Coughlin v Curran - [2008] QDC 66

DISTRICT COURT OF QUEENSLAND

CITATION: Coughlin v Curran [2008] QDC 66

PARTIES:
MICHELLE COUGHLIN

Appellant

AND

MATTHEW CHRISTIAN CURRAN

Respondent

FILE NO/S: 90/07

DIVISION: Civil

PROCEEDING: Appeal

ORIGINATING COURT: Magistrates Court, Rockhampton

DELIVERED ON: 14 March 2008

DELIVERED AT: Rockhampton

HEARING DATE: 13 March 2008

JUDGE: Nase DCJ

ORDER:
1.   The appeal is allowed;

2.   The orders below are set aside and in lieu thereof:

      A conviction is recorded;

      A fine of one penalty unit is imposed; and

      Respondent is disqualified from holding or obtaining a drivers licence for six months.

3.   No order as to costs

CATCHWORDS:
VEHICLES AND TRAFFIC – LICENSING OF DRIVERS – APPEALS - Service of Notice to Choose under Transport Operations (Road Use Management – Driver Licensing) Regulation 1999 – proper construction of the term “service” – whether non-receipt of notice to choose offers a defence to charge of unlicensed driving

Acts Interpretation Act 1954 (Qld), ss39 & 39A
Criminal Code Queensland, s24
Interpretation Act 1978 (UK), s7
Transport Operations (Road Use Management - Driver Licensing) Regulations 1999, s25(2)

Cases considered
Deputy Commissioner of Taxation v Coco [2003] QSC 119
Fancourt v Mercantile Credits Limited (1983) 154 CLR 87
Re Ocean Distributors Pty Ltd (1990) 2 ACSR 486

COUNSEL: Mr R J Pointing for the appellant
Mr A Defrane the respondent

SOLICITORS: Office of Director of Public Prosecutions for the appellant
McGowran Lawyers for the respondent

This appeal raises an interesting point about the service of notices under the Transport Operations (Road Use Management - Driver Licensing) Regulations 1999 (“the Regulations”).

As in other States frequent traffic offences may result in a licence suspension in addition to any Court imposed penalty for the individual offences. The system established in Queensland involves allocating a fixed number of what are called demerit points for particular traffic offences. Once a driver accumulates 12 or more demerit points in a continuous three year period the licence is suspended.

The procedure leading up to a licence suspension is set out in the Regulations. The accumulation of 12 or more demerit points triggers the first step in the process. The chief executive must give the driver a written notice (s 25 (2) Regulations) which offers a choice to the offending driver. The notice, not surprisingly, is called a notice to choose. The choice for the driver is between accepting an immediate licence suspension for a defined period, and agreeing to be of good behaviour for 12 months. The catch is, that if while on good behaviour the driver accrues more than one demerit point the driver's licence is then suspended for double the defined period.

The critical section in the Regulations is s 25 (2). The section provides that if 12 or more demerit points are accumulated then "The chief executive must give the person a written notice (a notice to choose), requiring the person, within a specified time of at least 21 days, to choose between:

a) Having the person's licence suspended for the requisite…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Coughlin v Curran

Details

AGLC: Coughlin v Curran [2008] QDC 66
Case: [2008] QDC 66
Decision Date: 14 March 2008

CaseChat Overview and Summary

The matter before the court involved Coughlin, the appellant, against Curran, the respondent. The central issue was whether the service of a Notice to Choose under the Transport Operations (Road Use Management – Driver Licensing) Regulation 1999 was properly executed. The appellant was charged with unlicensed driving and contested the charge on the basis that he had not received the notice in question. The case was heard in the Supreme Court of Queensland, which was tasked with determining the legal validity of the service of the notice and its implications on the charge of unlicensed driving.

The primary legal issue before the court was the interpretation of the term “service” within the regulatory context. Specifically, the court had to determine if the failure to receive the Notice to Choose could be used as a defence against a charge of unlicensed driving. The appellant argued that the notice was not validly served, which would invalidate the subsequent charge. The respondent, on the other hand, contended that the notice was adequately served in accordance with the regulations, and thus the charge should stand.

The court found that the term “service” in the regulatory context should be interpreted in a manner consistent with the general principles of service of legal documents. The court considered that if the notice was sent to the appellant’s last known address and was not returned unclaimed, it could be reasonably presumed that the notice was received. The court held that the appellant's failure to provide evidence of non-receipt did not negate the presumption of valid service. Therefore, the court concluded that the non-receipt of the notice did not constitute a valid defence against the charge of unlicensed driving.

The court allowed the appeal and set aside the previous orders, recording a conviction, imposing a fine of one penalty unit, and disqualifying the respondent from holding or obtaining a driver's licence for six months. No order was made as to costs.

Orders

Orders of the court

1. The appeal is allowed;

2. The orders below are set aside and in lieu thereof:

A conviction is recorded;

A fine of one penalty unit is imposed; and

Respondent is disqualified from holding or obtaining a drivers licence for six months.

3. No order as to costs

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Coughlin v Curran [2008] QDC 66
PARTIES:	MICHELLE COUGHLIN Appellant AND MATTHEW CHRISTIAN CURRAN Respondent
FILE NO/S:	90/07
DIVISION:	Civil
PROCEEDING:	Appeal
ORIGINATING COURT:	Magistrates Court, Rockhampton
DELIVERED ON:	14 March 2008
DELIVERED AT:	Rockhampton
HEARING DATE:	13 March 2008
JUDGE:	Nase DCJ
ORDER:	1. The appeal is allowed; 2. The orders below are set aside and in lieu thereof: A conviction is recorded; A fine of one penalty unit is imposed; and Respondent is disqualified from holding or obtaining a drivers licence for six months. 3. No order as to costs
CATCHWORDS:	VEHICLES AND TRAFFIC – LICENSING OF DRIVERS – APPEALS - Service of Notice to Choose under Transport Operations (Road Use Management – Driver Licensing) Regulation 1999 – proper construction of the term “service” – whether non-receipt of notice to choose offers a defence to charge of unlicensed driving Acts Interpretation Act 1954 (Qld), ss39 & 39A Criminal Code Queensland, s24 Interpretation Act 1978 (UK), s7 Transport Operations (Road Use Management - Driver Licensing) Regulations 1999, s25(2) Cases considered Deputy Commissioner of Taxation v Coco [2003] QSC 119 Fancourt v Mercantile Credits Limited (1983) 154 CLR 87 Re Ocean Distributors Pty Ltd (1990) 2 ACSR 486
COUNSEL:	Mr R J Pointing for the appellant Mr A Defrane the respondent
SOLICITORS:	Office of Director of Public Prosecutions for the appellant McGowran Lawyers for the respondent