Lymberopoulos v Police
[2006] SASC 360
•30 November 2006
SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application for Judicial Review)
LYMBEROPOULOS v POLICE
[2006] SASC 360
Judgment of The Honourable Justice White
30 November 2006
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - PROCEDURAL FAIRNESS
Application for judicial review of decisions made by a magistrate on reviews of expiation enforcement orders - self-represented litigant - procedure under Expiation of Offences Act 1996 (SA) - whether there was a denial of procedural fairness - whether applicant entitled to be heard upon oath when issue of credibility involved - whether extension of time should be granted - orders of magistrate quashed - alternative claim for misfeasance in a public office dismissed.
Expiation of Offences Act 1996 (SA) s 5, s 6, s 7, s 8, s 9, s 11, s 13, s 14; Statutes Amendment (Expiation of Offences) Act 2003 (SA); Criminal Law (Sentencing) Act 1988 (SA) s 13; Supreme Court Rules 1987 (SA) r 98.06; Magistrates Court (Civil) Rules 1992 (SA) r 47; Victims of Crime Act 2001 (SA); Statutes Amendment (Attorney-General's Portfolio) Act 2002 (SA), referred to.
R v War Pensions Entitlement Appeal Tribunal, ex parte Bott (1933) 50 CLR 228; Craig v State of South Australia (1995) 184 CLR 163; Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576; Stead v SGIC (1986) 161 CLR 141, applied.
Craig v Workers Compensation Tribunal (2004) 90 SASR 490, distinguished.
Lyberopoulos v Police [2000] SASC 412; Maxwell v Murphy (1957) 96 CLR 261; Kioa v West (1985) 159 CLR 550; Russell v Duke of Norfolk (1949) 1 All ER 109; Mobile Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475; McQuade v Marion City Council (1998) 100 A Crim R 203; Heatley v Tasmanian Racing and Gaming Commission (1977) 137 CLR 487; Chen & Others v Minister for Immigration and Ethnic Affairs (1994) 48 FCR 591; Jeffs v New Zealand Dairy Production & Marketing Board [1967] 1 AC 551; O'Neill v Mann (1994) 49 FCR 370; CanWest Global Communications Corporation v Australian Broadcasting Authority (1997) 71 FCR 485; Lovett v Le Gall (1975) 10 SASR 479; Hall v City of Burnside [2006] SASC 283; Re Minister for Immigration and Multicultural Affairs; ex parte Lam (2003) 214 CLR 1; Waco v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511; R v Commonwealth Court of Conciliation and Arbitration; ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389; Re Refugee Tribunal; ex parte Aala (2000) 204 CLR 82; Cornwall v Rowan (2004) 90 SASR 269; CanWest Global Communications Corporation v Australian Broadcasting Authority (1997) 71 FCR 485, considered.
LYMBEROPOULOS v POLICE
[2006] SASC 360Civil: Application for Judicial Review
WHITE J: This is an application for judicial review of decisions made by a magistrate on reviews of expiation enforcement orders made by the Registrar of the Magistrates Court. The magistrate confirmed each enforcement order.
The principal ground of the application is a claim that the plaintiff was denied procedural fairness at the hearing.
The expiation enforcement orders were made in respect of expiation notices issued to the plaintiff by the first defendant (“the Police”), the fifth defendant (Adelaide City Council) (“ACC”) and the sixth defendant (City of West Torrens) (“WTC”). The Magistrates Court is the third defendant in the action because it is the entity whose orders are impugned. No orders are sought against the Magistrates Court. In accordance with the usual practice, the Magistrates Court appeared in the proceedings and provided the Court with evidence of its records, but indicated that it did not wish to be heard and would abide the decision of the Court.
In addition to judicial review, the plaintiff seeks an award of “nominal damages” in respect of alleged misfeasance in public office by a member or members of the Adelaide Fines Payment Unit, an administrative unit of the fourth defendant (the Courts Administration Authority) (“CAA”). The State of South Australia (“the State”) was also joined as a defendant but no relief which was distinct from that sought against the CAA was sought against it.
The plaintiff has been self-represented throughout these proceedings.
The Statutory Provisions
In order to understand the issues which arise, it is necessary to summarise the statutory scheme for expiation of offences. The following summary borrows very much from the judgment of Duggan J in earlier proceedings to which the present plaintiff was a party, entitled Lyberopoulos v Police.[1]
[1] [2000] SASC 412.
By s 5 of the Expiation of Offences Act 1996 (SA) (“the Expiation Act”), expiation notices may be issued in relation to certain alleged offences and those offences may be expiated in accordance with the Act. By s 6(3), expiation notices may be issued by a member of the police and by any council responsible for the enforcement of a provision which is alleged to have been contravened. The person who issues an expiation notice is referred to as “the issuing authority”. Section 6 also contains a number of stipulations concerning expiation notices: they must be in the prescribed form (s6(1)(b)); they cannot be given if a prosecution has been commenced (s 6(1)(f)); they may be affixed to a vehicle involved in an offence (s 6(1)(j)(iii)); they may be given by post addressed to the alleged offender’s last known place of business or residence (s 6(1)(j)(ii)); and they cannot be given more than six months after the commission of the alleged offence (s 6(1)(e)).
Persons who are given expiation notices have a number of options. They may pay the expiation fee (s 7); they may elect to be prosecuted (s 8); they may seek a review of the notice on the grounds that the alleged offence is trifling (s 8A); and in the case of hardship they may seek relief (s 9). In relation to the election to be prosecuted, s 8 provides:
(1)An alleged offender may, by notice in the prescribed form given personally or by post to the issuing authority, elect to be prosecuted for the offence or any of the offences to which the expiation notice relates.
(2)An election to be prosecuted for an offence cannot be made after—
(a)if the alleged offender is granted an order for relief under section 9—the granting of the order;
(b)in any other case—the making of an enforcement order under section 13 in respect of the offence.
(3)If an election is made under this section, the expiation notice will be taken to have been withdrawn in respect of the offence to which the election relates.
The Expiation Act contains a procedure for the enforcement of expiation notices. A number of steps are involved. In the first instance, the issuing authority must send a reminder notice to the alleged offender (s 11). Since 4 December 2005 the Expiation Act has also required an “expiation enforcement warning notice” to be sent to the alleged offender. That provision has no application in the present case as all relevant events occurred prior to that amendment[2] coming into effect.
[2] Statutes Amendment (Expiation of Offences) Act 2003 (SA).
When an offence has not been expiated (and no other relevant action taken by the person) the issuing authority can forward a certificate containing prescribed particulars to the Registrar of the Magistrates Court (s 13(1)). The Registrar can then (without conducting any hearing) make an order for enforcement (ss 13(2), 13(4)). On the making of the order of enforcement, the alleged offender is taken to have been convicted by the court on that day of the offence to which the order relates (s 13(6)(a)), and the order is to be taken as an order of the Magistrates Court imposing a fine which is enforceable, as a fine, under the Criminal Law (Sentencing) Act 1988 (SA) (s 13(6)(b)). The Registrar cannot make an order for enforcement on receipt of the certificate from the issuing authority if the time for commencement of a prosecution against the alleged offender for the unexpiated offence has expired (Expiation Act, s 13(3)(a)). A person against whom an order of enforcement has been made may appeal against the conviction in the ordinary way, or seek a review by a magistrate of the Registrar’s order, but may not do both (s 14(6), (7) and (8)).
Section 14 as in force at 24 June 2004 provided:
(1) Subject to this section, the person liable under an enforcement 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
(ca) the issuing authority failed to receive—
(i)a notice sent to the authority by the applicant electing to be prosecuted for the offence; or
(ii) a statutory declaration or other document sent to the authority by the applicant in accordance with a notice required by law to accompany the expiation notice or expiation reminder notice; 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.
(5) If the Court revokes an enforcement order, any subsequent order made under Division 3 of Part 9 of the Criminal Law (Sentencing) Act 1988 will be taken to have been revoked.
(5a) Despite any other provision of this Act, if the Court revokes an enforcement order on a ground referred to in subsection (3)(b), (c) or (ca), the following provisions apply:
(a)if the period of 1 year from the date of commission of the alleged offence, or offences, has not expired, the applicant will be taken to have been given an expiation notice by the issuing authority in respect of the alleged offence, or offences, for the first time on the day on which the order was revoked; and
(b)the expiation notice will also be taken to have been issued on that day; and
(c)the expiation period will be taken to be the period of 28 days from (and including) that day; and
(d)a prosecution can be commenced for the alleged offence, or offences, within 6 months of the expiry of that expiation period (despite the fact that the time for the commencement of the prosecution may have already otherwise expired).
(6) 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.
(7) If an enforcement order has been reviewed under this section or an application for such a review has been made and not withdrawn, the person liable under the order may not appeal against the conviction of the offence or offences to which the order relates.
(8) If an appeal against the conviction of the offence or offences to which an enforcement order relates has been determined or such an appeal has been instituted and not withdrawn, the person liable under the order may not apply for a review of the order under this section.
Notices Issued by the Police
In the period between 23 July 2002 and 13 November 2003, the Police issued expiation notices to the plaintiff in respect of 11 traffic offences. The plaintiff did not expiate any of the offences. Orders of enforcement were made by the Registrar of the Magistrates Court on various dates in 2002, 2003 and 2004.
In respect of nine of the 11 offences, the plaintiff has made two separate applications for review pursuant to s 14. I will refer to the first group of applications as “the initial applications for review”. As the initial applications for review had been instituted at different times, they were heard by three different magistrates. The plaintiff was successful in seven of the nine applications, and the enforcement orders to which those seven applications related were revoked. In the other two cases, the orders of enforcement were confirmed.
The grounds of each of the initial applications for review were generally the same. The plaintiff asserted that he had not received the expiation notice in question, that there had not been compliance with procedural requirements of the Expiation Act, and that the Police had not received notices sent to them by which he had elected to be prosecuted for the offences. Statements to the following effect appeared in several of the initial applications for review:
I have by notice in the prescribed form posted to the authority the election to be prosecuted.
and the plaintiff attached to the statutory declaration provided in support of the application for review a copy of the notice of election which he said had been sent to the Police.
In two cases, the plaintiff also asserted that the expiation notice (of which he acknowledged receipt) was issued unlawfully and in other cases he raised complaints about the procedures adopted by the issuing authority.
Each of the orders of revocation made on the initial applications for review was made within one year of the date of the commission of the alleged offence. Accordingly, on the revocation of the order of enforcement, the applicant was taken (other than in two cases which I will mention shortly) to have been given for the first time, on the day of revocation, an expiation notice by the Police in respect of the offence alleged (s14(5a)(a)). In addition, the expiation notice was taken to have been issued that day (s 14(5a)(b)). However, in two cases (expiation notices DO379387 and DO379390) the magistrate who heard the review made an order pursuant to s 14(4)(c) of the Expiation Act deeming the issuing authority to have received, on the day of the order, notice from the plaintiff pursuant to s 8 electing to be prosecuted. The validity of those orders, bearing in mind the terms of s 8(1) of the Expiation Act, was not questioned in this case. I will proceed on the basis that those orders were valid. The effect of the magistrate’s order in these two cases was that the expiation notice was taken to have been withdrawn (Expiation Act, s8(3)), and the enforcement procedure contained in s 13 could not be invoked by the issuing authority. However, this appears to have been overlooked by the Police and, I suspect, by the plaintiff himself.
The expiation process then started again in relation to all seven expiation notices on which the plaintiff had been successful. The Police issued reminder notices to the plaintiff in respect of each of these seven expiation notices and, after the time for payment had expired, forwarded to the Magistrates Court Registrar seven certificates pursuant to s 13(1). This process should not have been invoked in respect of the two offences in which the Police were deemed, by the magistrate’s order, to have received elections to be prosecuted. The Registrar then issued (on 24 December 2003 in five cases and on 10 March 2004 in two cases) orders of enforcement in respect of each notice. In addition, the Registrar issued a further two orders of enforcement in respect of offences which had been notified to him by the Police, for the first time.
On 10 May 2004, the plaintiff filed 11 applications for review. I will call this group of applications the “second applications for review”. It is not clear on the evidence before me whether those applications were instituted within the time fixed by s 14(1) for the institution of such applications. Seven of the second applications for review related to the seven notices in respect of which the plaintiff had previously had enforcement orders revoked. Two related to the “new” enforcement orders. In addition, the plaintiff filed applications for review in respect of the two orders for enforcement which had previously been confirmed on review (relating to Expiation Notices J1857206 and J1857237). This was irregular. Section 14 does not contemplate that an application for review may be renewed in a further application if the first was unsuccessful. In any event, these two applications were issued well outside the 30 day limitation period fixed by s 14(1). However, that appears to have been overlooked by the Magistrates Court. The grounds of each application for review were in effect the same. The plaintiff said that he had not received the expiation notice in sufficient time to pay it and that the issuing authority had not received an election to be prosecuted which he had posted to it. However, in one case (Expiation Notice No DO379390) the plaintiff complained in addition that there was no basis on which the expiation notice could have been issued.
It is the determination of these applications in the Magistrates Court on 24 June 2004 which has given rise to these proceedings. Before discussing those determinations, it is convenient to turn to the expiation notices issued by the ACC and the WTC.
Notices Issued by ACC
In the period between 14 June 2002 and 6 March 2003 the ACC alleged that the plaintiff committed three parking infringements. It issued expiation notices to the plaintiff under the Expiation Act in relation to each of these alleged infringements. When these infringements were not expiated, it obtained orders of enforcement from the Magistrates Court. The plaintiff applied for a review of those orders. Some of the Magistrates Court files relating to those applications for review are no longer available, but it seems that the principal complaint of the plaintiff in those applications was that he had not received the expiation notices, and further, that the ACC had not received his elections to be prosecuted.
Each of the plaintiff’s applications was successful and the orders for enforcement were revoked. I am satisfied that at the time of each revocation, the period of 12 months from the time of the commission of the alleged infringements had not elapsed. Accordingly, I am satisfied that the plaintiff was then taken, pursuant to s 14(5a) to have been given on that day a fresh expiation notice.
The procedure then started again. In addition the ACC issued a further four expiation notices in relation to offences alleged to have been committed within the period from 5 July 2003 to 12 September 2003. In due course enforcement orders were made by the Magistrates Court in relation to all seven expiation notices. On 10 May 2004 the plaintiff lodged applications for review of those enforcement orders. Those applications were also determined on 24 June 2004.
Notices Issued by WTC
WTC alleged that the plaintiff committed a parking infringement on 16 June 2003. It issued an expiation notice in respect of that infringement. When the offence was not expiated, WTC followed the procedure under the Expiation Act which has already been outlined. The Registrar of the Magistrates Court issued an order for enforcement on 8 May 2003. On 1 September 2003 the plaintiff applied to the Magistrates Court to have the order revoked and was successful.
The process started again. After following the requisite procedural steps WTC provided a certificate pursuant to s 13(1) to the Registrar of the Magistrates Court on 22 March 2004. An order of enforcement was made on 25 March 2004. On 10 May 2004 the plaintiff applied for a review of that order. The grounds of his application were similar to those relied upon in relation to his other review applications. That application too was determined by the magistrate on 24 June 2004.
The Events of 24 June 2004
The 19 applications for review were listed for hearing on 24 May 2004. In view of the large number of elections to be prosecuted which the plaintiff alleged had not been received by the issuing authorities, Mr Newman SM said he was not prepared to deal with the applications without hearing oral evidence. He adjourned the applications to 24 June 2006 for that purpose.
On 24 June 2004 each application was determined by the one magistrate (not Mr Newman SM) and by the one decision. The plaintiff and Senior Sergeant Marsh from the SA Police were present. Neither the ACC nor the WTC was represented. Each of the plaintiff’s applications for review was refused and each of the orders of enforcement was confirmed.
No transcript of the proceedings was made. It has to be said that the formal records of outcome are sparse. The Magistrates Court records do not include the name of the magistrate, nor the presence, let alone the identities, of those who attended before the magistrate. There is no record of how the matter proceeded, nor of the information which the magistrate received and relied upon. In most cases the decision on the application was indicated by the circling of one of five alternatives on a pro forma document. That alternative reads: “Application refused, order of enforcement confirmed”. No record of the reasons for the refusal was made. It can be inferred from the fact that the following words were not crossed out on that pro forma that the magistrate made the following direction: “Registrar to send letters of confirmation to the applicant and the issuing authority”.
The letters sent in accordance with the magistrate’s directions also have shortcomings. They record that there was no appearance of the plaintiff at the hearing (when he had been present); and in some cases they refer to the presiding magistrate using the female gender (when it was a male magistrate). As to the fate of the applications, the letters state “[h]aving regard to the contents of the application Her Honour does not find any proper basis to grant the application”. No greater specificity is given.
The evidence as to what occurred on 24 June 2004 came from Sgt Marsh and the plaintiff. The evidence-in-chief of each was adduced by way of affidavit. The plaintiff was cross-examined but Sgt Marsh was not required for cross-examination. Unfortunately, the affidavit material from Sgt Marsh was, for the most part, expressed in summary form or as a conclusion, rather than deposing to the underlying facts from which a conclusion could be drawn. In some respects there is little difference between the plaintiff’s account and that of Sg Marsh. Although my assessment of the plaintiff’s evidence is that there is good reason for caution before accepting it, I am satisfied that the following course of events occurred before the magistrate.
All of the 19 applications for review filed on 10 May 2004 were called on at the one time. The plaintiff addressed the magistrate from the bar table, telling him that he had provided elections to be prosecuted to the three issuing authorities. Sgt Marsh also spoke from the bar table, telling the magistrate that the Police had not received any such election, and that they had not had any other contact from the plaintiff. The magistrate then said something to the effect that it was quite implausible that 19 separate notices of election to be prosecuted had not been received, especially as three different issuing authorities were involved. The plaintiff claimed that he had with him evidence of one election having been received the Police and turned to locate it. However, without permitting or requiring the plaintiff to give evidence on his oath of his assertion, or to produce the written evidence which he claimed to have with him, the magistrate announced his decision refusing each of the applications. Further, the plaintiff was not permitted to complete his submissions and, in particular, to address the additional grounds contained in the applications for review.
The Institution of the Proceedings
On 24 December 2004, the plaintiff filed in this Court an application for leave to serve a summons for judicial review and an application for waiver of the filing fee. Although the application for judicial review was annexed to that summons, that application was not itself filed until 23 February 2005. This was outside the six month period fixed by r 98.06 of the Supreme Court Rules 1987 (SA) for the filing of such applications. The defendants contend that the plaintiff’s application is out of time and that an extension of time is required. They oppose the grant of any extension of time.
The Nature of these Proceedings
I have already indicated that apart from the claim for nominal damages in respect of the alleged misfeasance, these are judicial review proceedings. They are not an appeal. The plaintiff does not have a right of appeal from the decisions on review by the magistrate (Expiation Act, s 14(6)).
The plaintiff’s original summons indicated that he sought orders in the nature of certiorari quashing the orders of the magistrate made on 24 June 2004 and quashing the enforcement orders issued by the Registrar. His amended summons and statement of claim indicate that he seeks orders in the nature of mandamus. An order in the nature of mandamus is available to compel a person who is subject to a public duty to perform that duty. The following passage in R v War Pensions Entitlement Appeal Tribunal; ex parte Bott indicates the nature of the remedy:
A writ of mandamus does not issue except to command the fulfilment of some duty of a public nature which remains unperformed. If the person under the duty professes to perform it, but what he actually does amounts in law to no performance because he has misconceived his duty or, in the course of attempting to discharge it, has failed to comply with some requirement essential to its valid or effectual performance, he may be commanded by the writ to execute his function according to law de novo, at any rate if a sufficient demand or request to do so has been made upon him. …[3]
An order in the nature of certiorari on the other hand has the effect of quashing an impugned decision. The following passage from Craig v State of South Australia describes the remedy:
Where available, certiorari is a process by which a superior court, in the exercise of original jurisdiction, supervises the acts of an inferior court or other tribunal. It is not an appellate procedure enabling either a general review of the order or decision of the inferior court or tribunal or a substitution of the order or decision which the superior court thinks should have been made. Where the writ runs, it merely enables the quashing of the impugned order or decision upon one or more of a number of distinct established grounds, most importantly jurisdictional error, failure to observe some applicable requirement of procedural fairness, fraud and “error of law on the face of the record”. …[4] [Citations omitted]
[3] (1933) 50 CLR 228 at 242 per Rich, Dixon and McTiernan JJ.
[4] (1995) 184 CLR 163 at 175-6 per the Court.
Mr Wait, who appeared for the Police, the State and the CAA, submitted that this Court could only make an order quashing the orders of the Magistrates Court if the denial of procedural fairness (assuming it was established) could be characterised as jurisdictional error. He relied upon Craig v Workers Compensation Tribunal[5] I do not accept this submission. First, the passage from Craig v State of South Australia quoted above makes it plain that a denial of procedural fairness is a distinct ground for the grant of an order of certiorari. Secondly, in Craig v Workers Compensation Tribunal it was necessary for the court to consider whether a denial of procedural fairness amounted to “an excess or want of jurisdiction” because of the presence of a privative clause which prohibited it from interfering on any other ground.[6]That consideration is inapplicable in this case.
[5] [2004] SASC 410; (2004) 90 SASR 490.
[6] Ibid at [57], [81], [83]; 499, 504.
In the present case, if the plaintiff was otherwise found to be entitled to relief, he would need an order quashing the decisions of the magistrate on 24 June 2004, and possibly an order directing the Magistrates Court to hear afresh his application for review of the orders for enforcement. I have said possibly, because it is by no means clear that if the original decisions were set aside that the Magistrates Court would refuse to hear them afresh.
The Issues
Against that background, the present application for judicial review gives rise to the following issues:
1.Was there a denial of procedural fairness to the plaintiff in the conduct of the hearing before the magistrate on 24 June 2004?
2.Further, or in the alternative, are the magistrate’s orders affected by jurisdictional error?
3.Did the plaintiff institute his claim for judicial review within the period of six months fixed by Rule 98.06, and, if not, should the plaintiff be granted an extension of time?
4.Even if otherwise entitled to judicial review should relief be denied to the plaintiff on discretionary grounds?
The claim of alleged misfeasance will be considered separately.
The Form of s 14 to be Applied
Section 14 has been in the form which I have quoted above since 18 December 2003. The first of the offences and infringements alleged against the plaintiff occurred on 23 July 2002, and the last on 13 November 2003. The Expiation Act was amended twice during that period[7] and again on 18 December 2003.[8] There is therefore a question as to the form of s 14 which was applicable to the determination of the applications for review by the magistrate. Mr Wait submitted that it was s 14 as in force at the date of the enforcement orders issued in 2004 and as at 24 June 2004 which was applicable. He submitted that the amendments to s 14 which came into effect in 2003 were procedural in nature, and did not involve an alteration of the plaintiff’s substantive rights and entitlements. The presumption against retrospective operation of amending legislation[9] did not therefore have to be invoked. Without engaging in these reasons in a detailed examination of the amendments, I indicate my agreement with that submission. I have therefore treated s 14 in the form quoted above as applicable to the determination of the applications for judicial review.
[7]Victims of Crime Act 2001 (SA) and the Statutes Amendment (Attorney-General’s Portfolio) Act 2002 (SA).
[8] Statutes Amendment (Expiation of Offences) Act 2003 (SA).
[9] Maxwell v Murphy (1957) 96 CLR 261.
Denial of Procedural Fairness
As already seen, s 14 of the Expiation Act provides for review by the Magistrates Court of enforcement orders made by the Registrar. After conducting this review, the Magistrates Court may confirm, vary or revoke the order, or make an ancillary order (s 14(4)). With the possible exception of s 14(3)(a), s 14 provides essentially for review on procedural grounds only (s 14(3)). Relevant grounds for review include non-compliance with the procedural requirements of the Expiation Act, and non-receipt by either the alleged offender or the issuing authority of a notice under the Act.
It is clear enough that the Magistrates Court is required to provide procedural fairness in the conduct of a review. The fact that the review is conducted by a court,[10] the subject matter of the review (an enforcement order which has the effect of a conviction for an offence), the effect of its determination on the parties and in particular on the applicant for the review, and the fact that the application for review is an alternative to the exercise of a right of appeal all indicate that that is so.
[10]Cf Craig v Workers Compensation Tribunal [2004] SASC 410 at [45]; (2004) 90 SASR 490 at 497.
However, as observed by Mason J in Kioa v West,[11] it is the content of the requirement of procedural fairness, rather than whether it applies at all, which is the question in most proceedings.[12] The content of the obligation to provide procedural fairness varies according to the circumstances of each case.[13] It is a flexible requirement, determined by a consideration of what is fair in the individual circumstances of each case.[14]
[11] (1985) 159 CLR 550.
[12] Ibid at 585.
[13]See, for example, Russell v Duke of Norfolk (1949) 1 All ER 109 at 118 per Tucker LJ; Mobile Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475 at 504 per Kitto J.
[14] Kioa v West (1985) 159 CLR 550 at 585 per Mason J.
One fundamental principle of procedural fairness is that an applicant should have an opportunity to present his or her case:
It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard.[15]
[15]Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 590 per the Court.
Mr Wait submitted, however, that the content of the obligation to provide procedural fairness required by s 14 was minimal. It was submitted that the process envisaged by s 14 of the Expiation Act is intended to be fast, efficient and final and that this was inconsistent with a high standard of procedural fairness being required. Reference was made to the requirement for the review to be brought within 30 days of notice of the enforcement order, the limited grounds upon which the application for review could be presented, and the fact that the decision made on review is not subject to appeal. Reference was also made to a passage in the judgment of Nyland J in McQuade v Marion City Council:
It would seem clear that the intention of Parliament, in enacting these provisions [s 13], was to provide a system for the expeditious collection of monetary penalties arising with respect to minor offences, such as routine traffic offences.[16]
Mr Wait contrasted the procedures under the Expiation Act with the alternative available to the recipient of an expiation notice. Such a person could elect to be prosecuted in which event the full panoply of procedural rights which attach to a criminal trial would be applicable.
[16] (1998) 100 A Crim R 203 at 206.
I am unable to accept this submission. In the first place, the exercise of the right of review under s 14 is not an alternative to a criminal prosecution. It is a system of review, by a court, of orders made in the alternative system of collecting monetary penalties. But more fundamentally, the review involves a decision by a magistrate whether to revoke, vary or confirm an order which has the effect of a conviction for an offence. That very subject matter, and the fact that it is the Magistrates Court which is vested with the jurisdiction to deal with it, suggests that the applicable rules of procedural fairness do not have a minimal content.
There remains the issue, however, of whether procedural fairness entitled the plaintiff to be heard on his oath before a decision disbelieving him was made. The truthfulness of the plaintiff when he said that he had not received the expiation notices and that 19 notices of election to be prosecuted had been sent or delivered by him was in issue. In my opinion, that being the issue, the magistrate should have given the plaintiff an opportunity to give evidence on his oath before making a decision to disbelieve him. Although an oral hearing is not always required,[17] such a hearing is generally required when the credibility of a claimant, in a forensic context, is in issue. In Chen & Others v Ministers for Immigration & Ethnic Affairs[18] the question was whether applicants for refugee status who sought departmental review of an adverse decision were always entitled to an oral hearing. The Full Federal Court held:
[T]he rules of natural justice do not mandate an oral interview by the decision-maker with every applicant for refugee status, although in particular cases, for example where a real issue of credibility is involved or it is otherwise apparent that an applicant is disadvantaged by being limited to submissions or responses to the decision-maker in writing, it may be that observance of the fundamental requirements of natural justice can only be satisfied by a determination made upon an oral hearing.[19] [Emphasis added]
[17]Heatley v Tasmanian Racing and Gaming Commission (1977) 137 CLR 487 at 516 per Aickin J; Chen & Others v Minister for Immigration & Ethnic Affairs (1994) 48 FCR 591 at 599-602.
[18] (1994) 48 FCR 591.
[19]Ibid at 602. See also Jeffs v New Zealand Dairy Production & Marketing Board [1967] 1 AC 551 at 568 per Viscount Dilhorne; O’Neill v Mann (1994) 49 FCR 370 at 381 per Heerey J.
Jeffs v New Zealand Dairy Production and Marketing Board[20] is authority for the proposition that there may be some circumstances in which will be a denial of natural justice for a decision-maker to rely on evidence taken before a delegate without personally seeing the witness and assessing the witness’ evidence itself. See also the decision of Hill J in CanWest Global Communications Corporation v Australian Broadcasting Authority.[21] The significance of an opportunity to give evidence on oath lies in the importance which the courts have customarily attached to the observation of a witness while giving evidence in the assessment of his or her credibility and reliability.
[20] (1967) AC 551 at 568.
[21] (1997) 71 FCR 485 at 513-14 per Hill J.
In the circumstances of the present case, the magistrate’s refusal of the plaintiff’s applications appears to have been peremptory. It is understandable that the magistrate may have thought that there was a significant issue about the plaintiff’s credibility. However, having identified that as the issue, the magistrate should not have resolved it adversely to the plaintiff without giving him the opportunity to give evidence on oath in support of his claim. Further still, the plaintiff’s claim that the issuing authorities had not received notices of election to be prosecuted was not the only ground upon which his applications for review were made. The magistrate does not appear to have given the plaintiff any opportunity at all to develop those claims.
This conclusion is not to be taken as an indication that an oral hearing is required on every application for review. The procedures contemplated by rr 47.09-47.13 of the Magistrates Court (Civil) Rules 1992 (SA) seem appropriate. Those rules establish, in effect, a procedure by which applications for review which are contentious may be identified and set down for a hearing in a conventional way. It was in fact that procedure which was implemented by Mr Newman SM on 24 May 2004. The opportunity for an oral hearing and an opportunity to give oral evidence may be particularly important in the determination of those reviews which have been identified as contentious.
I am satisfied that the plaintiff was denied procedural fairness in a relevant way at the hearing on 24 June 2004.
Jurisdictional Error
I am also satisfied that the determination by the magistrate of two applications involved an error of jurisdiction. As previously noted, the plaintiff failed on two of his initial applications for review (those involving expiation notices J1857206 and J1857237 respectively). The enforcement orders relating to those two expiation notices had already been confirmed. The Magistrates Court does not have jurisdiction to embark upon a second review of an enforcement order which has already been confirmed. The Expiation Act does not contain any provision permitting that to occur.
In purporting to confirm the enforcement orders in relation to those two expiation notices, the magistrate exceeded the jurisdiction of the Magistrates Court. Although the plaintiff did not seek judicial review of those orders on that ground, it is appropriate for the error, having now been identified, to be corrected.
An Extension of Time for the Institution of the Proceedings
As previously noted, the plaintiff’s application for judicial review was not filed until 23 February 2005, just on eight months after the order of the magistrate. This was outside the six month period fixed by r 98.06. Accordingly, the plaintiff needs an extension of time. His summons does not contain any application for an extension. At the hearing, the plaintiff asserted that his proceedings were not out of time and that, to the extent that any extension may be required, it had already been granted by a master of the court. I reject each of those contentions. As already noted, the application filed by the plaintiff on 24 December 2004 was not the application for judicial review itself. Furthermore, I do not consider that the plaintiff can have been confused about that. Although self-represented, the plaintiff is well-experienced with applications for judicial review. The present application is at least the fourth such application instituted by the plaintiff in this Court.
However, I do consider it to be relevant that the plaintiff did, albeit on the last day of the limitation period, file a proceeding in this Court in relation to his application for judicial review. As the matter was fully argued by the parties at the hearing, I am prepared to proceed as though the plaintiff had made an oral application for an extension of time. This means that I should have regard to the length of the delay in instituting the proceedings, the reasons for the delay, the prejudice to the parties if an extension is, or is not granted, and the plaintiff’s conduct in the litigation.[22]
[22] Lovett v Le Gall (1975) 10 SASR 479 at 494.
One of the reasons for the plaintiff’s failure to institute proceedings within time was his absence from Australia in Greece in the period from 22 September 2004 to 28 November 2004. The plaintiff said that he had gone to Greece in consequence of his grandson having sustained multiple serious injuries in Greece and so as to support his family. Further, on his return to Australia, he had been unable to give immediate attention to the present matter because of his “confused state of mind”. However, this leaves the period between 24 June 2004 and 22 September 2004. The plaintiff acknowledged that he had formed the intention to institute judicial review proceedings immediately after the orders of the magistrate, that he was aware of the means by which such proceedings should be instituted, and that he knew of a six month time limit. He said that he did not take action in the period between 24 June 2004 and 22 September 2004 because he thought that he had plenty of time in which to institute the proceedings and because he was collecting papers necessary for the application. I do not regard the second aspect of that explanation as being reliable.
The defendants submitted that an extension of time should be refused to the plaintiff because of the lack of satisfactory explanation and because of the plaintiff’s conduct in these proceedings. The defendants referred in particular to the plaintiff’s non-compliance with orders of the court. This matter was first listed for hearing on 19 June 2006. It did not proceed on that day because of a message received that morning from the plaintiff indicating that he was ill and was unable to attend. The matter was then adjourned to 27 July 2006 for hearing. Shortly before that hearing date, the plaintiff supplied, for the first time, a written outline of argument which identified for the first time his reliance on the orders made by a magistrate in two matters deeming the Police to have received a notice of election to be prosecuted. That led the defendants to seek an adjournment in order that the matter could be further investigated. The matter was then listed for hearing on 3 October 2006. The plaintiff did not attend on that occasion nor on the following day. Again, he said that he was too ill to attend. I directed the plaintiff to provide both a medical certificate and a medical report relating to the illness. The plaintiff has done neither. His explanation is that there is no point in him doing so because he had not seen any doctor in relation to that illness. I have considerable reservations about the plaintiff’s evidence on this topic.
The six month limitation period is important. That importance was emphasised by the Chief Justice in Hall v City of Burnside.[23] The Chief Justice drew attention to the fact that quite apart from the six month time limit, SCR 98.06 requires proceedings to be brought as “promptly as possible”.[24]
[23] [2006] SASC 283 at [46]-[50].
[24] Ibid at [50].
I have regarded the plaintiff’s application for an extension of time as being marginal. However, in the end, I have decided that it is appropriate to grant the extension. Two considerations in particular have led me to that conclusion. The first is that the plaintiff was denied procedural fairness in a significant way in his attempt to have reviewed orders which had the effect of convictions for offences. The second is the absence of any discernible prejudice to the defendants. I will grant the plaintiff an extension of time to 23 February 2005 for the institution of the proceedings.
Discretionary Matters
The defendants submitted that, even if otherwise entitled to judicial review, no order quashing the orders of the magistrate should be made because it would be futile to do so. It was submitted that the plaintiff’s claim that he had posted or delivered 19 separate notices of election to be prosecuted, which had not been received by their addressees, was so implausible that it was not reasonable to suppose that it would be accepted. In short, it was submitted that this Court could determine with some confidence that the outcome of any further hearing of the applications for judicial review would be the same.
Mr Wait accepted that the plaintiff was not required to establish that had he been given an opportunity to give evidence and make further submissions the result is likely to have been different. Rather, the plaintiff had to show, he submitted, that oral evidence, or further submissions, were capable of affecting the decision. Reference was made in this respect to passages in the judgment of Gleeson CJ in Re Minister for Immigration and Multicultural Affairs; ex parte Lam[25] and to Waco v Minister for Immigration and Multicultural and Indigenous Affairs.[26] Reference was also made to R v Commonwealth Court of Conciliation and Arbitration; ex parte Ozone Theatres (Aust) Ltd in which it was said:
[T]he writ may not be granted if a more convenient and satisfactory remedy exists, if no useful result could ensue, if the party has been guilty of unwarrantable delay or if there has been bad faith on the part of the applicants, either in the transaction out of which the duty to be enforced arises or towards the court to which the application is made.[27]
[25] [2003] HCA 6 at [34]-[38]; (2003) 214 CLR 1 at 13-14.
[26] [2003] FCAFC 171 at [58]; (2003) 131 FCR 511 at 525 per Lee, Hill and Carr JJ.
[27](1949) 78 CLR 389 at 400; cited with approval in Re Refugee Tribunal; ex parte Aala [2006] HCA 57 at [55]; (2000) 204 CLR 82 at 108.
While there is some force in the submission, I do not consider that it should be accepted. Although it is not every denial of procedural fairness which will result in an order being quashed, cases in which a party has been denied an opportunity to present evidence or submissions on an issue of fact do stand in a special category. In Stead v SGIC[28] it was said:
[N]ot every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial. By way of illustration, if all that happened at a trial was that a party was denied the opportunity of making submissions on a question of law, when, in the opinion of the appellate court, the question of law must clearly be answered unfavourably to the aggrieved party, it would be futile to order a new trial.
Where, however, the denial of natural justice affects the entitlement of a party to make submissions on an issue of fact, especially when the issue is whether the evidence of a particular witness should be accepted, it is more difficult for a court of appeal to conclude that compliance with the requirements of natural justice could have made no difference.[29]
[28] (1986) 161 CLR 141.
[29] Ibid at 145.
As the principal issue raised by the plaintiff before the magistrate involved a question of fact, I approach the matter on the basis that I must be satisfied that the oral evidence from the plaintiff, or submissions by him, could have made no difference to the outcome.
Approaching the matter in that way, I consider that the defendants’ submission should be rejected. In the first place, as is now known, the magistrate’s order on two of the initial applications for review (which in these proceedings have been assumed to be valid) had the effect of deeming the Police to have received a notice of election to be prosecuted in those cases. At least in those two cases, the plaintiff’s claim would not have depended at all on the magistrate’s assessment of the plaintiff’s reliability as a witness.
Secondly, the plaintiff did produce evidence at the hearing before the magistrate indicating that at least one election to be prosecuted had been sent to the Police. A letter from the Police dated 20 May 2003 indicated that the Police had received a notice dated 8 November 2002 in relation to expiation notice No Z 863808-0. The Police had not processed this notice as an election to be prosecuted because it had not been completed in full. Although this election to be prosecuted had been sent prior to the initial applications for review and therefore was not an election in relation to the expiation notices being considered by the magistrate on 24 June 2004, it did provide some independent support for the plaintiff’s claim that elections had been sent.
Thirdly, as has already been noted, the plaintiff’s applications for review were not based solely upon his claim that the issuing authorities had not received his notices of election to be prosecuted.
In all these circumstances, I am not prepared to hold that further evidence or submissions by the plaintiff could not possibly lead to a different outcome. Accordingly I propose to make orders on the application for judicial review.
Misfeasance in a Public Office
The plaintiff’s summons indicates that he seeks “nominal damages” in respect of an alleged misfeasance in public office by members of the CAA. The conduct of which the plaintiff complains is action taken by the Fines Payment Unit of the CAA after 24 June 2004 to enforce the orders of the magistrate. It is not necessary to detail that conduct in any detail.
It is plain that the claim of misfeasance should be dismissed. In the first place, the plaintiff does not allege any damage at all. He admitted, on the trial, that he had been no more than “bothered” by the action taken by the CAA.
The tort of misfeasance in a public office comprises an invalid or unauthorised act done maliciously by a public officer in the purported discharge of his or her public duties which causes loss or harm to the plaintiff.[30] The actions of the Fines Payment Unit were neither invalid nor unlawful, there is no evidence that they were done maliciously, and, as already noted, there has been no harm or loss of the requisite kind caused to the plaintiff. Accordingly, this claim of the plaintiff is dismissed.
[30] Cornwall v Rowan [2004] SASC 384 at [209]-[216]; (2004) 90 SASR 269 at 323-5.
Conclusion and Orders
For the reasons given above, I am satisfied that the plaintiff succeeds on the application for judicial review. I will make the orders quashing each of the orders of the magistrate made on 24 June 2004 and directing that the Magistrates Court (constituted by a different magistrate) hear and determine 17 of the 19 applications for review lodged by the plaintiff on 10 May 2004. I will not make orders requiring the Magistrates Court to hear afresh the two applications relating to expiation notices J1857206 and J1857237 as the Magistrates Court does not have jurisdiction to hear and determine those applications. If they were remitted, the Magistrates Court would have to dismiss them on the ground that it lacked the jurisdiction to hear and determine them.
I will hear the parties as to costs.
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