate assumed a declaratory jurisdiction that he did not possess.
[12] On the face of the record, the Magistrate’s Court had no jurisdiction to make the declaratory part of the order, that is to say, paragraphs [1] and [2] of the order, and at least that part of the order should be quashed.
[13] There is some doubt as to whether error is apparent on the face of the record in relation to the balance of the order. In the present matter, the reasons for judgment should be regarded as part of “the record” for purposes of review, because the essential findings reached in them were included in the order.9 If the Magistrate’s construction of s 24 of the 1999 Regulation was wrong, there would be exposed an
Magistrates Courts Act 1921, s 4; cf Ketchell v Wynch, [2001] QCA 391, paras [36]-[37]; no jurisdiction of this kind is conferred by the Justices Act 1886 (Qld).
Supreme Court Act 1995, s 128; Forster v Jododex Australia Pty Ltd (1972) 27 CLR 421, 437-438.
See certificate issued under s 123(4) of the Transport Operations (Road Use Management) Act 1995
which is to be admitted by the court as evidence of its contents; cf s 48 of Traffic Act 1949; and see s
29(6) of the 1999 Regulation.
s 29 of the 1999 Regulations.
Chief Executive, Queensland Department of Transport v Cornack and Anor above per Chesterman J
citing Moxham v McDonald (1874) 4 QSCR 41.
Craig above at 181-182.
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error leading to his assumption of jurisdiction. But the correct order simply would have been to dismiss the appeal because it was out of time. One does not normally grant prerogative relief of a correct decision on the ground that it has been arrived at by incorrect reasoning. The present order is complicated by the fact that having dismissed the appeal, an order was made that the respondent pay the appellant’s costs, which is of course a reversal of the position that would be expected had the dismissal been granted on the correct basis. It is clear that the order in paragraph
[4] was made on the same erroneous assumption as paragraphs [1] and [2], namely that the Magistrate had jurisdiction to declare the rights of the parties in relation to the validity of the cancellation. With some hesitation I think that the entire order may be reviewed under s 41(2) of the Judicial Review Act. If misconstruction of the 1999 Regulations caused the magistrate to misconceive the nature of the function he was performing, the Department would also be entitled to have paragraphs [3] and [4] of the order set aside10.
[14] If this is incorrect, I would be prepared to grant leave to the Department to bring its foreshadowed application for declaratory relief in the ordinary civil jurisdiction of the Court. That application was in effect for a declaration that in the events that have happened the cancellation of Kepper’s licence on 17 April 2000 was valid. Conversely, the declaration sought on behalf of Kepper was that it was invalid.
[15] I shall therefore proceed to examine what Counsel have referred to as the central question in this application, namely the correctness or otherwise of the Magistrate’s interpretation of s 24 of the 1999 Regulation.
Proper construction of s 24(5) of the 1999 Regulation
[16] The question is whether under s 24(5) of the 1999 Regulation the licence holder must be actually “informed” that his licence is to be cancelled. The question may also be stated as whether the Chief Executive may satisfy the requirements of s
24(5) by means of postage in conformity with the requirements of sections 39 and
39A of the Acts Interpretation Act 1954. It is conceded on behalf of the Department that compliance with s 24 is mandatory, and that in the event of non- compliance the purported cancellation of the licence is ineffective.
[17] I shall not deal with an alternative argument based on s 26(4) because for present purposes there is no relevant difference in those provisions.
[18] Section 24(5) of the Regulation states:
“The chief executive must, by written notice (a “return notice”) –
(a) inform the person that the person’s licence is to be cancelled; and
(b) require the person –
(i) to return the person’s licence to the chief executive in a specified way, and a specified time of at least 14 days; or
(ii) if the person can not comply with subparagraph (i) – to give the chief executive, within the specified time, a statutory declaration stating why the person can not comply; and
(c) inform the person about section 29.”
Craig above at 178-179.
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Section 29 confers a right of appeal in favour of the licensee if his or her license is cancelled under s 24 or s 26.
[19] Section 24(5) requires the Chief Executive “by written notice” to do three things. One is to inform the licensee that the licence is to be cancelled; two is to require the licensee either to return the licence or a statutory declaration in lieu; and three is to inform the licensee of the right of appeal that s 29 confers. If a licensee does not actually know, or is not actually informed that his licence has been cancelled or is in imminent danger of being cancelled, he will not have any opportunity to exercise his right of appeal and will lose it 21 days after the cancellation date. That right is the licensee’s only remedy against automatic cancellation. On such an appeal the Magistrate’s Court has a wide discretion under s 29(5) to set aside the cancellation if satisfied of two matters, essentially that the cancellation would cause extreme hardship, and that the licensee is an “appropriate person” to be licensed having regard to his traffic history.
[20] The Department submits that compliance with s 39 and s 39A of the Acts Interpretation Act satisfies the requirements of s 24(5) whether or not the “return notice” comes to the attention of the licensee. Those sections provide:
“39(1) If an Act requires or permits a document to be served on a person, the document may be served –
(a) on an individual-
(i) by delivering it to the person personally; or
(ii) by leaving it at, or by sending it by post, telex, facsimile or similar facility to, the address of the place of residence or business of the person last known to the person serving the document; or
(b) on a body corporate – by leaving it at, or sending it by post, telex, facsimile or similar facility to, the head office, a registered office or a principal office of the body corporate.
(2) Subsection (1) applies whether the expression ‘deliver’, ‘give’, ‘notify’, ‘send’
or ‘serve’ or another expression is used.
(3) Nothing in subsection (1) –
(a) affects the operation of another law that authorises the service of a document otherwise than as provided in the subsection; or
(b) affects the power of a court or tribunal to authorise service of a document otherwise than as provided in the subsection.
39A.(1) If an Act requires or permits a document to be served by post, service-
(a) may be effected by properly addressing, prepaying and posting the document as a letter; and
(b) is taken to have been effected at the time at which the letter would be delivered in the ordinary course of post, unless the contrary is proved.
(2) If an Act requires or permits a document to be served by a particular postal method, the requirement or permission is taken to be satisfied if the document is posted by that method or, if that method is not available, by the equivalent, or nearest equivalent, method provided for the time being by Australia Post.
(3) Subsections (1) and (2) apply whether the expression ‘deliver’, ‘give’,
‘notify’, ‘send’, or ‘serve’ or another expression is used.
(4) Without limiting subsection (2), the requirement or permission mentioned in the subsection is taken to be satisfied, and is taken always to have been
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satisfied, for the service of a document if the document is, or was, posted by certified mail provided by Australia Post.”
[21] Counsel were prepared to assume that the 1999 Regulation is “an Act” for the purposes of the above provisions. The concession is probably correct having regard to s 14 of the Statutory Instruments Act 1992. The question then is whether s 24(5) of the 1999 Regulation meets the requirements of those sections.
[22] Section 24(5) of the 1999 regulation does not in its terms require or permit a document to be “served” on a person or “delivered”, “given”, “notified”, or
“sent”.11 Counsel for the Department referred to s 24(5) which requires that “the chief executive must by written notice inform the person …” of certain things. He submitted that the word “inform” is sufficiently close to the other words used in s
39(2) of the Acts Interpretation Act to amount to “another expression” within that subsection. However, all the words in s 39(2) are ejusdem generis with “serve.” Even the word “notify”, which is the best word for the purposes of the Department’s argument, should, I think, be read in the sense of giving a notice rather than as conveying actual information to the recipient. The expressions used in the Acts Interpretation Act do not import the actual reception of information by the recipient. My initial impression is that those expressions are inappropriate to satisfy a requirement that a person be actually informed of something.
[23] The Department’s submission which is based upon the use in s 24 (5) of the word
“inform” also overlooks the fact that there are additional requirements that are necessary to satisfy the duty imposed by s 24(5) over and above “informing” the licensee of prescribed matters. The obligation of the chief executive “by written notice require the person to return …” his licence is not comfortably accommodated by any of the words in s 39(1) or (2) of the Acts Interpretation Act.
[24] I do not think that s 39A of the Acts Interpretation Act advances the Department’s position. Quite simply the 1999 Regulation, assuming it to be “an Act” for present purposes, does not require or permit a document to be served, delivered, given, notified or sent to or “on any person”. Section 24(5) places the express duty upon the chief executive of informing the licensee of certain things and of requiring him to do other things. It is true that the chief executive is required to do this by a written notice, but in my view that obligation is not satisfied by a written notice which fails to reach the person who “must” be informed by it and who must be required to do certain things by it.
[25] Had it been intended that postage be sufficient service whether or not the notice came to the attention of the person concerned, it would not have been difficult to say so. For example, there could have been a specification of what the notice must contain, a requirement that it be served, and a provision that it be deemed served if the requirements of s 39A of the Acts Interpretation Act are met. That however is not done by the present s 24(5).
[26] I am aware that the view I have taken of s 24(5) may produce considerable administrative inconvenience, and have not lightly reached such an interpretation.
Acts Interpretation Act, s 39(2) and s 39A(3).
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But in order to uphold the submission for the Department, it would be necessary to read “serve” or its equivalent into the subsection. There are countervailing considerations too, such as the undesirability of persons having their licenses cancelled without knowing about it and of their being deprived of the opportunity to exercise the only right of appeal given against such administrative acts.
[27] In the end, then, I have reached the same view of s 24(5) as that taken by the
Magistrate.
[28] For the reasons that have been given, paragraphs [1] and [2] of the Magistrate’s Court were beyond power and should be set aside. Paragraph [4] of the order was ancillary to paragraphs [1] and [2] and ought likewise to be set aside. Paragraph
[3], which dismissed the appeal, and which was the only order that could properly be made, should remain. There is therefore no need for the matter to be sent back to the Magistrate for further consideration. It is appropriate that further declaratory relief be granted on the present application under s 41(2) of the Judicial Review Act, and in the circumstances I would in any event have been prepared to make a declaration in the ordinary civil jurisdiction of the Court. It should be declared that in the events that have happened the purported cancellation of Edward Frances Kepper’s licence was invalid.
[29] I am prepared to hear further submissions on the form of order and costs.
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