Grey, R.A. v Park, R.A
[1986] FCA 125
•14 APRIL 1986
Re: RONALD ALWYN GREY
And: ROSS ADAIR PARK
No ACT G56 of 1985
Courts and Judges
COURT
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Evatt J.
Gallop J.
Neaves J.
CATCHWORDS
Courts and Judges - Supreme Court of the Australian Capital Territory: Jurisdiction to entertain appeal from decision of Court of Petty Sessions under Motor Traffic (Alcohol and Drugs) Ordinance 1977 (A.C.T.) directing the issue of a licence to drive a motor vehicle.
Australian Capital Territory Supreme Court Act 1933 (Cth), s.11
Motor Traffic (Alcohol and Drugs) Ordinance 1977 (A.C.T.), ss.9, 32, 40
Court of Petty Sessions Ordinance 1930 (A.C.T.), s.207
Court of Petty Sessions (Civil Jurisdiction) Ordinance 1982, s.4, Part II, s.311
Court of Petty Sessions (Civil Jurisdiction) (Amendment) Ordinance 1984, ss.3, 4
Seat of Government (Administration) Act 1910 (Cth), s.12
HEARING
CANBERRA
#DATE 14:4:1986
Counsel for the appellant: Mr B. Sully, Q.C. and Mr G. Richardson
Solicitor for the appellant : Australian Government Solicitor
Counsel for the respondent : Mr J.H. Brewster
Solicitors for the respondent : Barrads
ORDER
The appeal be allowed.
The orders made by the Supreme Court of the Australian Capital Territory on 15 August 1985 be set aside and in lieu thereof it be ordered that the objection to the competency of the appeal to that Court be dismissed with costs.
The matter is remitted to the Supreme Court of the Australian Capital Territory for further consideration.
The respondent pay the appellant's costs of the appeal.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
Ross Adair Park, the respondent to this appeal, was on 9 November 1984 summarily convicted by the Court of Petty Sessions of the Australian Capital Territory of an offence against s.19 of the Motor Traffic (Alcohol and Drugs) Ordinance 1977 (A.C.T.) ("the Alcohol and Drugs Ordinance"). That section provided:
"19. A person who -
(a) has been the driver of a motor vehicle on a public street or in a public place;
(b) has, in accordance with the provisions specified in this Ordinance, been required to provide a sample of his breath for breath analysis; and
(c) has provided a sample of his breath for breath analysis,
is guilty of an offence if the result of the breath analysis as recorded or shown by the approved breath analysing instrument used in the analysis is or exceeds .08."
Pursuant to s.32 of that Ordinance the Court cancelled the respondent's licence to drive a motor vehicle and directed that he be disqualified from holding a driving licence unless and until the Court otherwise ordered.
On 19 December 1984 the respondent instituted proceedings in the Court of Petty Sessions by filing a notice that application would be made to the Court on the following day for an order under s.40 of the Alcohol and Drugs Ordinance. That section, so far as material to the present appeal, provided -
"40. (1) A person whose driving licence has been cancelled, or who has been disqualified from holding a driving licence unless and until the Court otherwise orders, on his conviction for an offence involving alcohol or drugs may apply to the Court by which he was convicted for an order that he be granted a driving licence.
(2) The Court shall cause notice of the application to be given to the Commissioner of Police and to the Registrar.
(3) On the hearing of an application under this section -
(a) the Commissioner of Police, the Registrar and the applicant are entitled to be heard and to call evidence, including evidence by a medical practitioner; and
(b) the Court shall have regard to -
(i) the period during which the applicant has been disqualified from holding a driving licence;
(ii) the conduct of the applicant (especially in relation to the consumption of alcohol or drugs) during that period;
(iii) the physical and mental condition of the applicant;
(iv) any evidence of medical or other treatment (including rehabilitation programs) undergone by the applicant; and
(v) the effect that the making of an order for the grant of a driving licence may have with regard to the safety of the applicant and other persons.
(4) The Court may -
(a) make an order directing that the Registrar of Motor Vehicles grant a driving licence to the applicant if it is, having regard to matters referred to in paragraph 3(b), satisfied that it is appropriate to do so; or
(b) dismiss the application if it is not so satisfied.
(5) The Court may, in an order under this section, direct that the driving licence be granted on such terms and conditions, and for such period, as it thinks fit.
...."
Upon that application the Court of Petty Sessions, on 20 December 1984, directed that the Registrar of Motor Vehicles grant to the respondent a driving licence, Class 2, for a period of 9 months, the licence to be subject to certain terms and conditions to which it is unnecessary to refer. Notice of the application had, pursuant to sub-s.40(2) of the Alcohol and Drugs Ordinance, been given to Ronald Alwyn Grey ("the appellant") who was, and is, the Commissioner of the Australian Federal Police. He appeared in the proceedings and opposed the application.
On 2 April 1985 the appellant gave notice of appeal to the Supreme Court of the Australian Capital Territory from the decision of the Court of Petty Sessions. That notice was given long after the time prescribed by Order 60 of the Rules of the Supreme Court of the Australian Capital Territory had expired. However, an order appropriately extending that time was subsequently made by the Supreme Court under Order 64, rule 5 of its rules.
When the appeal was called on for hearing, counsel for the respondent objected to the competency of the appeal on the ground that the Supreme Court lacked jurisdiction to entertain it.
On 15 August 1985 the Supreme Court ordered that the appeal "be struck out as incompetent and for want of jurisdiction" and ordered the appellant to pay the respondent's costs of the proceedings in that Court. From that decision the appellant has appealed to this Court.
Part II of the Australian Capital Territory Supreme Court Act 1933 (Cth) ("the Supreme Court Act") makes provision with respect to the constitution and jurisdiction of the Supreme Court. Section 11 of that Act has at all material times provided -
"11. The Supreme Court -
(a) has, subject to this or any other Act or to any Ordinance, in relation to the Territory, the same original jurisdiction, both civil and criminal, as the Supreme Court of the State of New South Wales had in relation to that State immediately before 1 January 1911;
(b) has such jurisdiction, both civil and criminal, and whether original or otherwise, as is from time to time vested in the Supreme Court by Act or by Ordinance; and
(c) has jurisdiction, with such exceptions and subject to such conditions as are provided by Act or by Ordinance, to hear and determine appeals from all judgments, convictions, orders and sentences of inferior courts having jurisdiction in the Territory."
It was common ground that par.(a) of s.11 had no relevance to the issue to be determined on this appeal and that par.(b) did not operate, in the circumstances, to vest appropriate jurisdiction in the Supreme Court as the Alcohol and Drugs Ordinance contained no provision vesting such jurisdiction in the Supreme Court and no relevant provision was made by any other Ordinance or by any Act. Counsel for the appellant submitted, however, that par.(c) of s.11 was the source of the Supreme Court's jurisdiction to entertain the appeal from the decision of the Court of Petty Sessions directing that a driving licence be granted to the respondent. That was said to follow from the circumstance that the subject of the appeal was an order of an inferior court having jurisdiction in the Territory within the meaning of those words in s.11(c) of the Supreme Court Act and the further circumstance that no relevant exception had been made by Act or Ordinance from the jurisdiction so conferred.
Counsel further submitted that the Supreme Court was in error in concluding, as it did, that s.207 of the Court of Petty Sessions Ordinance 1930 (A.C.T.) ("the Court of Petty Sessions Ordinance") operated to exclude from the jurisdiction of the Supreme Court an appeal from a decision of the Court of Petty Sessions made upon an application to it under s.40 of the Alcohol and Drugs Ordinance. Section 207 of the Court of Petty Sessions Ordinance, a provision within Part XI thereof, was in the following terms -
"207. (1) The appellate jurisdiction of the Supreme Court with respect to decisions of the Court of Petty Sessions under this Ordinance extends to the hearing and determination of the following appeals and to no others, namely:
(a) appeals to which Division 2 of this Part applies; and
(b) appeals from decisions of the Court of Petty Sessions by way of orders to review made in accordance with Division 3 of this Part.
(2) Nothing in this Part limits the operation of any other Ordinance that makes provisions with respect to the appellate jurisdiction of the Supreme Court."
It was common ground that the appeal from the decision of the Court of Petty Sessions was not an appeal to which Division 2 of Part XI applied (par.207(1)(a)) and that it was not an appeal by way of order to review made in accordance with Division 3 of that Part (par.207(1)(b)).
According to the appellant's submission, the question whether s.207 of the Court of Petty Sessions Ordinance operated to exclude the jurisdiction of the Supreme Court to hear the appeal in question depended upon whether it was proper to describe the decision of the Court of Petty Sessions directing that a driving licence be granted to the respondent as a decision of the Court of Petty Sessions "under this Ordinance", that is to say under the Court of Petty Sessions Ordinance. The appellant submitted that that question should be answered in the negative, contending that the decision of the Court of Petty Sessions was a decision made under the Alcohol and Drugs Ordinance and not under the Court of Petty Sessions Ordinance.
Counsel for the respondent relied upon the exceptions provided by s.207 of the Court of Petty Sessions Ordinance from the jurisdiction of the Supreme Court which would otherwise be derived from s.11(c) of the Supreme Court Act on the basis that the relevant decision of the Court of Petty Sessions was properly described as a decision under the Court of Petty Sessions Ordinance. The basis for that submission was s.19 of the Court of Petty Sessions Ordinance which was in the following terms -
"19. Whenever, by any law for the time being in force in the Territory, any offence is punishable on summary conviction or any person is made liable to a penalty or punishment or to pay a sum of money for any offence, act or omission, and no other provision is made for the trial of the person committing the offence, or any jurisdiction is given to a Court of Petty Sessions or of summary jurisdiction or any court constituted by a Police or Stipendiary Magistrate or justices, or to a Magistrate or to a justice or justices or a Children's Court, the matter may be heard and determined by the Court in a summary manner under the provisions of this Ordinance, and the jurisdiction shall be deemed to be conferred on and may be exercised by the Court."
It was said that that section was the source of the jurisdiction of the Court of Petty Sessions to entertain the application under s.40 of the Alcohol and Drugs Ordinance and that, in consequence, a decision upon that application was a decision made in exercise of the jurisdiction so derived and was, therefore, a decision under the Court of Petty Sessions Ordinance to which s.207 thereof applied.
Counsel for the respondent made an alternative, and preferred, submission that the issue was to be resolved by reference to the provisions of the Court of Petty Sessions (Civil Jurisdiction) Ordinance 1982 (A.C.T.) ("the Civil Jurisdiction Ordinance") as in force at the relevant time.
The Civil Jurisdiction Ordinance, being Ordinance No.54 of 1982, came into operation on 1 September 1982, being the date fixed pursuant to s.2 thereof. As its short title implied the Ordinance related to the civil jurisdiction of the Court of Petty Sessions and provided, in s.4, that the Ordinance was to apply in relation to all proceedings instituted in the Court after the commencement of the Ordinance other than proceedings under certain specified Ordinances (not including the Alcohol and Drugs Ordinance) and proceedings on an information in respect of the alleged commission of an offence against a law in force in the Territory.
Part II of the Ordinance conferred jurisdiction on the Court of Petty Sessions in any personal action at law (including an action for the detention of goods) where the amount claimed did not exceed $10,000, and in a civil action for nuisance. The Ordinance also made detailed provision for the practice and procedure of the Court in relation to proceedings to which the Ordinance applied.
Section 311 of that Ordinance provided, inter alia, that, subject to the Ordinance, the provisions of the Court of Petty Sessions Ordinance specified in column 1 of the table set out in sub-s.(1) of that section were to continue to apply, so far as they were capable of application and with necessary modifications and adaptions, in relation to proceedings instituted after the commencement of the Civil Jurisdiction Ordinance. The provisions of the Court of Petty Sessions Ordinance specified in the table included Part XI of that Ordinance which, as has already been said, included s.207 (sub-s.311(1)). For the purposes of the application of the provisions specified in the table in relation to proceedings instituted after the commencement of the Civil Jurisdiction Ordinance, a reference in any of those provisions to the Court of Petty Sessions Ordinance was to be read as a reference to the Civil Jurisdiction Ordinance (sub-s.311(2)).
By the Court of Petty Sessions (Civil Jurisdiction) (Amendment) Ordinance 1984 (A.C.T.) (Ordinance No.76 of 1984), s.311 of the Civil Jurisdiction Ordinance was amended by omitting from column 1 of the table in sub-s.(1) the reference to Part XI of the Court of Petty Sessions Ordinance (s.4) and Part XIXA was (by s.3) inserted in the Civil Jurisdiction Ordinance. That Part made provision for appeals to the Supreme Court from judgments or orders of the Court of Petty Sessions, whether final or interlocutory, given, entered or made in proceedings "that the Court of Petty Sessions has jurisdiction to hear and determine under this Ordinance" (sub-s.282A(1)). The jurisdiction of the Supreme Court was to be subject to the exceptions and conditions prescribed in Part XIXA (sub-s.282B(1)) and it is clear that, if the provisions of that Part applied to an appeal from an order of the Court of Petty Sessions under s.40 of the Alcohol and Drugs Ordinance, such an appeal would not lie as of right but only with the leave of the Supreme Court (s.282C) given upon an application made within 21 days after the date on which the judgment or order from which leave to appeal was sought took effect or within such further time as the Supreme Court might allow (s.282D).
Part XIXA was expressed to apply to appeals arising out of proceedings instituted on or after the commencement of the Court of Petty Sessions (Civil Jurisdiction) (Amendment) Ordinance 1984 (A.C.T.) (s.5), s.311 of the 1982 Ordinance continuing to apply, notwithstanding the amendment to it effected by the 1984 Ordinance, to appeals arising out of proceedings instituted before such commencement (s.6).
By virtue of s.12 of the Seat of Government Administration Act 1910 (Cth), in the absence of any provision in an Ordinance specifying another date, an Ordinance takes effect "from the date of its notification in the Gazette", that is the Commonwealth of Australia Gazette. The Court of Petty Sessions (Civil Jurisdiction) (Amendment) Ordinance 1984 (A.C.T.) was notified in the Gazette on 19 December 1984 which, by a coincidence, was the very day on which the respondent instituted in the Court of Petty Sessions his proceedings under s.40 of the Alcohol and Drugs Ordinance. If the effect of s.12 of the Seat of Government Administration Act 1910 (Cth) was to bring the 1984 Ordinance into operation at the first moment of 19 December 1984, the provisions of that Ordinance, if otherwise applicable, applied in relation to the respondent's application as that application was made on or after the commencement of the 1984 Ordinance.
It was, therefore, submitted for the respondent that the appeal to the Supreme Court was rendered incompetent either by reason of s.207 of the Court of Petty Sessions Ordinance operating of its own force or by virtue of s.311 of the Civil Jurisdiction Ordinance, assuming that the 1984 Ordinance did not come into operation until 20 December 1984, or, if that Ordinance came into operation on 19 December 1984, by reason of the provisions of that Ordinance. On either view it was submitted that the appeal to this Court should be dismissed.
In our opinion it is not correct to say, as the respondent submitted, that the jurisdiction of the Court of Petty Sessions to hear and determine the respondent's application under s.40 of the Alcohol and Drugs Ordinance derived from the Court of Petty Sessions Ordinance or the Civil Jurisdiction Ordinance. It derived, in our view, from the provisions of s.40 itself. That section conferred a right on the respondent to institute the proceedings, it identified the court to which the application was to be made as being the court by which the respondent had been convicted of a relevant offence and it required that court to hear and determine the application. Nothing more was required to make the vesting of jurisdiction in the Court of Petty Sessions effective. No doubt one needed to look elsewhere for the prescription of the necessary procedural steps to be taken in the proceedings but the fact, if it be the fact, that the prescription of those procedural steps was to be found in the Court of Petty Sessions Ordinance or the Civil Jurisdiction Ordinance is nothing to the point. The jurisdiction was conferred by the Alcohol and Drugs Ordinance and the decision directing the grant of a driving licence to the respondent was a decision under that Ordinance. It was not a decision under the Court of Petty Sessions Ordinance within the meaning of that expression in sub-s.207(1) of the Court of Petty Sessions Ordinance. Nor was it a decision in proceedings that the Court of Petty Sessions had jurisdiction to hear and determine under the Civil Jurisdiction Ordinance so as to bring the matter within sub-s.282A(1) of that Ordinance.
It follows that, in our opinion, the appellant's appeal to the Supreme Court was competent and that Court did not lack jurisdiction to entertain it. The appeal should therefore, be allowed, the orders made by the Supreme Court on 15 August 1985 set aside and in lieu thereof it be ordered that the respondent's objection to the competency of that appeal be dismissed with costs. We propose to remit the matter to the Supreme Court for further consideration and it will be a matter for that Court to determine the further course of the proceedings in the light of the circumstance that, as the driving licence granted to the respondent pursuant to the order of the Court of Petty Sessions has already expired, no effective order can now be made in respect of that licence. The respondent should pay the costs of the proceedings in this Court. It will be open to him to make an application under the Federal Proceedings (Costs) Act 1981 (Cth) if he is so advised.
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