Palaniyappa Sadasivan v Brett Allan Fitzroy
[2014] ACTSC 271
•21 February 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Palaniyappa Sadasivan v Brett Allan Fitzroy |
Citation: | [2014] ACTSC 271 |
Hearing Date(s): | 21 February 2014 |
DecisionDate: | 21 February 2014 |
Before: | Refshauge J |
Decision: | 1. An extension of time in relation to leave to appeal be granted. 2. The Appellant file the proposed Amended Notice of Appeal within seven days. 3. The appeal be upheld. 4. The orders of 26 April 2013 be set aside. 5. The Appellant pay the Respondent’s costs of the extension of time, the grant of extension of time, and the filing of the amended Notice of Appeal. 6. The Respondent otherwise pay the Appellant’s costs as from 17 February 2014 on an indemnity costs basis. |
Category: | Principal Judgment |
Catchwords: | APPEAL – In General and Right of Appeal – Application for leave to appeal out of time – Disputed liability of traffic infringement notice |
Legislation Cited: | Australian Road Rules (ACT), s 20 Magistrates Court Act 1930 (ACT), ss 127, 134, Divs 3.8.2, 3.8.4 |
Cases Cited: | Yates v Baker (Unreported, ACT Magistrates Court, Magistrate Mossop, 29 May 2012) |
Texts Cited: | Professor Dal Pont, Law of Costs (2nd ed, 2009, LexisNexis Butterworths: Sydney) |
Parties: | Palaniyappa Sadasivan (Appellant) Brett Allan Fitzroy (Respondent) |
Representation: | Counsel Mr K Archer (Appellant) Ms P Burgoyne-Scutts (Respondent) |
| Solicitors Kamy Saeedi Lawyers (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number(s): | SCA 78 of 2013 |
Refshauge J:
On 24 April 2013, the appellant was found guilty of an offence of breaching s 20 of the Australian Road Rules (ACT) by the speed at which he was alleged to have been driving. It is said that he was driving on Barry Drive at seventy-six kilometres per hour in a zone where the speed limit had been reduced to forty kilometres per hour.
He was convicted in the Magistrates Court and fined $664.00.
The basis of the allegation was that a speed camera had photographed him and had assessed the speed of his driving accordingly. Initially, the appellant wrote to the Chief Police Officer, a letter dated 24 May 2012, referring to a traffic infringement notice that had been served on him on 9 May 2012. In that letter, he expressly asked for the infringement notice to be withdrawn without further action.
Withdrawal of an infringement notice is provided for in Div 3.8.2 of the Magistrates Court Act 1930 (ACT), and, in particular, I refer to s 127, which is in the following terms
127 Withdrawal of infringement notice
(1) This section applies to an infringement notice that has been served on a person for an infringement notice offence.
(2) The administering authority may, by notice served on the person, withdraw the infringement notice, whether or not—
(a) the person has made an application for the withdrawal of the infringement notice; or
(b) the infringement notice penalty (or part of it) has been paid for the offence; or
(c) the person has disputed liability for the infringement notice offence.
(3) The notice must—
(a) include the number of the infringement notice and the date of service of the infringement notice; and
(b) tell the person that the infringement notice is withdrawn and, in general terms, about subsection (4).
(4) On service of the notice—
(a) this part ceases to apply to the infringement notice; and
(b) if the infringement notice penalty (or part of it) has been paid—the amount paid must be repaid by the administering authority; and
(c) if section 125 (Effect of payment of infringement notice penalty) applies to the offence—the section ceases to apply, and is taken never to have applied, to the offence; and
(d) a proceeding for the offence may be taken in a court against anyone (including the person) as if the infringement notice had not been served on the person.
There is also in the Magistrates Court Act, in particular in Div 3.8.4, provision for disputing liability for an infringement notice.
Subsequently, the appellant wrote to the Chief Police Officer on 4 June 2012 and, in a passage that was underlined, he said:
Please consider this to be my written request to have this matter determined by the ACT Magistrates Court.
He referred to his earlier letter seeking withdrawal, but it seems to me indisputable that this letter was a request that his representations be treated as a dispute of the matter. Section 134 of the Magistrates Court Act, in particular, relates to the procedure where liability is disputed. That section provides:
134 Procedure if liability disputed
(1) This section applies if a person disputes liability for an infringement notice offence by giving the administering authority a notice in accordance with section 132 (Disputing liability for infringement notice offence).
(2) The administering authority may lay an information in the Magistrates Court against the person for the offence within 60 days after being given the notice.
(3) The administering authority must discontinue a proceeding brought against the person for the offence if, before the hearing of the proceeding, the person pays the total of—
(a) the infringement notice penalty; and
(b) the costs (if any) prescribed by regulation for beginning the proceeding; and
(c) the disbursements (if any) incurred by the administering authority up to the day payment is made.
(4) If subsection (3) applies, section 125 (Effect of payment of infringement notice penalty) also applies to the person in relation to the offence, even though the person paid the infringement notice penalty for the offence after an information had been laid in the Magistrates Court against the person for the offence.
(5) If the administering authority does not lay an information in the Magistrates Court against the person for the offence within 60 days after being given the notice, the administering authority must—
(a) tell the person, in writing, that no further action will be taken against the person for the offence; and
(b) take no further action against the person for the offence.
(6) To remove any doubt, subsection (2) does not permit the administering authority to lay an information against a person for an offence after the end of the time within which, apart from this section, a prosecution may be brought against the person for the offence.
As can be seen, if there is a dispute, then the administering authority, which I assume for the purposes of these proceedings was the Australian Federal Police (AFP), has sixty days within which to lay an information, failing to do which results in no further action being able to be taken and, in particular, as set out in subs 134(5)(b) of the Magistrates Court Act, no further action can be taken against the person for the offence.
In fact, the police referred, by letter dated 14 June 2012, to the appellant’s letter and stated in its letter:
As you are disputing the issue of the traffic infringement notice, we are required by the ACT Road Transport legislation to place a notice on hold and apply for the issue of a summons, which you will receive in due course.
The appellant did receive a summons in due course. That summons was sworn on 1 August 2012. That is outside the sixty day period which is provided for within s 134 of the Magistrates Court Act. That matter, however, was not noted by the AFP, nor by the appellant, who represented himself in the proceedings, nor, quite frankly, by anyone else until the point was picked up on or about 17 February 2014, in circumstances to which I will refer in a moment.
The appellant took no action until 25 September 2013, which was well outside the twenty-eight day period in which he could appeal against the decision convicting him on 24 April 2013.
He sought leave to appeal. In the affidavit in support of his application for leave to appeal, made and filed as required by good practice, he set out a draft notice of appeal. The grounds of the appeal were:
(a)the appellant was denied natural justice; and
(b)the findings of the learned Magistrate were not supported by the evidence, related to issues of the conduct of the proceedings about which the appellant complained because he understood there was simply to be a mention or directions hearing, and he was faced with a hearing for which he had not been prepared.
Nevertheless, the appeal proceeded. It was originally set down for February 2014, but because of the central criminal listing process, it had to be brought forward to today.
On 17 February 2014, a further affidavit was filed in support of the proceedings, and it drew attention to the relevant correspondence to which I have referred above. That evidence, which it was to be sought to have been adduced as further evidence on the appeal, made it clear that the proceedings could not originally have properly been maintained since the summons was issued more than the statutory sixty days after the service or date of the infringement notice.
As a result, presumably, of receiving that affidavit, although in argument before me it was not entirely clear whether there had been some earlier discussions about that, the respondent recognised that the new ground of appeal, which has not yet formally being pleaded, would be a complete answer to the proceedings and conceded the appeal. That was a proper approach, and I will make appropriate orders.
The only remaining issue then is one of costs. The appellant has sought an order that the costs of the appeal be paid on an indemnity basis. The respondent has submitted that there ought to be no order as to costs.
It seems to me that the costs of the extension of time and the amendment of the notice of appeal must be paid by the appellant. In the ordinary course, an appellant who seeks an indulgence, such as an extension of time or an amendment of pleadings is ordinarily required to pay those costs and I see no reason in these circumstances why that should not apply.
As to the claim for indemnity costs, the matter is not quite so easily resolved. Mr K Archer, who appeared for the appellant, submitted that, since the case could never have been properly brought and was doomed to failure, indemnity costs ought to be paid. He referred me to a decision of Magistrate Mossop, as the present Master then was, in Yates v Baker (Unreported, ACT Magistrates Court, Magistrate Mossop, 29 May 2012), where his Honour helpfully set out some analysis of the approach to be considered in relation to the payment of indemnity costs and in the payment of indemnity costs in a criminal context.
His Honour said at [26]:
In the event that I am wrong in my conclusion that indemnity costs cannot be awarded, in my view this case would not be an appropriate one in which to make such an order. The authorities referred to by the defendant establish that an indemnity costs order may be appropriate where it appears that an action has been commenced in circumstances where the applicant, properly advised, should have known it had no chance of success, such as where there was wilful disregard for the known facts or clearly established law: J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers (1993) 46 IR 301; Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 or where, to put it slightly differently, there were allegations which should never have been made: Ragata Developments Pty Ltd v Westpac Banking Corporation (1993) 217 ALR 175. I assume for the purposes of this application that these civil cases have equal application in the criminal context.
I note also that in the second edition of Professor Dal Pont’s Law of Costs (2nd ed, 2009, LexisNexis Butterworths: Sydney) at 540; [16.52], he says the following:
Yet the mere fact that a case is found to lack merit cannot be a basis for a special costs order, for in litigation that comes to a concluded hearing, the claim of one of the parties will be found to be lacking in merit. It is likewise an incident of the adversary system that a party or witness is not believed, and were indemnity costs available as a matter of course because of this, there would be a de facto shift in the ‘normal’ basis of taxing costs. Also, the mere fact that certain arguments were abandoned is not sufficient of itself to compel an order for indemnity costs as the court encourages parties not to advance matters that lack any prospects of success.
Rather, the court inquires into whether the case is patently hopeless – as opposed to marginal, although it cannot be assumed that the distinction between the two is always easy to draw, it often being ‘a matter of fine judgment’ as to whether the available evidence warrants the claim or defence and its continuation – and thus aims to strike a balance so as not to dissuade litigants from pursuing a tenuous but material claim or from joining parties who while on the surface appear remote from the proceedings may be potentially (indistinct). In striking this balance, judges are wary of hindsight, it being noted that, ‘[i]t is easy, with hindsight, to make an observation that an action has no chance of success after the matter has been fully argued.
(Footnotes omitted)
That is somewhat helpful, but not directly in point, because the position taken by Mr Archer is that, properly considered, these proceedings could never have succeeded in the face of the clear statement in s 134(5) of the Magistrates Court Act.
Nevertheless, while that is true, the approach that was taken by the appellant to the proceedings was not based on that matter initially which must have resulted in some wasted costs. It seems to me that this is a difficult matter and not easily to be resolved.
In my view, there should be some recognition of the serious failure of the AFP to recognise, after they had recognised by the correspondence to which I have referred that they were bound by the statute, that there was a limitation on commencing proceedings following the dispute of a notice disputing liability and of the fact that they must have been well aware of the time limits within which such proceedings must be commenced.
Indeed, this matter would have been stale under that section well before the summons was actually issued. Nevertheless, that was not the basis on which the appellant originally proceeded with the proceedings and to which the respondent had to answer. It seems to me the appropriate basis is, as I have said, to require that the cost of extending time and the notice of appeal should be borne by the appellant, but that from 17 February 2014 the costs of the appellant should be paid on an indemnity basis.
As a result, I will also order:
(1) that the appellant be granted an extension of time in relation to his appeal;
(2) that he file an Amended Notice of Appeal with the proposed amended ground of appeal within seven days;
(3) that the appeal be upheld;
(4) that the order of the Magistrates Court of 26 April 2013 be set aside.
| I certify that the preceding twenty-five [25] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge. Associate: Date: 27 March 2015 |
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Amendments
20 March 2015 Replace “Appellant” with “Respondent” and replace “Respondent” with “Appellant” Decision, Order [5]
20 March 2015 Replace “Respondent” with “Appellant” Paragraph [24]
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