Peters v Attorney-General for New South Wales

[2008] NSWCA 226

NEW SOUTH WALES COURT OF APPEAL

CITATION:
Director of Public Prosecutions v Yigit & Anor [2008] NSWCA 226

FILE NUMBER(S):
40059/2008

HEARING DATE(S):
29/07/2008

JUDGMENT DATE:
25 September 2008

PARTIES:
Director of Public Prosecutions - Appellant
Ali Yigit - First Respondent
William Pierce - Second Respondent

JUDGMENT OF:
Beazley JA Basten JA Handley AJA   

LOWER COURT JURISDICTION:
Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S):
SC 132770/07

LOWER COURT JUDICIAL OFFICER:
Adams J

LOWER COURT DATE OF DECISION:
03/09/2007

LOWER COURT MEDIUM NEUTRAL CITATION:
[2008] NSWSC 35

COUNSEL:
D Frearson SC - Appellant
Self Represented - First Respondent
N/A - Second REspondent
M A Robinson - Amicus for RTA (NSW)

SOLICITORS:
Mr S C Kavanagh (Appellant)
First Respondent unrepresented
Mr I V Knight (Second Respondent)

CATCHWORDS:
Motor traffic – driver licence – suspension – validity of notice of suspension – ambiguity.
Statutory instrument – validity – ambiguity – notice suspending driver licence – whether two periods of suspension specified.

LEGISLATION CITED:
Acts Interpretation Act 1901 (Cth)
Crimes (Appeal and Review) Act 2001 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Driver Licensing Act
Interpretation Act 1987 (NSW)
Listening Devices Act 1984 (NSW)
National Road Transport Commission Act 1991 (Cth)
National Transport Commission Act 2003 (Cth)
Road Transport (General) Act 2005
Road Transport (Driver Licensing) Act 1998 (NSW)
Road Transport (Driver Licensing) Regulation 1999
Supreme Court Act 1970 (NSW)

CATEGORY:
Principal judgment

CASES CITED:
Boddington v British Transport Police [1999] 2 AC 143
Director of Public Prosecutions v Yigit [2008] NSWSC 35
Erceg v District Court of New South Wales [2003] NSWCA 379
Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89
King Gee Clothing Co Pty Ltd v The Commonwealth [1945] HCA 23; 71 CLR 184
Malubel Pty Ltd v Elder [No. 2] (1999) 73 ALJR 269
Ousley v The Queen [1997] HCA 49; 192 CLR 69
Peters v Attorney-General (NSW) (1989) 16 NSWLR 24
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355
R v Al Klippert Ltd (1998) 158 DLR (4th) 219
Scurr v Brisbane City Council [1973] HCA 39; 133 CLR 242

TEXTS CITED:

DECISION:
(1) Allow the appeal and set aside the judgment and orders in the Common Law Division dismissing the Director’s appeal from the decision of the Local Court.
(2) Set aside the order of the Magistrate in the Local Court made on 23 March 2007 dismissing the charge against the respondent laid under s 25A of the Road Transport (Driver Licensing) Act 1998.
(3) Remit the matter to the Local Court to be dealt with according to law.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40059/08
SC 13277/07

BEAZLEY JA
BASTEN JA
HANDLEY AJA

25 September 2008

DIRECTOR OF PUBLIC PROSECUTIONS v ALI YIGIT & ANOR

CATCHWORDS

Motor traffic – driver licence – suspension – validity of notice of suspension – ambiguity.

Statutory instrument – validity – ambiguity – notice suspending driver licence – whether two periods of suspension specified.

HEADNOTE

A charge against the opponent of driving while his licence was suspended was dismissed by a Magistrate because the driver licence had not been validly suspended.  The opponent had committed an offence of driving at more than 30 kilometres an hour above the applicable speed limit.  This activated the power of the Roads and Traffic Authority to suspend his licence under s 33(1) of the Road Transport (Driver Licensing) Act 1998. The RTA purported to do this by notice with effect on and from 26 September 2006. The notice relevantly informed him that his licence was suspended for six months, and that he could drive again on 27 March 2007, six months and two days after his suspension took effect. The Magistrate held that the notice was invalid because it specified two periods of suspension. The Director’s appeal to a Judge of the Common Law Division was dismissed and he applied for leave to appeal. Held: (1) leave to appeal should be granted; (2) (by majority): although the notice was ambiguous the uncertainty could be resolved by construction; (3) the licence had been suspended for six months, and not six months and one day; (4) the appeal should be allowed; (5) per Handley AJA (dissenting) the notice specified two periods of suspension; (6) the ambiguity could not be resolved by construction; (7) the licence had not been suspended.

ORDERS

1. Allow the appeal and set aside the judgment and orders in the Common Law Division dismissing the Director’s appeal from the decision of the Local Court.

2. Set aside the order of the Magistrate in the Local Court made on 23 March 2007 dismissing the charge against the respondent laid under s 25A of the Road Transport (Driver Licensing) Act 1998.

3. Remit the matter to the Local Court to be dealt with according to law.

********

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40059/08
SC 13277/07

BEAZLEY JA
BASTEN JA
HANDLEY AJA

25 September 2008

DIRECTOR OF PUBLIC PROSECUTIONS v ALI YIGIT & ANOR

Judgment

1. BEAZLEY JA:  I agree with Basten JA.

1. BASTEN JA: On 23 December 2006 Mr Yigit was stopped whilst driving his motor vehicle on the Hume Highway at South Strathfield and charged with driving whilst his licence was suspended, being an offence under s 25A(2)(a) of the Road Transport (Driver Licensing) Act 1998 (NSW) (“the Driver Licensing Act”).

2. On 23 March 2007 the respondent appeared before a Magistrate in the Local Court at Burwood.  The charge was dismissed, his Honour holding that the notice informing the respondent that his licence had been suspended was “invalid”.  The Magistrate concluded that because the notice was invalid, the licence had not been validly suspended and he was, therefore, not guilty of the offence charged.

3. The proceedings in the Local Court were commenced by an informant, who was a New South Wales police officer. Following the dismissal of the charge, the matter was taken over by the Director of Public Prosecutions, (NSW) who commenced proceedings in the Common Law Division claiming declaratory relief and orders which appeared to be in the nature of certiorari, presumably pursuant to s 69 of the Supreme Court Act 1970 (NSW). Accordingly, the Magistrate was joined (by name) as the second defendant. That course was irregular, it being appropriate to join the Local Court as the body responsible for the decision sought to be quashed. In any event, the proceedings were also treated as a statutory appeal on a ground involving a question of law alone under s 56 of the Crimes (Appeal and Review) Act 2001 (NSW). In determining such an appeal, the Supreme Court may set aside an order dismissing a charge and make such other order as it thinks just, or dismiss the appeal: s 59(2). The primary judge, Adams J, dismissed the appeal: see Director of Public Prosecutions v Yigit [2008] NSWSC 35. From that judgment, an application for leave to appeal has been brought to this Court. For the reasons set out below, there should be a grant of leave and the appeal should be allowed.

   Leave to RTA to be heard

4. As explained in written submissions by counsel who sought to appear as amicus for the Roads and Traffic Authority (“the Authority”), the case potentially affects several hundred convictions or charges brought in relation to suspensions of licence where notice was given in similar form as in the present case.  The issue may be said to affect an even greater number of people who have complied with a notice, in the belief that the suspension of their licences was in each case valid, when that was (according to the judgment below) not the case.  If there had been no valid suspension, it is possible that a person may be liable to a fresh suspension of their licence, validly, for a future period.  In addition, the Authority is the State body responsible for administering the driver licensing system which operates according to a uniform national approach, originally in accordance with agreements set out in the Schedule to the National Road Transport Commission Act 1991 (Cth), but now under the National Transport Commission Act 2003 (Cth). These are potentially matters of general public importance and justify a grant of leave to the Authority to appear in a limited role as amicus to apprise the Court of the nature of the scheme and its operation. The Authority is responsible for its own costs.

   Issues

5. The cause of the supposed invalidity was the inclusion in the notice of suspension of the statements that the licence will be suspended “on and from 26 SEP 2006 for a period of 9 months” and that the respondent “cannot drive until on or after 27 JUN 2007”.  As was accepted by the Director, a period of nine months which commenced on 26 September 2006, terminated on 25 June 2007.  The respondent was therefore entitled to drive again on 26 June 2007.  The question is whether the incorrect statement as to the day on which he could recommence driving invalidated the notice and hence the suspension.

6. The case ostensibly raises the following questions:

   (a)was it open to the Local Court to determine that the notice was invalid, in hearing the prosecution for driving whilst suspended?

   (b)If so, did the Local Court err on a question of law in determining that:

   (i)           the notice was invalid, and

   (ii)          the respondent’s licence had not been validly suspended?

   (c)Did the Local Court err in law in failing to hold that any inaccuracy in the notice could be severed and disregarded, leaving the remainder of the notice valid and effective?

   Collateral challenge

7. Logically, the first question concerns the jurisdiction of the Local Court and, in particular, whether it had power to determine the “validity” of the notice.  Generally speaking, it may be accepted that a court exercising criminal jurisdiction has power to determine, for the purposes of those proceedings, whether necessary legal preconditions to a finding of guilt have been established by the prosecution.  However, there may be circumstances in which, as a matter of statutory construction, a challenge based on the suggested invalidity of a statutory process is not available to a defendant charged with an offence.

8. Whether a form of collateral challenge to the validity of an administrative decision is available in a particular case may depend upon a number of circumstances.  Where the administrative decision is general in nature and not directed towards a particular individual, the individual may have had no realistic opportunity to challenge its validity prior to the charge being laid.  A subsequent application for judicial review of the decision would generally not result in the decision being set aside, so as to preclude the commission of an offence at an earlier time.  Thus, a ban on smoking in railway carriages was held to be challengeable by a person charged with an offence of contravening the ban in Boddington v British Transport Police [1999] 2 AC 143. The same conclusion would not necessarily follow in relation to an order directed to an individual where there was a statutory process by which the individual could challenge the order, especially where a challenge might not be limited to legal error but might include merit review. The grant of such a right of challenge might be inconsistent with a statutory intention to permit some other court or tribunal to consider the validity of an order where no challenge had been raised in accordance with the statutory procedure: see R v Al Klippert Ltd (1998) 158 DLR (4th) 219 at [13] (L’Heureux-Dubé J); see also Aronson, Dyer and Groves, Judicial Review of Administrative Action (2004, 3rd ed) at pp 633-634.

9. As also noted by Aronson, Dyer and Groves, the scope of available review in the course of criminal proceedings may be limited to jurisdictional errors appearing on the face of the instrument: see Ousley v The Queen [1997] HCA 49; 192 CLR 69.

10. In the present case, there was no doubt that the respondent received the notice of suspension in a timely fashion, prior to the commencement of its operation, and exercised a power to enter into a good behaviour bond, as was his entitlement with respect to so much of the suspension as related to the accumulation of demerit points (being a period of three months). Further, the respondent was entitled to be provided with reasons for the decision of the Authority and was entitled to appeal to the Local Court against the decision: see Road Transport (General) Regulation 2005 (NSW), cll 18(1)(c) and 19 respectively.

11. No challenge was raised in this Court to the power of the Local Court to determine the issue, nor was any question raised as to the basis upon which the Local Court was entitled to identify “invalidity”.  Senior counsel for the Director accepted that “if, on its face [the notice] were void for ambiguity or some other reason” it could be challenged by the defendant resisting the criminal prosecution: Tcpt, NSWCA, 29/07/08, p 9(40).  The concession is not, in my view, self-evidently correct, but as the Director eschewed reliance upon such an objection, the matter should not be pursued further.

    Legal principles

12. Although it is necessary to distinguish the independent issues concerning the validity of the notice, the effect of invalidity and the possibility of severance of the incorrect portion, it is convenient to consider more generally the relevant statutory scheme and the principles of statutory construction which inform the correct approach to each of these issues.

13. If there were anything in the national legislation which indicated how such a scheme should be construed, that too would be material to which the Court should properly have regard.  Further, if it were suggested that the issues now raised involved questions of law which had been considered in other Australian jurisdictions, there would be much to be said for the view that this Court should generally follow such authority as was relevant to the consistent operation of a uniform national scheme:  see Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89 at [135]. However, although it is clear that various elements of the New South Wales Driver Licensing Act and the Road Transport (Driver Licensing) Regulation 1999 (NSW) (“the Driver Licensing Regulation”) find close counterparts in the national scheme, the only matter which turns upon this for present purposes is the requirement that the provisions of the Acts Interpretation Act 1901 (Cth) apply to the Driver Licensing Act and the Driver Licensing Regulation: see Driver Licensing Act, s 5.

14. The notice given in the present case served two concurrent but separate purposes.  The system by which demerit points accrue, as a result of the commission of driving offences, results in a statutory obligation on the Authority to “give a notice of licence suspension to the holder of a driver licence … who incurs 12 or more demerit points within the 3 year period ending on the day on which the person last committed an offence for which demerit points have been recorded against that person”: Driver Licensing Act, s 16(2). Despite the wording of that provision, the Authority in fact has a discretion not to give such a notice in certain circumstances: see s 16(3). Licence suspension is not automatic upon the accrual of points, but depends upon the giving of a notice. Although the power of the Authority is described as an obligation to give a notice of suspension, rather than a power to suspend, it appears that the effect is the same as the conferral of an obligation to suspend, subject to a power not to act.

15. The Authority has a further power under the Driver Licensing Act to cancel or suspend a driver licence “because of an alleged speeding offence if, in respect of the alleged offence … the holder has paid a penalty prescribed for the purposes of Part 5.3 of the Road Transport (General) Act 2005”: Driver Licensing Act, s 33(1)(a). The Authority is not required to give the holder of the licence an opportunity to show cause why the licence should not be cancelled or suspended (sub-s (2)) and:

    “(3A)If a person’s driver licence is suspended by the Authority under this section, the person’s licence is suspended for such period as may be determined by the Authority and specified in a notice served on the person by the Authority.”

16. The suspension of a licence under this provision is effected by a determination of the Authority to suspend for a specified period and the service of a notice on the licence holder.  It may thus be seen that in respect of the powers under both ss 16 and 33, no suspension will be effected unless a relevant notice has been served on the licence holder.  Under s 16, the notice is required to include specified information:

    “(4)The notice of licence suspension must specify the date on which the suspension is to take effect and must contain any other matters specified by the regulations.  The date specified must not be earlier than 28 days after the notice is given.”

17. The Driver Licensing Regulation prescribes various further bases upon which the Authority may suspend a person’s driver licence: see cl 38. It also prescribes what may be a “speeding offence” for the purposes of s 33(5) of the Driver Licensing Act: cl 38A.  Clause 39 then provides in part:

    “39        Procedures for variation, suspension or cancellation of driver licence

    (1)If the Authority decides to vary, suspend or cancel a person’s driver licence, the Authority must give the person notice in writing of:

    (a)the reasons for the proposed variation, suspension or cancellation, and

    (b)any action that must be taken by the licence holder in order to avoid or reverse the variation, suspension or cancellation, and

    (c)the date after service of the notice on which the variation, suspension or cancellation takes effect.

    (2)          The notice under subclause (1) must also state:

    …

    (b)in the case of a notice to suspend a person’s driver licence, that if the licence is suspended, the person will not be authorised to drive a motor vehicle on a road or road related area for the period of suspension specified in the notice ….

    …

    (4)A driver licence is varied, suspended or cancelled in accordance with the terms of a notice served under this clause unless the Authority, by further notice in writing, withdraws the notice.”

18. While a notice is required to specify the date from which it operates and the period for which it operates, there is no requirement analogous to the obligation under the Crimes (Sentencing Procedure) Act 1999 (NSW) in relation to the imposition of a sentence of imprisonment to specify the earliest day on which the offender will become entitled to be released on parole: see s 48(1)(b). Nor is there any provision analogous to s 48(3) of that Act stating that a failure to comply with the requirements of the section does not invalidate the sentence. Nevertheless, given the importance of precision and clarity in respect of periods involving a deprivation of liberty, it is significant that a sentence will not be invalidated by ambiguity in respect of its terms, or by failure to state correctly the earliest available release date: see Erceg v District Court of New South Wales [2003] NSWCA 379; 143 A Crim R 455 (McColl JA and Palmer J, Sheller JA dissenting).

19. Assistance in determining the proper approach to the validity of a notice may also be found in principles of construction concerning delegated legislation.  On one view, the difference between a by-law proscribing certain activities and an order suspending a licence is merely the generality of the former, against the particularity of the latter, in relation to those bound to obey the command.  Applying that approach, ambiguity or uncertainty is not a test of invalidity; rather, the instrument should be construed in accordance with relevant principles to determine its meaning: see King Gee Clothing Co Pty Ltd v The Commonwealth [1945] HCA 23; 71 CLR 184 at 195 (Dixon J).

1. Both the Commonwealth and State Interpretation Acts have provisions relating to compliance with prescribed forms: each provides that “substantial compliance” is sufficient: see Acts Interpretation Act, s 25C and Interpretation Act 1987 (NSW), s 80. It was not suggested in the present case that any form had been prescribed and, accordingly, no question of non-compliance arose. Nevertheless, these statutory provisions confirm that the proper approach is to consider whether the information required to be contained in a notice has been specified, without requiring it to be specified in some particular form. This approach was encapsulated in the proposition upon which the case was argued, namely that the notice would be invalid only if it specified two differing periods of suspension.

2. There was discussion in the submissions as to the need for a purposive construction of the legislation which, it appears to have been assumed, should be applied to the construction of the notice, reliance being placed upon the discussion in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [69]-[71]. While no doubt the notice must be construed in its statutory context, it is itself neither a statute nor a legislative instrument of the kind being considered in Project Blue Sky. Nevertheless such an instrument is a “non-legislative instrument” for the purpose of s 46 of the Acts Interpretation Act and the Act therefore applies to the instrument as if it were itself an Act.  If the instrument would otherwise be construed as being in excess of the power of the authority which made it, “it is to be taken to be a valid instrument to the extent to which it is not in excess of that power”: Acts Interpretation Act, s 46(2). Provisions in similar, but not identical terms, are to be found in s 32 of the Interpretation Act (NSW). Although s 5 of the Driver Licensing Act expressly requires the application of the Acts Interpretation Act only in relation to the Driver Licensing Act and the Driver Licensing Regulation, it impliedly permits the application of the Commonwealth Act in relation to instruments under the Driver Licensing Act and the Driver Licensing Regulation.

3. In order to determine whether the notice conformed with the requirements of the legislation, it was, of course, necessary to consider its language in the context of its statutory purpose: cf Scurr v Brisbane City Council [1973] HCA 39; 133 CLR 242 at 251-252 (Stephen J, Barwick CJ, McTiernan, Menzies and Gibbs JJ agreeing). Scurr was concerned with public notification of a development application, the purpose of which was to permit members of the public to consider the proposed development and lodge objections, if they so wished.  The consent authority was required to consider such objections before granting or refusing consent.  Whether or not the notice complied with the statutory requirement that it set out “particulars of the application” needed to be determined having regard to its statutory purpose.

4. A further issue which can arise in circumstances where there has not been compliance with a statutory requirement is the effect on subsequent action.  Whether non-compliance results in invalidity of the subsequent act will also need to be considered having regard to the statutory context: see Project Blue Sky at [97]-[100]. In the present case, that question did not give rise to any separate difficulty. The giving of a notice was necessary for the suspension of the licence to take effect. If there had been a failure to give notice in accordance with the statutory requirements, the licence was not suspended and the charge was properly dismissed.

5. Finally, it may be necessary to consider whether, if the notice were to be understood as suspending the respondent’s licence for a period ending at midnight on 25 June 2007, the statement that he was entitled to drive on and from 27 June could be severed.  In this respect, reference was made to Peters v Attorney-General (NSW) (1989) 16 NSWLR 24, approved by the High Court in Malubel Pty Ltd v Elder [No. 2] (1999) 73 ALJR 269 (McHugh, Kirby and Hayne JJ). Peters involved a number of warrants issued by a judge of the Supreme Court under the Listening Devices Act 1984 (NSW). They purported to authorise officers of the New South Wales Police and the Australian Federal Police to install listening devices. The submission that the Australian Federal Police could not validly be clothed with authority under the State Act was accepted: at 30C (Mahoney JA) and 35-36 (McHugh JA, Kirby P agreeing). McHugh JA further noted that a warrant was an instrument for the purposes of the Interpretation Act (NSW), s 32: at 41E, referring to Re Brian Lawler Automotive Pty Ltd and Collector of Customs (NSW) (1978) 1 ALD 167 at 171-172. In Re Brian Lawler at 172, Brennan J (sitting as President of the Administrative Appeals Tribunal) stated in relation to s 33(3) of the Acts Interpretation Act:

   “Where, pursuant to a statutory power, an authority grants or issues an instrument other than a rule, regulation or by-law, the exercise of the power may well be an executive or administrative act rather than a legislative act. At all events, the granting or issuing of an instrument other than a rule, regulation or by-law is not necessarily an act of a legislative kind, and the granting or making of an executive or administrative instrument falls within the natural ambit of s 33(3).”

6. An instrument issued in the exercise of administrative power also falls, by parity of reasoning, within the provisions requiring that an instrument be upheld to the extent that it is within power.  The principle of severance applies in relation to discrete elements of an instrument which can be excised without altering the meaning and effect of the remaining provisions and without creating an instrument which might not have been made if the maker had appreciated the proper limits of his or her power: see Peters at 41-42 (McHugh JA, Kirby P agreeing).

7. In the present case, severance is not an appropriate remedy if invalidity is established.  That is because invalidity must depend upon the notice being read as a whole, conveying alternative inconsistent meanings.  If the process of construction has not identified a dominant meaning, it is not appropriate for the Court to rewrite the notice so as to achieve that result.  It follows that the sole question for the Court is the construction of the notice.

   Application of principles of construction

8. The question is whether any degree of uncertainty or ambiguity in the notice is sufficient to render it invalid.  That is because it must be conceded that there is some uncertainty created by the notice in relation to the day upon which the period of suspension terminated.  However, that does not of itself demonstrate non-compliance with the statutory requirements.

9. The first requirement is that the notice “specify the date on which the suspension is to take effect”: Driver Licensing Act, s 16(4). There is no doubt that the notice did specify the relevant date. Nor was it in issue that the other requirement of the subsection was satisfied, namely that the date was not earlier than 28 days after the notice was given. Secondly, the notice must specify the period of suspension and state that the person is not authorised to drive a motor vehicle for that period: Driver Licensing Regulation, cl 39(2)(b). The notice expressly stated the period (namely nine months, reducible to six months) and the effect of suspension. There was no other relevant statutory requirement.

10. What the notice failed to do was to state accurately the date upon which the suspension ended.  As a matter of construction, the specified period ended on 26 June (or 26 March) 2007.  The appropriate principle of construction is that the notice be construed favourably to the respondent.  That would mean that he was entitled to drive on and from 26 June (or 26 March) 2007.  The implication in the notice that he was only entitled to drive again on and from 27 March was incorrect, the specified period having terminated 24 hours earlier.  Construing the notice in favour of the licence holder, that implication must be disregarded.

11. The contrary view requires that any degree of uncertainty as to the day on which the period terminated is sufficient to invalidate the notice as a whole.  There are a number of reasons why that approach should not be taken.  The first is that the notice is capable of construction in a manner which resolves the uncertainty.  The second is that the consequences of the alternative construction, invalidating the notice, may place the respondent (and others) at risk of fresh periods of suspension when, for practical purposes, they may have already completed relevant periods of suspension.  Invalidating a notice on this ground, especially if it occurs after the period of suspension has been partly or wholly completed, is not necessarily beneficial to the individual.  Thirdly, contravention of a suspension is not a serious criminal offence requiring that any level of uncertainty as to the time of termination of the suspension must result in invalidity of the whole exercise.  Although an offence for driving while suspended carries a maximum penalty of 30 penalty units or imprisonment for 18 months (in the case of a first offence) and 50 penalty units or imprisonment for 2 years (in the case of a second or subsequent offence), the licensing of drivers of motor vehicles is a regulatory process for the protection of the safety of other road users.  The importance of the purpose warrants the potential liability involving significant penalties: it does not turn a regulatory offence into a serious criminal offence, so as to require absolute certainty in all aspects of a notice, not required to be in a prescribed form and which conveyed the information required by statute.

    Error of Court below

12. It follows that the primary judge erred in determining that the notice identified “two or, more precisely, three periods of suspension”: at [7]. What precisely was meant by the figures is unclear: depending upon whether the option to enter into a bond in place of the second period of three months was taken up, there were alternative periods of suspension. In each case the right to recommence driving arose on a day earlier than that indicated in the notice. His Honour presumably sought to treat this fact as giving rise to four possible periods, two being alternatives. Secondly, his Honour said that there was an error in specifying the relevant date as 27 June 2007 (or 27 March 2007), instead of 25 June 2007 or 25 March 2007: at [7]. He referred to the shorter period as involving “six months and two days”: at [12]. His Honour further referred to uncertainty as to whether the respondent was entitled to drive “on and from 25 March 2007” and again to the possibility of a period involving “a further two days’ suspension”: at [13]. In each case, the proposed date of recommencement was erroneous, there being no two day extension, but only an implied 24 hour extension.

13. The primary judge focused on whether the officer responsible for issuing the notice had “made a mistake in specifying the date upon which Mr Yigit could recommence driving”, an approach which he noted might explain the notice, but not “construe the notice”: at [12]. His Honour continued:

    “The supposed explanation simply suggests that of the three possible mistakes, there is a speculative possibility which, if it is the fact, means that two of the dates should be ignored.”

14. Having noted that the explanation did not constitute an exercise in construction, his Honour then identified the need to make “a guess about the intention of the relevant officer of the RTA – or, more likely to be the case, the computer that spat out the notice” as involving a question of fact and not a question of law. It therefore followed, his Honour concluded, that even if the Director were correct, there was no jurisdiction for the Court to intervene, there being no error of law: at [15].

15. This reasoning is erroneous, for a reason to which his Honour referred, namely that the correct approach was to construe the notice.  An incorrect construction of the notice would have involved an error of law.  It was a course which his Honour eschewed.

16. The basis upon which his Honour concluded that the notice was invalid appears to be that a person in Mr Yigit’s position (presumably being a reasonable reader) “might feel some sense of uncertainty about his or her right to drive on and from 25 March 2007 in light of the explicit assertion that this was forbidden”: at [13]. This passage involves three errors. Two are inconsequential: namely the date and the reference to an “explicit assertion”. Importantly, the correct approach is not the possibility of “some sense of uncertainty” on the part of the licence holder, but the correct construction of the notice. The process of construction provides a means of resolving the uncertainty in a manner which demonstrates that the notice did not fail to comply with the statutory requirements. Accordingly, the primary judge was in error and the appeal should be allowed.

    Conclusions

17. As may be seen from the foregoing discussion, the issues raised by this application involve matters of principle with respect to the proper construction of a notice suspending a driver licence.  As the error contained in this notice has apparently been routinely replicated in many hundreds of notices, of which a significant proportion are still extant, the matters of principles have general public significance.  Accordingly, it is appropriate that there be a grant of leave to appeal to allow this Court to reconsider the judgment below.

18. Although the approach adopted in the Local Court and by the primary judge was erroneous, the litigation would not have arisen but for a patent error on the part of the Authority, which administers the driver licensing scheme on behalf of the executive government.  Although the Director has been successful in his appeal, the conduct of the Authority deprives the Director of any entitlement to costs, either in this Court or below.  Accordingly, if the grant of leave were to have been considered prior to the appeal being heard, it would properly have been conditioned on an undertaking from the Director not to seek costs in the event of success.  It is sufficient for present purposes, that leave be granted and there be no order as to costs.

19. As noted above, the Director did not seek to pursue a complaint that the primary judge had failed to deal with claims in the nature of prerogative relief, and indicated that he was content to have the matter dealt with as a statutory appeal under s 56 of the Crimes (Appeal and Review) Act.  The powers conferred on the Court under s 59 permit the Court to set aside the order made by the Local Court dismissing the charge and remit the matter to the Local Court to be determined according to law.

20. It is clear from the reasons set out above that the error of the Magistrate was in treating the notice as ineffective to suspend the respondent’s licence.  The matter will now be dealt with on the basis that the notice of suspension was not invalid for failure to comply with the statutory requirements.  No declaration is necessary for that purpose.

21. The Court should make the following orders:

    (1)Allow the appeal and set aside the judgment and orders in the Common Law Division dismissing the Director’s appeal from the decision of the Local Court.

    (2)Set aside the order of the Magistrate in the Local Court made on 23 March 2007 dismissing the charge against the respondent laid under s 25A of the Road Transport (Driver Licensing) Act 1998.

    (3)Remit the matter to the Local Court to be dealt with according to law.

22. HANDLEY AJA:  The Director seeks leave to appeal from the decision of Adams J on 4 February 2008 who dismissed his appeal from the acquittal of the opponent by the Local Court on a charge of driving on a road on 23 December 2006 while suspended, contrary to s 25A(2)(a) of the Road Transport (Driver Licensing) Act 1998 (the Act).

23. The opponent had acquired 12 demerit points within a period of 3 years. He also committed an offence of driving at more than 30 kilometres an hour above the applicable speed limit so as to bring himself within clause 38A(a) of the Road Transport (Driver Licensing) Regulation 1999 (the Regulation) (the speeding offence).

1. The accumulation of demerit points attracted the power of the Road Traffic Authority (the Authority) to suspend the opponent’s driver licence under s 16(2), and his speeding offence attracted the corresponding power of suspension conferred by s 33(1). By notice dated 22 August 2006 it purported to suspend the opponent’s licence, with effect from 26 September, for a period of at least 6 months under s 33, and for a further 3 months under s 16(2).

2. If the notice was valid the opponent was driving on 23 December 2006 while suspended, and committed the offence charged.  However the Magistrate Mr Pierce SM dismissed the charge because the notice of suspension specified more than one period of suspension, and was invalid.

1. Section 16(2) of the Act provides:

   “The Authority must give a notice of licence suspension to the holder of a driver licence … who incurs 12 or more demerit points within the 3 year period ending on the day on which the person last committed an offence for which demerit points had been recorded against the person.”

2. The section imposes a duty on the Authority which it must perform but the duty is relaxed by subs (3) in some circumstances. Subsection (5) fixes a 3 months’ period of suspension for 12 demerit points.  The Authority has no power to vary this period.

3. Subsection (4) gave the Authority power to specify in the notice of suspension “the date on which the suspension is to take effect”, which must not be earlier than 28 days after the notice is given.   Subsection (4) also provided that the notice of suspension “must contain any other matters specified by the regulations.”

4. Section 16(8) enables a person served with a notice of suspension for demerit points to elect, in the alternative, to be of good behaviour for 12 months and avoid the suspension.

5. The notice of suspension of the opponent’s licence was relevantly in the following terms:

   “As a result of the excessive speed offence and the demerit points you have incurred for the offences listed below your … licence will be suspended on and from 26 September 2006 for a period of 9 months.  The suspension period comprises 6 months for the excessive speed offence and a further 3 months for exceeding the demerit points limit.

   You must not drive on a road or road-related area during the suspension period.  You may keep the licence in your possession, but you cannot drive until on or after 27 June 2007 …  If you make the election you may commence driving on or after 27 March 2007.”

6. On 28 August 2006 the opponent made an election to be of good behaviour.

7. Clause 39 of the Regulation made further provision for the suspension of driver licences.  Sub cl (1) relevantly provided that if the Authority decides to suspend a person’s driver licence it must give the person notice in writing of the reasons for the suspension and the date, after service of the notice, on which the suspension takes effect.  Sub cl (2)(b) relevantly states:

   “(2)  The notice under subclause (1) must also state:

   (a) …

   (b)  In the case of a notice to suspend a person’s driver licence, that if the licence is suspended, the person will not be authorised to drive a motor vehicle on a road … for the period of suspension specified in the notice, or

   (c) …”

8. Sub cl 4 relevantly provides that a driver licence is “suspended … in accordance with the terms of the notice served under this clause … “

9. Clause 39 applies where “the Authority decides … to suspend” a person’s driver licence, but in a demerit points case s 16(2) requires the Authority to act. It might be said that in such cases the Authority does not “decide” and cl 39 does not apply. It is not necessary to decide this question because as a result of the election the notice only took effect under s 33.

1. One of the requirements imposed by s 33(3A) is that the licence is suspended for such period as may be determined by the Authority and “specified in [the] notice.” (emphasis supplied). Another requirement which is imposed by cl 39(2)(b) is that the notice must state that “the person will not be authorised to drive … for the period of suspension specified in the notice” (emphasis supplied).

2. Mr Frearson SC, who appeared for the Director, acknowledged, as he had below, that the notice would be invalid if it specified inconsistent periods of suspension and that it was essential to its validity that it unambiguously specified the relevant period.  He also accepted that collateral review of the validity of the notice was available in a prosecution for driving while suspended.  This is correct because a defendant to a criminal prosecution is entitled to challenge the validity of administrative action pursuant to a statute:  Boddington v British Transport Police [1999] 2 AC 143.

3. The first issue, one of construction, is whether the notice specified more than one period of suspension.  The second issue, covered by the Director’s concession, is whether specification of more than one period made the notice invalid.

4. The notice unambiguously identified the commencement of the suspension period.  That was “on and from” 26 September so that the licence was suspended for the whole of that day.  The notice, as it took effect, following the election, first stated that the suspension was for 6 months.  Since the licence was suspended for the whole of 26 September this part of the notice specified a suspension period which expired at midnight on 25 March 2007.

5. However the notice then stated, as required by cl 39(2)(b): “You must not drive … during the suspension period”. Other material followed and it concluded with a second statement: “If you make the election you may commence driving on or after 27 March”.

6. Thus the notice told the opponent that he must not drive during the suspension period and it also told him that he may drive on and after 27 March.  This can only mean that the suspension period commenced on and from 26 September and expired at midnight on 26 March, a period of 6 months and 1 day.   The notice specified that period by identifying the day it began, and the day after it ended.

7. Mr Frearson argued that neither the Act nor the Regulation required the notice to identify the first day the driver would again be authorised to drive, and the statement was in the nature of a particular.  He submitted that the notice did not specify two suspension periods and the error in the particulars was immaterial.

8. I am unable to accept these submissions. Clause 39(2)(b) requires the notice to state that the person is not authorised to drive during the period of suspension specified in the notice. The notice stated, as required, that ”you must not drive … during the suspension period” but it also stated, again as required, in respect of the 9 months period that “you cannot drive until on or after 27 June”. This is simply another way of saying that you cannot drive during the suspension period ending on 26 June.

9. The second statement in the notice in respect of the 6 months period is expressed in a positive form:  “You may commence driving on or after 27 March”.  This can only mean that you may not drive on 26 March because that is during the suspension period.

10. In some circumstances it may be possible to determine which of two descriptions is the dominant, and which is the subordinate, and to reject the latter as surplusage, or as a mere particular.  In my judgment this approach is not available in this case because it is not possible to identify which is the dominant description. 

11. If a choice had to be made most readers would probably treat the clear identification of the first day of the suspension period and the first day after it expired as the dominant description.

12. In my judgment therefore the notice specified 2 inconsistent periods of suspension, one for 6 months on and from 26 September, and another for the period commencing on and from 26 September and expiring at midnight on 26 March.

1. I agree with Basten JA, and for the reasons he gives, that the notice cannot be saved by severing the part which is invalid. I also agree that the notice was an instrument for the purposes of s 46 of the Acts Interpretation Act (Cwlth) and s 32 of the Interpretation Act (NSW).

1. However neither section can apply in this case because the Authority had the power under s 33(3A) to determine the period of suspension. Since both periods were within power the Court cannot determine in accordance with s 32(2)(a) of the Interpretation Act “the extent to which [the notice] is not in excess of that power” and it cannot be read down.

2. The Court is concerned with an essential element of a serious criminal offence.  In those circumstances the reasoning of the majority in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 391-3, in a very different statutory context, does not require this Court to hold that the notice was valid.

3. In Project Blue Sky the High Court said that it was not concerned with provisions “that impose essential preliminaries to the exercise” of a function: above at 391. It also said that it was not concerned with an obligation which “has a rule like quality that can be easily identified and applied”: ibid at 391. In this case the Court is concerned with provisions with both these characteristics.

4. In my judgment therefore the concession made by senior counsel for the Director was correct.  The notice specified 2 inconsistent periods and the fact that the difference was only 1 day cannot matter.  The challenge to this part of the judgment of Adams J therefore fails and the following orders should be made:

   1.  Leave to appeal granted.

   2.  Notice of Appeal to be filed within 7 days.

   3.  Dispense with further compliance with the Rules.

   4.  Appeal dismissed with costs.

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LAST UPDATED:
25 September 2008