McQuade v Marion City Council No. Scgrg-97-1645 Judgment No. S6571
[1998] SASC 6571
•5 March 1998
McQUADE v MARION CITY COUNCIL
Magistrates Appeal
Nyland J
This is an appeal against conviction. The appellant was charged with a total of six counts of being the owner of a dog found wandering at large, contrary to the provisions of s43(1)(i) of the Dog and Cat Management Act 1995. He was issued with expiation notices relating to each of those offences. Each notice advised that the offence was expiable by payment of a fee. The expiation fees were not paid. In due course the appellant received a "Notice of order of enforcement" with respect to each of the offences.
The notice is that prescribed by Form 50 of the Magistrates Court Rules. Five of those notices recorded that the order for enforcement was made on 1 August 1997, the sixth on 9 September 1997. A copy of one of the August notices is annexed hereto and marked ‘A’. An unusual aspect of the notice is that it records that the order was made on 1 August 1997 but states that payment is due by the same date. There is a further statement "Time allowed to pay : 14 days". It also states that if the total is not paid by the due date there will be a warrant of imprisonment. The payment advice attached to the form prescribes the last day to pay as being 1 August 1997. I was told, however, that the appellant did not receive any of the notices until well after the relevant date and it appeared to be common ground that in the normal course, notices were not sent out to offenders for approximately one month. Regardless of the merits of this appeal I consider the current procedure to be unsatisfactory. The consequences of non-payment are serious. A person receiving such a notice should be notified promptly of orders made against him/her, with sufficient time allowed after service for payment to be made with precise instructions as to rights or obligations arising thereunder as well as the consequences flowing from a failure to comply.
I return, however, to the issues arising in this appeal. In the body of the document the following statement appears:
"This is to advise an expiation notice that you have failed to pay has been enforced pursuant to the provisions of section 13 of the Expiation of Offences Act. Details of the notice appear above. The order of enforcement made on this matter equates to a conviction by the court and the amount owing is now enforceable as a penalty of the court."
The appellant in his notice of appeal sought to appeal against all of the convictions recorded by the Registrar. He said that the convictions and consequential penalties were imposed ex parte without notice to him, pursuant to the provisions of the Expiation of Offences Act 1996 (the Act). He submitted that the imposition of each of the convictions and the consequential penalties were in each case beyond the lawful authority of the Registrar of the Magistrates Court of South Australia. and therefore could not stand. He also complained that the procedures set out in s13 had not been complied with as sub-section 6(c) thereof required the Registrar to cause a copy of the order to be given personally or by post to the alleged offender. The appellant maintained that this had not occurred.
Prior to lodging his notice of appeal, the appellant applied to the Magistrates Court for a review of the enforcement orders. As I understand the matter, the grounds relied on by the appellant with respect to the application for review were the same as the grounds argued in support of this appeal.
The magistrate gave an ex tempore ruling with respect to the application for review. He declined to stay the operation of the order save for the period during which the appeal was pending. In his ruling, the magistrate discussed the procedure and referred to the appellant’s argument relating to the failure to effect service of the order upon him. He said:
"The order, of course, is generated, as I understand the situation, initially on the computer within the Court system and then the form no.50 is generated from that information and sent out to the recipient as was the case here. I reject the submission that the registrar has failed to comply with the provisions of sub-s(c) in sending out form no.50. I think that is a copy of the order generated from the information which the registrar has within the court system as a result of having received the details of the expiation notice from the issuing authority. If I am wrong about that, then there is still a question of the exercise of discretion and in my view there being no doubt that Mr McQuade is the proper defendant in all of these matters and there being no doubt that he has failed to respond to the opportunities given to him to take up the substantive defence which he says he now has, I would not in the exercise of discretion, set aside or ratify the order which was made by Mr Swain staying the enforcement order pending the determination of this legal argument. I think that the policy of the Act is clear. I think that the machinery provided by the Act has been complied with in this case and that the enforcement order should not be stayed. I therefore decline to stay it."
The respondent, on the hearing of this appeal, submitted that the appellant was in substance seeking to appeal the outcome of the applications for review of the enforcement orders and that was expressly prohibited by s14(6) of the Act. Accordingly, the appeal should be dismissed. The respondent also submitted that the appeal must fail because there had been no evidence adduced by the appellant, either at first instance before the magistrate, or on appeal, in support of the contentions contained in the notice of appeal.
The Expiation of Offences Act 1996 came into operation on 2 May 1996. The headnote describes it as an Act to provide for the expiation of minor offences. Section 5 of the Act refers to certain offences which may be expiated and s6 sets out the form and content of the notice. Section 7 covers the payment of an expiation payment by use of credit card or debit card. Section 8 relates to the circumstances in which an alleged offender may elect to be prosecuted. Section 9 allows a person who has given an expiation notice to apply to a Registrar for relief on the basis of hardship. Sections 10, 11 and 12 deal with procedural matters such as review of cancellation of order for relief, reminder notices and late payment.
Section 13 is the section which is of particular relevance to this matter in that it sets out the enforcement procedures. It states:
An expiation notice may be enforced against the alleged offender by the issuing authority by sending to the Court a certificate that contains the prescribed particulars relating to -
(a) the alleged offender; and
(b) the offence or offences that remain unexpiated; and
(c) the amount payable under the notice; and
(d) compliance by the authority with the requirements of this Act and any other Act.
Subject to subsection (3), a Registrar may make an order against a person for enforcement of an expiation notice if the Registrar -
(a) has received a certificate under subsection (1); or
(b) has cancelled an order for payment by instalments or community service under the Act.
The Registrar -
(a) cannot make an order pursuant to subsection (2)(a) if the time for commencement of a prosecution against the person for the unexpiated offence or offences has expired; but
(b) may make an order pursuant to subsection (2)(b) despite the fact that the time for commencement of a prosecution against the person for the unexpiated offence or offences has expired, provided that the enforcement order is made -
within 30 days of the cancellation; or
if an application for review of the cancellation has been lodged - within 30days of the application being dismissed or withdrawn.
A Registrar is not required to conduct a hearing for the purposes of making an enforcement order. (emphasis added)
The costs of making an enforcement order will be included in the order.
On an enforcement order being made -
(a) the alleged offender will be taken to have been convicted by the Court on that day of the offence or offences to which the order relates; and
(b) the order will be taken to be an order of the Court imposing a fine, payable immediately, of an amount equivalent to the unpaid expiation fee and is enforceable under the Criminal Law (Sentencing) Act 1988 accordingly; and
(c) the Registrar must cause a copy of the order to be given personally or by post to the alleged offender."
It would seem clear that the intention of Parliament, in enacting these provisions, was to provide a system for the expeditious collection of monetary penalties arising with respect to minor offences, such as routine traffic offences. The procedure contemplates a saving of court time and resources by using modern technology to enforce such payments electronically. Section 13(4) (supra) therefore provided that the Registrar was not required to conduct any hearing prior to the making of the enforcement order. Once the Registrar receives the appropriate certificates he/she is at liberty to make an order for enforcement. The enforcement procedure is not in any way concerned with the merits of the matter. I therefore do not consider this to be an exercise of judicial power by the Registrar. He/she is simply performing an administrative function. This gains support from the provisions of s14 which deals with rights of review and appeal.
Section 14(1) provides that "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" (emphasis added) and s14(3) sets out the basis upon which an application for review can be made. Section 14(3) states:
"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 or the performance of community service."
Each of these grounds is procedural in nature. Nothing in this section deals with the merits of the matter or any substantive defence. Section 14(6), however, preserves the right to challenge the conviction itself.
Section 14(6) provides:
"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 (but nothing in this section affects the person’s right of appeal against the conviction of the offence or offences to which the order relates)." (emphasis added)
The Act therefore differentiates between a review which is concerned only with procedural/administrative matters and which is not subject to appeal, as opposed to an appeal against the conviction which would relate to a substantive defence. For example, if an enforcement order was made with respect to a traffic infringement, an application for review could be made on the basis that the applicant had not received the expiation notice. The magistrate’s ruling on that matter would be final and would not be the subject of an appeal. If, however, the applicant maintained that he/she was not the driver of the car at the relevant time, that would not be a matter reviewable under s14(3). That would be a matter which would be subject to an appeal against conviction and, in the usual way, would be determined on the merits. In this case, I consider that the appellant’s application for review, based on the failure of the Registrar to serve him with a copy of the order, was appropriately made pursuant to s14(3)(b) of the Act. The magistrate, having rejected the submission that the Registrar had failed to comply with the provisions of s13(6)(c) of the Act in sending out Form 50 made a decision which is not subject to appeal. Nevertheless, I consider it appropriate to indicate that I agree with the finding made by the learned magistrate as to this matter. Although not couched in more traditional language or form, I think that service of Form 50 constitutes sufficient compliance with the provisions of s13(6)(c) as to service of the order.
The argument that the Registrar exceeded power in making the order is, however, a matter which goes to the validity of the conviction. It was therefore appropriate for it to be considered by this Court on appeal against conviction. For the reasons already stated, however, that argument must fail. I consider the Registrar was performing a purely administrative function and he/she was therefore empowered to make the order. Other provisions of the Act enable an alleged offender to elect to be prosecuted for the offence or any of the offences to which the expiation notice relates (s8) if a hearing in Court on the merits is required. In my opinion, the appeal should be dismissed.
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