CROWLEY and DIRECTOR-GENERAL, DEPARTMENT FOR PLANNING AND INFRASTRUCTURE
[2006] WASAT 236
•16 AUGUST 2006
CROWLEY and DIRECTOR-GENERAL, DEPARTMENT FOR PLANNING AND INFRASTRUCTURE [2006] WASAT 236
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 236 | |
| ROAD TRAFFIC ACT 1974 (WA) | |||
| Case No: | CC:2769/2005 | 16 MAY 2006 | |
| Coram: | MR M SPILLANE (MEMBER) | 16/08/06 | |
| 17 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | PETER JOHN CROWLEY DIRECTOR-GENERAL, DEPARTMENT FOR PLANNING AND INFRASTRUCTURE |
Catchwords: | Road Traffic Act – Standing – Time for bringing application |
Legislation: | Interpretation Act 1984 (WA), s 63 Justices (Forms) Regulations 1982 (WA) Justices Act 1902 (WA), s 4, s 42, s 51 Parliamentary Commissioners Act 1971 (WA), s 14(4) Road Traffic (Licensing) Regulations 1975 (WA), reg 28A(1)(b) Road Traffic (Vehicle Standards) Regulations 2002 (WA) Road Traffic (Vehicle Standards) Rules 2002 (WA) Road Traffic Act 1974 (WA), s 25, s 25(1) State Administrative Tribunal Act 2004 (WA), s 2, s 13(1), s 38, s 167(1)(a), s 167(4)(a) State Administrative Tribunal Rules 2004 (WA), r 9, r 10 |
Case References: | Conset Investments Pty Ltd, Re [1993] 2 Qd R Gallow v Dawson (1990) 93 ALR 479 Hayley v R [2006] WASCA 33 Jackamarra v Krakouer (1998) 195 CLR 516 Nil |
Orders | 1. The application for review is dismissed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : COMMERCIAL & CIVIL ACT : ROAD TRAFFIC ACT 1974 (WA) CITATION : CROWLEY and DIRECTOR-GENERAL, DEPARTMENT FOR PLANNING AND INFRASTRUCTURE [2006] WASAT 236 MEMBER : MR M SPILLANE (MEMBER) HEARD : 16 MAY 2006 DELIVERED : 16 AUGUST 2006 FILE NO/S : CC 2769 of 2005 BETWEEN : PETER JOHN CROWLEY
- Applicant
AND
DIRECTOR-GENERAL, DEPARTMENT FOR PLANNING AND INFRASTRUCTURE
Respondent
Catchwords:
Road Traffic Act – Standing – Time for bringing application
Legislation:
Interpretation Act 1984 (WA), s 63
Justices (Forms) Regulations 1982 (WA)
Justices Act 1902 (WA), s 4, s 42, s 51
Parliamentary Commissioners Act 1971 (WA), s 14(4)
Road Traffic (Licensing) Regulations 1975 (WA), reg 28A(1)(b)
(Page 2)
Road Traffic (Vehicle Standards) Regulations 2002 (WA)
Road Traffic (Vehicle Standards) Rules 2002 (WA)
Road Traffic Act 1974 (WA), s 25, s 25(1)
State Administrative Tribunal Act 2004 (WA), s 2, s 13(1), s 38, s 167(1)(a), s 167(4)(a)
State Administrative Tribunal Rules 2004 (WA), r 9, r 10
Result:
Application dismissed
Category: B
Representation:
Counsel:
Applicant : Mr S Watters
Respondent : Mr S Murphy
Solicitors:
Applicant : In person
Respondent : State Solicitor
Case(s) referred to in decision(s):
Conset Investments Pty Ltd, Re [1993] 2 Qd R
Gallow v Dawson (1990) 93 ALR 479
Hayley v R [2006] WASCA 33
Jackamarra v Krakouer (1998) 195 CLR 516
Case(s) also cited:
Nil
(Page 3)
Summary of the Tribunal's decision
1 An application for review was brought before the Tribunal regarding a refusal to register a motor vehicle in 2002. A number of questions were put to the Tribunal including whether the applicant, who did not own the vehicle at the time of the original decision, had standing to bring the application and whether the application could be brought nearly three years after the original decision.
2 The Tribunal found the applicant did have standing to bring the application but that the time within which he could bring the application had expired and the application was dismissed.
Facts
3 On 23 July 2002, an unregistered 1997 Toyota Landcruiser Prado, bearing the vehicle identification no JT711VJ9500022704 (vehicle) was presented for inspection for the purposes of a licensing application made by Autogroup Auctions to the respondent on behalf of Mr Hugh John Devon, of 48 Leura Street, Nedlands, who intended to purchase the vehicle if licensed.
4 An examiner employed by the respondent made a preliminary examination of the vehicle, observing that the vehicle identification number on the compliance plate of the vehicle appeared to have been altered or defaced.
5 It also appeared that the vehicle was a statutory write off in New South Wales, and consequently, the respondent's examiner rejected the vehicle and declined to fully examine the vehicle and declined to issue a certificate of inspection certifying that the vehicle met the prescribed standards and requirements and was fit for the purpose for which the licence was desired.
6 The applicant was given the vehicle in satisfaction of a debt in June 2003 and, although there is no record of that transaction, the parties agreed that the applicant obtained an interest in the vehicle at that time.
7 On 20 June 2003, the applicant wrote to the Ombudsman complaining that the respondent had unreasonably refused to licence the vehicle.
8 By letter dated 4 July 2003, the Ombudsman replied stating:
(Page 4)
- "Unfortunately, this does not appear to be a matter that I can assist you with. I say this because under section 25 of the Road Traffic 1974, there is a right of appeal to the Court of Petty Sessions where the Director General of the Department has refused to grant a licence. Where an aggrieved person has a legal remedy available to them the Ombudsman is prohibited under section 14(4) of the Parliamentary Commissioners Act 1971, which regulates the operations of this Office, from investigating complaints about matters that could be resolved in that way. The exception to this is where the Ombudsman considers that in the particular circumstances of a matter it would be unreasonable to expect the person to pursue that course of action. It is not the function of the Ombudsman, nor is this office designed and resourced, to be an alternative to court proceedings where they are available.
In the circumstances, I have formed the view that it is not unreasonable to expect you to pursue the legal remedy available to you. Accordingly, I do not intend to investigate this matter and I have now closed my file.
I regret that, apart from providing you with information about your appeal rights, I have been unable to be of further assistance on this occasion."
9 The application for review the subject of these proceedings was filed with the State Administrative Tribunal (Tribunal) on 4 July 2005 and sought orders that:
"(1) The decision to reject the vehicle for licensing be set aside.
(2) The vehicle be resubmitted for licensing in accordance with the applicable law."
10 At par 16 of the applicant's Statement of Issues, Facts and Contentions dated 3 November 2005 under the hearing "Facts", the applicant stated:
"The applicant initially exhausted the avenues open to him through the respondent and his Department. He then sought recourse in or about mid-2003 through the office of the Ombudsman. When that process was confirmed
(Page 5)
- as not providing the appropriate forum, the applicant, once financially able, commenced these proceedings."
Issues
11 At the hearing, counsel for both the applicant and the respondent agreed that the issues to be dealt with by the Tribunal are:
1) As a person who was not the applicant, nor the owner, nor in any other way connected to the vehicle at the time of the primary decision, does the applicant have standing to bring an application for review under s 25(1) of the Road Traffic Act 1974 (WA) (RT Act) in respect of the primary decision?
2) Can an application for review be made under s 25(1) of the RT Act almost three years after the primary decision was made on 23 July 2002?
3) In conducting a review under s 25(1) of the RT Act, does the Tribunal apply the law as in force at the time of the primary decision (23 July 2002) or the law as in force at the time of the review?
4) Is the vehicle identification number (or one of them) on the vehicle defaced or altered or does it appear to have been defaced or altered, for the purposes of Reg 28A(1)(b) of the Road Traffic (Licensing) Regulations 1975 (WA)?
5) Will the vehicle otherwise comply with the prescribed standards and requirements for the purposes of s 23 of the Act, namely the Road Traffic (Vehicle Standards) Regulations 2002 (WA) and the Road Traffic (Vehicle Standards) Rules 2002 (WA)?
12 It was further agreed at the hearing that each of the issues in turn needed to be decided in favour of the applicant before the Tribunal could make the orders sought in the applicant's favour, and if the applicant failed on any of the issues, in the words of counsel for the applicant "that would be the end of it" and "if the answer is 'no', then I concede the matter then doesn't proceed to the next issue".
(Page 6)
Issue 1 – As a person who is not the applicant, nor the owner, nor in any other way connected to the vehicle at the time of the primary decision, does the applicant have standing to bring the application for review under s 25(1) of the RT Act in respect of the primary decision?
Submissions
13 In respect of this issue, the respondent simply submitted that, as the applicant in the current proceedings was not the applicant, nor the owner, nor in any other way connected to the vehicle at the time of the primary decision in July 2002, the current applicant has no standing to bring the application for review before the Tribunal.
14 The applicant, on the other hand, in equally succinct terms, submitted that, as the property in the unregistered vehicle passed to the applicant in June 2003, the applicant had, from that time, the right to bring an application for review as a person who owned the vehicle in respect of which the decision of 23 July 2002 was made and therefore had standing.
Tribunal's consideration
15 The question of standing is usually settled by the statutory provisions under which an application for review or an appeal are brought.
16 In the circumstances of the present case, s 25 of the RT Act states:
"(1) An application for review may be made to the State Administrative Tribunal in any case where an application for the issue, renewal, transfer, or variation of a license under this part is refused."
17 For the sake of completeness, it is noted that prior to the Tribunal coming into existence and at the time of the decision in July 2002, s 25(1) of the RT Act read:
"There shall be an appeal to the Court of Petty Sessions, whose orders shall be final, in any case where a licence, or the transfer of a licence, under this part is refused."
18 For the purposes of determining issue 1, there is little real difference in the wording of the section before and after the amendment.
19 Apart from the very wide reference to "in any case", the section is silent as to who may bring an application for review or an appeal.
(Page 7)
20 When we turn to the State Administrative Tribunal Act 2004 (WA) (SAT Act), we look first at s 13(1) headed "Source of Jurisdiction", which states:
"(1) A provision of an enabling Act that enabled an application to be made to the Tribunal gives the Tribunal jurisdiction to deal with the matter concerned."
21 Turning to the definition of applicant in s 2 of the SAT Act, "applicant" means –
"(a) In the context of the Tribunal's review jurisdiction the person who –
(i) applies to the Tribunal for review;
(ii) otherwise brings a matter before the Tribunal; or
(iii) requests, acquires or otherwise seeks a matter to be referred to, or otherwise brought before, the Tribunal;"
"(1) The Tribunal may order that a person be joined as a party to a proceeding if the Tribunal considers that –
(a) the person ought to be bound by, or have the benefit of, a decision of the Tribunal in the proceeding;
(b) the person's interests are affected by the proceeding; or
(c) for any other reason it is desirable that the person be joined as a party."
(Page 8)
- (a) ought to have the benefit of a decision of the Tribunal in the proceeding; or
(b) a person whose interests are affected by the proceeding
and who would be entitled to apply to be joined as a party.
24 In the circumstances, given the very wide definition of "applicant" in the SAT Act, the Tribunal is satisfied that, in the circumstances of the present case, the applicant would be someone who, if issue 2 was answered in their favour, would have standing to bring an application for review.
Issue 2 – Can an application for review be made under s 25(1) of the RT Act almost three years after the primary decision was made on 23 July 2002?
Submissions
25 Each of the parties expanded their written submissions at the hearing with oral argument. The core elements of their submissions were as follows:
Respondent's submissions
• The application for review is brought under s 25 of the RT Act. The RT Act contains no express temporal limitation on the right to apply for review under s 25.
• Until 1 January 2005 (on the enactment of the State Administrative Tribunal legislation), s 25 of the RT Act stated:
"(1) There shall be an appeal to a court of petty sessions, whose order shall be final, in any case where a licence, or a transfer of a licence, under this Part is refused.
(2) On the hearing of the appeal the court may order that the licence shall be granted, or may dismiss the appeal, and may order either party to the appeal to pay such costs as in its discretion the court may think fit."
• Up to the transfer of jurisdiction to the Tribunal, proceedings in the court of petty sessions were at all
- times regulated primarily by the now repealed Justices Act.
- • At all material times, under the heading of "Part IV – General Procedure", s 42 of the Justices Act(repealed) provided that:
"Unless otherwise provided, proceedings before justices shall be commenced by a complaint, which may be made or laid by the complainant in person, or by his counsel or solicitor or other person authorised in that behalf." (Underlining added.)
• Legislation did not so "otherwise provide" and so proceedings under s 25(1) of the RT Act were (up to 1 January 2005) to be brought by way of an application in the form of a complaint.
• The Justices (Forms) Regulations 1982 (repealed) had, at all material times, provided for complaint forms for offences and "other subject matter".
• Section 51 of the Justices Act (repealed) provided, at all material times, that:
"In any case of a simple offence or other matter, unless some other time is limited for making complaint by the law relating to the particular case, complaint must be made within 12 months from the time when the matter of complaint arose" (Underlining added.)
• The Justices Act did not provide for any power to extend the time within which to bring a complaint. Accordingly, as the primary decision was made on 23 July 2002, any appeal right under s 25(1) of the RT Act expired on 23 July 2003 and was not capable of revival.
• Alternatively, s 25(1) of the RT Act contains no express temporal limitation on the right to apply for review.
• Section 63 of the Interpretation Act 1984 (WA) (Interpretation Act) provides that:
- "Where no time is fixed or allowed within which an act or thing shall be done, such act or thing shall be done with all convenient speed and as often as occasion arises."
- • The present application for review was brought some two years 11 months and 11 days after the primary decision was made and was not brought with "all convenient speed". By the time the application for review was made, the right to apply for review had expired.
• In the absence of a right to apply for review, the application must be dismissed.
- Applicant's submissions
• The applicant advanced two arguments, the first being that a change in the legislation cannot operate to alter the applicant's right to have the decision reconsidered and determined by the Tribunal.
To support that proposition, a large section of the judgment of Robert Smith JA in Hayley v R [2006] WASCA 33, in particular pars 28 to 37, was relied upon.
• Secondly, the applicant addressed the respondent's contention that if the applicant wished to review the examiner's decision of 23 July 2002 to refuse to licence his vehicle, he (the applicant) should have laid a complaint before the Justices within 12 months of that decision and, to this end, submitted:
• The Justices Act at s 42 commences with the caveat:
"[u]nless otherwise provided … ".
• Section 42 of the Justices Act clearly contemplates proceedings may be commenced other than by way of complaint, if provision is made for such.
• The RT Act at s 25 provides that an appeal shall lie to a Court of Petty Sessions.
- • Neither the Justices Act nor the RT Act specify how an appeal to the Court of Petty Sessions under the RT Act is to be commenced.
• Section 51 of the Justices Act provides for the limitation period for complaints. It states [I]n any case of simple offence or other matter … must be made within 12 months".
• "Matter" is defined in s 4 of the Justices Act as meaning any "act, omission, fact or event (except an indictable offence not punishable summarily) upon complaint".
• The qualification in brackets, after the word "event" in s 4 of the Justices Act, indicates the phrase [sic] "event" does not relate or embrace an appeal under the RT Act.
• Therefore, there is no clear or express indication in the Justices Act that an appeal from the RT Act is to be encompassed within the 12 month limitation period.
• Section 167(4)(a) of the SAT Act is very broad in its terms when it states any devolved matter (which this review is) "the … consideration … of which has been sought or initiated in any way is transferred to the Tribunal."
• Clearly, by contacting the Ombudsman in June 2003, the applicant, in a way, initiated a consideration of the primary decision.
Summary of arguments
26 The applicant's first argument that a change in the legislation cannot operate to alter the applicant's rights was not a contention pressed by the respondent. Rather, the respondent submitted that either there had been a 12 month limitation period in which to initiate an appeal as per the Justices Act or s 63 of the Interpretation Act applied and the application was not brought "with all convenient speed".
27 The argument advanced by the applicant on that issue was that there was no clear or express indication in the Justices Act that an appeal was to be brought within a 12 month period, and in any event, s 167(4)(a) of the SAT Act, which dealt with the transfer of jurisdiction at the time the Tribunal was established was cast in very broad terms.
(Page 12)
28 The applicant submitted that s 167(4)(a) stated that any devolved matter, consideration of which had been sought or initiated "in any way" is transferred to the Tribunal, and that by contacting the Ombudsman in June 2003, the applicant had "in a way" initiated a consideration of the primary decision.
29 Furthermore, the applicant submitted that although there may have been a delay in initiating the application for review, the Tribunal, in considering whether to grant leave out of time, may take into account the following factors:
(i) the reasons for delay;
(ii) the merits of the appeal;
(iii) the length of the delay;
(iv) the extent of any prejudice suffered by the respondent.
30 The respondent submitted that the Tribunal's discretion to extend time within which to apply to bring an application for review does not apply to decisions made prior to the enactment of the SAT Act, and especially does not apply to enable the revival of a long since expired right of appeal.
31 The respondent further submitted that even if that was not the case and a discretion did exist, the present application of review was brought nearly three years after the primary decision was made with the only explanation being that the applicant, after making enquiries with the Ombudsman, could not afford to commence legal proceedings until this application was brought, and the applicant was well aware of the specific legal remedy open to him as per the letter from the Ombudsman dated 4 July 2003.
Tribunal's consideration
Section 167(4)(a)
32 Dealing first with s 167(4)(a) of the SAT Act and the applicant's contention that the matter the subject of the application for review is a "devolved matter" pursuant to that section. To be a devolved matter under s 167(4)(a), it would need to be a devolved matter the consideration or determination of which has been sought or initiated in any way before "the former adjudicator";
(Page 13)
33 "Former adjudicator" is defined in s 167(1)(a) of the SAT Act when discussing a devolved matter and states:
"is of a kind and is substantially similar to a kind of matter that could, before the jurisdiction was conferred, be dealt with by another tribunal, court, body or person (the 'former adjudicator')." (Emphasis added.)
34 The Tribunal is satisfied that the Ombudsman could not be and is not a body or person that comes within that definition of "former adjudicator" and this was made perfectly clear in the Ombudsman's letter dated 4 July 2003, the relevant portion of which was referred to earlier.
35 The Tribunal is therefore satisfied that the application for review is not one which comes with s 167(4)(a) of the SAT Act.
Justices Act
36 As to the issue of whether the 12 month time limit set out in s 51 of the Justices Act applied, the Tribunal accepts the respondent's submissions in this regard and finds that such a time limit did apply to an appeal under s 25 of the RT Act.
Extension of time
37 However, even in the event that the 12 month time limit under s 51 of the Justices Act did not apply and the Tribunal had the power to extend time, the Tribunal considers that, for the following reasons, the time for bringing the application should not be extended.
38 Rule 9 of the State Administrative Tribunal Rules 2004 (WA) (Rules) sets a time limit of 28 days within which an application for review must be made to the Tribunal under its review jurisdiction.
39 Rule 10 of the Rules under the heading "Extension of Time" allows the Tribunal to extend time for the commencement of a proceeding. However, it is noted that these Rules only came into operation as of 1 January 2005 and must be viewed as prospective and not having a retrospective application and should not, in any case, be used to allow an extension of time during an extended period before the Tribunal was even in existence.
40 Furthermore, Kirby J in Jackamarra v Krakouer (1998) 195 CLR 516 at 540, in distinguishing between substantive time limits and procedural time limits, stated:
(Page 14)
- "Courts have often drawn a distinction between the approach which they take to time limits of a substantive character and those appropriate to procedural rules. Thus in Re Salmon (dec'd) (75), Sir Robert McGarry V-C contrasted the requirement for the institution of proceedings within a certain time under the Inheritance (Provision for Family Independence) Act 1975 (UK) with procedural rules typically found in rules of court:
'[t]he time limit is a substantive provision laid down in the act itself and is not a mere procedural time limit imposed by rules of court which will be treated with the indulgence appropriate to procedural rules'."
(i) the reasons for delay in applying;
(ii) the merits of the appeal;
(iii) the length of delay; and
(iv) the extent of any prejudice suffered by the respondent
- would be relevant.
42 However, when the time limit relates to legislation, it is a substantive issue and different considerations apply. This was recognised and the matters to be considered addressed by Ryan J in Conset Investments Pty Ltd, Re [1993] 2 Qd R at 244 when he stated:
"It was submitted on behalf of the 'respondent' that s.38(5) of the Acts Interpretation Act 1954 applied and required that an appeal be instituted 'with all convenient speed'. That provision is in these terms:
'Where no time is prescribed or allowed within which anything shall be done, such thing shall be done with all convenient speed, and as often as the prescribed occasion arises;
In Attorney General v Tichy (1982) 30 S.A.SR. 84 to which my attention was very properly directed by counsel for the
(Page 15)
- appellant, it was held that as a provision in an Act which permitted the Attorney-General with leave of the full court to appeal against a sentence did not prescribe any time within which an appeal was to be brought, the appeal must in accordance with the provisions of the Acts Interpretation Act (S.A.) be brought 'with all convenient speed'. Section 27(3) of that Act is in identical terms to s.38(5) of the Queensland Act. Wells J., with whose judgment King C.J. and Cox J agreed said that the 'acts to be done' to which s.27 refers was 'the institution of the appeal, and if no express provision is made by enactment or rule for some procedure by which this is to be done, the court has all the necessary inherent powers to approve some more appropriate means of institution" …
The words in the first clause of s.38(5) are, I consider, sufficiently comprehensive to include a situation where no time is prescribed within which any appeal must be instituted. Nobody is, of course required to institute an appeal, though certain persons may do so. But if a person exercises his entitlement to appeal, no time is prescribed by the Act within which the appeal is to be instituted and s.38(5) is therefore applicable."
43 Section 63 of the Interpretation Act, which would apply in the present case, is cast in nearly identical terms to the South Australian Act referred to by Ryan J in Conset Investments Pty Ltd and states:
"Where no time is fixed or allowed within which an act or thing shall be done, such act or thing shall be done with all convenient speed and as often as occasion arises."
44 What then falls to be considered is whether the application for review in the present case was done "with all convenient speed" as is required by s 63 of the Interpretation Act. This is clearly a question of fact, to be answered having regard to the circumstances of the case.
45 In the present case, the Tribunal would adopt the words of Ryan J in Conset Investments Pty Ltd when he stated:
"I am unable to see any factor which would lead me to conclude that the appeal had been instituted with all convenient speed."
46 Furthermore, as McHugh J in Gallow v Dawson (1990) 93 ALR 479 at 481 stated:
(Page 16)
- "A case would need to be exceptional before a court would enlarge by many months the time for lodging an appeal simply because the applicant had refrained from appealing until he or she had researched the issues involved."
47 In the present case, the applicant's only explanation for the nearly two years of delay from the time when he acquired an interest in the vehicle and from when the Ombudsman very succinctly outlined the avenues open to him, was that the applicant did so once financially able.
48 This, in the Tribunal's view, is not a reasonable explanation and one which would not pass any of the tests for extending time to appeal, whether the test be procedural or substantial, and could certainly not be described as instituting the application for review "with all convenient speed".
49 In the circumstances, the Tribunal finds as follows:
1. The application for review is not a devolved matter within the meaning of s 167(4)(a) of the SAT Act.
2. The 12 month time limit as per s 51 of the Justices Act did apply to this matter and expired in July 2003.
3. Even if that were not the case and the 12 month limit did not apply, the Tribunal is satisfied that the application for review was not brought "with all convenient speed" and the reason for delay put forward by the applicant for not instituting the application for review (that is, financial incapacity), is not a sufficient reason for the Tribunal to extend time to bring the application for review even if the Tribunal had the power to do so.
4. In all the circumstances, the application for review under s 25(1) of the RT Act cannot and may not be brought almost three years after the original decision made on 23 July 2002 and the application is misconceived, lacking in substance and should be dismissed pursuant to s 47(1) of the SAT Act.
50 Having found against the applicant in respect of issue 2, there is therefore no need for the Tribunal to consider issues 3, 4 or 5.
(Page 17)
Orders
1. The application for review is dismissed.
I certify that this and the preceding [50] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR M SPILLANE, MEMBER
0