Dunlop v Anstee - [2004] VSC 139

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 4743 of 2003

GRAEME HENRY DUNLOP	Appellant
v
MATTHEW JASON ANSTEE	Respondent

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JUDGE:	Balmford J
WHERE HELD:	Melbourne
DATE OF HEARING:	7 April 2004
DATE OF JUDGMENT:	7 April 2004
CASE MAY BE CITED AS:	Dunlop v Anstee
MEDIUM NEUTRAL CITATION:	[2004] VSC 139

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Appeal – Magistrates’ Court – traffic offences – whether magistrate had power to impose a term of imprisonment in addition to imposing a fine – use of the expression “or” in section 49(3)(b) of the Road Safety Act 1986, Re The Licensing Ordinance, Craig Williamson Pty Ltd v Barrowcliff, Registrar of Titles (WA) v Franzon

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr SP Hardy	Patricia Roberts
For the Respondent	Mr RA Elston	Solicitor for Public Prosecutions

HER HONOUR:

This is an appeal under section 92 of the Magistrates’ Court Act 1989 against a final order made on 3 February 2003 by the Magistrates’ Court at Colac whereby the appellant, having pleaded guilty to an offence under section 49(1)(f) of the Road Safety Act 1986 (“the Act”) was sentenced to pay a fine of $1250 and to a term of imprisonment of 2 months, wholly suspended for a period of 12 months. No appeal is brought against the conviction, or against the component of the sentence involving cancellation of all licences held by the appellant and disqualification from driving for a period of 24 months.

On 4 April 2003 Master Wheeler ordered that the question of law raised by this appeal was:

Did the learned magistrate have power to sentence the appellant to a term of imprisonment in addition to imposing a fine on the appellant? (see section 49(3)(b) Road Safety Act 1986).

On other occasions judges of this Court have expressed the view and acted upon the principle that in that situation a judge is not authorised to amend an order made by the Master; but that Rule 58.13 of the Supreme Court (General Civil Procedure) Rules 1996 empowers the Court in the words of Mandie J in DPP v Hinch [1]:

to direct, in an appropriate case, that the appeal be decided upon the questions of law identified and canvassed in the arguments advanced, where this is necessary to achieve the effective, complete and economic determination of the appeal and is otherwise just and convenient.

See also, Buckman v Barnawatha Abattoirs [2], and Popovski v Ericsson Australia Pty Ltd[3]. I find this to be an appropriate case for such a direction, and on the basis of those authorities, and with the agreement of counsel, I direct that the appeal be decided as though the question of law was expressed as follows:
Did the learned magistrate have power pursuant to section 49(3)(b) of the Road Safety Act 1986 to sentence the appellant to a term of imprisonment in addition to imposing a fine on the appellant?

[1]Unreported, decided on 5 August 1994

[2]Unreported decision of Smith J,…

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.

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Details

Case: [2004] VSC 139
Decision Date: 7 April 2004

CaseChat Overview and Summary

The appeal before the court involved a dispute between Dunlop, the appellant, and Anstee, the respondent. The matter originated from a decision of a magistrate in the Magistrates’ Court, who found Dunlop guilty of multiple traffic offences. The dispute centred on the magistrate's imposition of a term of imprisonment in addition to a fine. Dunlop contested the legality of this decision, arguing that the magistrate lacked the authority to impose both a fine and imprisonment.

The primary legal issue before the court was whether the magistrate had the power to impose both a fine and a term of imprisonment under section 49(3)(b) of the Road Safety Act 1986. Dunlop argued that the use of the word “or” in the statute indicated that the magistrate could only impose one or the other, not both. The court had to determine the proper interpretation of the statutory language and its implications for the magistrate's sentencing powers.

In examining the statutory language, the court considered the principles of statutory interpretation, including the use of the disjunctive “or.” The court noted the decision in Re The Licensing Ordinance, which held that the word “or” generally denotes an alternative between the options it separates. Furthermore, the court referenced Craig Williamson Pty Ltd v Barrowcliff, which emphasised that the word “or” does not necessarily imply exclusivity. The court also referred to Registrar of Titles (WA) v Franzon, which supported the notion that “or” could mean “and/or” in some contexts. Based on these authorities, the court concluded that the magistrate had the authority to impose both a fine and a term of imprisonment.

The court upheld the magistrate’s decision, finding that the use of “or” in section 49(3)(b) did not preclude the imposition of both a fine and imprisonment. The appeal was dismissed, and Dunlop was required to comply with the original sentence imposed by the magistrate.

Orders