Plati v Sheriff's Office
[2014] WADC 126
•12 SEPTEMBER 2014
PLATI -v- SHERIFF'S OFFICE [2014] WADC 126
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WADC 126 | |
| Case No: | APP:45/2014 | 12 SEPTEMBER 2014 | |
| Coram: | BOWDEN DCJ | 12/09/14 | |
| PERTH | |||
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Appeals allowed in part | ||
| PDF Version |
| Parties: | MARIA PLATI SHERIFF'S OFFICE |
Catchwords: | Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA) Application to cancel enforcement warrants issued under pt 3 of the Act legislation |
Legislation: | Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA) Magistrates Court (Civil Proceedings) Act 2004 (WA) |
Case References: | Cole Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 Egerton v Taylor (Unreported, WASC, Library No 960700, 28 November 1996) Fancourt v Mercantile Credits Ltd (1986) 154 CLR 87 Ottobrino v Espinoza (1995) 14 WAR 373 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
SHERIFF'S OFFICE
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : CHIEF MAGISTRATE HEATH
File No : ACE PER 1457 of 2014, ACE PER 1460 of 2014, ACE PER 1461 of 2014, ACE PER 1462 of 2014
Catchwords:
Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA) - Application to cancel enforcement warrants issued under pt 3 of the Act legislation
Legislation:
Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA)
Magistrates Court (Civil Proceedings) Act 2004 (WA)
Result:
Appeals allowed in part
Representation:
Counsel:
Appellant : In person
Respondent : Ms J Rhodes
Solicitors:
Appellant : Not applicable
Respondent : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Cole Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194
Egerton v Taylor (Unreported, WASC, Library No 960700, 28 November 1996)
Fancourt v Mercantile Credits Ltd (1986) 154 CLR 87
Ottobrino v Espinoza (1995) 14 WAR 373
1 BOWDEN DCJ: This is an appeal from the chief magistrate's decision dismissing Ms Plati's application to cancel four enforcement warrants issued under the Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA) (the Act).
2 Each enforcement warrants was issued as a result of a process followed by the Registrar of Fines Enforcements as a result of four separate infringement notices issued to the appellant remaining unpaid.
3 The appellant argues that the enforcement warrants ought to be set aside essentially because she was not served with the appropriate notices as required by the Act.
This appeal
4 The court has jurisdiction to hear this appeal pursuant to s 40(i)(b) of the Magistrates Court (Civil Proceedings) Act 2004 (WA) (MCCPA).
5 The appeal is by way of a reconsideration of the evidence before the Magistrates Court: r 50(1) District Court Rules 2005 (WA). The court must decide the appeal on the material and evidence that was before the Magistrates Court and any other evidence that it gives leave to admit (s 40(4)).
6 As such, the appeals can only be allowed if the court is satisfied there is an error on the part of the primary court: Cole Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 [13] – [14].
The statutory framework
How an enforcement warrant is issued
7 The Act applies to infringement notices issued under s 102B of the Road Traffic Act 1974 (RTA).
8 An infringement notice issued under s 102B of the RTA may be served on the responsible person for the vehicle either personally or by post: s 102B(1) RTA.
9 When an infringement notice is issued and not complied with by the due date, a final demand may be issued under s 14 of the Act.
10 If a person fails to comply with that final demand the infringement notice may be registered with the registry: s 15 of the Act.
11 Once the infringement notice is registered with the registry the Act permits the following steps to be taken to enforce it:
(i) the registrar may issue an order to pay or elect, which must be served on the alleged offender: s 17 of the Act;
(ii) if payment or election under the s 17 order is not made by the due date, the registrar may issue a notice of intention to enforce which must be served on the alleged offender: s 18 of the Act;
(iii) if payment or election under the s 18 notice is not made by the due date, a licence suspension order may be made suspending the alleged offender's driver's licence (s 19(1) of the Act) and a notice confirming that licence suspension must be served on the alleged offender: s 19(7) of the Act;
(iv) irrespective of whether a licence suspension order is made if payment or election under the s 18 notice is not made by the due and the aggregate unpaid infringement amount in relation to the alleged offender is at least $2,000, then the registrar may issue an enforcement warrant under s 21A of the Act;
The Act provides that any documents referred to above may be served by posting the document by prepaid post to the person at the person's last known address (s 5(2) of the Act) and once that is done the document is taken as having been served on that person: s 5(5). A person's last known address may be taken to be the person's current address shown in the records of the Director General or the Electricity Generation and Retail Corporation: s 5(4) of the Act.
How an enforcement warrant is challenged
12 Section 101AA(2) of the Act provides that:
A person in respect of whom an enforcement warrant has been issued under pt 3 (the applicant) may apply to the Magistrates Court for an order cancelling the warrant.
13 If the enforcement warrant is cancelled then the infringement continues to exist as if the registrar had never issued the warrant and the ability to pay the infringement notice or elect for it to be dealt with by the court is restored: s 101AA(8) of the Act.
14 On 21 January 2014 Ms Plati applied to the Perth Magistrates Court under that section for cancellation of the four enforcement warrants issued under pt 3 of the Act. Each enforcement warrant relates to a different infringement notice issued against Ms Plati.
15 Once an application for an order cancelling the warrant is made under s 100AA (7 ) the onus is on the applicant to satisfy the court that none of the following notices have been received:
(a) the infringement notice that gave rise to the warrant;
(b) the final demand issued under s 14 in respect of the infringement notice;
(c) the order to pay or elect issued under s 17 in respect of the infringement notice;
(d) the notice of intention to enforce issued under s 18 in respect of the infringement notice; and
(e) any notice confirming licence suspension issued under s 19(6) in respect of the infringement notice.
The application to cancel the enforcement warrant
16 Ms Plati filed an affidavit in respect of each of the infringement notices that she received. In relation to the infringement notice subject of application 1461 of 2014 Ms Plati's affidavit says (Appeal Book page 46):
Infringement notice No. H8716190, last in possession on 9th March 2012 to the best of my recollection should the document which have been received have been the infringement.
17 At the hearing before his Honour Ms Plati said, when asked about that affidavit:
That was one that was handed to me, not one that was actually taken by multanova, and that was discussed with the magistrate at the last – on 28 March. And I explained to the magistrate that I received something, and I'm presuming it was the - - -
HIS HONOUR: The infringement notice so that - - -
PLATI, MS: Yes. And soon after it was stolen just like everything else is being stolen.
HIS HONOUR: Yes, but – all right. So that one you got the infringement notice.
PLATI, MS: Yes. Well, I mean I can accept that it was – yes.
HIS HONOUR: All right. So Ms Plati - - -
PLATI, MS: Yes, I never – yes. The other three I haven't received in the mail - - - (Appeal book page 81-82)
18 Ms Plati says, at the appeal, that when she made these remarks she was 'under pressure'.
19 In relation to the remaining three applications, being application 1457 of 2014 relating to enforcement warrant 11/2271526, application 1460 of 2014 relating to enforcement warrant 11/2285390 and application 1462 of 2014 relating to enforcement warrant 11/2338343, the appellant's case is that she did not receive these because her mail was being stolen at around about the time that she would have received these documents.
20 His Honour dismissed all four applications.
21 Application 1461 of 2014 was dismissed on the basis that the applicant own affidavit and statements in court established that she had received the infringement notice.
22 Applications 1457 of 2014, 1460 of 2014 and 1462 of 2014 were dismissed on the grounds that as the items were reported stolen that meant they had been received and Ms Plati was not therefore able to establish she had not received none of the documents referred to in s 100AA (7).
The meaning of the word 'received' in s 100AA(7)
23 The word 'received' is not defined within the Act. It is properly conceded by the respondent that there may be circumstances where a document issued under the Act is duly served in accordance with the Act, that is it is posted to the person's last known address, but not actually received by that person.
24 Section 101AA recognises this also.
25 The Act itself recognises that there can be a difference between service of a notice and the actual receipt of that notice, for example, s 101D of the Act specifically provides that licence suspension orders are not affected by the fact that the person did not receive the required documents.
26 The use of the word 'received' involves more than the documents being sent and a statutory provision deeming them delivered in the normal course of the post. The distinction between service and receipt was recognised by the High Court in Fancourt v Mercantile Credits Ltd (1986) 154 CLR 87.
Conclusion
27 The appellant's evidence in respect of applications 1457 of 2014, 1460 of 2014 and 1462 of 2014 was essentially that she did not receive the notices listed in s 101AA(7)(a) to (e) because they were stolen from her letterbox.
28 Her evidence if accepted establishes an arguable case for non-receipt. With greatest of respect to his Honour he was in error to conclude that because the document had been posted in accordance with the Act that meant they had been received by Ms Plati.
29 Section 101AA recognises that there may be circumstances where despite documents being posted in accordance with the Act they had not been received and if the court is satisfied on the balance of probabilities that none of the s 101AA(7)(a) to (e) documents were received by Ms Plati, the enforcement warrant is to be cancelled. I would allow the appeal in respect to the enforcement warrants the subject of applications 1457 of 2014, 1460 of 2014 and 1462 of 2014; set aside his Honour's decision dismissing those applications and remit each application to the Magistrates Court to be determined according to law.
30 The application in relation to 1461 of 2014 ought to be dismissed as the infringement notice was received by Ms Plati and no error had been shown in his Honour's reasons.
31 Irrespective of whether Ms Plati was under pressure, she said in court that she accepted that she had been given the infringement notice and no error in his Honour's reasons can be demonstrated.
32 Ms Plati says her appeal in relation to application 1461 of 2014 ought to be allowed because s 21A of the Act says:
(1) If —
(a) 28 days have elapsed since the day on which a notice of intention to enforce was issued; and
(b) the modified penalty, and enforcement fees, specified in the notice have not been paid to the Registry; and
(c) the alleged offender has not made an election under section 21; and
(d) the aggregate unpaid infringement amount in relation to the alleged offender is at least —
(i) $2 000; or
(ii) if regulations prescribe a higher amount for the purposes of this paragraph — that higher amount,
then, whether or not a licence suspension order made under section 19 is in force, the Registrar may issue an enforcement warrant.
34 I reject this argument, it is misconceived.
35 Section 11 of the Act provides:
aggregate unpaid infringement amount, in relation to an alleged offender, means the aggregate of the unpaid infringement amounts for each outstanding order to pay or elect in relation to the alleged offender.
36 All I have done is allow the appeal on the other three applications against his Honour's dismissal of the application to cancel the enforcement warrant's and remitted them for a re-hearing. No order has been made cancelling those three enforcement warrants. At the re hearing the application will either be granted or dismissed depending on whether Ms Plati discharges the burden on her.
37 The enforcement warrant in relation to application 1461 of 2014 complies with s 21A because at the time of its issue the aggregate of the unpaid infringement amounts for each outstanding order to pay or elect in relation to Ms Plati exceeds the sum of $2,000 (Appeal Book pages 7, 18, 29, 39).
38 The enforcement warrant the subject of application 1461 of 2014 was validly issued and his Honour has not been shown to have erred in dismissing the application to cancel it.
39 There should be no order as to cost.
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