Korybutiak v Director of Public Prosecutions

[2004] HCATrans 531

[2004] HCATrans 531

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M55 of 2004

B e t w e e n -

ADRIAN JOHN KORYBUTIAK

Applicant

and

DIRECTOR OF PUBLIC PROSECUTIONS (ON BEHALF OF MARK HIGGINS, INFORMANT)

Respondent

Application for special leave to appeal

GLEESON CJ
McHUGH J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 3 DECEMBER 2004, AT 10.24 AM

Copyright in the High Court of Australia

MR S.P.G. HARDY:   If the Court pleases, I appear on behalf of the applicant.  (instructed by Barry Fried)

MR J.D. McARDLE, QC:   May it please the Court, I appear for the respondent.  (instructed by Solicitor for Public Prosecutions (Vic))

GLEESON CJ:   Yes, Mr Hardy.

MR HARDY:   In this case the legislation requires a traffic infringement notice to state the name and address of a person to whom the notice of objection is to be sent.  We say that the notice of objection in this case did not state the name and address of the person to whom an objection is to be sent.  The real question is:  is it sufficient for a driver to have to calculate or make assumptions as to where he is to send that notice?

GLEESON CJ:   Mr Hardy, this matter seems to raise a question of the construction of a form of infringement notice that was in common use at one time in Victoria but that is no longer in use, is that right?

MR HARDY:   That is correct.  It appears that since the decision of the Supreme Court of Victoria, the form has been changed to comply with that decision.

GLEESON CJ:   So presumably you are inviting us to intervene in the interests of justice as they apply in the particular case of your client?

MR HARDY:   Not just in the particular case of my client.  This is a question of the rights of citizens generally, although it is, of course, my client in this case who is suffering as a consequence of the Court of Appeal ‑ ‑ ‑

GLEESON CJ:   The Court of Appeal held that on a fair reading of the document, it did make the statement required by the legislation and the regulations.

MR HARDY:   That is what it said and that is obviously in dispute.  The Magistrates Court did not ‑ ‑ ‑

GLEESON CJ:   But if the Court of Appeal is right, as a matter of construction of the document, if it is correct to say that on a fair reading of the document it did state the information required, no question of human rights or the rights of citizens generally arises, does it?

MR HARDY:   If the Court of Appeal is correct, then there is no national interest matter which arises but, in my submission, the Court of Appeal was not correct.  What the Court of Appeal did was make a decision which obliged drivers to do more than is required of them.

McHUGH J:   But to get special leave you have to do more than show error.  Even if you could persuade us that the Court of Appeal were in error, that does not itself entitle you to the grant of special leave to appeal.  There has to be something special about the case.  What is the special element that would enable this case to be taken up out of the hundreds of applications for special leave that are filed in this Court every year?

MR HARDY:   The legislative provisions which are the subject of this application protect the rights of citizens generally and these sorts of infringement notices are issued throughout Australia, not just in Victoria.  They protect the rights of drivers and citizens generally against the powers of the police in the State.  The legislative provisions provide safeguards and protections and they should be interpreted strictly, because these are the only protections and safeguards which the citizens have.  This case is a matter where the rights of citizens throughout Australia are at risk of being over‑trodden by the powers of the police.  The police have an obligation to state very clearly in their infringement notices what the right ‑ ‑ ‑

McHUGH J:   No, the police have an obligation to comply with the law.  The question is whether or not this infringement notice complied with Regulation 603g(ii).  That was the issue.

MR HARDY:   Yes.

McHUGH J:   The magistrate held it did not, Justice Nathan held it did not and the three justices of the Court of Appeal held to the contrary.

MR HARDY:   That is correct.  In doing so, they have made inferences or required the defendant to make inferences which, I submit, he is not required to do so.  If I may make a comparison with a charge, if a defendant has been charged with an offence and the charge was ambiguous or unclear, a defendant might be able to seek further and better particulars of the charge before going to hearing and he would be provided with those further and better particulars, but this is quite different.  Where the infringement notice itself is ambiguous or unclear, the driver does not have ‑ ‑ ‑

McHUGH J:   But it is not ambiguous, is it?  The relevant part of the notice is headed:

WARNING

IF YOU DECIDE TO LODGE A NOTICE OF OBJECTION, IT MUST REACH CIVIC COMPLIANCE VICTORIA WITHIN 28 DAYS –

There is a large boldfaced statement:

DRIVING DURING A PERIOD OF DISQUALIFICATION IS A SERIOUS OFFENCE.

Then on page 1 of the notice, or maybe it is the front of the notice – I do not know from the application book – the address of Civic Compliance Victoria is given.

MR HARDY:   The address on the front of the notice is the address for payment of penalties.  As Mr Justice Nathan pointed out, if a person wishes to object to the penalty or to the offence, then the person may not even read the section about payment of the penalty.  They may simply be concerned about objecting.  The legislation requires the infringement notice to state the address to where you send your notice of objection and that is in addition to or separate to the address to where you pay your penalty.  So there is quite clearly a failure to state the address to where you send your notice of objection.  It is only by making assumptions and inferences that one can assume that the address is the same address as where you send your penalty payments.

McHUGH J:   The front page of the infringement notice tells you that if you send it by mail it goes to a GPO box and if in person you can attend at the ground floor, 120 Spencer Street, Melbourne.  Your only complaint is that in that section of the notice which talks about lodging an objection within 28 days to Civic Compliance Victoria, they have not repeated the address.  Do you seriously say that a person who wanted to lodge a notice of objection would not know where to send it?  Quite apart from the terms of page 1 of the notice, one would imagine it is in the phone book or it could easily be found.  In any event, it is there on page 1 of the notice.

MR HARDY:   It is the legislative requirements which we say have not been satisfied.  The assumptions which a court can make about what a driver might do to find the address, in my submission, is not the answer.  The answer is to look at the legislative requirements and ask, have they been satisfied?  It is the legislative requirements which provide the safeguards.  They state that the notice needs to have the address where you send the objections.  In my submission, it is no answer to say that there are other ways of solving the problem when we know in hindsight that the respondent says that the correct address is the address to where you send payments.

GLEESON CJ:   But the question is, is it not, under the legislation, whether, on a fair reading of the whole document, the document stated the place where you had to send it?

MR HARDY:   That is correct.  There are several other examples of notices provided and those other examples quite clearly show on the reverse an address which is often quite different from the payments address but are addressed to where you send your objections.  It is by no means automatic that an objection be sent to where a penalty payment is sent.  The legislation works very strictly against a driver, so if a driver fails to respond within a 28 day period, he is convicted of an offence and suffers a mandatory penalty, often a mandatory licence loss penalty.  So because the legislation works very strictly against defendants, so too should it work so strictly against the police when it comes to their obligations in notifying the drivers of the information which the legislation says they need to be notified of.

The specialness of this application is that there are some 37,500 infringements issued last year in Victoria which suffered from this defect.  There are, as I said, similar sorts of provisions in other States and there is a potential for this type of ambiguity to reoccur in respect of infringement notices throughout Australia.  It is not an isolated issue.  It is an issue which affects the rights of citizens to be informed of their right to object to infringement notices, no matter what jurisdiction they are in. 

There is no High Court decision in respect of the – the closest decision in respect of the right to provide notice of objection was the British decision of Kent, which the Court of Appeal distinguished.  In my submission, although it is distinguishable, the crux of that decision is quite pertinent, that is, that the general address of a body may not necessarily be the address to where an objection is sent.  So too is the case here, that, although on the front of the notice there is a general address for payment, the notice quite plainly does not state an address to where the objection notice should be sent.

The applicant’s written summary of argument contains statements as to why special leave should be granted.  I will not review those.  There are no other decisions that I wish to take the Court to.

GLEESON CJ:   Thank you, Mr Hardy.

The question in this case was whether a standard form of infringement notice formerly in use but no longer in use complied with the relevant Act and regulations.  The Court of Appeal of the Supreme Court of Victoria held that on a fair reading of the whole of the document it complied.  The question was one of construction of the form.  The reasoning of the Court of Appeal was well open to it. 

The case does not raise an issue suitable to a grant of special leave to appeal and we are not persuaded that the interests of justice require such a grant.  The application is dismissed.

MR McARDLE:   Your Honour, can I seek costs, please.

GLEESON CJ:   Is there anything you want to say about that, Mr Hardy?

MR HARDY:   I have nothing to say about that question.

GLEESON CJ:   Very well.  The application is dismissed with costs.

We will adjourn for a short time to reconstitute.

AT 10.38 AM THE MATTER WAS CONCLUDED