Cosenza v State of South Australia
[2017] SASC 183
•11 December 2017
Supreme Court of South Australia
(Civil: Application for Judicial Review)
COSENZA v STATE OF SOUTH AUSTRALIA & ANOR
[2017] SASC 183
Judgment of The Honourable Chief Justice Kourakis
11 December 2017
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - FAILURE TO OBSERVE STATUTORY PROCEDURE
ADMINISTRATIVE LAW - JUDICIAL REVIEW - REVIEWABLE DECISIONS AND CONDUCT - GENERALLY
Application for declarations relating to the procedures for the enforcement of expiation notices.
The plaintiff was issued with expiation notices by South Australia Police (SAPOL) and the Adelaide City Council (ACC) for a number of offences. He entered into a payment arrangement with the Fines Enforcement and Recovery Officer (the Fines Enforcement Officer) pursuant to s 9 of the Expiation of Offences Act 1996 (SA)(the EO Act). The expiation fees were not paid. Both SAPOL and the ACC requested that the Fines Enforcement Officer enforce the expiation notices issued to the plaintiff.
Pursuant to s 13(1)(a) of the EO Act, to enforce an expiation notice against an offender the issuing authority is required to provide the Fines Enforcement Officer ‘a certificate that contains the particulars determined’ by the Fines Enforcement Officer relating to the alleged offender, the offence or offences that remain unexpiated, the amount due under the notice and compliance by the authority with the EO Act and any other Act.
Both SAPOL and the ACC provided the Fines Enforcement Officer with a spreadsheet containing limited details relating to the plaintiff's expiation notices so that the notices might be enforced. The Fines Enforcement Officer’s evidence was the majority of this information was generated electronically and automatically by his office and the issuing authority would mark 'Y' on the spreadsheet to pursue enforcement. His evidence was that he adopted the practice which was in place prior to the creation of his office.
The plaintiff applied to the Fines Enforcement Officer to review the decision to enforce the expiation notices issued against him. The review application form asked applicants to mark only one ground of review. The plaintiff marked all the available grounds of review. His application for review was refused on this basis.
The plaintiff seeks an extension of time and applies for declarations that the Fines Enforcement Officer acted in excess of his statutory authority in enforcing the expiation notices issued to him and wrongfully refused to exercise his statutory discretion to review the enforcement decision.
Held per Kourakis CJ, dismissing the application:
1. The Fines Enforcement Officer did not make a determination as to the particulars which he required an issuing authority to provide pursuant to s 13(1)(a) of the EO Act.
2. On their face, the spreadsheets provided to the Fines Unit by SAPOL did not contain information that would designate the alleged offender nor the offence remaining unexpiated as required by s 13(1)(a)(i) and (ii) of the EO Act.
3. Both spreadsheets provided to the Fines Enforcement Officer, in the absence of a determination lacked the particulars required pursuant to s 13(1)(a) of the EO Act and were not certificates for the purposes of s 13(1) of the EO Act.
4. The Fines Enforcement Officer could not restrict the operation of a review pursuant to s 13(4) of the EO Act by requiring that a review could only be made on one ground.
5. The application is out of time, the plaintiff likely sought to improperly delay payment and the plaintiff has not provided evidence that the expiation notices were improperly issued. The discretion to grant declaratory relief should not be granted.
Criminal Law (Sentencing) Act 1988 s 64; Expiation of Offences Act 1996 ss 6, 9, 13, referred to.
COSENZA v STATE OF SOUTH AUSTRALIA & ANOR
[2017] SASC 183Civil
KOURAKIS CJ: This is an application by the plaintiff, Mr Cosenza, for declarations that the Fines Enforcement and Recovery Officer (the Fines Enforcement Officer) acted in excess of his statutory authority in determining to enforce expiations notices (the enforcement decisions) issued to Mr Cosenza by the Adelaide City Council (the ACC) and South Australia Police (SAPOL). Mr Cosenza also seeks a declaration that the Fines Enforcement Officer wrongfully refused to exercise his statutory function when he declined to consider an application by Mr Cosenza for a review of the enforcement decisions. The reason given for refusing to accept Mr Cosenza’s application was that it relied on multiple grounds when the standard form provided by the Fines Unit for such applications insisted that there be only one ground of review.
Mr Ovenstone was appointed as the Fines Enforcement Officer on the enactment of s 64 of the Criminal Law (Sentencing) Act 1988 (the Sentencing Act) by an amendment to that Act in 2014.[1] The Fines Enforcement Officer is the director of a division of the office of the Attorney-General called the Fines Enforcement and Recovery Unit (the Fines Unit) and is assisted in the performance of his functions by its employees.
[1] Statutes Amendment (Fines Enforcement and Recovery) Act 2013 (SA).
The Legislation
Section 64 of the Sentencing Act provides:
64—Fines Enforcement and Recovery Officer
(1)There is to be a Fines Enforcement and Recovery Officer.
(2)The Fines Enforcement and Recovery Officer will be a person employed in the Public Service of the State.
(3)The Fines Enforcement and Recovery Officer may, in addition to carrying out functions and exercising powers under this Act, carry out any other functions, or exercise any other powers, assigned to the Fines Enforcement and Recovery Officer by or under any other Act or law or by the Minister.
(4)If the Fines Enforcement and Recovery Officer carries out functions under any Act on behalf of a public sector agency, Local Government agency or other person or body, the Fines Enforcement and Recovery Officer may charge the agency, person or body a fee of such amount as may be agreed between the Fines Enforcement and Recovery Officer and the agency, person or body.
The Expiation of Offences Act 1996 (SA) (the EO Act) regulates the issue and enforcement of expiation notices and confers substantial powers in relation thereto on the Fines Enforcement Officer. Section 6 of the EO Act prescribes the circumstances in which an expiation notice can be issued as follows:
6—Expiation notices
(1)An expiation notice—
(a) may relate to up to 3 alleged offences arising out of the same incident (ie if they are committed contemporaneously, or in succession, one following immediately upon another); and
(b) must be in the prescribed form; and
(c) must specify that the expiation fee is to be paid within 28 days from (and including) the date of the notice unless an arrangement is entered into under section 9; and
(d) must specify to whom the expiation fee is payable; and
(e) cannot be given after the expiry of the period of 6 months from the date on which the offence was, or offences were, alleged to have been committed; and
(f) cannot be given to a person if a prosecution has been commenced against the person for the alleged offence or offences; and
(g) cannot (except where some other Act provides otherwise) be given to a child; and
(h) cannot, if the regulations or some other Act so provides in relation to a particular offence, be given to a person under the age of 18 years; and
(ha) should not be issued in respect of a trifling offence; and
(i) if a vehicle is involved in the commission of the alleged offence or offences and is found unattended—may be addressed to the owner or driver of the vehicle without naming or otherwise identifying him or her; and
(j) may be given—
(i)personally or by service on an employee or agent of the alleged offender; or
(ii)by post addressed to the alleged offender's last known place of business or residence; or
(iii)if a vehicle is involved in the commission of the alleged offence or offences and is found unattended—by affixing or placing the notice on that vehicle; and
(k) must be accompanied by a notice in the prescribed form by which the alleged offender may elect to be prosecuted for the offence or any of the offences to which the expiation notice relates.
…
(3)An expiation notice may only be given by—
(a) a member of the police force; or
(b) a person who is authorised in writing by—
(i)the Minister responsible for the administration of the Act against which the offence is alleged to have been committed; or
(ii)the statutory authority or council responsible for the enforcement of the provision against which the offence is alleged to have been committed,
to give expiation notices for the alleged offence; or
(c) a person who is authorised to give expiation notices for the alleged offence by or under the Act against which the offence is alleged to have been committed.
Section 8 of the EO Act allows an alleged offender to elect to be prosecuted instead of paying the expiation fee. Section 8(2) of the EO Act provides that an election cannot be made after a payment arrangement has been entered into pursuant to s 9 of the EO Act or after an enforcement determination has been made pursuant to s 13 of the EO Act.
Section 9 of the EO Act makes the following provision for an alleged offender to enter into a payment arrangement:
9—Arrangements as to manner and time of payment
(1)Subject to this section, an alleged offender who has been given an expiation notice and who pays to the Fines Enforcement and Recovery Officer the prescribed fee—
(a) may, at any time during the expiation period, enter into an arrangement with the Fines Enforcement and Recovery Officer for payment of the amount due under the notice by direct debit instalments in accordance with subsection (3); or
(b) if the Fines Enforcement and Recovery Officer agrees, may enter into some other kind of arrangement with the Fines Enforcement and Recovery Officer in relation to the amount due under the notice in accordance with subsection (4).
(2)The Fines Enforcement and Recovery Officer must give the issuing authority notice (in a manner agreed between the Fines Enforcement and Recovery Officer and the issuing authority) of any arrangement entered into under this section.
(3)An arrangement for payment by instalments referred to in subsection (1)(a)—
(a) may not be entered into after an enforcement determination has been made under section 13 in respect of the expiation notice; and
…
(4)Other kinds of arrangements referred to in subsection (1)(b) may consist of or include—
(a) payment by instalments (including instalments paid over a period exceeding 12 months);
(b) an extension of time to pay;
(c) the taking of a charge over land;
(d) the surrender of property to the Fines Enforcement and Recovery Officer;
(e) payment of any amount, including by direct credit, by or through some other person or agency (eg deductions from an ADI account or wages);
(f) subject to subsection (5)—requirements for the performance of community service by the alleged offender (in accordance with a scheme prescribed by the regulations);
(g) any other form of arrangement agreed by the Fines Enforcement and Recovery Officer and the alleged offender.
(5)The Fines Enforcement and Recovery Officer may only agree to an arrangement requiring the performance of community service if—
(a) the Fines Enforcement and Recovery Officer is satisfied that the alleged offender does not have, and is not likely within a reasonable time to have, the means to satisfy the amount due under an expiation notice without the alleged offender or his or her dependants suffering hardship; and
(b) an enforcement determination has been made by the Fines Enforcement and Recovery Officer under section 13 in relation to the expiation notice.
…
(7)An arrangement under this section may be varied by agreement between the alleged offender and the Fines Enforcement and Recovery Officer.
(8)If an arrangement is entered into or varied under this section, the Fines Enforcement and Recovery Officer must give a copy of the arrangement or varied arrangement (as the case requires) to the alleged offender personally or by post.
(9)For the purposes of entering into, or varying, an arrangement, any number of amounts due under expiation notices given to the alleged offender may be aggregated.
(10)If an alleged offender fails to comply with an arrangement under this section and the failure has endured for 14 days, the arrangement terminates.
(11)If the Fines Enforcement and Recovery Officer determines that an alleged offender who is subject to an arrangement requiring the performance of community service has the means to satisfy an enforcement amount without the alleged offender or his or her dependants suffering hardship, the arrangement terminates.
(12)If an arrangement terminates under subsection (10) or (11), the Fines Enforcement and Recovery Officer must give the issuing authority notice (in a manner agreed between the Fines Enforcement and Recovery Officer and the issuing authority) of the termination and the amount then outstanding (taking into account, where the arrangement required the performance of community service, the number of hours of community service so performed).
(13)If an alleged offender complies with an arrangement under this section or pays to the Fines Enforcement and Recovery Officer, at any time, the amount then outstanding, the arrangement is discharged.
(14)Subject to the regulations, an alleged offender who enters into an arrangement under this section will, for the purposes of any other Act or law, be taken to expiate the offence or offences to which the arrangement relates on the day on which the arrangement is entered into (unless the alleged offender is already taken to have expiated the offence in accordance with section 13 or in accordance with section 61 of the Criminal Law (Sentencing) Act 1988) regardless of whether the arrangement is subsequently discharged or terminates before being discharged.
I draw attention to s 9(10) of the EO Act, a self-executing provision which terminates an arrangement if a failure to comply endures for 14 days, and to s 9(12) of the EO Act which provides that, in that event, the Fines Enforcement Officer must notify the issuing authority of the termination of the arrangement and of the outstanding amount.
Section 11 of the EO Act provides that if the alleged offender has not paid the expiation fee, no arrangement has been entered into pursuant to s 9 of the EO Act, and the issuing authority has not received a statutory declaration or any other document required by the notice, then the issuing authority must send, by post, a reminder in the prescribed form to the alleged offender.
Section 11A of the EO Act requires an issuing authority to send an expiation warning notice before proceeding to enforce an expiation notice if it does not accept a defence asserted in a statutory declaration or other document provided in accordance with the notice and any other requirements.
Section 13 of the EO Act provides:
13—Enforcement determinations
(1)An expiation notice may be enforced against the alleged offender by the issuing authority sending to the Fines Enforcement and Recovery Officer—
(a) a certificate that contains the particulars determined by the Fines Enforcement and Recovery Officer relating to—
(i)the alleged offender; and
(ii)the offence or offences that remain unexpiated; and
(iii)the amount due under the notice; and
(iv)compliance by the authority with the requirements of this Act and any other Act; and
(b) the prescribed fee.[2]
[2] Since 3 February 2014 regulation 8 of the Expiation of Offences Regulations 2011 prescribes the fee which can be charged to the issuing authority ‘for the enforcement of an expiation notice’. Public sector agencies are exempted. No provision is made to add that fee to the expiation amount.
(2)The Fines Enforcement and Recovery Officer may make an enforcement determination in relation to an expiation notice given to a person—
(a) if the Fines Enforcement and Recovery Officer has, within the relevant period, received a certificate under subsection (1) and—
(i)14 clear days have elapsed from the date on which a reminder notice relating to the expiation notice was sent by post in accordance with section 11; or
(ii)14 clear days have elapsed from the date on which an expiation enforcement warning notice relating to the expiation notice was sent by post in accordance with section 11A; or
(b) if an arrangement under section 9 relating to the notice has terminated in accordance with that section and the Fines Enforcement and Recovery Officer has, within the relevant period, received a certificate under subsection (1) following that termination.
(3)Subject to the regulations, on the making of an enforcement determination the alleged offender will, for the purposes of any other Act or law, be taken to have expiated the offence or offences to which the enforcement determination relates (unless the alleged offender is already taken to have expiated the offence in accordance with section 9(14) or in accordance with section 61 of the Criminal Law (Sentencing) Act 1988).
(4)The Fines Enforcement and Recovery Officer may—
(a) vary an enforcement determination at any time; and
(b) on application under this section made within 30 days of notice of an enforcement determination being given, sent or published in accordance with this section—revoke the enforcement determination.
…
(8)An application under subsection (4)(b) for the revocation of an enforcement determination can only be made on the ground that—
(a) the expiation notice to which the determination relates should not have been given to the applicant in the first instance; or
(b) the procedural requirements of this Act or any other Act were not complied with; or
(c) the applicant failed to receive a notice required by this Act or any other Act; or
(d) the issuing authority failed to receive—
(i)a notice sent to the authority by the applicant electing to be prosecuted for the offence; or
(ii)a statutory declaration or other document sent to the authority by the applicant in accordance with a notice required by law to accompany the expiation notice or expiation reminder notice; or
(e) the applicant has expiated the offence, or offences, under the notice.
…
(11)Subject to subsection (12), on an enforcement determination being made, varied or revoked, the Fines Enforcement and Recovery Officer must cause a written notice of the determination, variation or revocation containing the particulars (if any) prescribed by the regulations—
(a) to be—
(i)given personally or by post to the alleged offender; or
(ii)if the whereabouts of the alleged offender cannot, after reasonable enquiries, be ascertained—published on a website determined by the Fines Enforcement and Recovery Officer; and
(b) to be given to the issuing authority.
…
(13)The Fines Enforcement and Recovery Officer is not required to conduct a hearing for the purposes of making, varying or revoking an enforcement determination.
(14)In this section—
relevant period, in relation to an expiation notice, means—
(a) for the purposes of subsection (2)(a)—
(i)the period ending 90 days after the end of the expiation period; or
(ii)such longer period as the Fines Enforcement and Recovery Officer may allow (provided that the Fines Enforcement and Recovery Officer may not extend the period so as to allow a certificate to be received after the time for commencement of a prosecution against the person for the unexpiated offence or offences to which the certificate relates has expired); and
(b) for the purposes of subsection (2)(b)—the period of 30 days after the day on which the arrangement terminated.
The effect of an enforcement determination made pursuant to s 13 of the EO Act is to deem an alleged offender to have expiated the offence thereby foreclosing his or her opportunity to elect to be prosecuted and authorising the Fines Enforcement Officer to proceed to take enforcement action. One of the reasons the Fines Enforcement Officer may decide to revoke an enforcement determination on any of the grounds prescribed by s 13(8) of the EO Act is to allow the alleged offender a further opportunity to elect to be prosecuted. If the discretion to make an enforcement determination is not exercised favourably by the Fines Enforcement Officer, the alleged offender can apply to the Fines Enforcement Officer to have the decision revoked pursuant to s 13(4)(b) of the EO Act. Section 14(3) of the EO Act also allows an appeal against an enforcement decision to be brought in the Magistrates Court but only on the ground that the alleged offender did not commit an offence or offences to which the expiation notice relates.
Mr Cosenza’s claims for declarations critically depend on the proper construction of s 13(1) of the EO Act. His claim raises two primary questions of construction. The first is whether the Fines Enforcement Officer is required to determine particulars with respect to each of placita (i) to (iv). The answer to that question must be in the affirmative for several reasons. First a certificate is a single document containing a statement, or statements, of fact in formal recognition of an administrative requirement. The very making of such a statement requires an issuing agency to take responsibility for the correctness of the statement and in so doing gives the Fines Enforcement Officer the necessary assurance to proceed to enforcement. The phrase ‘a certificate that contains’ suggests that all four prescribed matters will be covered by the certificate. Secondly the definite article ‘the’ precedes the word ‘particulars’ which is followed by the use of the past participle ‘determined’. That choice of language may be contrasted with an alternative form like ‘such particulars relating to any of the following matters as the Fines Enforcement Officer may determine.’ Indeed the section could have provided only that the Fines Enforcement Officer may enforce an expiation notice at the request of an issuing agency, in such a case it would be up to the Fines Enforcement Officer to make administrative arrangements for the provision of such information as he may require. Thirdly the manifest purpose of the prescription of particulars of the kind contemplated by s 13(1) is to ensure that there is a sound foundation for an administrative decision which imposes a pecuniary penalty and denies a person his or her right to judicial determination of an alleged offence. It is natural therefore that Parliament should require that a certificate should be provided with respect to everyone one of those matters so that the Fines Enforcement Officer can consider and determine an enforcement decision with the requisite level of assurance.
Counsel for the State submitted that Parliament’s concern in prescribing the matters in placita (i) to (iv) was only to kerb the zeal of a Fines Enforcement Officer who might require assurance on a wider range of matters and that Parliament did not intend to impose an obligation on the Fines Enforcement Officer to require a certificate containing particulars on all of the prescribed matters. That submission must be rejected. The Fines Enforcement Officer is an employee in the Public Service and is therefore subject to general supervision and if necessary re-assignment by, ultimately, the Chief Executive of the Attorney-General’s Department. Legislative controls that protect the interests of issuing agencies, who are other governmental departments are quite unnecessary. Indeed the Fine Enforcement Officer’s accountability to the Executive through the hierarchy of the public service is all the more reason to construe s 13(1) of the EO Act in a way which protects the interests of debtors, and not government departments. The construction urged by the State voids s 13(1) of the EO Act of any real purpose.
Finally as will shortly be seen the process by which an enforcement decision is made after a certificate is received is largely automated by pre-programming of a computerised digital information system that I will call the Electronic Fines System. That is a practical necessity given the volume of enforcements. However it is precisely for that reason that the certificate should include some measure of assurance as to all four placita.
The second question is whether the Fines Enforcement Officer is required to turn his or her mind to s 13(1) of the EO Act in order to make an effective and valid determination of the necessary particulars. Again the answer must be in the affirmative. Section 13(1) of the EO Act confers a statutory power which must be exercised having regard to its statutory purposes. It is therefore necessary to address the statutory power in order to make a valid determination. It is not enough that information conveyed as a matter of administrative convenience might include particulars of the kind referred to by s 13(1) of the EO Act.
It is not enough for the Fines Enforcement Officer to consider only the minimum particulars which would allow the identification of the subject matter of the enforcement decision and the amount payable so that the action contemplated by s 14A of the EO Act can effectively be taken. A limited enquiry of that kind would not address the question which an exercise of that provision requires. For example the Fines Enforcement Officer should consider whether particulars should be required which allow him or her to determine whether the notices referred to in s 13(2)(a) of the EO Act have been sent by post 14 clear days prior to the making of an enforcement determination. Pursuant to placitum (iv) the Fines Enforcement Officer must also turn his or her mind to whether the certificates should include any particulars as to:
·compliance with s 6(1) of the EO Act (eg the form of the expiation notice, the age of offender, whether the prosecution has commenced, whether the notice was issued within six months of an alleged offence, whether the offence was trifling, the method of service);
·compliance with s 6(3) EO Act (the authority of person issuing the notice to do so);
·compliance with ss 11, 11A of the EO Act (the issuance of reminder notices).
It is convenient here to refer to the EO Act as it stood before its amendment by the Statutes Amendment (Fines Enforcement and Recovery) Act 2013 (SA). The amending Act transferred responsibility for the enforcement of expiation notices to an officer of the Attorney-General’s office. Previously, the enforcement was the responsibility of the registrars of the Magistrates Court and the Youth Court. Registrars are subject to the supervision of the judicial head of the Court in which they held their office. At the relevant time they were therefore under the control of the Chief Magistrate and the Senior Judge of the Youth Court. They are also responsible to the Courts Administration Council which comprises the Chief Justice, the Chief Judge and the Chief Magistrate. In exercising their functions under the EO Act they were independent of the issuing agencies.
Until the amendments in February 2014, s 13 of the Expiation of Offences Act 1996 (SA) provided that an expiation notice could be enforced by the issuing agency sending to the Registrar a certificate that contains:
13—Enforcement procedures
(1) An expiation notice may be enforced against the alleged offender by the issuing authority by sending to the Registrar a certificate that contains the prescribed particulars relating to—
(a) the alleged offender; and
(b) the offence or offences that remain unexpiated; and
(c) the amount payable under the notice; and
(d) compliance by the authority with the requirements of this Act and any other Act.
(emphasis added)
Section 20 of the former EO Act gave the Governor the power to make regulations contemplated by the Act or as necessary and expedient for the purposes of the Act.
Until February 2014 the Expiation of Offences Regulation 1996 (SA) made under the EO Act prescribed the following particulars:
8—Certificate for enforcement purposes
For the purposes of section 13(1) of the Act, the certificate to be sent by the issuing
authority to the Court must contain the following particulars:
(a) the identity of the issuing authority; and
(b) the name and address of the alleged offender; and
(c)the date on which the expiation notice was issued and the number of the notice; and
(d) the date on which a reminder notice (if any) was issued; and
(e)the date on which an expiation enforcement warning notice (if any) was issued; and
(f) the date of the certificate; and
(g) for each alleged offence that remains unexpiated—
(i)details of the offence, including the location, date and time of the offence and details identifying the category of offence; and
(ii)the outstanding amount of the expiation fee (with the outstanding amounts of a reminder notice fee or warning notice fee separately itemised); and
(iii)if a levy is payable in respect of the offence—a statement as to whether or not the levy has been paid; and
(iv) if the offence involved a vehicle—
(A) a statement as to whether the expiation notice was issued to a person in the capacity of registered owner or driver of the vehicle; and
(B) the vehicle registration number and the State or Territory in which the vehicle was registered at the time of the offence; and
(v)if the expiation notice was issued to a person in the capacity of driver of a vehicle—the class of driver's licence or permit (if any) held by the alleged offender, the number of the licence or permit and the State or Territory in which it was issued.
It will be observed therefore that because the certificate was prescribed by Regulation there was a formal record of the determination of particulars.
Section 14A(1) of the EO Act authorises the Fines Enforcement Officer to take the enforcement action allowed by s 14A(2). That section provides and there follows:
(2)The Fines Enforcement and Recovery Officer may take enforcement action against a person by doing any of the following:
(a) entering into an arrangement, or further arrangement, with the person under section 9(1)(b);
(b) registering a charge on land under Part 9 Division 3 Subdivision 3 of the Criminal Law (Sentencing) Act 1988 or exercising any 1 or more of the powers under Part 9 Division 3 Subdivision 4 or Subdivision 5 of that Act as if—
(i)references to a pecuniary sum were references to the amount due; and
(ii)references to the debtor were references to the person against whom the enforcement action is being taken;
(c) waiving payment of the amount due or any part of the amount due.
(3)If the Fines Enforcement and Recovery Officer takes enforcement action of a kind described in subsection (2)(b), any costs, fees or other charges that would be recoverable by the Fines Enforcement and Recovery Officer under the Criminal Law (Sentencing) Act 1988 in respect of such action are recoverable by the Fines Enforcement and Recovery Officer for the purposes of this Act (and will be added to, and form part of, the amount due).
(4)Where more than 1 enforcement determination has been made in respect of expiation notices issued to a person, the amounts due under the notices may be aggregated for the purposes of taking enforcement action.
The powers which may be exercised pursuant to Subdivisions 4 and 5 of Division 3 of Pt 9 of the Sentencing Act include:
·Garnishment;[3]
·Suspension of driver’s licence;[4]
·Restriction on transacting business with the Registrar of Motor Vehicles;[5]
·Clamping or impounding of vehicle;[6]
·Publication of debtors names;[7] and
·Imposition of a community service obligation.[8]
[3] Criminal Law (Sentencing) Act 1988 (SA), s 70L.
[4] Criminal Law (Sentencing) Act 1988 (SA), s 70M.
[5] Criminal Law (Sentencing) Act 1988 (SA), s 70N.
[6] Criminal Law (Sentencing) Act 1988 (SA), s 70O.
[7] Criminal Law (Sentencing) Act 1988 (SA), s 70Q.
[8] Criminal Law (Sentencing) Act 1988 (SA), s 70U.
Section 75 of the Sentencing Act empowers the Governor to make regulations prescribing fees for the purposes of the Act. Fees are prescribed for:
·entering into arrangements with the Fines Enforcement Officer;[9]
·reminder notices;[10]
·issuing agencies who request consolidation of an expiation fee with enforcement of a court fine;[11]
[9] Criminal Law (Sentencing) Act 1988 (SA), s 70.
[10] Criminal Law (Sentencing) Act 1988 (SA), s 70H(3).
[11] Criminal Law (Sentencing) Act 1988 (SA), s 61(2).
The current s 20 of the EO Act authorises the Governor to make regulations prescribing fees or costs for the purposes of the Act. Regulation 4A of the Expiation of Offences Regulations 2011 (SA) (the EO Regulations) prescribes fees for entering into an arrangement pursuant to s 9(1) of the EO Act. Fees are also prescribed for payment by an issuing agency,[12] and for an application to revoke an enforcement determination.[13]
[12] Expiation of Offences Regulations 2011 (SA), reg 8.
[13] Expiation of Offences Regulations 2011 (SA), reg 9.
Section 15 of the EO Act prohibits a prosecution in relation to any expiated offence and s 15(4) provides:
(4)The expiation of an offence under this Act (or the entry into an arrangement under this Act)—
(a) does not constitute an admission of guilt or of any civil liability; and
(b) will not be regarded as evidence tending to establish guilt or any civil liability; and
(c) cannot be referred to in any report furnished to a court for the purposes of determining sentence for any offence.
The expiation notices
The three expiation notices issued by SAPOL to Mr Cosenza were not in evidence but it was common ground that two were issued with respect to offences committed by the use of the vehicle with the registration number XUA-802. Another was issued to a person, who gave the name Dean Cosenza, for possession of cannabis and associated equipment. The notices were issued between April 2014 and May 2015.
On 5 September 2014 Mr Cosenza contacted the Fines Unit and entered into a payment arrangement in relation to the expiation notice numbered G3475447A issued by SAPOL on 14 April 2014 for an offence described as ‘driver failed to wear seatbelt’. By that arrangement, Mr Cosenza agreed to make a payment of $15 per fortnight through the Commonwealth Government’s online service, Centrepay, which allowed the payment to be made from Mr Cosenza’s Centrelink benefits.
On 5 May 2015, Mr Cosenza again contacted the Fines Unit by telephone and asked that an arrangement be made to pay an expiation notice numbered G5628336A issued by SAPOL on 4 April 2015 for an offence described as ‘possess cannabis’ and ‘possess equipment’. He asked that the payment be added to his current payment arrangement but also asked that his fortnightly payments be reduced to $10 per fortnight. The Fines Unit agreed to that reduction.
On 16 May 2015 an expiation notice, numbered 11036131, in the amount of $89, was issued by the ACC for an offence described as ‘stop on continuous yellow edge line – Australian Road Rule 169’ with respect to the vehicle with the registration number XUA‑802.
Mr John Hatzipavlos is the team leader of the expiation processing unit of the ACC. In an affidavit received by me he deposed, from the ACC’s records, that an expiation notice was affixed to a black Audi sedan with the registration number XUA-802 on 16 May 2015 for stopping on a continuous yellow edged line in Wellington Square, Adelaide, contrary to r 169 of the Australian Road Rules. Mr Hatzipavlos deposed that at the time the notice was issued the ACC had not undertaken a motor vehicle registration search to ascertain the owner of the vehicle, but he deposed to searches subsequently made by the ACC which revealed that as of 16 May 2015 the registered proprietor of the vehicle was Cosdean Investments Pty Ltd (Cosdean). Mr Cosenza was, at that date, the sole director and shareholder of Cosdean but the Council did not ascertain that fact until after these proceedings were issued. The State did not adduce any evidence that any officer of the Fines Unit ascertained that fact before these proceedings were issued.
On 19 May 2015, Mr Cosenza called the Fines Unit advising that he had two new pre-enforced expiation notices. He was told that he could add them to his payment arrangement and was emailed an application form. On 19 May 2015 he completed that application in relation to the ACC’s expiation notice, and he returned it on 21 May 2015. In that application he asked that the amount be added ‘to my current payments of $10 per fortnight’. He ticked a box on the application form alongside the words ‘pay by Centrepay’ indicating that the payments were to be made from his social security benefits. Mr Cosenza attached a photocopy of the expiation notice to his application. It is the only copy of any of the expiation notices which has been put into evidence. The Fines Unit included the expiation fee in his existing $10 per fortnight payment arrangement.
On 28 May 2015, the Fines Unit informed the ACC that Mr Cosenza had entered into a payment arrangement pursuant to s 9 of the EO Act.
On 29 May 2015, Mr Cosenza wrote to the Fines Unit asking that a further expiation notice numbered Q5028207B issued by SAPOL for an offence described as ‘exceed speed limit’ (speed camera) allegedly committed using the vehicle with the registration number XUA‑802 on 8 May 2015 be added to the arrangement. He also attached a letter from his general practitioner requesting an extension of the due date for payment pending the outcome of his application for community work.
Mr Ovenstone deposed that on 31 July 2015 after receiving Mr Cosenza’s correspondence of 29 May 2015 he granted, through his delegate, a stay of action on his expiation notices for a period of six months.
The Fines Unit
An affidavit sworn by Mr Ovenstone and received into evidence describes the enforcement process followed by the Fines Unit as follows:
10.A useful explanation of the process adopted with respect to an expiration notice is best explained through the use of the following hypothetical scenario:
10.1 An expiation notice may be issued by a local government authority, the ‘issuing authority’, with respect to a parking offence, by attaching that notice on the relevant vehicle. That notice will state the expiation amount and that there is a deadline of 28 days within which to pay. The issuing authority would retain the record of the expiation notice number, the vehicle registration number, and the date and place of the alleged offence;
10.2 If the expiation amount is paid within 28 days, the issuing authority would have had no need to verify the identity of the offender;
10.3 If the expiation amount is not paid within 28 days, and no payment arrangement has been entered into, the issuing authority will send an expiation reminder notice. In this scenario, the issuing authority would need to conduct a search of the vehicle registration number, and the notice is sent to the registered owner of the vehicle;
10.4 After 14 days of the expiation reminder notice being sent, the issuing authority may lodge a certificate under section 13 of the Expiation Act, requesting the expiation notice be enforced. Based on statistical data compiled by the Fines Unit, approximately 10,700 to 15,400 of the certificates received each month are of this nature;
10.5 However, at any stage prior to the lodging of the certificate under section 13, a client may contact the Fines Unit and enter into a payment arrangement and provide the details of the expiation notice. Those details are recorded on the Fines System and include the client name, expiation notice number and offence;
10.6 In the case of a payment arrangement having been terminated, a notification is sent electronically to the issuing authority, containing the details entered into the Fines System. At the same time, a notice of the terminated payment arrangement is sent to the client;
10.7 On receipt of that notification, the issuing authority may lodge a certificate under section 13 of the Expiation Act, requesting the expiation notice be enforced. Based on statistical data compiled by the Fines Unit, approximately 150 to 700 of the certificates received each month are of this nature.
Mr Ovenstone deposed to the great volumes of data processed by the Fines Unit through, and the operation of, the Electronic Fines System. Mr Ovenstone explained that the processes of the Fines Unit were largely automated with information being accepted electronically in accordance with the Electronic Transactions Act 2000 (SA). Mr Ovenstone did not depose as to the particular provision of that Act on which he relied. The digital exchange of information between the Fines Unit and issuing agencies is necessary because the Fines Unit processes between 11,000 and 15,900 applications for enforcement pursuant to s 13 of the EO Act each month. It would be impracticable and, no doubt, very expensive, for the Fines Unit to process each of those enforcements manually. More fundamentally it is impracticable for the Fines Enforcement Officer to turn his or her mind to whether an enforcement determination should be made in each individual case by examining all of the data on that expiation notice which is available to him or her. For that reason the Electronic Fines System generates an enforcement notice on the receipt, electronically in most cases, of spreadsheets containing information with respect to each expiation notice which the issuing agencies wishes to be enforced. The Fines Enforcement Officer treats that spreadsheet as a certificate provided pursuant to s 13 of the EO Act. The automated process which is initiated by receipt of the certificate emphasises the importance of giving close consideration to the particulars which issuing agencies must include in it.
Mr Ovenstone explained that because of the high volume of expiation notices issued by SAPOL, there is a direct, automated, electronic transfer of information with respect to those expiation notices between it and the Fines Unit each morning. However in some cases enforcement applications are processed manually.
Mr Ovenstone explained that SAPOL provide information about expiation notices to the Electronic Fines System in a ‘batch file’. SAPOL electronically transfers the digital data derived from expiation notices to the electronic case management system operated by the Courts Administration Authority called Crim-Case. Mr Ovenstone explained the Electronic Fines System is based on Crim-Case. The digital data is electronically transferred from Crim-Case to the Electronic Fines System where it populates the relevant fields of that system.
Mr Ovenstone explained that other issuing authorities, such as local governments, can use software to provide a direct automated digital transfer to the Electronic Fines system but most agencies provide ‘certificates’ by emailing an electronic file to the Fines Unit. Mr Ovenstone deposed:
8The Fines System is programmed to only accept lodgements of certificates which have all the relevant particulars which I have determined, and are lodged within the relevant timeframe. The Fines System is programmed to reject any certificates which do not meet these requirements, and such rejected certificates are returned through daily reports for correction or withdrawal.
Mr Ovenstone deposed that when a stay on the enforcement of an expiation notice is granted, the Electronic Fines System automatically creates a command which causes it to issue a notice when the stay expires informing the person subject to the arrangement that the stay has expired and that if a payment arrangement is not made, further enforcement action will be taken.
Mr Ovenstone deposed that a notice warning of a possible suspension of the debtor’s drivers licence and ability to register transactions with the Registrar of Motor Vehicles is also sent:
2.4This trigger also causes the Fines System to issue a notice to the client advising him or her that a suspension of the client’s driver’s licence (under s 70M of the Criminal Law (Sentencing) Act 1988 (the Sentencing Act) and a restriction on transacting business with the Registrar of Motor Vehicles (under s 70N of the Sentencing Act) will occur within 14 days unless a payment arrangement is made.
In his affidavits Mr Ovenstone adopts the fashion of government agencies of referring to the persons with whom the Fines Unit deals as ‘clients’. The word clients suggests some freedom of choice on the part of those persons to engage with the Fines Unit and, even more counter-factually, suggests that the Fines Unit is providing a service for their benefit when it is actually discharging a public enforcement function. I will refer to them instead as debtors.
Enforcement of Mr Cosenza’s expiation notices
On 16 March 2016 the Fines Unit sent Mr Cosenza a ‘Notice of Overdue Fines’ advising that the stay of enforcement action on the expiation notices issued to him to which I referred in [35] above, had expired and that $956.00 was outstanding. It warned that if Mr Cosenza did not make a payment arrangement within 14 days enforcement action might be taken.
The 16 March 2016 notice reads:
The Fines Enforcement and Recovery Unit approved placing your fines on hold until 28‑02-2016. As this date has now passed your fines are overdue and you have an outstanding balance of $956.00.
Please do not ignore this notice, if you do not pay the outstanding balance or contact us to enter into a payment arrangement or discuss your circumstances within 14 days the Fines Unit may begin further action to recover this debt without further notice.
Another box on the notice is headed ‘Avoid enforcement’. There are then dot points of the actions which may be avoided if the fine is paid or a payment arrangement made, which include:
·prevent you registering your vehicle or renewing your driver’s licence;
·suspend your driver’s licence.
On 21 March 2016 Mr Cosenza confirmed with the Fines Unit that he had received the 16 March 2016 notice but informed the Fines Unit that his medical condition had deteriorated to the point that he could not even perform community work. He also requested a waiver of all fees.
On 30 March 2016 the Fines Enforcement Officer issued notices to Mr Cosenza with respect to each expiation notice informing him:
As your fine has not been paid enforcement action has been taken to suspend your driver’s licence. This suspension will take effect on 20 April 2016. Driving while your licence is suspended is a serious offence for which you can be imprisoned.
(emphasis added)
The ordinary meaning of the language of the notice is that an enforcement decision to suspend Mr Cosenza’s drivers licence had been made but that the period of suspension would come into effect at a later date. So much is made all the clearer by the notice being issued on the same day as informing Mr Cosenza that enforcement action had been taken to preclude him transacting with the Registrar of Motor Vehicles from the day before the date of the notice:
As your fine has not been paid, enforcement action has been taken.
As at 29 March 2016, the Registrar of Motor Vehicles will not process certain applications (eg vehicle registration or driver’s licence renewal) made by you or on your behalf.
(emphasis added)
Despite the clear terms of the notice, Mr Ovenstone suggested in his affidavit that the decision to suspend Mr Cosenza’s licence had not yet been made at the time the notice was issued:
On 30 March 2016, notices advising Mr Cosenza that a suspension of his driver’s licence would be made effective from 20 April 2016...
(emphasis added)
Be that as it may nothing ultimately turns on terms of the 30 March 2016 notices because Mr Ovenstone gave evidence that they were later withdrawn as they had been mistakenly issued by him. Mr Ovenstone deposed in his affidavit sworn on 24 May 2017:
2.5On 16 March 2016, the stay of action with respect to Mr Cosenza’s pre-enforced expiation notices referred to above expired. The automated trigger caused the following notices to be sent:
2.5.1 On 16 March 2016, notices advising Mr Cosenza that the stay of action had expired and requesting he make a payment arrangement within 14 days. Exhibited and marked JAO33 are copies of those notices;
2.5.2 On 30 March 2016, notices advising Mr Cosenza that a suspension of his driver’s licence would be made effective from 20 April 2016. Copies of those notices are exhibited to Mr Cosenza’s Second Affidavit in exhibit DC1, pages 1 to 8 inclusive;
2.5.3 On 30 March 2016, notices advising Mr Cosenza that, as at 29 March 2016, a restriction on transacting business with the Registrar of Motor Vehicles had occurred. Copies of those notices are exhibited to Mr Cosenza’s Second Affidavit in exhibit DC1, pages 9 to 16 inclusive.
2.6 On 13 April 2016, the error which generated the notices referred to in paragraphs 2.5.2 and 2.5.3 above was identified by an officer of the Fines Unit, and the enforcement processes were cancelled. The restriction on transacting business with the Registrar of Motor Vehicles was removed. Because this was made in error, I understand the Registrar removed any and all reference to this suspension from the records held by the Registrar. At no stage during this time did I or a delegate exercise any powers of suspension under section 70M, as the foreshadowed suspension of Mr Cosenza’s licence never took effect.
Mr Ovenstone testified as to those notices:[14]
[14] T46-47, even though Mr Ovenstone was responding to a question about a notice dated 30 August 2016, being exhibit DC7 to Mr Cosenza’s affidavit of 27 March 2017, he was addressing the notice of 30 March 2016. In re-examination he explained that at T76-77.
A That suspension is null and void, doesn’t exist.
Q Why do you say that?
ABecause the suspension actually didn’t come into effect but the notice was sent in error and once the Fines Unit realised that, the record was removed from both the Fines Unit and – the licence suspension record was removed from the Fines Unit and with the Motor Registry.
QSo the sentence on the page says that ‘As the fine has not been paid, enforcement action has been taken to suspend your driver’s licence. A suspension action will take effect on 20 September 2016’, so you’re telling his Honour that something happened between the date of the notice and 20 September?
A.Yes, the Fines Unit became aware that that notice shouldn’t have been sent and the record was removed and removed from Motor Registry records.
Q. Was there any formal notification of that given to Mr Cosenza?
A. I’m not aware of that.
Mr Ovenstone did not make clear just what the error was. Mr Ovenstone deposed that notices of a kind sent to Mr Cosenza in March are generally sent when a stay of an enforcement decision is lifted. However no enforcement decision had yet been made on Mr Cosenza’s expiation notices. Accordingly the Fines Enforcement Officer had not notified SAPOL and the ACC of the termination of the arrangement pursuant to s 9(12) of the EO Act and, therefore, those agencies had not requested an enforcement pursuant to s 13(1) of the EO Act. If that was the ‘error’, the purported suspension probably was, as a matter of law, null and void as Mr Ovenstone’s answers appear to accept. It is not clear to me what Mr Ovenstone might have meant by a ‘removal’ of the notice. There was no document evidencing a purported removal and no notice of any such removal had been sent to Mr Cosenza.
Between April 2016 and 10 August 2016 there was an exchange of communications between Mr Cosenza and the Fines Unit first about his medical condition and capacity to pay and then about legal proceedings threatened by Mr Cosenza.
On 16 August 2016, a notice of termination of the payment arrangements was sent to Mr Cosenza. Mr Cosenza deposed that he received the notice on 22 August 2016. It reads:
Your payment arrangement, which has been in default for 14 days, has terminated.
Your expiation amount(s) not yet subject to enforcement totalling $956 has been referred back to the relevant Issuing Authority.
Should the Issuing Authority request us to enforce the fine on their behalf, enforcement action will commence and fees and the victims of crime levy will be imposed.
The notice contained the following table:
Fine Reference
Issuing Authority
Description of Offence
Date of Offence
G3475447A
POL
Driver failed to wear seatbelt (traffic – driver)
14-04-2014
G5628335A
POL
Possess cannabis where amount is less than 25 g – O
03-04-2015
G5638336A
POL
Poss Equip Accomp by Another Simple Cann
03-04-2015
11036131
ACC
Stop on continuous yellow edged line – owner
16-05-2015
Q5028207B
POL
Exceed speed limit (speed camera) – driver
08-05-2015
From the affidavit of Mr Hatzipavlos to which I referred earlier it appears that the Fines Unit informed the ACC by email sent on 18 August 2016 at 12.04 am that Mr Cosenza’s payment arrangement made pursuant to s 9 of the EO Act, had been terminated. The email read, in part:
Please find attached your weekly report showing pre-enforcement expiation notices with terminated payment arrangements.
This report contains details of all of the expiation notices issued by your agency in which the alleged offender has engaged the Fines Unit to enter into a payment arrangement in respect of their expiation notice, but where they have not made one or more of the agreed payments.
Because the alleged offender failed to make the required payments under the terms of their arrangement, the Fines Enforcement and Recovery Officer has now terminated the arrangement.
The email asked the ACC to check that the arrangement had been terminated and continued:
The report requires you to indicate whether your agency would like the Fines Enforcement and Recovery Unit to take enforcement action in respect of the notice. To request that we enforce the notice please place a ‘Y’ in the column headed ‘Enforcement (Y/N)’ and return the report to the Fines Enforcement and Recovery Unit using the reply email function or by emailing [email protected]. If you would like us to take enforcement action you must respond within 30 days of the date on which the payment arrangement was terminated.
The email also asked the ACC to check the outstanding balance of each notice and inform the Fines Unit if any amounts had already been paid to the issuing agency:
Please note that sending us an email with a ‘Y’ in the ‘Enforcement’ column is considered equivalent to sending a certificate of enforcement to the Fines Enforcement and Recovery Officer and the notice will be enforced.
I observe here that the practice of the Fines Enforcement Officer to treat the return of the spreadsheet with a ‘Y’ entered in the enforcement column as a certificate of enforcement does not make that a valid and effective certificate for the purposes of s 13(1) of the EO Act.
Mr Hatzipavlos deposed that on 18 August 2016 at 8.55 am an officer of the ACC sent an email to the Fines Enforcement Officer attaching a ‘CSV’ file of digital information purporting to be a certificate of enforcement.
Attached to the email was a spreadsheet as appears below:
ACC
Agency:
ADELAIDE CITY COUNCIL
Date: 18/08/16
ACC
Ntc No
CAA Ref No
Orig Notice Amt
Amt Paid
Amt Owing
Offender
Name
Offence
Date of Termination
Response Due By
Enforcement (Y/N)
ACC
11036131
EXREG-15-89494/1
$89.00
$0.00
$89.00
DEAN
COSENZA
Stop On Continuous Yellow
Edge Line - Owner
16/08/2016
15/09/2016
Y
The Processing Officer from the ACC had entered the ‘Y’ in the last column of the spreadsheet in the CSV file which had otherwise been populated with the data it contained by the Electronic Fines System.
I make the following observations about that spreadsheet. First, by operation of s 174A of the Road Traffic Act 1961 (RTA), the alleged offender for the purposes of the EO Act was Cosdean. Pursuant to s 174A(3) of the RTA the driver of the car was severally liable with the owner for offences committed by the use of the car. However at the time of the generation of the document the driver was unknown to the ACC. The fact that Mr Cosenza asked that the fees be added to his other enforcements is as consistent with him acting in the hope, or on the assumption, albeit one which is wrong in law, that as sole shareholder and director he was the company for the purposes of the EO Act as it is with him being the driver.
Secondly there is no indication on the spreadsheet that the ACC independently checked its own records as was requested in the covering email.
Thirdly, there is no statement of compliance in the spreadsheet with the matters prescribed by s 6 of the EO Act, and in particular whether the expiation notice was left on the car or served in another way. There are no particulars relating to placitum (iv) of s 13(1) of the EO Act.
Finally, I observe that the offence is identified, unlike the spreadsheet later received from SAPOL to which I refer below.
On 19 August 2016, the Fines Enforcement Officer sent Mr Cosenza a notice informing him that the fine due to the ACC remained unpaid and that if he did not pay the expiation amount or enter into a payment arrangement within 14 days, the Fines Enforcement Unit ‘will suspend your licence’. I infer that the notice was automatically generated by the Electronic Fines System from:
·Mr Ovenstone’s description of the number of expiation enforcements;
·Mr Ovenstone’s description of the processes of the Fines Unit;
·The error with respect to the March notices; and
·That only one day had passed from the return of the ACC spreadsheet and the issue of the enforcement notice.
Mr Cosenza received the notice on 26 August 2016. The notice warns in bold large letters: ‘PAY NOW or lose your licence’. Below that appears the following:
On the back page of the notice in smaller print appears the statement ‘A determination was made to enforce your expiation notice on 19-08-2016’. The enforcement determination appears to have been made by programming the Electronic Fines System to generate a determination on the return of the spreadsheet by the issuing agency, in this case the ACC.
On 22 August 2016, Mr Cosenza emailed the Fines Unit a standard form it had prescribed headed ‘Application for Review of Enforcement’. The form records Mr Cosenza’s name and contact details and lists the expiation notices which had been enforced. There is a sub-heading which reads ‘Application Details (Mandatory)’. The form then continues:
Select the one ground that identifies why your application should be approved.
· I have already paid the fine(s); or
· The Issuing Authority failed to receive my election to be prosecuted, statutory declaration or other document in accordance with legislation; or
· I failed to receive a notice required by legislation; or
· The expiation notice should not have been given to me in the first place; or
· Procedures required by legislation were not followed.
Mr Cosenza selected all of the grounds by marking them with a cross. Below that part of the form Mr Cosenza asserted that he had not received the SAPOL or ACC expiation notices and that he had not committed the offences.
With respect to the ACC expiation notice the evidence shows that assertion to be false because in one way or another Mr Cosenza must have received the expiation notice, or a copy of it, in order to send it to the Fines Unit on 21 May 2015.
On 25 August 2016, the Fines Enforcement Officer informed the ACC by email that on 19 August 2016 he had made an enforcement determination with respect to its expiation notice.
On 31 August 2016, the Fines Enforcement Officer sent to the ACC an invoice seeking payment of the prescribed fee for the making of the enforcement determination. Mr Ovenstone explained in his affidavit that invoices are sent on a monthly basis for enforcement fees, with respect to enforcement determinations made in the previous month.
Mr Ovenstone deposed that, by email dated 22 August 2016, SAPOL lodged applications for enforcement with the Fines Unit in relation to expiation notices G3475447A, G5628336A and Q5028207B. SAPOL did so by returning an electronic spreadsheet which had been generated by the Electronic Fines System containing details of those notices.
The spreadsheet contained the following information in digital form:
Please enforce the following notices where relief arrangements have been terminated.
NOTICE
NUMBERNAME
EX-REG NUMBER
PRE ENFORCE TERMINATED ARRANGEMENT (DATE TERMINATED) ENFORCE – Y/N
G3475447A
Dean Cosenza
14144822001
16/08/2016
Y
G5628336A
Dean Cosenza
15077784001
16/08/2016
Y
G5628336A
Dean Cosenza
15077784002
16/08/2016
Y
Q5028207B
Dean Cosenza
15102412001
16/08/2016
Y
SAPOL entered the letter ‘Y’ in the ‘Enforce Y/N’ column of the spreadsheet sent by the Fines Unit. The spreadsheet does not refer to the offence or offences that remain unexpiated specifically rather they must be inferred by reference to the Notice Number and Ex-Reg number. Indeed that is the effect of Mr Ovenstone’s evidence to which I refer later.
Therefore the spreadsheet does not contain particulars of the alleged offence as required by s 13(1)(a)(ii) of the EO Act. I acknowledge that the Fines Unit held that information as is evidenced by the notice of termination of the payment arrangement dated 16 August 2016 referred to in [55]-[56] above. However that information was not provided by way of a s 13(1) certificate. For example, the certificate does not contain particulars of how the notice was served. The alphanumerals G5628336A refer to the cannabis offending and possession of equipment offence and were presumably delivered personally. However the spreadsheet contains no information about how the other expiation notices were served. Those notices may have been sent to the registered owner of the vehicle which was involved in the commission of offences. The offender is identified as Dean Cosenza even though the owner of the vehicle, which is not identified in the spreadsheet, was Cosdean. The identity of the offender was, as we have seen, taken by the Fines Unit to be Mr Cosenza because he asked to enter into an arrangement for payment. However that was unknown to SAPOL who could not have provided a certificate as to that fact. There is no indication of the amount owing or that SAPOL checked its records as to the amount owing. Finally there is no certificate of compliance relating, in particular, to s 13(1)(a). The failure of SAPOL to provide a certificate as to all of the matters prescribed by s 13(1)(a) is the product of the Fines Enforcement Officer’s failure to properly address s 13 of the EO Act, and his decision to treat data which has been exchanged electronically and automatically, at an earlier stage of the fines collection process as sufficient to authorise an enforcement determination.
On 26 August 2016, in relation to the SAPOL expiation notices, the Fines Enforcement Officer made enforcement determinations and sent notices to Mr Cosenza which were in the same form as the notice sent to enforce the ACC expiation notice. Again I infer that they were generated by a program of the Electronic Fines System. Again, the determinations stated that if the fines were not paid, or payment arrangements entered into, the Fines Enforcement Officer ‘will suspend your licence’.
On 29 August 2016, the Fines Unit responded to Mr Cosenza’s ‘Application for Review of Enforcement’. The Fines Unit informed Mr Cosenza that it was ‘unable to undertake reviews as the form has not been completed correctly’.
The letter explained:
Your review application has multiple expiations listed for review and a separate form must be completed for each specific expiation. As stated on the form you must only select one of the grounds for review and you have highlighted all of them.
Mr Ovenstone was asked whether a determination had been made that a person applying for a review could only rely on one ground or should confine themselves to one ground. He answered:
AYes there was insofar as to make it clearer for those conducting the review, and also the alleged offender making application that was clear what they were lodging their – well, the ground for their review. What was happening in a lot of cases, they’d pick all of them because they were uncertain what it was about, and some of those were mutually exclusive. So it was to make it clearer for the individual because the individual is to pay for each one of those and we were trying to get to the stage where they only paid for ones that weren’t going to be rejected because you couldn’t make a determination one way or another.
Mr Ovenstone’s response concedes that only some of the grounds were mutually exclusive. It follows that some were not and that therefore a debtor might properly rely on more than one ground, for example that they did not receive the notice and that the procedures required by legislation were not followed. Equally a debtor might contend that the notice was wrongly issued to him or her because he or she did not commit the alleged offence. It follows that the direction on the form is an irrational constraint on the exercise of the Fines Enforcement Officer’s discretion conferred by s 13(4)(b) of the EO Act
Was a s 13(1) determination made
Mr Ovenstone gave the following evidence about whether or not he had made any determination pursuant to s 13(1)(a) of the EO Act.
In his affidavit Mr Ovenstone deposed:
13.During the establishment of the Fines Unit, I determined that electronic files of the types referred to in paragraphs 11.2 and 11.4 contain the relevant particulars for the purposes of section 13. In the case of the certificates received from SA Police, as discussed above in paragraph 5, officers of the Fines Unit are able to access all relevant data by inputting the expiation notice reference into the system.
The electronic files referred to in that paragraph are the spreadsheets from the ACC and SAPOL set out earlier in these reasons.
Mr Ovenstone was questioned extensively about the making of a determination pursuant to s 13(1) of the EO Act.
QIs there any document which evidences a determination made by you pursuant to s.13(1)(a).
AA determination notice, enforcement determination notice, is actually sent to the alleged offender.
QIs that what you think sub-para.(a) is talking about.
ANo, sub-para.(a) is the actual making enforcement determination notice.
QI'm talking about - are we looking at the same sub- para.(a). I'm talking about the certificate.
AThe certificate -
QThat the issuing authority has to send you.
AYes.
QYes, is there any document which evidences a determination made by you about the contents of that certificate.
AThe contents of that certificate with regard to South Australia Police would be lost in time. This arrangement has been in place with SA Police for many, many years.
QSorry, what does lost in time mean.
AIt's a technical - there will be technical discussions and documents dealing with the exchange of certain pieces of date to create the enforcement certificate.
QHave you been the Fines Enforcement and Recovery Officer - were you the inaugural -
AYes.
QSo you're saying that the document which evidences your determination about the contents of the certificate has been lost.
ANo, I'm saying the original document that was put in - the documentation that was used to establish this process, would have been lost. If not - my assumption, because it dates back nearly 20 years, this process has been in place.
QSorry, 20 years. When did you take office.
AI said when the - the process that's used, currently used, the technical transfer of the da - electronic, of the data, has been in place for about 20 years.
QI'm not asking about that –
Mr Ovenstone’s conflation of the certificate required by s 13(1) of the EO Act with notices sent to debtors and his conflation of that certificate with information provided to the Registrar of the Magistrates Court prior to the creation of his office does not inspire any confidence that he ever explicitly addressed the important statutory discretion conferred by s 13 of the EO Act. Mr Ovenstone went on to describe arrangements made by the Fines Unit in anticipation of its assumption of responsibility for enforcement of fines as follows:
AWhen the unit was opened or when my role started, I was briefed on all the technical - on all the processes were in place for certificates of enforcement, and I accepted those at the time.
QThat sounds to me like an answer that says you've never made a determination.
ANo, I have made a determination.
…
AWhat I was explaining was that I - I was taken through the processes that were going to be in place on 3 February when the fines unit was come into operation in late January 2014, and I accepted those processes at time as being suitable for enforcement, as an enforcement certificate.
QWell what was your determination then.
AThat I was happy with those processes, they provided me the information I needed to enforce a matter.
QWhat was your - did you make a determination with respect to each of the sub-paragraphs (i)-(iv) of para.(a).
AI made a determination that I could extract that information from the system, sufficient that we could - so that I could issue enforcement determination with the particulars of that offence or those offences.
Mr Ovenstone continued:
QDoes it follow from what you're saying that your position is that because someone from the fines unit can access all the relevant data if they want to, that there's therefore no need for South Australia Police to prepare a formal certificate themselves.
AMy position is that if there was sufficient data there to provide the information I need for the certificate, if they - that - their determination that they want coming back with why is sufficient for me to progress with that.
…
QThe question was this, it was being put to you that you've never made a formal determination of what should be contained in the certificate.
AFor a SA Police matter?
...
AI've accepted the data that's provided to us. I believe that I've made a determination of that information. It's sufficient for me to enforce a matter and that is a certificate of enforcement. I'm not quite sure -
I accept that testimony as far as it goes but it falls short of evidence that Mr Ovenstone exercised his discretion by addressing the requirements contained in s 13(1) of the EO Act. First, the transfer of information to the Electronic Fines System on the issue of an expiation notice is not equivalent to the provision of a certificate for the purposes of s 13(1) of the EO Act. The initial transfer of data allows the Fines Enforcement Officer to enter into financial arrangement pursuant to s 9 of the EO Act. It allows the Fines Unit to manage the data for its own purposes and ultimately send the spreadsheets described in paragraphs [62] and [77] to issuing agencies. However, the certificate required by s 13(1) of the EO Act is a formal statement of the prescribed matters as at the time enforcement is required, which in the case of a terminated arrangement, must be within 30 days of the termination of the s 9 arrangements. Secondly, the statutory purposes of s 13(1) of the EO Act include the protection of the interests of debtors. Mr Ovenstone’s testimony is only that he determined that the information which had been provided to the Registrar before he took office was enough for him to issue an enforcement notice which was sufficiently certain in its subject matter to identify a debtor to stipulate amount. Mr Ovenstone did not testify that he turned his mind to whether, in his opinion, any additional information, should be provided having regard to the statutory purpose of s 13 of the EO Act. In particular Mr Ovenstone did not testify that he turned his mind to whether and what particulars should be provided to assure him that:
·The debtor had received the notice;
·The person with whom he had entered into any arrangement pursuant to s 9 of the EO Act was the debtor;
·The expiation fee or some greater proportion of it had not already been paid to the issuing authority;
·The debtor was not being prosecuted; and
·Any of the other s 6 EO Act requirements had been complied with.
Indeed Mr Ovenstone expressly conceded that he did not address s 13 of the EO Act in any formal way.
QCan I perhaps approach it this way, that something is determined there might be a number of ways in which you can determine something so one might be - through a formal that is by issuing a document that says 'For the purposes of s.13 sub-s.(1)sub-s.(a) of the Expiation of Offences Act, I determine the following particulars are required'. So that could be one type of determination. Is it the case that such a formal determination was never made.
ANot to my memory, no.
QAnd to be clear on that answer, I think you were agreeing with my question.
AWell I can't remember at the time but I was satisfied that the information provided in those files and the way the process operated was sufficient for me to enforce a matter.
QCould I go as far as this and see whether you agree or not with the proposition and that you formed the view that it wasn't necessary to have the issuing authority prepare a certificate under s.13(1) because the Fines Unit had access to that information anyway through its computer systems.
AThat information is actually provided by SA Police. When you say it's available through the Fines Information System, it's actually available from a staging database but I won't go there. So as long as I could constitute the details, as long as I had the reference numbers to do it.
…
QYou are not aware of any document that sets out what should or shouldn’t be in a certificate that complies with s.13(1).
AWe do have documents that set out what’s – our guidelines do that in different forms, particularly for the minor smaller councils where we were taking manual processes and automating them.
QIn relation to the South Australian Police, is there a document anywhere that says ‘this is the particulars that are required under s.13(1) of the Expiation of Offences Act’.
AAs of 2016.
QAs at any time.
AA document that actually specifies that I am unaware of. There’s certainly been a review of the data that is provided through that file exchange and that’s been accepted by me as meeting requirements to issue an enforcement determination.
Mr Ovenstone was asked whether the guidelines to which he referred were exhibit D8 which were the ‘Issuing Authority Guidelines Version 4.0 (February 2016)’ and whether they applied to the Adelaide City Council. He answered:
ANo. This guideline was produced – Adelaide City Council have a data exchange with the Fines Enforcement and its predecessor for a number of years.
Mr Ovenstone explained that the information from the Adelaide City Council is received by an email to which is attached a CSV file. The file is readable in a spreadsheet form but allows the data from it to be electronically transferred into the Fines Unit’s databases.
Mr Ovenstone’s testimony about the particulars prescribed by s 13(1)(a)(iv) of the EO Act was as follows:
A... My view is that the issuing authority is certifying it when they are actually sending the certificate for enforcement that they’ve certified that the due processes have been followed.
I take that answer to mean that a request to enforce an expiation notice is in and of itself a certificate of compliance with the requirements of legislation. That opinion is ill conceived. Neither silence nor a blank page can be a certificate.
Mr Ovenstone confirmed that there was no formal document which expressly set out the procedures applicable to the ACC. He testified that there were no recent guidelines and that he would have to look to see if there were ‘old ones’.
Version 3.0 of the ‘Issuing Authority Guidelines’ dated February 2015 (the Version 3.0 guidelines) issued by the Fines Unit was received as exhibit DC13 to Mr Cosenza’s affidavit of 27 May 2017, P5. The document was provided to Mr Cosenza in answer to a freedom of information request. The document comprises:
·General guidelines;
·An Enforcement of Expiation Notices Guideline;
·An appendix marked ‘E’ referring to summary reports for expiation enforcements; and
·A lodgement spreadsheet approved for use by issuing authorities as a ‘Certificate to Enforce’.
The Issuing Authority Guideline explains that after the reminder has been sent to the debtor, an expiation notice may be enforced against them by the issuing authority sending to the Fines Unit particulars regarding the offender, the offence, the amount due and the prescribed lodgement fee. It informs the issuing authority that expiation notice details can be sent in an electronic data exchange file ‘sent to the CAA IT area’ or by completing an automated lodgement spreadsheet and emailing it to the Fines Unit.
The following procedure is set out for enforcements after terminating a payment arrangement.
4. Terminated Pre-Enforced Arrangement
…
Where an arrangement with the FERO terminates due to non-compliance by the client the issuing authority will be advised of the non-compliance via a report. The report named Expiation Pre-Enforcement Report _ Terminated Arrangements will include details of the notice, the original amount of the expiation notice and the balance owing.
The issuing authority must return the report with the last column completed with a Y (yes) or N (NO) within 30 days if they wish to request an Enforcement Determination by the FERO (sample below), the enforcement lodgement fee will be charged for each enforcement.
Agency: ALEXANDRINA COUNCIL Date: 28/05/2014
Ntc No
CAA Ref No
Orig Notice Amt
Amt Paid
Amt Owing
Offender Name
Offence
Date of Termination
Response Due By
Enforcements (Y/N)
[redacted] $210.00 $0.00 $210.00 [redacted] Be Owner of Dog Which Attacks A Person 14/04/2014 14/05/2014 Y
The lodgement spreadsheet is headed ‘Lodgement Spreadsheet for use by Issuing Authorities (Certificate to Enforce)’ and comprises columns with the following headings:
·Agency Code,
·Expiation Notice number,*
·Issue Date,*
·Given name(s) in full,*
·Surname,
·Date of Birth,
·Company name (if the offence relates to a company owned vehicle),
·Street Address, *
·Post Code,*
·SA licence number (mandatory for traffic or vehicle related offences),
·Owner or Driver,
·Law Code,*
·Abbreviation,*
·Act/Reg,*
·Section,*
·Law Part,*
·Date of offence,*
·Vehicle Registration,*
·Rego State,*
·Location of the offence,*
·Original expiation fee,*
·Reminder/Late Fee,
·Levy (SAPOL only),
·Total amount owing,*
·I/A notice Return to Sender,
·Previous contact with I/A and
·Previous Review with I/A.
Mr Ovenstone testified that the spreadsheet was for issuing authorities which issue smaller numbers of expiation notices.
The headings of the columns of the spreadsheet are also listed in the body of the Version 3.0 guidelines. An asterisk against a line in the above table indicates a mandatory field. Despite the Version 3.0 guidelines bearing the date February 2015 in the bottom left-hand corner, the spreadsheet is marked ‘Version 2 Updated 10/2/2014’. Mr Ovenstone was reminded that the transfer of responsibility for the enforcement of expiation notices from the Registrar of the Magistrates Court to the Fines Enforcement Unit occurred in February 2014. Mr Ovenstone was asked whether he had made a determination that the certificate for the purposes of s 13(1) of the Act would contain the information appearing in the spreadsheet. Mr Ovenstone answered:
AI only can assume, I can’t remember at the time but I can assume that I would have agreed to that.
QWas it the case that the lodgement spreadsheet document was still in force as being the appropriate certificate as at August 2016.
AUnless it’s been replaced.
In re-examination Mr Ovenstone gave the following evidence about the making of determinations:
QI think my friend took you in his questions about what determination you may have made at the beginning of the Fines Unit and I think you referred to seeing the procedures that were done. Is it fair to say that you essentially approved or endorsed what had been done in terms of providing you with sufficient information for the purposes of enforcement determinations.
AThat's right, yes.
QIf I could take you to Exhibit DC13 in MFI P5, that's the issuing authority guidelines. I'm not too sure if you've got that open. It's p.52 of that volume. You gave evidence this was intended for the smaller councils.
AThat's right.
QWas it sent to all councils.
AIt was sent to all councils, yes.
QCan I take it when it says intended to smaller councils, is that because they needed more guidance.
AYes, they needed more guidance.
QBut is it fair to say from your evidence that if all issuing authorities including the city council complied with these guidelines, they'd be complying with your requirements.
A They would.
…
QDoes that include the police.
ANo, not the police.
QUnder the heading for ‘Terminated Pre-Enforced Arrangement', just pausing there, what do you understand that - the situation that term relates to.
AThat relates to the situation where an alleged offender elects to enter a payment arrangement to pay off their fines by instalment prior to the fine being overdue or enforced. The fines unit managers are those effectively on behalf of the issuing authorities, and if that payment arrangement is defaulted, then it is terminated 14 days later.
QSo do I take it from that that would relate to what's happened in this matter with the plaintiff.
AYes, yes.
QHaving a read of the relevant matters underneath that heading, is that consistent with your requirement as to what needs to form part of a certificate issued by issuing authorities.
AYes, yes.
QJust generally on this document, is this an internal fines unit document.
AThis is an internal procedure for the fines unit.
QSo this would reflect your decisions.
AYes.
On the totality of the evidence I am not satisfied that Mr Ovenstone ever addressed the statutory discretion and power conferred on him by s 13(1) of the EO Act. He did no more than review existing practises which had been put in place before the amendments of the EO Act which created his office and conferred on it the powers, responsibilities and functions of enforcement. I find that Mr Ovenstone reviewed the existing arrangements only for the purpose of determining whether those practises would provide him and the Fines Unit with sufficient information to make an enforcement decision which met the minimum requirements of certainty as to the identity of the debtor to whom the enforcement determination applied and the subject matter of that determination, that is to say the particular expiation notice. He did not turn his mind to the particulars he should require for the purposes of exercising his discretion pursuant to s 13(1) of the EO Act. He did not address the section and have regard to the considerations pertaining thereto.
In any event for the reasons I have given it was necessary that the Fines Enforcement Officer make a determination as to the required particulars relating to each of the subject matters of placita (i) to (iv) of s 13(1)(a) of the EO Act. The particulars required may have been no more than the very general such as for example a certification that the identity of the alleged offender was X, the amount owing or outstanding was Y, the alleged offence was Z and that all statutory procedures and requirements had been complied with. On the other hand he might have determined that he required, by way of particulars, more stringent assurances especially in relation to placitum (iv), for example, there was no prosecution on foot, that the alleged offender was not under 18 years of age, that the notice had been served in a way sanctioned by the Act or any other number of particular requirements. The Fines Enforcement Officer need not determine particulars which relate to every statutory requirement but on a proper construction of s 13(1) of the EO Act the Fines Enforcement Officer is required to stipulate particulars, at a level of granularity determined by him, relating to each of the subject matters prescribed by s 13(1)(a) of the EO Act.
Neither spreadsheet provided by the ACC or SAPOL made a statement referable to compliance with the statutory requirements. It is plain therefore that the Fines Enforcement Officer did not make a determination requiring any particulars with respect to statutory compliance and it is for that reason that none were provided. Additionally, the spreadsheet provided by SAPOL did not, on its face, identify an alleged offender or offence. It was not a certificate with respect to either of those subject matters. Again the Fines Enforcement Officer did not require a certificate with particulars as to those subject matters because he believed that he had information relating to those matters in the data transferred from SAPOL to the Electronic Fines System soon after the expiation notices are issues. However, that is not information provided by way of a s 13(1) certificate. The conflation of Mr Cosenza with Cosdean is a product of that failure. Furthermore the spreadsheet does not specify an amount outstanding. Again the Fines Enforcement Officer failed to exercise effectively the power conferred by s 13(1) of the EO Act by not requiring particulars as to those matters.
The Fines Enforcement Officer failed to determine the necessary content of a certificate in accordance with the particulars required for the purposes of s 13 of the EO Act, and therefore neither the ACC nor SAPOL provided certificates in accordance with that section for the purposes of enforcing the expiration notices.
Indeed on the information the Fines Enforcement Officer had there was no material on which he could find with any level of assurance that Mr Cosenza was the owner of the motor vehicle concerned because the evidence now shows that the owner at the relevant times was Cosdean. Nor could the Fines Enforcement Officer have found that Mr Cosenza was the driver at the relevant times because Mr Cosenza’s act in making arrangements for the payment of the expiation offence showed no more than that Mr Cosenza had accepted responsibility to pay the expiation amount but he may well have accepted that responsibility as the principal and only shareholder of Cosdean.
Of course it can be said that if a person who is not an alleged offender accepts responsibility for payment of an expiation notice there is no reason not to make enforcement determinations against them. However if the person who took responsibility ultimately does not make the payment difficult questions arise as to whether or not another person, who was the driver or the owner of the vehicle, could be prosecuted for, and or have the expiation notice enforced against them without having an opportunity to defend it. For that reason care must be taken to ensure that the person against whom an enforcement determination is made is indeed the alleged offender.
The rejection of Mr Cosenza’s review application
Mr Cosenza’s application for a review of the expiation notices was refused on a ground that cannot be sustained. Mr Cosenza was entitled to seek the review on simultaneous grounds that the expiation notice was not issued to him and that he was not the offender. The Fines Enforcement Officer could not restrict the operation of s 13 of the EO Act by bureaucratically imposing a requirement of a review of only one of those grounds on the application form. The refusal to consider Mr Cosenza’s application pursuant to s 13(4) of the EO Act was irrational.
Discretion
There remains the question of the exercise of the discretion. Notwithstanding the failure to determine the particulars that must be included in a certificate in accordance with s 13 of the EO Act, I decline to set aside the enforcement determination for the following reasons.
First, there has been a significant lapse of time from the issue of the expiation notices because Mr Cosenza sought and was granted time within which to pay by representing that he was responsible for their payment.
Secondly, even though Mr Cosenza might have accepted responsibility for payment of the expiation notices because he felt a moral duty, or laboured under a mistaken legal view about his responsibility to do so as the only shareholder and director of Cosdean, it is more likely that he was prepared to assume that responsibility in order to take advantage of his personal impecuniosity as a ground to defer payment. That stratagem is a reason not to allow him an extension of time, and not to exercise this discretionary jurisdiction to him with respect to the enforcement determination itself.
Thirdly, Mr Cosenza did not adduce evidence that he was not the driver other than the assertion in his application for review. Nor did he adduce evidence that he was not the person to whom the expiation for the possession of cannabis was issued. I would dismiss Mr Cosenza’s application for review of the enforcement determination.
The extremely bureaucratic nature of, and reasons for, the refusal to consider Mr Cosenza’s application to review the enforcement determination strongly militates towards setting aside that decision. However I also exercise my discretion against Mr Cosenza on that aspect of his action. Mr Cosenza must have received each of the expiation notices. He did not adduce any evidence showing that he had no relevant connection to the Cosdean car. He did not put forward any innocent explanation for accepting responsibility for payment of any of the expiation notices. There is no reason to think that any of the administrative failings of the Fines Enforcement Officer has resulted in any injustice in his case.
Conclusion
Mr Cosenza’s application is dismissed.
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