Lyberopoulos v Police No. Scgrg-00-348

LYBEROPOULOS v POLICE
[2000] SASC 412
Application for Judicial Review

DUGGAN J. This is an application for judicial review which arises out of the decision of the Registrar of the Adelaide Magistrates Court to make an enforcement order against the applicant pursuant to the Expiation of Offences Act 1996 (the Act) and the dismissal of an application made to a magistrate to review the order.
Before dealing with the facts of the case, it is convenient to say something about the scheme to provide for expiation of offences pursuant to the Act.
Section 5 of the Act authorises expiation notices to be given in relation to certain alleged offences. Various provisions relating to expiation notices are set out in s 6. Section 6(1)(e) provides that an expiation notice cannot be given after the expiry of the period of 6 months from the date of the alleged offence.
Section 8 enables an alleged offender who receives an expiation notice to elect to be prosecuted for the offence. Apart from an exception which is not relevant to the present case, the election to be prosecuted cannot be made after the making of an enforcement order under s 13 of the Act.
A procedure for the enforcement of expiation notices in cases where the offence remains unexpiated is set out in s 13. The authority which issued the expiation notice can forward to the Registrar a certificate containing certain prescribed particulars. The Registrar can then make an order for enforcement. The order for enforcement is equivalent to an order of the court imposing a fine (s 13(6)(b)). However, the Registrar cannot make an order for enforcement in consequence of receiving a certificate if the time for commencement of a prosecution against the person for the unexpiated offence has expired (s 13(3)(a)). Section 52 of the Summary Procedure Act, 1921 provides that, in the case of an expiable offence:
“(i)if an expiation notice was given to the person - the proceedings must be commenced within 6 months of the expiry of the expiation period specified in the notice (whether or not the notice was subsequently withdrawn);
(ii)if an expiation notice was not given to the person - the proceedings must be commenced within 6 months of the date on which the offence is alleged to have been committed.”
Enforcement orders are not subject to appeal, but may be reviewed by the Magistrates Court (s 14). Section 14 contains the following provisions:
“14. (1)    An enforcement order is not subject to appeal, but the person liable under the order may apply to the Court for a review of the order within 30 days of being given notice of the order.
(2)The Court may entertain an application made out of time if it thinks good reason exists for doing so.
(3)    An application can only be made on the ground that -
(a)     the expiation notice should not have been given to the applicant in the first instance; or
(b)     the procedural requirements of this Act or any other Act were not complied with; or
(c)     the applicant failed to receive a notice required by this Act or any other Act; or
(d)     the applicant has expiated the offence, or offences, under the notice; or
(e)     the amount shown as due under the order has not taken into account the payment of an instalment.
(4)    The Court, after conducting a review of an enforcement order, may-
(a)     confirm the order;
(b)     vary or revoke the order;
(c)     make any ancillary order.”
I return then to the facts of the present case. It is alleged that the applicant, Mr Lyberopoulos, committed a speeding offence on 28 October 1998. At that time, the vehicle involved was registered in the name of a Mr Theofanous. An expiation notice was issued to Mr Theofanous who made a statutory declaration in which he denied being the driver. He nominated Mr Lyberopoulos as the driver.
It is alleged that an expiation notice was issued to Mr Lyberopoulos on 23 November 1998, although he subsequently asserted that he did not receive the notice. The expiation fee was not paid and on 15 February 1999 a certificate for the purposes of enforcement was forwarded to the Registrar of the Magistrates Court by the South Australian Police Department. On 17 February 1999 an enforcement order was made by the Registrar pursuant to s 13 of the Act. Mr Lyberopoulos then applied for a review of the order pursuant to s 14. The grounds put forward on the application for review were that:
(a) the expiation notice should not have been given in the first instance;
(b) the procedural requirements of the Act were not complied with.
The application for review was heard by Mr Newman SM on 29 March 1999 and was dismissed. The enforcement order dated 17 February 1999 was confirmed.
Mr Lyberopoulos then purported to appeal to this court against the decision and order of Mr Newman. The matter came on before Prior J on 27 August 1999. His Honour advised Mr Lyberopoulos that the appeal was incompetent. However, by consent, the notice of appeal was treated as an application for judicial review. The order of Mr Newman was then quashed and the court directed that the application to revoke the enforcement order be re-heard in the Adelaide Magistrates Court.
The reconsideration of the application for review took place before Ms Hayes SM on 10 September 1999 when the enforcement order made on 17 February was revoked. Unfortunately, the Magistrates Court file has been lost and no further details are available as to the basis of the court order.
The next development took place on 28 September 1999 when the applicant was advised by letter from the Registrar that the matter had been referred back to SA Police. The letter went on to say:
“If you fail to act on this matter within 21 days of the date of the court’s order, the expiation notice may be enforced again without further notice being given to you, in which case you will again incur the additional costs and charges that the court has set aside.”
By letter dated 25 October 1999 Mr Lyberopoulos was advised by the SA Police Expiation Branch that the police were not prevented from pursuing the matter and details were given of the amount due under the expiation notice. It was stated that payment was required by 2 November 1999.
On 13 December 1999 another certificate was forwarded by SA Police to the Registrar containing the particulars required by s 13. Then, on 15 December 1999, another enforcement order was made by the Registrar. Mr Lyberopoulos then commenced another application for review pursuant to s 14 of the Act against the enforcement order dated 15 December. The application for review was dismissed and on 20 April 2000 Mr Lyberopoulos issued a summons for judicial review which included an application for an order quashing the enforcement order of the Registrar made on 15 December 1999 and a further order quashing the decision of the learned magistrate which dismissed the most recent application for review.
Mr Lyberopoulos was unrepresented at the hearing before me. The respondent was represented by Ms Hodder. The main issue of contention was whether the Registrar was empowered to make the second enforcement order on 15 December and whether the application for review of that order was rightly dismissed by the learned magistrate.
I have referred to s 13(3)(a) of the Act which prevents an enforcement order from being made if the time for commencement of a prosecution for the offence has expired. There is no dispute in the present case that, as at the date of the making of the second enforcement order on 15 December, the time for the commencement of a prosecution had expired.
If a previous enforcement order had not been made, then it seems clear that the Registrar could not have issued such an order as at 15 December. However, Ms Hodder has suggested that the scheme of the Act would permit the issue of a second enforcement order in the circumstances of the present case, despite the provision in s 13(3)(a) of the Act preventing the Registrar from making an order for enforcement if the time for commencement of a prosecution against the person for the unexpiated offence has expired.
I am unable to accept this contention. Although the Magistrates Court file has been lost, it is not disputed that Ms Hayes revoked the first enforcement order. As I have said, there is nothing in the Act which would allow the time restriction in s 13(3)(a) to be avoided by reason of the fact that a previous enforcement order had been made, but revoked. Ms Hodder has suggested that I should read such an exception into the Act in order to give it efficacy. However, it is my view that the omission cannot be supplemented in this way.
It will be seen that the legislation imposes time limits at two stages of the process. An expiation notice cannot be given after the expiry of the period of six months from the date of the alleged offence. Furthermore, where a certificate has been provided pursuant to s 13(1), the Registrar cannot make an enforcement order if the time for commencement of a prosecution against the person for the unexpiated offence has expired (s 13(3)(a)). No exception from the latter provision is provided for in cases where a previous enforcement order was made but, for some reason, has been revoked.
Ms Hodder submitted that this construction may cause potential difficulties in the operation of the expiation process where applications for review pursuant to s 14 take place. She said that there will be a large number of cases in which the limitation period for issuing an enforcement order has run out by the time the review process has finished. This would prevent a second enforcement order being made in those circumstances where it was appropriate.
Presumably, there will be some cases in which it is appropriate for the enforcement order to be revoked on review and no further enforcement order made. This would seem to be the case where the expiation notice should not have been given in the first instance (s 14(3)(a)) or where the applicant had expiated the offence under the notice (s 14(3)(d)). In some cases where the amount shown as due under the order does not take into account the payment of an instalment (s 13(3)(e)) the appropriate result would be to vary the original order. The powers given to the court on a review by s 14(4) of the Act may render it possible to fashion an order in other cases to preserve the original enforcement order where the issue of a second enforcement order would be out of time.
However this may be, I do not consider it is appropriate to read into the Act words which are not there so as to permit an exception to the limitation period prescribed by the Act to cater for a case such as the present.
I have said that after the second enforcement order was issued on 15 December 1999, Mr Lyberopoulos applied for a review of the enforcement order and that the application for review was dismissed. One of the arguments raised by Mr Lyberopoulos was that the second notice was out of time. The response of the learned magistrate was that the only remedy available to Mr Lyberopoulos in these circumstances was to elect to be prosecuted pursuant to s 8 of the Act. In my view, however, it was necessary for the learned magistrate to consider whether the procedural requirements of the Act had been complied with. This is made a ground for review by s 14(3)(b). For the reasons which I have explained the procedural requirements of the Act were not complied with in that there was no power to issue the second enforcement order because of the limitation period in s 13(3)(a).
A decision of the court made on a review of an enforcement order is not subject to appeal by the person liable under the order (s 14(6)). However, the applicant has applied for judicial review and, for the reasons which I have given, there will be an order in the nature of mandamus quashing the dismissal of the application for review of the enforcement order and directing that the application be re-heard before another magistrate.

[2000] SASC 412

6 December 2000