Commissioner of Police v Payne
[1999] NSWSC 640
•30 June 1999
Reported Decision: 47 NSWLR 245
New South Wales
Supreme Court
CITATION: Commissioner of Police v Payne & Anor [1999] NSWSC 640 revised - 08/07/99 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S): 11887 0f 1998 HEARING DATE(S): 31/08/98 JUDGMENT DATE:
30 June 1999PARTIES :
The Commissioner of Police (plaintiff)
Christopher Payne (defendant 1)
Ms Carolyn Barkell (defendant 2)JUDGMENT OF: Hidden J at 1
LOWER COURT JURISDICTION: Local Court LOWER COURT FILE NUMBER(S) : LOWER COURT JUDICIAL OFFICER: Ms Carolyn Barkell, Magistrate
COUNSEL : P J Saidi (plaintiff)
P Little (defendant 1)SOLICITORS: I V Knight (Crown Solicitor) (plaintiff)
D J Hodgess & Associates (defendant 1)CATCHWORDS: Magistrates - Commercial Agents and Private Inquiry Agents Act 1963 - summons under s11 to show cause why licence should not be cancelled - exercise of magistrate's discretion - whether magistrate has power to award costs. ACTS CITED: Commercial Agents and Private Inquiry Agents Act 1963
Justices Act 1902CASES CITED: Grassby v The Queen (1989) 168 CLR 1
Wilson v McDougall (1987) 11 NSWLR 241
Jones v Metcalf [1979] 2 NSWLR 709
Commissioner of Police v Bennett (1991) 9 Petty S.R. 4311
Chinchen v Weiss (1963) 80 WN (NSW) 1676
Cook v Head [1976] 1 NSWLR 176
Hoban v Davey [1972] 1 NSWLR 59DECISION: Summons dismissed
THE SUPREME COURT
HIDDEN J
OF NEW SOUTH WALES
COMMON LAW DIVISION
Wednesday 30 June 1999No: 11887 of 1998 The Commissioner of Police - v - Christopher Payne & Anor
Reasons for judgment
1 HIS HONOUR: On 1 June 1998 the second defendant, a magistrate, heard proceedings commenced by summons directed to the first defendant, Christopher John Payne, to show cause why a private inquiry agent’s licence issued to him under the Commercial Agents and Private Inquiry Agents Act 1963 should not be cancelled. The proceedings had been initiated by a police officer, Sergeant Michael Gorman of the licensing office at Blacktown police station. Her Worship declined to make an order that the licence be cancelled and ordered the police officer to pay the first defendant’s costs of the proceedings. The plaintiff in this Court, the Commissioner of Police, seeks to invoke the Court’s supervisory jurisdiction in relation to her Worship’s refusal to cancel the licence and the order for costs. I shall turn to the orders sought by the plaintiff in due course.
The legislation
2 Before recounting the facts, it is necessary to summarise the effect of some provisions of the Commercial Agents and Private Inquiry Agents Act. The Act provides for the licensing of commercial agents, private inquiry agents and subagents. Section 10 deals with applications for licences. By s10(2) an application is lodged with the clerk of the Local Court in the district in which the applicant proposes to carry on business. If the applicant has not previously held a licence, the clerk of the court forwards particulars of the application to the officer in charge of the nearest police station: s10(4)(c). That officer inquires whether there is any ground for objection to the granting of the licence and furnishes a report to the clerk of the court. If grant of the licence is to be objected to, that should be disclosed in the report: s10(5).
3 Grounds for objection are set out in s10(6). One of them, provided by para(a)(iii) of that subsection, is that “the applicant does not have the prescribed qualifications or experience”. As will be seen, that is the ground which is relevant for present purposes. If the clerk of the court does not receive the police report required by subs(5) within one month of the application for the licence, the licence is issued (subject to a qualification which is not presently material): s10(8)(a). If the report is received and objection is taken to the grant of the licence, provision is made for the hearing of the application by a magistrate.
4 Section 11(1) provides for the procedure which was undertaken in this case. A licensee may be summoned to a Local Court to show cause why the licence should not be cancelled. Grounds for cancellation include any ground upon which objection might have been taken to the issue of the licence: s11(1)(c). Accordingly, as in the present case, the fact that the licensee did not have the prescribed qualifications or experience would constitute a ground for cancellation. A magistrate may order that a licence be delivered up and cancelled if he or she is satisfied that any ground is made out “and that, upon that ground, an order under this subsection is warranted …”: s11(2).
The facts
5 Mr Payne was a member of the Australian Federal Police (originally the Commonwealth Police) from 1978 to 1997, during which time he was involved in a wide variety of duties, undertook a number of internal courses and received a number of awards. Upon his retirement, he set up his own company to provide private inquiry agent services. On 22 July 1997 he obtained private inquiry and commercial subagent’s licences, and acted as a subagent for another company.
6 On 2 September 1997 he lodged an application for a private inquiry agent’s licence at the Blacktown Local Court. Particulars of his application were forwarded to Blacktown police station, and on 10 September he was interviewed at that station by Senior Constable Belinda Caruso. She asked him whether he had completed an approved private inquiry agent’s course or had had twelve months experience as a private inquiry subagent. He replied that he had not, but added, “I would have thought that having nineteen years experience with the Federal Police would have been sufficient”. Snr Cnst Caruso said that she would need to make further inquiries.
7 On 2 October she furnished a report about the application to Sergeant Gorman. On the previous day the period of one month in which the police were to report to the clerk of the court, pursuant to s10(8)(a), expired. On 17 October Sgt Gorman lodged a notice of objection, pursuant to s10(6)(a)(iii), that Mr Payne did not have the prescribed qualifications or experience to hold a licence. It was too late: the licence had already issued by force of subs(8)(a). On becoming aware of this, Sgt Gorman submitted a report recommending that proceedings for cancellation of the licence be taken, pursuant to s11(1)(c). A summons to show cause under that provision was issued on 26 November and served on Mr Payne on 8 December.
8 Cancellation was sought upon the same ground as that giving rise to the objection. The qualifications and experience prescribed for the purpose of s10(6)(a)(iii) are to be found in cl 10(2) of the Commercial Agents and Private Inquiry Agents Regulation 1995. The prescribed experience is having been a licensed subagent for a continuous period of at least twelve months, and the prescribed qualification is a certificate in Private Agency Practice issued by the Technical and Further Education Commission. Mr Payne had enrolled in the appropriate TAFE course in July 1997. By the time the cancellation proceedings came on for hearing on 1 June 1998, he had successfully completed five of six units and would have finished the entire course by the end of that month.
9 It was for this reason, together with the experience Mr Payne had gained whilst holding the licence and his many years of service as a police officer, that her Worship declined to cancel his licence. Costs were awarded to Mr Payne upon the basis that the proceedings for cancellation were initiated without reasonable cause, within the meaning of s81(4)(b) of the Justices Act 1902.
Relief sought
10 By summons in this court, the plaintiff seeks orders in the nature of prohibition and certiorari, together with declarations that the learned magistrate erred in the exercise of her discretion as to the cancellation of the licence and exceeded her jurisdiction in awarding costs.
11 Counsel for Mr Payne submitted that the appropriate plaintiff is Sgt Gorman, who had initiated the proceedings before her Worship, rather than the Commissioner of Police. He referred to Ex parte McCormack; re Paton (1953) 70 WN(NSW) 150 and Attorney-General of Queensland v Wilkinson (1958) 32 ALJR 148, per Dixon CJ at 149 and Fullagher J at 153. That may well be so. The position might be otherwise if the Commissioner had commenced the proceedings in the exercise of his duty under s12(4) of the Act, to which I shall refer later, but that is not the case here. Counsel also complained about the unexplained delay by the plaintiff in bringing the proceedings in this Court, the summons being filed a little over two months after the matter was disposed of in the local court. However, as I have determined that the summons should be dismissed on its merits, I find it unnecessary to express any concluded view about either of these matters.12 Counsel for the plaintiff submitted that the learned magistrate had erred in declining to order the cancellation of the licence, as she had applied “a test of skill and expertise which was not warranted under the legislation”. He argued that the relevant requirements are spelled out in cl 10(2) of the regulations, and to recognise as sufficient some other measure of qualification or experience would circumvent that provision. Reference was made to the second reading speech of the responsible minister in relation to the amending Act of 1995, which led to s10(6)(a)(iii) in its present form. The main purpose of the amending legislation was said to be “to strengthen the controls over the activities of commercial agents and private inquiry agents…” (Parliamentary Debates 21/02/1985 p3637). A little later, the minister continued (at p3638):
Refusal to cancel the licence
13 The legislative intent is clear, but it does not appear to me that it can be achieved only by the inflexible application of a provision such as that under consideration. From the terms of s11(2) of the Act, it is apparent that a magistrate retains a discretion not to order cancellation of a licence even though a ground for such an order has been made out. A somewhat more circumscribed discretion in relation to the granting of a licence, where objection has been taken, is conferred by s10(11)(c). No doubt, in either case a magistrate would not lightly permit departure from the strict requirements of the Act and Regulation. Nevertheless, in the circumstances of this case, it was clearly open to the learned magistrate to consider that such a departure was warranted. It is unnecessary to consider the circumstances in which the discretionary judgment of a magistrate might give rise to the relief which the plaintiff seeks. I am far from persuaded that her Worship erred in the exercise of her discretion in such a way as to attract the supervisory jurisdiction of this Court.
To ensure that licensees under the Act are competent to perform their work, the bill will enable the educational and other qualifications or experience that a person must have to obtain a licence to be prescribed. From discussions with various interest groups it was decided that a technical college course or similar educational prerequisite may be appropriate in addition to a minimum school educational level. It is proposed to confer with the various interest groups prior to prescribing requirements that applicants for a licence will have to meet in the future.
The order for costs
14 The plaintiff’s claim for relief in relation to the order for costs which her Worship made cannot be resolved as easily. As observed above, the order for costs purported to be made under s81(4) of the Justices Act. That section empowers a magistrate “making any conviction or order” to award costs: subs(1). The submission for the plaintiff in this Court was that s81 has no application to the present proceedings, and that a power to order costs cannot be derived from any other source.
15 There is no provision for an order for costs in s11. Nor is there in s10, in relation to contested applications for a licence. On the other hand, other sections of the Act do provide for the award of costs: s30, dealing with proceedings relating to an agreement for an agent’s services, and s39B/clause 16 of Sch 1, dealing with proceedings arising from the appointment of a receiver. It is well established that the jurisdiction of a magistrate’s court is confined to that which it is granted by statute, together with such powers as must be implied to enable it effectively to exercise that jurisdiction: Grassby v The Queen (1989) 168 CLR 1, per Dawson J at 16-17. It would only be in an exceptional case that a power to award costs would be implied: Wilson v McDougall (1987) 11 NSWLR 241 at 243-5. It is not suggested that this is such a case.
16 As observed, the power to order costs under s81 of the Justices Act is conferred upon a magistrate making “any conviction or order”. The term ‘conviction’ relates to proceedings begun by way of information, while an ‘order’ is the result of those initiated by a complaint: Dixon v McCarthy [1975] 1 NSWLR 617 at 623. It is unnecessary in this case to consider the distinction between informations and complaints, which has been the subject of a deal of authority: see, for example, Jones v Metcalf [1979] 2 NSWLR 709 at 711-2. Section 53 of the Justices Act provides that a complaint may be made to a Justice “having authority by law to make an order for the payment of money, or otherwise”. Both ss53 & 81 are to be found in Div 2 of Pt 4 of the Act, dealing with offences punishable on summary conviction and complaints.
17 Section 11(1) of the Commercial Agents and Private Inquiry Agents Act provides that a licensed agent may, “on the complaint of a member of the police force of or above the rank of sergeant”, be summoned before a Local Court to show cause why the licence should not be cancelled. Counsel for Mr Payne argued that the term ‘complaint’ in that subsection is a reference to a complaint under s53 of the Justices Act, so that the proceedings attract the provisions of Div 2 of Pt 4 of that Act, including s81. He observed that the summons served upon Mr Payne is in the familiar form required by s62 of that Act, headed “Divisions 1 & 2, Justices Act, 1902” , and recites that Sgt Gorman “complains on oath” that Mr Payne is not a suitable person to hold a private inquiry agent’s licence as he does not have the prescribed qualifications or experience. For convenience, I shall refer to the Commercial Agents and Private Inquiry Agents Act as “the Agents Act” to distinguish it from the Justices Act.
18 Counsel for Mr Payne also pointed out that the Agents Act provides no procedural framework for dealing with a summons to show cause under s11. The section itself does no more than empower a magistrate to order that a licence be cancelled and set out the consequences of such an order: subss(2),(3) and (4). Section 44(1) provides that the Governor may make regulations with respect to:
(a) prescribing any forms to be used under this Act,
…
(c) the procedure on applications and other proceedings under this Act,
…
No forms or procedure have been prescribed for the purpose of proceedings under s11.
19 That being so, the argument continued, one must turn to Div 2 of Pt 4 of the Justices Act to initiate and pursue the proceedings. That Division provides for a form of summons (s62), the manner of service (s63), the power to adjourn the hearing (s68), the procedure at hearing (ss70, 77-80), together with powers to deal with a matter in the event of non-appearance of either party (ss74-76). The Agents Act creates a number of offences, punishable by fine and/or imprisonment: see, for example, s8(3) and s33(4). Nothing has been prescribed by way of regulation for the prosecution of those offences and, clearly, it is intended that they be dealt with under the Justices Act: cf s40. Section 4(1) of the Justices Act applies its provisions to proceedings under any other Act whereby “any person is made liable to imprisonment or other punishment, or to any fine, penalty, or forfeiture, or to pay any sum of money or costs, for any offence, act, or omission, upon the conviction or order of a Justice or Justices”, and where no provision is “expressly made in the Act dealing with the matter …”. However, despite an ingenious argument by counsel for Mr Payne to the contrary, I am satisfied that the terms of that section do not embrace proceedings under s11 of the Agents Act.
20 Early in these reasons I outlined the effect of ss10 & 11 of the Agents Act. In addition, s12 provides that, in certain circumstances set out in subs(1), a court may determine of its own motion that action should be taken against an agent under s11. In that event, the court may order that the licence be suspended for a specified period and delivered up to the Commissioner of Police. The Commissioner is then required to initiate proceedings against the agent under s11: s12(4). In the submission of counsel for the plaintiff, all these provisions demonstrate that, in objecting to the grant of a licence or in commencing show cause proceedings, the police are acting in a non-partisan way, in the public interest. Accordingly, it was said, the sections do not envisage normal adversarial proceedings between parties.
21 On the other hand, the argument continued, s81 of the Justices Act clearly is directed to adversarial proceedings. It speaks of a prosecutor or complainant on the one hand, and a defendant on the other; a conviction or order on the one hand, and the dismissal of an information or complaint on the other. An analogy was sought to be drawn with the decision of McInerney J in Commissioner of Police v Bennett (1991) 9 Petty S.R. 4311.
22 In that case, McInerney J held that an applicant for the return of property under s358A (since repealed) of the Crimes Act was not entitled to an order for costs. Section 358A(1) provided:
(1) A court may, on the application of any person, make an order that any property which is in the custody of a member of the police force in connection with any offence whether punishable on indictment or summarily, be delivered to the person who appears to it to be lawfully entitled thereto.
His Honour concluded that such an application was not an information or complaint, and was not “the normal adversary litigation inter partes” (at 4314). Rather, it was a procedure for the protection of police, “designed to resolve a situation where the police entertain a doubt as to whether the person applying does in fact have lawful title to the property” (at 4315). Accordingly, his Honour held that s81 of the Justices Act had no application, and that a power to award costs should not be implied.
23 There is no real analogy between that case and this. True it is that proceedings under s11 of the Agents Act are commenced by summons to show cause, and are not strictly an application by the police for the cancellation of a licence. Nevertheless, by the terms of s11(1) itself, the police officer who initiates the proceedings is properly described as a complainant. At the hearing it is he or she who adduces the evidence tending to show why the licence should be cancelled. Equally, the agent who contends that his or her licence should be retained is properly described as a defendant. If satisfied that the licence should be cancelled, the magistrate makes an order to that effect. If not, as in this case, the complaint is dismissed. It appears, then, that proceedings under s11 of the Agents Act are of a sufficiently adversarial nature to attract the terms of s81 of the Justices Act.
24 I have referred to s12 of the Agents Act, the effect of which is that in certain circumstances the Commissioner of Police is bound to initiate action under s11. Counsel for the plaintiff argued that it would be absurd if the Commissioner, having no discretion about the matter, were put at risk of an order for costs if the complaint were dismissed. The answer to this is to be found in s81(4) of the Justices Act, which limits the circumstances in which costs may be awarded in favour of a defendant, unless the proceedings were instituted by an informant or complainant acting in a private capacity only: subs(5). For the most part, subs(4) appears to be directed to prosecutions for criminal offences. However, subs(4)(b) would permit an order for costs against an official complainant if “the proceedings were initiated without reasonable cause or in bad faith…”. It is inconceivable that action which the Commissioner of Police was required to take by s12 of the Agents Act could be characterised in that way.
25 Counsel for the plaintiff relied upon Jones v Metcalf (supra) in support of his submission that the word “complaint” in s11 of the Agents Act is not used in its technical sense: that is, by reference to s53 of the Justices Act. In that case, Yeldham J was called upon to interpret s70(b) of the Coal Mines Regulation Act 1912, which provided as follows:
(b) Every court of petty sessions shall have jurisdiction to hear and determine complaints for the breaches of this Act punishable by fine.
His Honour considered the distinction between informations and complaints at common law and under the Justices Act , and concluded that proceedings under s70(b), being criminal in nature, were properly commenced by information. His Honour observed (at 715):
… the word “complaints” as contained in s70(b) is used in a non-technical way to refer to matters of complaint in relation to breaches of the Act punishable by fine; and not to a “complaint” in contradistinction to an “information” as recognised by the common law, and by the sections of the Justices Act to which I have earlier referred.
His Honour observed (at 712) that “the legislature has not always dealt with the distinction between informations and complaints with clarity”, referring to Chinchen v Weiss (1963) 80 WN (NSW) 1676. In that case, McClemens J had held that proceedings under s32 of the Municipal Council of Sydney Electric Lighting Act 1896-1935 did not amount to a prosecution for an offence and, accordingly, should have been commenced by complaint rather than information.
26 Both those cases were concerned with legislation which conferred jurisdiction upon magistrates, to be exercised in accordance with the Justices Act, and they turned upon the distinction between an information and a complaint within the meaning of ss52 & 53 of that Act. Neither case called upon the judge to determine whether the word “complaint” might be used in a broader sense, so as not to invoke the provisions of the Justices Act at all. The term is frequently used in legislation of a supervisory or disciplinary nature, providing for complaints to be dealt with by an administrative body or tribunal established for that purpose. Both counsel referred me to legislation of that kind: see, for example, s28 of the Chiropractors and Osteopaths Act 1991 and s44 of the Motor Vehicle Repairs Act 1980. These Acts, of course, do not confer jurisdiction upon magistrates. I was not referred to any case in which it was held that an Act providing for complaints to be dealt with by a magistrate did so without bringing the Justices Act into play.
27 I have found this important question difficult to resolve. My summary of the arguments of counsel demonstrates that there are factors favouring both sides of the argument. I should record my gratitude to counsel for the assistance I have been afforded by their detailed and carefully researched submissions. The conclusion I have reached is that s11 of the Agents Act invokes the jurisdiction of magistrates under the Justices Act, including the power to award costs under s81 of that Act.
28 I am mindful of the protective nature of the relevant provisions of the Agents Act, designed to maintain the public interest in the competence and probity of licensees under the Act. Whether, in certain circumstances, proceedings under s11 might also have a punitive function is not to the point: cf Hoban v Davey [1972] 1 NSWLR 59, per Sugerman P at 63-6 and Mason JA at 72. I accept that a contested application for the grant of a licence under s10 does not bring the Justices Act into play. I respectfully agree with the opinion of Glass JA, in Cook v Head [1976] 1 NSWLR 176 at 181, that a magistrate hearing such an application has no power to order costs. What his Honour said was this:
Although it is unnecessary to decide the question, I incline to the view that no such power exists. I strongly doubt that an applicant for a licence under s10 can be regarded as a complainant seeking an order under s81(1) of the Justices Act , 1902, which appears to be the only relevant source of power.
29 The reasoning of Glass JA in that passage is significant. It was based, not on the protective nature of proceedings under the section, but upon the fact that they are not initiated by complaint under s53 of the Justices Act. They arise simply because an application for a licence, when it is the subject of objection by the police, must be determined by a magistrate. The difference between proceedings under s10 and s11 is apparent from the terms of s11 itself, providing for the issue of a summons to show cause upon the complaint of a police officer.
30 It is true that the Agents Act does not expressly provide that proceedings under s11 are to be dealt with in accordance with the Justices Act. In this respect the Act differs from the Child Welfare Act 1939, considered by Newman J in Wilson v McDougall (supra) at 245ff: see now s27 of the Children (Criminal Proceedings) Act 1987. This may well be because no such provision was considered necessary. I cannot imagine that the draftsman of s11, conferring jurisdiction upon magistrates, was unmindful of the significance of the term “complaint” in the framework of the Justices Act. One might ask, as counsel for the plaintiff did, why the regulation making power conferred by s44 of the Agents Act extends to the prescription of the procedure on applications and other proceedings under the Act: para(c). The answer lies, I think, in the fact that the Act provides for proceedings to which the Justices Act has no application: contested applications for a licence under s10 and proceedings relating to agreements for services (s30) and the appointment of a receiver (s39B).
31 Views might differ about the policy of s11 as I have interpreted it. Not only does it expose the Commissioner of Police or his officers to an order for costs, subject to the restrictions imposed by s81(4) of the Justices Act, it also exposes the licensee to such an order without those restrictions. It might be asked why an order for costs should be available in proceedings under s11, but not under s10. On the other hand, it might be said that proceedings which could result in the cancellation of a licence are more serious than a contested application for the grant of one; and that the sanction of costs might encourage careful consideration by the police to whether the proceedings should be instituted, and by the licensee to whether they should be resisted. However that may be, it is a matter for the legislature to determine whether the power to award costs is in the public interest and, if not, to remedy the situation.
32 Accordingly, I am satisfied that her Worship had a discretion to make an order for costs in the present case. No submission was directed to the manner in which that discretion was exercised. It follows that the plaintiff has not made out any claim for relief, and the summons must be dismissed. The parties should have the opportunity to be heard on costs.
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