Overend v Chief Commissioner of Police
[2014] VSC 424
•5 September 2014
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2012 06356
| BRYAN LESLIE OVEREND | Plaintiff |
| v | |
| CHIEF COMMISSIONER OF POLICE | First Defendant |
| MAGISTRATES’ COURT OF VICTORIA | Second Defendant |
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JUDGE: | CAVANOUGH J | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | 24 May 2013 and 9 May 2014. | |
DATE OF JUDGMENT: | 5 September 2014 | |
CASE MAY BE CITED AS: | Overend v Chief Commissioner of Police | |
MEDIUM NEUTRAL CITATION: | [2014] VSC 424 | First Revision: 5 September 2014 |
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CONSTITUTIONAL LAW – Judicial power – Validity of legislation – Kable doctrine – Road safety offences – Forfeiture of vehicle – Whether statutory scheme impairs institutional integrity of State courts – Constitutional challenge effectively abandoned – Road Safety Act 1986, s 84Z – Commonwealth Constitution.
STATUTES – Interpretation – Motor vehicles – Road safety offences – Impoundment, immobilisation and forfeiture of motor vehicles – Application by Chief Commissioner of Police to Magistrates’ Court for forfeiture of motor vehicle – Relevant factors – Options available to Court – Misinterpretation of legislation – Error of law – Jurisdictional error – Forfeiture order set aside and application remitted for rehearing – ss 84C, 84D, 84S, 84T, 84U, 84V, 84Z.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P Lawrie | Engel & Partners Pty |
| For the First Defendant | Ms R Orr | Victorian Government Solicitor’s Office |
| For the Attorney-General for the State of Victoria (intervening) | Mr P Gray SC with Ms R Orr | Victorian Government Solicitor’s Office |
HIS HONOUR:
Introduction: a constitutional case becomes a statutory interpretation case
The plaintiff applies under Order 56 of the Supreme Court (General Civil Procedure) Rules 2005 for an order in the nature of certiorari to quash a motor vehicle forfeiture order made by the Magistrates’ Court at Bairnsdale on 17 October 2012. The Magistrates’ Court ordered the forfeiture of the plaintiff’s motor vehicle to the Crown on an application made on behalf of the first defendant, the Chief Commissioner of Police. The Court did so after convicting and otherwise penalising the plaintiff on certain driving charges. The order for forfeiture was purportedly made under Part 6A (“Impoundment, Immobilisation and Forfeiture of Motor Vehicles”) of the Road Safety Act 1986 (“the Act”).
In his original written submissions before this Court, the plaintiff contended that certain relevant provisions of Part 6A of the Act, contained in Division 3 of that Part, were constitutionally invalid. He contended that they had the effect of enabling the executive arm of government to dictate to the judicial arm inappropriately; and that they were therefore incompatible with the exercise of judicial power under Chapter III of the Commonwealth Constitution.[1] In particular, the plaintiff contended that the relevant provisions effectively reposed the power of forfeiture in the Chief Commissioner, by unduly restricting the ability of the Magistrates’ Court to refuse applications for forfeiture made by the Chief Commissioner.
[1]Citing a line of cases beginning with Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51.
As a result of this contention, notices under s 78B of the Judiciary Act 1903 (Cth) were given to the Attorneys-General of all Australian jurisdictions. The Attorney-General for the State of Victoria, alone, intervened.
Speaking generally, Part 6A of the Act provides for the impounding or immobilisation, or the forfeiture, of an offender’s vehicle on the basis of the offender’s history of driving offences. Forfeiture is a much more serious penalty than (temporary) impoundment or immobilisation. For an offender’s vehicle to be liable to a forfeiture order, the offender’s driving history needs to satisfy certain preconditions that do not apply in relation to an impoundment or immobilisation order. Importantly, however, the differences between the two sets of preconditions are not stark and, moreover, if an offender’s driving history renders the offender’s vehicle liable to a forfeiture order, it will also render the vehicle liable to an impoundment or immobilisation order. As a step in his original constitutional argument, the plaintiff submitted that, where the preconditions for a particular kind of order are met, the court has, by reason of s 84Z(3) of the Act, no power to refuse an application by the Chief Commissioner for an order of that kind, save on the ground of exceptional hardship to the offender or some other person. The Chief Commissioner and the Attorney-General (hereafter, collectively “the respondents”) maintained that, so far as an application for a forfeiture order in particular was concerned, the plaintiff’s submission involved overstatement of the effect of s 84Z(3). They contended that the power to grant or refuse a forfeiture order – being conferred in discretionary terms by other provisions — remained a discretionary power notwithstanding s 84Z(3), save that, by virtue of s 84Z(3), any hardship to any person that might be caused by forfeiture could only be taken into account if the hardship was “exceptional”. On the other hand, during the initial hearing before me, it was common ground between the plaintiff and the respondents that, where an application for forfeiture was made in relation to an offender who met the preconditions for forfeiture and who happened also to be disqualified or suspended from driving (even for only one more day) at the time when the application for forfeiture was being heard and determined, then, by virtue of another subsection of the Act, namely, s 84Z(3A), the court could not have regard to any hardship to the offender personally which forfeiture of his or her vehicle might entail, however great that hardship might be. Hardship to some other person or persons could still be a basis for refusing a forfeiture order, the parties agreed, but only if the hardship was “exceptional”.
That the court’s authority was affected to this agreed extent (at least) had also been common ground between the parties at Bairnsdale; and the magistrate had accepted as much. Accordingly, since the plaintiff met the preconditions for forfeiture and happened to be disqualified from driving at the time of the hearing, the magistrate proceeded on the basis that he could not have regard to any hardship to the plaintiff personally that forfeiture of his vehicle might entail. A contention that forfeiture of the vehicle would involve “exceptional” hardship to members of the plaintiff’s family was rejected by the magistrate on the facts. No other basis for declining forfeiture was advanced on behalf of the plaintiff. In those circumstances, the magistrate proceeded to order forfeiture.
The plaintiff’s case for constitutional invalidity relied very heavily on a judgment that had been given by Kourakis CJ in 2012 in Bell v Police[2] in relation to the corresponding South Australian legislative scheme. However, at the time of the initial hearing before me (24 May 2013), an appeal to the Full Court of the Supreme Court of South Australia was pending against the judgment of Kourakis CJ. At the request of the parties, I undertook not to give judgment until the decision of the Full Court became known and the parties had had an opportunity thereafter to file and serve further written submissions and to seek a further oral hearing if desired. The Full Court gave its judgment on 2 September 2013.[3] The appeal was unanimously allowed and the declaration of invalidity which had been made by Kourakis CJ was set aside. The parties in the present case then filed and exchanged written submissions until 2 October 2013. In the meantime, argument had been heard in the High Court in an appeal against another judgment upon which the plaintiff had relied during oral argument,[4] namely Emmerson v Director of Public Prosecutions,[5] in which, by majority, the Full Court of the Supreme Court of the Northern Territory — relying in part on the judgment of Kourakis CJ in Bell v Police — had upheld a challenge to the constitutional validity of certain legislation of the Northern Territory relating to the confiscation of assets in connection with drug related crime.[6] The High Court gave judgment in that matter on 10 April 2014.[7] The High Court upheld the appeal, holding that the legislation was valid. Shortly thereafter, my chambers received a communication from the legal representatives of the Attorney-General, drawing my attention to the judgment of the High Court.
[2](2012) 117 SASR 456. Chief Justice Kourakis had held that certain provisions of the Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 (SA) were constitutionally invalid.
[3]Attorney-General (SA) & Anor v Bell (2013) 303 ALR 644.
[4]Transcript pp 37-46, 50.
[5](2013) 33 NTLR 1 (Riley CJ, Kelly and Barr JJ). Kelly and Barr JJ found invalid the legislative scheme constituted by s 36A of the Misuse of Drugs Act 1990 (NT) and s 94 of the Criminal Property Forfeiture Act 2002 (NT). Riley CJ dissented.
[6]The Attorney-General sought to distinguish the judgment of the Full Court of the Supreme Court of the Northern Territory in Emmerson: Transcript, pp 104-110.
[7]Attorney-General (NT) v Emmerson (2014) 307 ALR 174 (French CJ, Hayne, Crennan, Kiefel, Bell, Keane and Gageler JJ). Six members of the Court upheld the impugned legislation in a joint decision; Gageler J dissented.
Upon re-considering the case in the light of the post-hearing written submissions and the new authorities, it struck me that the parties and the learned magistrate may all have proceeded upon an erroneous interpretation of the relevant provisions of the Act. In particular, I formed a provisional view that, even though the plaintiff met the preconditions for forfeiture and had been disqualified from driving at the time of the hearing of the Chief Commissioner’s application, the legislation did not oblige the magistrate, on that account, to disregard hardship – much less exceptional hardship – to the plaintiff himself (or hardship to anyone else) in deciding whether or not to make a forfeiture order, as distinct from an impoundment or immobilisation order. My provisional view was that the relevant provisions were directed only to the regulation of the court’s power to make no order at all against the offender’s vehicle, ie to the regulation of the court’s power to make neither an impoundment or immobilisation order nor a forfeiture order in a case where the relevant preconditions for the making of either order were satisfied. Courts are not bound by the parties’ construction of a statute. Generally speaking, and especially where the constitutional validity of a statutory provision is challenged, the court should consider for itself the proper construction of the relevant provisions.[8] Accordingly, I caused a memorandum to be sent to the parties setting out my provisional view as to the proper construction of the relevant provisions. In the memorandum I suggested that there should be a further hearing on a date to be fixed to enable the parties to be heard in relation to my provisional view and also to enable them to make such further submissions as they chose in relation to the two recent appellate decisions relevant to the constitutional aspects of the matter. A hearing was fixed accordingly for 9 May 2014 and the issues were further debated on that occasion. At the hearing, the respondents stood by the interpretation of the relevant provisions which they had advanced in their original submissions. On the other hand, the plaintiff (in the end) sought leave to amend his originating motion so as to contend, in the alternative, that my provisional interpretation of the legislation was correct and that the magistrate had therefore fallen into error in adopting the interpretation which he had adopted. There was no opposition to the application to amend. Further, the Chief Commissioner conceded that, if my provisional interpretation was correct, the magistrate had erred and the error was jurisdictional. The Attorney-General, whose intervention related to the constitutional challenge only, made no submission on that point. Leave to amend was granted.
[8]See D C Pearce & R S Geddes, Statutory Interpretation in Australia (LexisNexis Butterworths, 7th ed, 2011), [1.6] and cases there cited; Tucci v VCAT [2010] VSC 425, [16] and cases there cited; and Klein v Minister for Education (2007) 232 ALR 306, 315 [38] (Kirby J).
For reasons I will explain, I am now fully satisfied that the magistrate misconstrued the relevant provisions of the Act; that he was not obliged to disregard any hardship to the plaintiff personally; and that he fell into jurisdictional error accordingly.[9] Since the magistrate’s error was one of law and is apparent from his reasons, it constitutes not only jurisdictional error but also error of law on the face of the record.[10] In any event, as a result of the error, the forfeiture order made by the magistrate on 9 October 2012 must be set aside. The Chief Commissioner’s application for a forfeiture order should be re-heard and re-determined in accordance with law.
[9]In fairness to the magistrate, I repeat that it had been common ground before him that hardship to the plaintiff personally could not be taken into account.
[10]Wingfoot Australia Partners Pty Ltd v Kocak (2013) 303 ALR 64 [26]-[28].
In these circumstances, the constitutional challenge falls away. It is unnecessary to express an opinion as to the validity of the relevant provisions on the narrow construction of them which the plaintiff originally advanced, or on the slightly less narrow construction which the respondents advanced. I note, however, that the plaintiff concedes that, in the light of the recent appellate decisions, there would be little or nothing left to say in support of the constitutional challenge even on either of those constructions, and nothing at all on the construction which I favour.
Relevant provisions of the Act
Part 6A of the Act is entitled “Impoundment, Immobilisation and Forfeiture of Motor Vehicles”. Division 1 (ss 84C-84E) contains definitions and general provisions. Division 2 (ss 84F-84R) provides for impoundment or immobilisation by Victoria Police – usually for a period no longer than the “designated period” as defined by s 84C (generally, 30 days) – of a vehicle that has been used in the commission of a “relevant offence”, as defined in s 84C. A “relevant offence” is a driving offence which either falls within the list contained in the definition of “tier 1 relevant offence” or falls within the separate list contained in the definition of “tier 2 relevant offence” (both of which definitions appear in s 84C). Generally speaking, a tier 1 relevant offence is more serious than a tier 2 relevant offence. Division 3 (ss 84S-84ZF) authorises “the relevant court”,[11] on an application under s 84U by the Chief Commissioner, to make an “impoundment or immobilisation order” where the preconditions specified in s 84S are satisfied, and to make a “forfeiture order” where the preconditions specified in s 84T are satisfied. The preconditions are stated by reference to the commission of a tier 1 relevant offence or a tier 2 relevant offence or certain combinations thereof. Further conditions governing the making of court orders are specified in s 84Z. A court order for impoundment or immobilisation or for forfeiture attaches either to the motor vehicle used in the most recent relevant offence or, in some cases, to a substituted motor vehicle of which the driver is the registered operator.[12] A court–ordered impoundment or immobilisation lasts for a minimum period of 45 days up to a maximum of three months.
[11]The “relevant court” is defined by s 84C of the Act to mean the court with jurisdiction to hear and determine the relevant offence to which the application under Part 6A relates or, if an application is made after the sentencing of the driver for the relevant offence, the Magistrates’ Court.
[12]See s 84V of the Act.
It is desirable to set out the actual terms of those provisions of Part 6A which are of the most significance for present purposes.
Section 84D provides:
84D This Part does not affect other penalties
The impoundment, immobilisation or forfeiture of a motor vehicle under this Part arising out of the commission of a relevant offence is in addition to, and does not limit or otherwise affect, any penalty that may be imposed on the person for the relevant offence other than under this Part.
Subsection (1) of s 84S is as follows:
84S Impoundment or immobilisation order
(1)On the application of the Chief Commissioner of Police under section 84U(1), if a driver is found guilty of—
(a) a tier 1 relevant offence; or
(b)a tier 2 relevant offence and within the period of 6 years immediately preceding the commission of that offence the driver has committed one or more relevant offences (whether a tier 1 relevant offence or a tier 2 relevant offence)—
the relevant court must order, subject to section 84Z, that the motor vehicle used in the commission of the relevant offence before the court or a substituted motor vehicle—
(a)be impounded or immobilised for a period of 45 days or, on the application of the Chief Commissioner of Police, any longer period not exceeding 3 months in total (including any period of impoundment or immobilisation during the designated period); or
(b)be forfeited to the Crown by order under section 84T(1).
Notes
1Section 84Z allows a court to decline to make an impoundment or immobilisation order or a forfeiture order in certain circumstances.
2 [Note on search and seizure warrants]
…
Subsections (1) and (1A) of s 84T read:
84T Forfeiture order
(1)On the application of the Chief Commissioner of Police under section 84U(1), if a driver is found guilty of—
(a)a tier 1 relevant offence and within the period of 6 years immediately preceding the commission of that offence the driver has committed one or more tier 1 relevant offences or two or more tier 2 relevant offences; or
(b)a tier 2 relevant offence and within the period of 6 years immediately preceding the commission of that offence the driver has committed two or more relevant offences (whether tier 1 relevant offences or tier 2 relevant offences or a combination of both)—
the relevant court may order, subject to section 84Z, that the motor vehicle used in the commission of the relevant offence before the court or a substituted motor vehicle be forfeited to the Crown.
(1A)If the relevant court is satisfied of the matters referred to in subsection (1) but declines to make an order under that subsection, the court must order, subject to section 84Z, that the motor vehicle used in the commission of the relevant offence or a substituted motor vehicle be impounded or immobilised by order under section 84S(1).
Notes
1Section 84Z allows a court to decline to make an impoundment or immobilisation order or a forfeiture order in certain circumstances.
2 [Note on search and seizure warrants]
…
As indicated above, both s 84S and s 84T envisage an application by the Chief Commissioner under s 84U. That provision is as follows:
84UApplication for an impoundment or immobilisation order or a forfeiture order
(1)An application for an impoundment or immobilisation order or a forfeiture order may be made by the Chief Commissioner of Police to the relevant court if the Chief Commissioner believes on reasonable grounds that—
(a)if the motor vehicle is not a substituted motor vehicle, it was—
(i)used in the commission of the relevant offence; and
(ii)at the time the relevant offence was committed the motor vehicle was not stolen, hired or used in prescribed circumstances; and
(b)unless subsection (1A) applies, the driver has been found guilty of a previous relevant offence or offences (as the case requires) committed within the period of 6 years before the commission of the relevant offence.
(1A)Subsection (1)(b) does not apply to an application for an impoundment or immobilisation order in relation to a tier 1 relevant offence.
(2)An application under subsection (1) may be made at any time after a charge-sheet charging a relevant offence is filed, but may not be made later than 28 days after the driver is sentenced for a relevant offence.
In both s 84S and s 84T, the expression “subject to section 84Z” appears. So far as relevant, s 84Z provides:
84Z Hearing of application
(1AA) In this section—
offender means a person believed to have committed the relevant offence in relation to which the motor vehicle is to be impounded, immobilised or forfeited.
(1)The relevant court hearing an application for an impoundment or immobilisation order or a forfeiture order—
(a)must allow any person served with a notice under section 84W(1) or 84Y(1) to be heard at the hearing of the application and to show cause why an impoundment or immobilisation order or a forfeiture order should not be made; and
(b)may allow any other person to be heard if the court is satisfied that an impoundment or immobilisation order or a forfeiture order may substantially affect that person's interests.
(2)The court must not make an impoundment or immobilisation order or a forfeiture order if the registered operator of the motor vehicle that was used in the commission of the relevant offence can prove to the court’s satisfaction that the relevant offence was committed without the knowledge or consent of the registered operator.
(3)Subject to subsections (3A), (3B) and (3C), the court may decline to make an impoundment or immobilisation order or a forfeiture order if the court is satisfied that such an order would cause exceptional hardship to any person.
(3A)The court must not decline to make an impoundment or immobilisation order or a forfeiture order on the grounds of exceptional hardship caused to the offender if—
(a) either—
(i)the offender is disqualified from obtaining a driver licence or permit; or
(ii)the offender’s driver licence or permit is suspended; and
(b)in the case of an application relating to an impoundment or immobilisation order, the suspension or disqualification is for a period longer than 3 months.
(3B)The court must not decline to make an impoundment or immobilisation order or a forfeiture order on the grounds of exceptional hardship relating to the offender’s employment unless the offender, or another person appearing before the court, satisfies the court that—
(a)driving the impounded or immobilised motor vehicle is essential (not merely convenient) for the offender’s employment; and
(b)no other transport to his or her place of employment is available to the offender; and
(c)the offender, after making reasonable enquiries, is unable to arrange for another person to drive the offender to his or her place of employment.
(3C)In determining whether to decline to make an impoundment or immobilisation order or a forfeiture order on the ground of exceptional hardship, the court must have regard to the safety of the public and the public interest in preventing the use of a motor vehicle that the court considers is reasonably likely in all the circumstances to be used for further driving offences.
(3D)If the court declines to make an impoundment or immobilisation order or a forfeiture order on the ground of exceptional hardship, it may require the applicant (other than the offender) to give an undertaking that the motor vehicle will not be made available to be driven by the offender during a period not exceeding—
(a)3 months if the application is for an impoundment or immobilisation order and—
(i)the offender is disqualified from obtaining a driver licence or permit for a period not exceeding 3 months; or
(ii)the offender's driver licence or permit is suspended for a period not exceeding 3 months; or
(b) 12 months in any other case.
Note
Section 84ZAC provides for the impoundment, immobilisation or forfeiture of the motor vehicle on breach of an undertaking.
Factual circumstances[13]
[13]The following account of the factual circumstances is based partly on the transcript of the hearing before the magistrate on 17 October 2012, partly on the extract of the Magistrates’ Court order of 17 October 2012, partly on the unchallenged affidavit of the plaintiff’s solicitor, Peter John Tovey, sworn 21 November 2012, partly on the written submissions of the plaintiff (to the extent that they are common ground) and partly on certain matters which emerged during the hearing before me by way of agreed corrections to the factual material otherwise before the Court.
On 24 September 2011 the plaintiff was charged with an offence against s 49(1)(f) of the Act (exceeding the prescribed concentration of alcohol – reading alleged, 0.078%). On 14 December 2011, at the Bairnsdale Magistrates’ Court, he was found guilty of that offence. He had significant prior convictions. He was sentenced to a term of imprisonment of 42 days with 12 days to be served immediately and 30 days suspended for 12 months. Further, his driver’s licence was cancelled and he was disqualified from obtaining a licence for a period of 14 months effective from 24 September 2011. In other words, the period of disqualification was to extend until 24 November 2012.
On 8 July 2012, though still disqualified from driving, the plaintiff did drive. He drove his 2008 model Nissan Navara along Andersons Lane in Hillside, near Bairnsdale. He was approaching the intersection with the Princes Highway. He was facing a “Give Way” sign. Attempting to cross the highway, he failed to give way to an eastbound police vehicle. A high speed collision was narrowly averted. The plaintiff was intercepted by Constable Barber, who ascertained that the plaintiff was a disqualified driver. The reason the plaintiff gave for driving while disqualified (contrary to s 30(1) of the Act) was “I went to check the horse”. His reason for failing to give way (contrary to r 69.1 of the Road Rules) was “I just didn’t see you”.
Constable Barber immediately impounded the plaintiff’s vehicle pursuant to s 84F of the Act.[14] The vehicle was the plaintiff’s own vehicle and was registered in his name. Its estimated private sale value at that time was around $30,000.
[14]Section 84F provides for an impoundment period of, generally speaking, 30 days.
On or about 18 July 2012, the Chief Commissioner gave notice to the plaintiff pursuant to s 84W of the Act of an intention to make an application for forfeiture of the plaintiff’s vehicle. The notice indicated that the application would be made at the Sunshine Magistrates’ Court on 9 November 2012, but it seems that arrangements were subsequently made for the application to come on at the Bairnsdale Magistrates’ Court in conjunction with the hearing of the charges which were ultimately laid in relation to the events of 8 July 2012. The plaintiff has taken no point about the fact that the written notice of application was issued before any charge sheet charging a “relevant offence” was filed.[15] The written notice to the plaintiff dated 18 July 2012 was in the nature of a standard Victoria Police form with various personal and other details inserted. There does not appear to be any prescribed form, or any requirement for a prescribed form, under s 84W. The standard police form that was used in this case (VP Form 1257) makes provision for the author to tick one or other or both of two boxes to indicate whether the intention is to make application for an impoundment or immobilisation order or an application for a forfeiture order or an application for one or other of them. Again, the plaintiff takes no point about the form of the notice.
[15]See and compare s 84U(2).
On 8 August 2012 Constable Barber charged the plaintiff with driving whilst disqualified and with failing to give way in respect of the events of 8 July 2012. The charges came on for hearing before his Honour Mr Alsop (Magistrate) on 17 October 2012. The plaintiff was represented by Mr Loadman of counsel. The plaintiff pleaded guilty to the 8 July 2012 charges. On the same occasion the plaintiff was also dealt with for breach of the suspended sentence imposed on 14 December 2011.
At the outset of the hearing in the Magistrates’ Court, Mr Loadman indicated that he saw the foreshadowed application for forfeiture of the Nissan Navara as the major matter for submissions. However, the magistrate accepted a submission from the police prosecutor that, because of the provisions of s 84D of the Act, the court was required to deal first and separately with the penalties to be imposed on the traffic offence charges and the breach charge. Mr Loadman did not persist in opposing this.
Mr Loadman proceeded to make a plea on behalf of the plaintiff. So far as presently relevant, the plea may be summarised as follows. Mr Overend was born in Bairnsdale in 1964. His parents have been dead for some years. He was married in 1997. He has an adult daughter from the relationship that led to that marriage. There was a subsequent relationship as a result of which two boys were born. That relationship also ended. The younger of the two boys now lives with Mr Overend in Bairnsdale. That boy needs to live with Mr Overend in Bairnsdale because he had been getting into trouble in the town where he formerly lived with his mother. The boy is at secondary school in Bairnsdale. Mr Overend and his son live in rented accommodation. Mr Overend is now in a de facto relationship with a third woman. That woman is on a disability pension of $175.00 a fortnight and Mr Overend is on Centrelink benefits. Although he formerly carried on a business of repairing or renovating properties, he has been unable to continue that business because of the initial impoundment of his vehicle in connection with the offence of 24 September 2011 and the subsequent disqualification. He has purchased a property in the district which is mortgaged and let out for $350.00 a week, with mortgage repayments at $400.00 a fortnight. Apart from that mortgaged property the only asset he has is the Nissan Navara vehicle which is the subject of the proposed forfeiture application. In December of 2000, he was in a major motor vehicle accident and suffered both physical and psychological injury as a consequence. He incurred serious head and back injuries from which he still suffers. He has chronic depression and is currently on medication for that condition. Although the prosecutor submits that the forfeiture application cannot affect the sentence, the fact of the matter is that the vehicle is a $30,000 vehicle and without it Mr Overend cannot carry on the business which he had previously attempted to carry on. This will have consequences in terms of Mr Overend not being able to obtain an income in the usual way. Any sentence of imprisonment will have a direct impact on the welfare of Mr Overend’s son, who has needed to live with his father in order to escape problems where he was previously living. It is submitted that the sentence of imprisonment should be suspended. Thus ended the plea. There was no challenge to any of the matters put forward on the plea.
The magistrate observed that he would deal specifically with the motor traffic offences, of which the most serious was the charge of driving while disqualified. He further noted that Mr Overend had six prior convictions for either driving while suspended or driving while disqualified and had been dealt with by way of intensive corrections order in the past. There was also the suspended sentence imposed on 14 December 2011 in relation to a drink driving offence. The other matters of a personal kind relied upon by Mr Loadman were noted.
In the result, the magistrate convicted and sentenced the plaintiff to two months’ imprisonment, to be served immediately, on the charge of driving while disqualified. Further, the suspended sentence imposed on 14 December 2011 (30 days) was wholly restored and his Honour ordered that the two sentences be served cumulatively. On the charge of failing to give way the plaintiff was convicted and fined $500. On the other hand, the magistrate said expressly that he would make no order affecting the plaintiff’s driving licence.
The magistrate then turned to the forfeiture application. He inquired of Mr Loadman whether he wished to raise any issues in that regard. Mr Loadman replied that there could be nothing “cogent” because it seemed that the magistrate’s hands were tied by the provisions of s 84Z(3A) of the Act. The magistrate responded that he would adjourn for some time to consider the legislation. After his return to the bench, the following exchanges took place:[16]
[16]Transcript of Proceedings, The Police v Bryan Leslie Overend (Magistrates’ Court at Bairnsdale, Alsop M, 17 October 2012), pp 7-10.
His Honour:
I have read through the provisions of s.84Z which relates to the hearing of the application, and specifically s.84Z(3A) which reads [sub-ss (3A)(i) and (ii) read out].
…
I looked at that section in the context of the word “is disqualified”. And in the context of these proceedings, I looked at that as to whether that reading applied at the time of the commission of the offence or at the time that the matter has come before the court. And I then checked the status and the dates of the suspension and the like and I don’t consider I have any discretion at all to make any order other than the order that is sought.
…
And on that reading, the power to exercise any discretion in favour of the accused man, Mr Overend and as to the forfeiture application, it appears to have been negated by the section. That’s a preliminary reading, subject to hearing from counsel as to his interpretation of the section. Mr Loadman?
Mr Loadman:
Your Honour, in relation to what has fallen from Your Honour, that is also my reading of that section, however, it’s my submission that sub-s. (3), which reads, “Subject to the following sections, the court may decline to make an impoundment or immobilisation order or a forfeiture order if the court is satisfied that such an order would cause exceptional hardship to any person.” … Both [Mr Overend’s de facto partner and son] will be deprived, or to use the words of the section, they will suffer in my submission, exceptional hardship. [Reasons were given.]
…
His Honour:
I consider the onus works the other way, because Clause 3, I did look at that clause, says subject to the provisions of (3A), (3B) and (3C). so the rug is placed – the magic rug is placed under the court in relation to Clause 3, in the way that you’ve described.
…
But the rug is very smartly pulled out from under the court by Clause (3A), if the offender is disqualified from obtaining a drivers licence or permit. I don’t consider I’ve got any room to move. It’s not appropriate if I make comments about the ---
Counsel 1 [Prosecutor]:
Your Honour, in my learned friend’s benefit, s. (3A) … only precludes exceptional hardship to the offender.
…
I’m not conceding that forfeiture is not appropriate in the circumstances, Your Honour, I’m just ---
His Honour:
No, there’s no suggestion you’ve conceded anything.
…
But you’ve quite properly emphasised those words in Clause (3A). I’m going to rule on it now. I’ll do this at length so that it’s on the transcript if it needs to be aired in some other place by people at either end of the Bar table.
The magistrate then proceeded to give his ruling on the forfeiture application. He referred to Mr Overend’s “dreadful” driving history. He discussed the circumstances relating to the plaintiff’s de facto partner and son. These were, principally, the inconvenience of losing the vehicle; the loss of financial support through loss of the plaintiff’s ability to earn an income by use of the vehicle (the partner being on a disability pension); and the impact on the son’s mobility (the plaintiff’s son being a child attending secondary school who would be unable to be driven by the plaintiff or his partner if the vehicle was forfeited). The magistrate held that these circumstances were insufficient to meet the statutory test, saying:[17]
All right. I cannot be satisfied that there are exceptional hardship to any person. Exceptional means exceptional and for that reason I consider I am bound by the legislation to grant the order.
Mr Loadman, I’ve articulated that at length in case you wish to take it somewhere else.
[17]Ibid p 12.
Ultimately, his Honour ordered that the vehicle be forfeited to the Crown, to be surrendered at Bairnsdale Police Station on 18 November 2012.
The proper construction of the relevant provisions
As indicated above, in this case the joint position of the respondents – though articulated by reference to certain other provisions of Part 6A – is based principally on s 84Z(3A) of the Act, read in conjunction with subsection (3). For convenience, I will set those particular subsections out again:
(3)Subject to subsections (3A), (3B) and (3C), the court may decline to make an impoundment or immobilisation order or a forfeiture order if the court is satisfied that such an order would cause exceptional hardship to any person.
(3A)The court must not decline to make an impoundment or immobilisation order or a forfeiture order on the grounds of exceptional hardship caused to the offender if—
(a) either—
(i)the offender is disqualified from obtaining a driver licence or permit; or
(ii)the offender’s driver licence or permit is suspended; and
(b)in the case of an application relating to an impoundment or immobilisation order, the suspension or disqualification is for a period longer than 3 months.
The respondents submit that s 84Z(3A) has the effect that, where ‑
·an offender is liable to a forfeiture order (because paragraph (a) or (b) of s 84T(1) is satisfied); and
·the Chief Commissioner applies for a forfeiture order; and
·at the time of the determination by the court of the application, the offender is disqualified or suspended (for any period),
the court must not decline to make a forfeiture order on the ground of hardship (exceptional or otherwise) caused to the offender personally.
By no means can the respondents’ interpretation be said to represent the literal meaning of subsection 84Z(3A).[18] It requires the making of certain strained interpretive steps or choices. In particular, it requires that the word “and” which appears after the semicolon at the end of paragraph (a) be read as though it were introducing an additional rule rather than serving to confirm that paragraphs (a) and (b) contain cumulative conditions for the application of a single prohibition stated in the chapeau to the subsection.[19] The latter would of course be the more normal use and sense of the word “and” where it appears in a statutory provision between two paragraphs which are themselves preceded by the word “if”, as here.
[18]Compare Treasurer of Victoria v Tabcorp Holdings Ltd [2014] VSCA 143, [1], [2], [6], [35]-[37], [44] and [99]-[102].
[19]Compare Minister for Immigration and Multicultural Affairs v Savvin (2000) 98 FCR 168, 173 [24], 185-186 [80]-[86].
Further or alternatively, the respondents would have it that the condition expressed in paragraph (a) is to be regarded as complete in its application to cases in which forfeiture would be available but incomplete in its application to cases in which only impoundment/immobilisation would be available. Such a discrepancy would be unusual in any comparable statutory provision. Moreover, the respondents would have it that paragraph (b) has nothing whatever to say about cases in which forfeiture would be available. Paragraph (b) would be wholly confined to cases in which only an impoundment/immobilisation order could be made. The respondents need to say that in order to consign all cases in which a forfeiture would be available to paragraph (a) exclusively. But all of that sits most oddly with the language of the chapeau, in at least two respects. First, the chapeau refers to both impoundment/immobilisation orders and forfeiture orders, doing so in one breath – “an impoundment or immobilisation order or a forfeiture order”. Second, within that expression, the reference to “an impoundment or immobilisation order” occurs before the reference to “a forfeiture order”. In these circumstances it is very hard to accept that all of the conditions relating to cases in which forfeiture would be available are to be found in one only of paragraphs (a) and (b), and out of order at that.
Regrettably, subsection 84Z(3A) is drafted in such a way that it has no clear literal meaning. Nevertheless, the Court must endeavour to give it a meaning.[20] Moreover, when the subsection is read in context, Parliament’s intention becomes clear enough. The proper construction, in my view, of s 84Z(3A) is that where an offender who is liable to a forfeiture order, and who is therefore liable in the alternative to an impoundment or immobilisation order, is, at the time of the determination by the court of an application by the Chief Commissioner for either kind of order, disqualified or suspended from driving for a period longer than three months, the court must not decline, on the ground of exceptional hardship caused to the offender personally, to make, at least, an impoundment or immobilisation order against the offender’s vehicle. This interpretation is supported not only by the context but by several principles of statutory construction, whereas the same cannot be said for the respondents’ interpretation.
[20]See Pearce & Geddes, Statutory Interpretation in Australia, 7th edition, 2011 [1.5] and cases there cited.
The relevant context is as follows. Where the preconditions set out in s 84S(1) are met, the relevant court “must”, subject to s 84Z, make an order. Interestingly, the duty is framed as a duty to make either an impoundment or immobilisation order or a forfeiture order. Presumably, the latter can only be made where the preconditions set out in s 84T(1) are also satisfied. By striking contrast, the word “may”, not the word “must”, is used in the corresponding place in s 84T(1). By using “may” in s 84T(1), Parliament has conferred on the relevant court a discretionary power, not a duty.[21]
[21]Interpretation of Legislation Act 1984 (Vic) s 45.
As indicated earlier, an offender who has satisfied the preconditions for a forfeiture order will also have satisfied the preconditions for an impoundment or immobilisation order. Consistently with that, s 84T(1A) provides that if the relevant court is satisfied of the forfeiture conditions but declines to make a forfeiture order, the court must order, subject to s 84Z, that the motor vehicle used in the commission of the relevant offence or a substituted vehicle be impounded or immobilised by order under s 84S(1).
As was also indicated earlier, s 84U envisages that the Chief Commissioner might make a single application inviting the relevant court to make one or other of the two kinds of order, as the court deems fit, even where the preconditions for forfeiture are satisfied.
Returning now to s 84Z, one approaches it in the knowledge that, subject to s 84Z, it is mandatory to make at least an impoundment/immobilisation order where the s 84S(1) preconditions are satisfied whereas the position under s 84T is that a forfeiture order is never mandatory. It is true that the expression “subject to s 84Z” appears in s 84T but I agree with the respondents that that does not turn the discretionary power into a mandatory duty in any circumstances.
Section 84Z(2) provides that the court must not make an impoundment or immobilisation order or a forfeiture order where the relevant offence was committed without the knowledge or consent of the registered operator of the vehicle. In my view, it is clear beyond argument that the effect of s 84Z(2) is that the court must not make either kind of order in those circumstances, regardless of whether the offender himself or herself would come within s 84S(1) or s 84T(1).
With this background, it becomes quite natural to read s 84Z(3) as meaning that the court may choose to make neither kind of order if satisfied that either kind of order would cause “exceptional hardship” to any person. I have no doubt that that is the correct way to read s 84Z(3).
Subsection 84Z(3) is of course expressed to be subject to subsections (3A), (3B) and (3C). It thus becomes clear that s 84Z(3A) amounts to no more than a limitation on the general rule expressed in s 84Z(3). That is to say, a certain type of case is taken outside the rule that the court may decide to make neither kind of order due to exceptional hardship. What s 84Z(3A) means in substance is that where an offender is already under suspension or disqualification for a period longer than three months, he or she cannot be heard to say that the making of an impoundment or immobilisation order (which cannot extend for a period longer than three months) would cause him or her exceptional hardship.
That understanding of s 84Z(3A) makes sense and is harmonious with all other provisions of Part 6A.[22] That is a very strong indication that the interpretation is correct.[23]
[22]Apart from the provisions to which I have already referred, subs-ss 84Z(3B) and (3C) are fully consistent with this understanding and sub-s 84Z(3D) is clearly supportive of it.
[23]Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 381-382 [69]-[70]; Commissioner of Taxation v Unit Transervices Pty Ltd [2013] HCA 16 [47].
The interpretation I favour is also supported by the courts’ general approach to the interpretation of provisions in Acts for the forfeiture of goods that have been used for criminal purposes or where there has been a contravention of legislation. In Murphy v Farmer[24] it was said that “clear words should be required before there is attributed to the Parliament an intention to take the draconian step of imposing automatic forfeiture as a penalty [for the breach of the Act]”.[25]
[24](1988) 165 CLR 19.
[25]See the discussion of this case and other like cases in Pearce and Geddes, op cit, [9.34].
Likewise, the making of a forfeiture order must be regarded as penal in nature.[26] In R v Adams,[27] the High Court said:
No doubt, in determining whether an offence has been created or enlarged, the Court must be guided, as in other questions of interpretation, by the fair meaning of the language of the enactment, but when that language is capable of more than one meaning, or is vague or cloudy so that its denotation is uncertain and no sure conclusion can be reached by a consideration of the provisions and subject matter of the legislation, then it ought not to be construed as extending any penal category.
[26]See s 84D of the Act. See also Rv Novakovic [2007] VSCA 145 [48], [54].
[27](1935) 53 CLR 563, 567-8 cited in Pearce and Geddes, op cit [9.9].
Even though the former rule that statutes creating offences are to be strictly construed is now to be regarded as perhaps a rule of “last resort”,[28] it seems to me that the sentiment expressed by the High Court in R v Adams remains a valuable guide and can be applied not only in relation to the interpretation of offence–creating provisions but also in relation to the interpretation of penalty provisions.
[28]Beckwith v R (1976) 135 CLR 569, 576 (Gibbs J).
Conclusion
For these reasons, I will make an order in the nature of certiorari to quash the motor vehicle forfeiture order made by the Magistrates’ Court at Bairnsdale on 17 October 2012. I will make a further order in the nature of mandamus requiring the Magistrates’ Court to re-hear and re-determine the Chief Commissioner’s application in accordance with law.
I will hear the parties on the question of costs.
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