Naresh v Millard
[2004] WASCA 241 (S)
•15 OCTOBER 2004
NARESH -v- MILLARD & ANOR [2004] WASCA 241 (S)
| Link to Appeal : | [2006] WASCA 35 |
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASCA 241 (S) | |
| Case No: | SJA:1092/2004 | 15 OCTOBER & 29 NOVEMBER 2004 | |
| Coram: | ROBERTS-SMITH J | 15/10/04 | |
| 29/11/04 | |||
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Respondent's application granted Applicant's applications dismissed | ||
| B | |||
| PDF Version |
| Parties: | JAMES RAM NARESH DAVID PERCIVAL MILLARD KIMBERLY PHILLIP CROSS |
Catchwords: | Appeal Justices Applicant's appeal against sentence previously allowed No notice given to respondent Respondent's subsequent application for order that judgment allowing the appeal against sentence be recalled and set aside Grounds of error of law and denial of procedural fairness Power to recall unperfected orders Appeal Justices Application for leave to appeal to Full Court against refusal of leave to appeal against conviction Whether arguable |
Legislation: | Road Traffic Code 2000 (WA), reg 9 and reg 232 |
Case References: | Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 Bailey v Marinoff (1971) 125 CLR 529 Dempster v National Companies & Securities Commission (1993) 9 WAR 215 McAdam v Robertson (1999) 73 SASR 360 Norman v Norman (1992) 6 WAR 372 Pittalis v Sherefettin [1986] QB 868 Rayner v Australia and New Zealand Banking Group Ltd [2002] WASCA 82 Re Heaney SM; Ex parte Naresh [2004] WASCA 241 Smith v New South Wales Bar Association (No 2) (1992) 176 CLR 256 Commissioner of Police v Tanos (1958) 98 CLR 383 J v Lieschke (1987) 162 CLR 447 Kioa v West (1985) 159 CLR 550 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
DECISION : 29 NOVEMBER 2004 FILE NO/S : SJA 1092 of 2004 BETWEEN : JAMES RAM NARESH
- Applicant
AND
DAVID PERCIVAL MILLARD
KIMBERLY PHILLIP CROSS
Respondents
ON APPEAL FROM:
Jurisdiction : COURT OF PETTY SESSIONS
Coram : MR P HEANEY SM
Citation : JAMES RAM NARESH
File No : MI 2424 of 2002
(Page 2)
Catchwords:
Appeal - Justices - Applicant's appeal against sentence previously allowed - No notice given to respondent - Respondent's subsequent application for order that judgment allowing the appeal against sentence be recalled and set aside - Grounds of error of law and denial of procedural fairness - Power to recall unperfected orders
Appeal - Justices - Application for leave to appeal to Full Court against refusal of leave to appeal against conviction - Whether arguable
Legislation:
Road Traffic Code 2000 (WA), reg 9 and reg 232
Result:
Respondent's application granted
Applicant's applications dismissed
Category: B
Representation:
Counsel:
Applicant : In person
Respondents : Mr J F O'Sullivan
Solicitors:
Applicant : In person
Respondents : State Solicitor
Case(s) referred to in judgment(s):
Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300
Bailey v Marinoff (1971) 125 CLR 529
Dempster v National Companies & Securities Commission (1993) 9 WAR 215
McAdam v Robertson (1999) 73 SASR 360
Norman v Norman (1992) 6 WAR 372
(Page 3)
Pittalis v Sherefettin [1986] QB 868
Rayner v Australia and New Zealand Banking Group Ltd [2002] WASCA 82
Re Heaney SM; Ex parte Naresh [2004] WASCA 241
Smith v New South Wales Bar Association (No 2) (1992) 176 CLR 256
Case(s) also cited:
Commissioner of Police v Tanos (1958) 98 CLR 383
J v Lieschke (1987) 162 CLR 447
Kioa v West (1985) 159 CLR 550
(Page 4)
1 ROBERTS-SMITH J: On 26 October2003 the complainant issued to the defendant a traffic infringement notice with a penalty of $150 for driving without a seat belt in contravention of reg 232(1) of the Road Traffic Code 2000 ("the Traffic Code"). The defendant did not pay the infringement notice and accordingly on 10 August 2004 the matter proceeded to trial in the Court of Petty Sessions at Midland before his Worship Mr P Heaney SM. The defendant was convicted and fined $200.
2 The defendant subsequently appealed against both conviction and sentence and also sought to have his application for leave and the appeal heard at the same time, as provided for in s 190 of the Justices Act 1902.
3 The application for leave and the appeal were heard at the same time before me on 15 October 2004, I having determined there was no need for the complainant to be given notice of the appeal. That conclusion I came to as the result of a view which I then held that the learned Magistrate had applied an incorrect understanding of the penalty provision applicable to this offence, and that accordingly the outcome of the defendant's appeal in respect of that would be inevitable. On that view it seemed to me, in the interests of justice, that the matter be dealt with without further hearing.
4 The defendant's application for leave to appeal against his conviction was refused but I gave him leave to appeal against sentence and allowed his appeal in that respect. As to the application for leave to appeal against conviction, I concluded at [51] of my reasons for decision, (Re Heaney SM; Ex parte Naresh[2004] WASCA 241), that the proposed appeal against conviction could not possibly succeed. It was not arguable and leave to appeal accordingly had to be refused.
5 What was in issue there was the question whether or not a letter or certificate from Mr Naresh's doctor complied with the statutory requirement, embodied in reg 231 and reg 232(1) of the Traffic Code.
6 The regulations require a medical certificate to expressly state on its face that for medical reasons the person to which it refers is unable to wear a seat belt. The certificate tendered before his Worship simply did not say that. All it did say was that the defendant experiences significant sensations of claustrophobia when he wears a seat belt in his car.
7 As I observed in my reasons for decision at [49], the defendant's condition as such was not in issue. What was in issue was whether or not the doctor's certificate complied with the statutory requirement. I came to the conclusion that his Worship had been quite correct in finding that it
(Page 5)
- did not. That being so, as I have said, there was no prospect the appeal against conviction could succeed.
8 As to the applicant's appeal against sentence, the learned Magistrate had imposed a fine of $200. I referred to the fact that reg 232(1) provides that the maximum penalty for the offence is six penalty units during the holiday period or otherwise three penalty units. "Holiday period" is defined in reg 3(2) of the Traffic Code. The date of the offence, namely, 26 October 2003 did not fall within a holiday period as there defined. I then went on to say at [53]:
"The statutory maximum penalty was therefore three penalty units which translates to $150 (s 5(1a)(b) of the Road Traffic Act 1974 (WA)). His Worship accordingly imposed a fine which was more than the statutory maximum. He presumably thought the six penalty unit penalty applied. That would have been a maximum of $300. The fine imposed was two thirds that amount. Under the circumstances leave to appeal against sentence must be granted. I do not consider there to be a need to require the applicant to give notice under s 190(1) of the Justices Act as the outcome of an appeal in respect of that is inevitable and it is in the interests of justice that the matter be dealt with without further hearing. The appeal against sentence must succeed and I will accordingly allow the appeal against sentence, set aside the fine of $200 and substitute a fine of $100. There will be orders accordingly ... "
9 On 5 November 2004, the complainant applied for leave to appeal against my decision quashing the sentence and substituting a fine of $100. The application came before me on 17 November 2004. At that time I had been informed that the defendant had lodged a document with the registry seeking leave to appeal to the Full Court from my decision refusing leave to appeal against conviction. However, that document was not then available to me.
10 Having heard the basis of the complainant's application, I gave leave to the complainant to amend his application to include an application for an order that the judgment on sentence given on 15 October 2004 be recalled and set aside. I also ordered that the complainant serve a copy of those orders and any further submissions on the defendant within seven days. Mr Naresh has confirmed this morning that that was done.
(Page 6)
11 The complainant's amended application for leave to appeal, including now an application for orders that my reasons in judgment of 15 October be recalled and varied so as to dismiss the defendant's application for leave to appeal against sentence, was filed on 23 November 2004. I have now before me also the defendant's document dated and filed 11 November 2004, being a renewed application for leave to appeal from my decision made on 15 October.
12 I shall deal with the complainant's application first. I have already indicated the basis upon which my decision on 15 October to deal with the defendant's application in respect of sentence instanter and without notice to the complainant. However, I accept Mr O'Sullivan's submission that that was founded on a mistake or misapprehension on my part.
13 Regulation 232(1) of the Traffic Code specifies that the following penalty applies:
"Points: during a holiday period 6; otherwise 3.
Modified penalty (in each case) 3 PU".
14 A reference to a number of penalty units is a reference to an amount in dollars that is that number multiplied by 50; (s 5(1)(a)(vi) of the Road Traffic Act 1974).
15 Regulation 9 of the Traffic Code sets out how penalties are to be imposed for a breach of the Code. It provides relevantly as follows:
"(1) A person who contravenes or fails to comply with any of the provisions of these regulations, commits an offence.
(2) A person who commits an offence against these regulations is liable to a penalty not exceeding 16 penalty units and, for a subsequent offence, to a penalty not exceeding 32 penalty units.
(3) For the purposes of subregulation (2), an offence against these regulations shall be regarded as a subsequent offence if the person by whom it is committed has previously committed an offence against these regulations, or against the Road Traffic Code 1975.
(4) The offences in this Code that are followed by a penalty expressed as a "modified penalty" are offences that are prescribed for the purposes of section 102 of the Act, and
(Page 7)
- the modified penalty directly following the offence is the prescribed penalty in respect of that offence, if dealt with under that section, in the manner prescribed in the Road Traffic (Infringements) Regulations 1975.
- (5) The offences in this Code that are followed by a penalty expressed as a number of "points" are offences that are prescribed for the purposes of section 103 of the Act, and the number of points directly following the offence is the prescribed number of points to be recorded against a person convicted of that offence."
16 It can be seen from those regulations that the reference to points in reg 232(1) is a reference to demerit points as explained by reg 9(5) of the Traffic Code. Furthermore, the modified penalty applies only if the offence is dealt with by way of a traffic infringement notice pursuant to s 102 of the Act and in the manner prescribed in the infringement regulations.
17 Mr O'Sullivan, counsel for the complainant, submits that as in this case the defendant did not pay the prescribed penalty the modified penalty provision no longer applies and that which does accordingly is the general penalty provision in reg 9(2) of the Traffic Code.
18 On that basis the maximum penalty was therefore $800, (16 penalty units) or $1600, (32 penalty units) for a second or subsequent offence. As the defendant had previously been convicted of an offence against the Traffic Code the maximum penalty available to the learned Magistrate was $1600.
19 I accept those submissions as to the proper construction of the penalty provisions of the Road Traffic Act and Traffic Code insofar as they apply to this case.
20 Against that background it follows that I was in error both in dispensing with the giving of notice to the complainant and in giving the defendant leave to appeal against sentence and allowing his appeal. There was no error by the learned Magistrate. The question then becomes whether the appropriate course is to give the complainant leave to appeal to the Full Court or whether I should recall my reasons and judgment and correct them.
21 It seems to me in the circumstances, given my conclusions expressed above as to the relevant statutory provisions, that it would be a pointless
(Page 8)
- and wasteful exercise to refer the matter to the Full Court. Judgment has not been perfected and it is therefore both possible and, in my view, appropriate, for me to recall my reasons and decision and correct them.
22 True it is that it is a well-settled rule that once an order of a court has been passed or entered or otherwise perfected in a form that correctly expresses the intention with which it was made the court has no jurisdiction to alter it; Bailey v Marinoff (1971) 125 CLR 529, per Gibbs J at 539. However, where the reasons for the decision have been published but the orders have not otherwise been perfected the orders can be withdrawn, altered or modified: Smith v New South Wales Bar Association (No 2) (1992) 176 CLR 256, per Brennan, Dawson, Toohey and Gaudron JJ at 265.
23 I acknowledge that the power to recall an order is to be exercised judicially and not capriciously. It is a power that should be exercised sparingly and consistently with the general principle that once the proceedings have been concluded in the hearing of them and final orders pronounced that should be regarded as the end of the matter unless something affirmatively can be brought to the attention of the court to show that an injustice would be done by allowing the order to remain as pronounced: Norman v Norman (1992) 6 WAR 372, per Murray J at [30].
24 The authorities establish that an order can be recalled of the judge's own motion where he or she is sure that the judgment was wrong substantively and not just as a matter of form: Pittalis v Sherefettin [1986] QB 868 at 882 and Norman v Norman (supra) per Murray J at [35].
25 In Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300, Mason CJ said at 302 and 303:
"These examples indicate that the public interest in the finality of litigation will not preclude the exceptional step of reviewing or rehearing an issue when a court has good reason to consider that, in its earlier judgment, it has proceeded on a misapprehension as to the facts or the law. As this court is a final court of appeal, there is no reason for it to confine the exercise of its jurisdiction in a way that would inhibit its capacity to rectify what it perceives to be an apparent error arising from some miscarriage in its judgment. However, it must be emphasised that the jurisdiction is not to be exercised
(Page 9)
- for the purpose of reagitating arguments already considered by the court; nor is it to be exercised simply because the party seeking a rehearing has failed to present the argument in all its aspects or as well as it might have been put. What must emerge, in order to enliven the exercise of the jurisdiction, is that the court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing. The purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to reargue their cases."
26 It is clear that the jurisdiction is not exercised to enable a party to improve upon an argument it has put or merely to demonstrate that a decision is wrong: McAdam v Robertson (1999) 73 SASR 360, per Doyle CJ at [38]; and see Rayner v Australia and New Zealand Banking Group Ltd [2002] WASCA 82 per Wheeler J at [3].
27 In the present case my misapprehension as to the application of reg 9 of the Traffic Code arose through no fault of the complainant and was not a matter upon which it could be said I had decided previously where the party had a full opportunity to be heard.
28 In the circumstances this seems to me to be one of those rare cases in which the judgment not having been perfected it is appropriate and in the interests of justice to recall my reasons and decision in respect of sentence and to vary them. I shall so order.
29 The judgment given on 15 October will be varied by including a finding that the penalty imposed by the learned Magistrate was entirely within the range of a proper exercise of sentencing discretion and not infected by any demonstrable error. That being so, there is no arguable ground of appeal against sentence and the defendant's application for leave to appeal against sentence must be refused.
30 I turn now to the defendant's renewed application for leave to appeal to the Full Court against my decision refusing leave to appeal against the conviction entered by the learned Magistrate. The proposed grounds of appeal set out in the defendant's notice dated 11 November 2004 are as follows:
"(a) the learned judge erred by not giving enough weight on the medical certificate from the applicant's family doctor.
(Page 10)
- (b) the learned judge erred by not giving any consideration to the acute sense of claustrophobia experienced by the applicant when tied down or locked up.
(c) the learned judge erred by getting embroiled in the interpretation of the wordings in the medical certificate and the law.
(d) the learned judge in the embroilment drifted from the fact that the applicant's medical condition is real and very physical.
(e) the learned judge erred by not giving any respect to the applicant's personal being and right as human.
(f) the learned judge lacked discretionary ability and could not compare with the ability of New Zealand police force which accepted the copy of the same medical certificate and cancelled the infringement incurred on Jervois Road, Auckland, New Zealand."
31 It will be recalled that my reason for refusing the defendant leave to appeal against conviction was that the proposed appeal was not arguable. An arguable case is not one that is not merely capable of being argued but one that is reasonably argued, in the sense that it has some prospect of success - see Dempster v National Companies & Securities Commission (1993) 9 WAR 215 per Malcolm CJ with whom Walsh and Anderson JJ agreed at [5].
32 Given my earlier conclusion to which I still adhere that the wording of reg 231(1)(b)(i) of the Traffic Code is unambiguous and that the medical certificate simply does not comply with the statutory requirement, there remains no prospect that the defendant could succeed in arguing that the medical certificate in question constituted a defence.
33 Mr Naresh in his submissions before me today argued that as he gave evidence before the learned magistrate as to his claustrophobic condition and the effect upon that of a requirement to wear a seat belt then even were the medical certificate not to comply with the requirements of the regulations, it would not matter because there was still sufficient evidence in the form of the testimony from him to satisfy the court that he by reasons of health is unable to wear a seat belt.
(Page 11)
34 Unfortunately for Mr Naresh that is not sufficient. The statutory defence is not simply that there be some evidence before the court of that, but that it be in the form of a medical certificate which is expressed in the terms required by the regulations. As I have said, the certificate here was found by his Worship not to comply with the requirements of the regulations and his Worship was clearly correct in that conclusion.
35 That being so, the proposed appeal against my decision is likewise, in my view, unarguable and accordingly Mr Naresh's renewed application for leave to appeal against my decision of 15 October to the Full Court must be dismissed. I will order accordingly.
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