Re Magistrate Black - [2010] WASC 222

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: RE MAGISTRATE BLACK; EX PARTE SADLER [2010] WASC 222

CORAM: EM HEENAN J

HEARD: 12 MARCH, 26 JULY 2010

DELIVERED : 20 AUGUST 2010

FILE NO/S: CIV 1174 of 2010

MATTER :An application under the Magistrates Court Act 2004 s 36 for a review order against his Honour Magistrate Black of the Magistrates Court of Western Australia at Perth

EX PARTE
SHANE SADLER
Applicant
AND
MAGISTRATE ROBERT BLACK
First Respondent
ERIN CUMMINS
Second Respondent

Catchwords:

Review order - Dismissal by magistrate of application to correct a sentence - Road Traffic Act, s 60 - First or second offence - Statutory modification of the ingredients of the offence after the first conviction - Whether statutory modification has retrospective effect

Legislation:

Road Traffic Act 1974 (WA), s 60
Magistrates Court Act 2004 (WA), s 36
Sentencing Act 1995 (WA), s 37

Result:

Order to quash decision to dismiss application to correct sentence.
Remit to Magistrates Court application to correct sentencing for further hearing and determination on the basis that the offence by the second respondent is his second offence under s 60 of the Road Traffic Act 1974 (WA)

Category: A

Representation:

Counsel:

Applicant:     Ms C A Lake
First Respondent           :     No appearance
Second Respondent       :     No appearance

Solicitors:

Applicant:     State Solicitor's Office
First Respondent           :     No appearance
Second Respondent       :     No appearance

Case(s) referred to in judgment(s):

Byrne v Gray [1956] VLR 520; [1956] ALR 1111
Davies v Wylie & Geason (1992) 1 Tas R 73
Fisher v Hebburn Ltd [1960] HCA 80; (1960) 105 CLR 188
Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261
Page v Winkler (1975) 12 SASR 126
Rayney v AW [2009] WASCA 203
Re an application under the Magistrates Court Act 2004; Ex parte Brecker [2007] WASC 151

EM HEENAN J: Simply stated, the issue raised by this application for review of a decision of the first respondent, as a magistrate sitting in the Magistrates Court, imposing a sentence against the second respondent for a breach of s 60(1b) of the Road Traffic Act1974 (WA) is whether or not his Honour was correct in treating this as the second respondent's first offence of that kind or whether, as the applicant submits, his Honour was bound in law to treat it as a second offence and, as such, liable to a greater mandatory penalty. As with many questions capable of simple formulation, the controversy which it raises is less than straightforward. It arises because amendments made to s 60 of the Road Traffic Act1974 by Act number 54 of 2006 significantly altered the ingredients of that offence and widened its scope so that from then on conduct which before may not have constituted an offence against that section then did so.
Earlier, on 17 May 2002, the second respondent, Mr Erin Cummins, had been convicted of the offence of reckless driving contrary to s 60(1) of the Road Traffic Act1974 as it then stood. The charge which was dealt with by his Honour Magistrate Black, and to which the second respondent had pleaded guilty, was that on 10 July 2009 he had committed the offence of driving at 45 km per hour over the speed limit, contrary to s 60(1b) of the Road Traffic Act1974 as amended. At the hearing before his Honour this was treated as the second respondent's first offence against s 60 and he was, on that basis, fined $750 and disqualified from holding or obtaining a driver's licence for nine months. No issue arose at the hearing before his Honour on 11 August 2009 about whether or not the offence then being dealt with was a first or second offence. The prosecution, the defendant and his Honour all treated it as a first offence.
Later, the applicant, as prosecutor, applied to the Magistrates Court to correct that sentence pursuant to s 37 of the Sentencing Act 1995 (WA). The reason for that application was stated as being that the sentence imposed, namely the fine of $750 and disqualification for nine months, was inadequate because, pursuant to s 60(3) of the Road Traffic Act 1974, the offence should have been treated as a second conviction for which the mandatory penalty was a fine and disqualification for a period of not less than 12 months.
The application to correct the sentence came on for hearing before his Honour on 12 January 2010. After hearing submissions from the applicant, his Honour dismissed the application to correct the sentence. His Honour's reasons for doing so should be set out, almost in full, because, in the absence of any submissions by the second respondent, they constitute the case which the present applicant must overcome to obtain the review which he seeks. Subject to some minor omissions to delete passages which now need now be stated, his Honour said:
The application before me is pursuant to section 37 of the Sentencing Act, said to be for a correction of sentence. On 11 August [sic] last year Mr Cummins came before the court charged with an offence pursuant to section 60(1)(b) [sic 60(1b)] of the Road Traffic Act, that is, speeding by an amount of 45 kilometres per hour or more over the allowable limit. He entered a plea of guilty to the charge on that particular day.
On that occasion the facts that were put before me are that he was travelling at a speed of 125 kilometres per hour in an 80 zone, exactly 45 kilometres per hour over the allowable limit at that particular point of the Mitchell Freeway. It was also put by the prosecutor on that occasion that there were no prior convictions.
It has transpired that prior that date, 11 August - some time in 2002 [in fact, 17 May 2002] - he was charged with an offence under what was then section 60 with what is colloquially known as reckless driving, and that is, a person who wilfully drives a vehicle in a manner inherently dangerous, having regard to all the circumstances of the case dangerous to the public or any person. At that point that was the only charge under section 60.
2006 amendments to the Road Traffic Act which came into effect in 2008 added charges under section 60(1)(a) and (1)(b) [in fact, sections 60(1a) and 60(1b)] which are speeding charges, and imposed the same penalties as existed or actually were amended at that time for again what is colloquially known as reckless driving.
An offence of speeding by 45 kilometres per hour over the allowable [limit] is quite different to an offence of reckless driving. I will refer to it as an offence under section 60 subsection (1) [sic [b] or 60(1b)], quite different to an offence of reckless driving. Reckless driving requires that there be an element of wilfulness, there be an element of inherent danger or danger to other road users that exists in all the circumstances.
Speeding, whilst it can be inherently dangerous in some circumstances, and whilst it can be dangerous otherwise in some circumstances, that is not necessarily so. It is not a charge. Speeding under section 60(1)(b) [sic 60(1b)] is not a charge of reckless driving. It is a charge of speeding.
At the time that Mr [Cummins] was convicted of reckless driving in 2002, no such offence existed. It came into effect in 2008 as a result of the 2006 amendment. It is something difficult [sic perhaps 'different']. Certainly subsection (3) of section 60 provides that a person convicted of an offence against this section is liable, and then it provides (a) for a first offence, a fine; for a second offence, a fine; for a third offence, a different fine. The submissions made in this instance that this must be dealt with as a second offence, given the reckless driving charge of which Mr [Cummins] was convicted in 2002. Clearly, as I said, the offence he was dealt with for on 11 August is a different type of offence that did not exist in 2002 when he was convicted of reckless driving.
It is clearly the law that ‑ if Parliament when it amends an Act, penalties, creates a new offence, it is clearly the law where that is intended to have a retrospective effect ‑ and that's what this on the submission of the prosecution is, that it doesn't matter that he has never been convicted of an offence of speeding under section 60(1)(b) [sic 60(1b)], that constitutes a second offence but an offence which is of a different nature. It's clearly the law that there must be express ‑ it must be expressed clearly that it is intended to have that sort of effect, that retrospective effect.
There is nothing in section 60 which makes that the case. There is no clear expression by Parliament that that is to be the case. Obviously, from the time that those amendments came into effect in 2008, if a person was convicted subsequent to that time of an of an offence of reckless driving, he then was convicted after that of an offence of speeding, it would be a second offence but that's not the case here.
In my view in all the circumstances a conviction of the nature of the conviction of 11 August does not constitute a second offence under section 60, though in the future if there was a further offence of reckless driving, it may but as everything stands now, there being no clear express of Parliament's will in relation to the question of retrospectivity in my view this falls to be dealt with as a first conviction. That was the manner in which Mr [Cummins] was dealt with and indeed that was what the court was told on the particular date, that there was no prior conviction further to section 60.
In those circumstances, in my view, the application for correction of sentence must fail. It is dismissed.

Present proceedings

By notice of originating motion of 8 February 2010 the present applicant sought an order under s 36 of the Magistrates Court Act 2004 (WA) requiring his Honour, the learned magistrate, and any person affected by the dismissal by his Honour on 12 January 2010 of the application to correct the sentence his Honour imposed on Mr Cummins on 11 August 2009, to satisfy the Supreme Court at the hearing that this court should not grant the application. The notice of motion set out lengthy grounds, which included a detailed history of the events which I have already described, before reaching the essential grounds upon which the review order was sought. These are:
3.At the hearing on 12 January 2009 of the application for a correction of the sentence, his Honour dismissed the application. His Honour reasoned that the previous offence of which Mr Cummins was convicted was a different type of offence from the recent offence and that the recent offence did not exist when the previous offence had been dealt with. He reasoned that to consider the recent offence his second offence would be to give s 60(1b) a retrospective effect, which was not permissible in the absence of clear statutory language, which did not appear in s 60.
4.The second conviction was, as a matter of law, a second conviction for the purposes of s 60(3)(b) of the Road Traffic Act1974 since the previous conviction was a conviction against s 60.
5.In determining the application under s 37 of the Sentencing Act 1995, Mr Black was under a duty to grant the application to correct the sentence for the second conviction.
At the first return of that motion on 12 March 2010 I ordered that there be a review of the decision by his Honour to dismiss the application to correct the sentence on the grounds sought and directed that the review order should be heard by a Judge in chambers. I also ordered that the first respondent and the second respondent should be joined as parties to the application and that the review order and a copy of the transcript of the ex parte hearing before me on 12 March 2010 be served on each respondent.
Service of the order nisi and the other papers as directed was effected and, by notice dated 23 June 2010, the State Solicitor, acting for the first respondent, informed the court that his Honour did not intend to appear by way of counsel and would abide by the decision of this court save as to costs. A letter dated 12 July 2010 was received by the court from the second respondent and later my Associate, at my direction, communicated with Mr Cummins. By this process, Mr Cummins informed the court that he would be out of Australia on the day fixed for the hearing but, in any event, did not wish to appear in person or by a solicitor and would abide by the ruling of the court.
The order nisi then came on for hearing on 26 July 2010, when counsel again appeared for the applicant. There was then no appearance for either respondent. The submissions advanced by the applicant on this second occasion were essentially the same as contained in the grounds for the application and advanced at the first hearing.

Application for review order

The avenue of recourse to this court adopted by the applicant in the present case is, as already mentioned, under s 36 of the Magistrates Court Act 2004. This provides as follows:
36. Supreme Court’s powers to control Court
(1)If a person is or would be aggrieved by one or more of the following -
(a)the failure of a Court officer to do any act or make any order or direction -
(i)on the ground that the officer is under a duty to do the act or make the order or direction; or
(ii)on any ground that might have justified an order of mandamus;
(b)an act, order or direction that a Court officer proposes to do or make -
(i)on the ground that it would be without jurisdiction or power or would be an abuse of process; or
(ii)on any ground that might have justified an order of prohibition;
(c)an act, order or direction done or made by a Court officer -
(i)on the ground that it was done or made without jurisdiction or power or is an abuse of process; or
(ii)on any ground that might have justified an order of certiorari,
the person may apply to the Supreme Court for an order (a review order) that requires the Court officer and any person who will be affected by the act, order or direction to satisfy the Supreme Court at a hearing that the act, order or direction should or should not be done or made or set aside, as the case requires.
(2)The procedure for making, and in relation to, an application under subsection (1) is to be prescribed by rules of court of the Supreme Court.
(3)On an application made under subsection (1) and rules of court of the Supreme Court, the Supreme Court may make any review order that is just, whether it has been applied for or not.
(4)If at the hearing required by a review order the Supreme Court is not satisfied in accordance with the review order, or if it is just to do so, it may -
(a)order that the act, order or direction be or not be done or made or set aside, as the case requires;
(b)grant any relief or remedy that could have been granted by way of a writ of mandamus, prohibition or certiorari;
(c)make any necessary consequential orders.
(5)On an application made under subsection (1) in respect of an act, order or direction, the Supreme Court may —
(a)if it considers that an appeal lies under the Criminal Appeals Act 2004 in respect of the act, order or direction, order the application to be treated as if it were such an appeal and deal with the matter accordingly;
(b)if it considers that an appeal lies under the Magistrates Court (Civil Proceedings) Act 2004 in respect of the act, order or direction, order the application to be treated as if it were such an appeal and remit the matter to the District Court to be dealt with accordingly.
(6)When dealing with an appeal under the Criminal Appeals Act 2004 the Supreme Court may make a review order and, if it does, may also make an order under subsection (4).
(7)If, when dealing with an appeal under the Magistrates Court (Civil Proceedings) Act 2004, the District Court considers that a review order ought to be made it may -
(a)remit the appeal to the Supreme Court under the District Court of Western Australia Act 1969 section 77; or
(b)adjourn the appeal to enable an application to be made to the Supreme Court -
(i)under subsection (1); or
(ii)under the District Court of Western Australia Act 1969 section 76.
(8)A Court officer, on being served with an order made under subsection (4), must obey the order.
Plainly, the applicant is a person aggrieved because of the failure of the Magistrates Court officer to correct the sentence as sought, thus invoking jurisdiction under s 36(1)(a). Also because the decision of the learned magistrate was an act or order made by the court officer arguably on a ground which might have justified an order of certiorari, that invoked the jurisdiction under s 36(1)(c). The reference to 'court officer' in s 36 means a magistrate as provided by s 3.
It is important to note that under s 36(5)(a) this court may, if it considers an appeal lies under the Criminal Appeals Act 2004 (WA) in respect of the act, order or direction of the magistrate, order the application to be treated as if it were such an appeal and to deal with the matter accordingly.
In the present case, where the applicant alleges that an error of law was made by the learned magistrate in failing to correct the sentence first imposed, which, by necessary implication, also asserts that the sentence first imposed was inadequate, it would appear that the applicant could have applied to this court for leave to appeal from the decision of the learned magistrate under the provisions of s 7 and s 8 of the Criminal Appeals Act 2004 and that, in the circumstances, it is probable that leave to appeal would have been granted and review of the decision on appeal would have been available. It follows that the present application must be considered on the footing that the discretionary remedy of judicial review be approached on the basis that an alternative remedy, namely the avenue to apply for leave to appeal and to appeal from the decision in question, was also available.

Alternative remedy - appeal

There were no submissions to this court addressing the point of whether or not the co‑existence of an adequate right of appeal should lead to judicial review being refused in the exercise of a discretion. The second respondent has not raised the issue and, accordingly, this is not an appropriate occasion to address it at any length. However, it should not be assumed that the co‑existence of an adequate appeal right will not be of importance or might not lead to the refusal of judicial review. Nothing appears to turn on the choice in the present case but there may well be cases when it could. In this regard, it is sufficient at present to refer to the observations of the learned authors of Judicial Review And Administrative Action Law Book (3rd ed) Aronson, Dyer and Groves, 716 ‑ 717 when speaking of the discretionary reasons to refuse the traditional prerogative remedies of certiorari and probation:
The remedies are sometimes refused when it is thought preferable for the applicant to pursue the normal appeal processes in the civil courts or the tribunals. However, the case for discretionary refusal is weakened where the impugned decision‑maker maintains that no such appeal lies, or that if it does, its grounds are significantly restricted.
It is impossible to reconcile all of the cases concerning the extent of the court's discretion, if any, to refuse certiorari or prohibition on the ground that it is preferable for the applicants to pursue their appeal rights. Some of the cases are complicated by discussion of the conceptually separate question of whether the court's discretion is diminished or absent where the jurisdictional error is patent. The dominant approach in the older cases used to be to treat as irrelevant the fact that the applicant also had appeal rights. Most of the modern cases are quite different, viewing the existence of an appeal right for the applicant as a consideration relevant to the discretion to refuse prerogative relief. The High Court in particular will usually refrain from granting judicial review of Federal Court proceedings where an appeal lies with special leave. Of course, the fact that applicants have used their appeal rights before resorting to judicial review cannot count against them as either a waiver or a mechanism which cures the defect of which they complain. It is submitted that the case for discretionary refusal on the basis that the applicant should first use their appeal rights is stronger in the rule nisi stage (for those jurisdictions still retaining a leave requirement) or if the court insists that it be raised as a preliminary issue. The problem of whether to prioritise appeal and review rights is particularly acute where the appeal and the review lie to the same court. The New South Wales Court of Appeal regards it as an abuse of process in such a case to lodge both an appeal and an application for judicial review (footnotes and references omitted).

In the present instance, an application for leave to appeal under the Criminal Appeals Act and this application for judicial review both lie to this court. There is a leave requirement for any such appeal but, as already noted, the application for an order for review under s 36 of the Magistrates Court Act 2004 is also at the discretion of the court, and that discretion contains ample scope for such control mechanisms as may be needed to avoid unmeritorious applications passing beyond the initial stage. One potentially significant difference between the two available forms of procedure is that the order to review procedure may be available in respect of interlocutory decisions or even, by analogy with prohibition, to prevent the continuation of proceedings pending or in progress. It is at the present unnecessary to do more than notice these differences and to leave to some future occasion any question of their effect in other instances. This decision by the learned magistrate dismissing the application to correct sentence is a final decision and, therefore, granting judicial review would not involve any interruption to the continuity of the prosecution process.

Judicial review

The question of whether or not the establishment of an error or an act in excess of jurisdiction by a magistrate would of necessity lead to relief being granted under s 36 of the Magistrates Court Act 2004 or whether, even in that event, the grant of relief is discretionary was addressed by Beech J in Re an application under the Magistrates Court Act 2004; Ex parte Brecker [2007] WASC 151 [47] ‑ [50] where his Honour concluded that even if an error of jurisdiction was demonstrated, the court has a discretion whether or not to exercise its power under s 36(4). After considering further submissions, his Honour then proceeded to address the approach which has been taken by the court in relation to the exercise of the power to grant relief on the basis that it was discretionary. His Honour observed:
[58]However, I do not accept the respondent's submission that an applicant for prerogative relief who has demonstrated a jurisdictional error must then satisfy the court that the circumstances call for a favourable exercise of discretion. In my opinion, the position is to the contrary. In the setting of an application for prerogative relief, the discretion may be said to be a discretion to withhold relief, rather than a discretion to grant it. So, for example, in Re Carey; ex parte Exclude Holding Pty Ltd [2006] WASCA 219 at [129]; (2006) 32 WAR 501 at 527, Martin CJ observed (citing Gudgeon v Black; ex parte Gudgeon (1994) 14 WAR 158 at 178–179) that an appropriate starting point in the consideration of the exercise of the discretion to grant prerogative relief is that once it is found that the Tribunal exceeded its jurisdiction the court will normally exercise its discretion in the applicant's favour. Thus, it will normally be for those opposing the grant of relief to point to factors which justify a departure from that approach.
[59]Underlying this approach to the exercise of discretion may be the fundamental significance of a finding of excess of jurisdiction. As Hayne J observed in Re McBain; ex parte Catholic Bishops Conference (2002) 209 CLR 372 at 473 [284] (Gummow and Gaudron JJ agreeing at [80]), leaving aside the decisions of superior courts of record, the act of a public authority that is beyond power is as a general rule of no legal effect. Thus it is that a finding of excess of jurisdiction will, absent facts or circumstances justifying the contrary, lead to a setting aside of the act or decision by way of certiorari.
[60]I am mindful that a power created by a statute should not be constrained by the approach previously taken in an analogous common law framework. The general words of a statute are not to be read as if the pre‑existing common law were engrained upon it.
[61]Nonetheless, bearing in mind the considerations just mentioned, I approach the exercise of power under s 36(4) in this case on the following basis. It having been shown that the order of committal for sentence was beyond jurisdiction, I am inclined in favour of making an order setting it aside unless the facts and circumstances mean that it is not just to do so.
His Honour then observed that delay is a discretionary ground for the refusal of relief under s 36(4) of the Magistrates Court Act 2004 but did not consider that in the circumstances of that case delay had been of sufficient significance to withhold relief. His Honour therefore proceeded to exercise the court's powers under s 36(4) to quash an order made in the Magistrates Court without jurisdiction to commit the applicant for trial on an indictable offence.
The decision of the learned magistrate to dismiss the application for correction of sentence was, as already stated, on 12 January 2010. The application for judicial review was commenced by the motion dated 8 February 2010. That is 27 days later. It was, therefore, made promptly and there is no occasion to withhold relief because of delay.
The scope of the power of judicial review under s 36 of the Magistrates Court Act 2004 was also examined in Rayney v AW [2009] WASCA 203. McLure JA, with whom Buss and Newnes JJA agreed, said as follows:
[24]The Magistrates Court Act and the new Magistrates Court which it created commenced on 1 May 2005. The creation of the Magistrates Court was accompanied by the repeal of the Justices Act 1902 (WA) and the Local Courts Act 1904 (WA). Those repealed Acts had made provision for judicial review by the Supreme Court of the acts or omissions of officers of the Local Court and Court of Petty Sessions: Pt VII of the Local Courts Act; s 39 of the Justices Act.
[25]Judicial review is a supervisory function that is distinct from an appeal or other review on the merits. Judicial review concerns itself solely with the legality of decisions. The focus is on jurisdictional errors. At common law, the scope of judicial review is determined by the availability of the prerogative writs, which include mandamus, prohibition and certiorari. For all intents and purposes, the right and remedy are indistinguishable at common law.
[26]The scope of judicial review varies according to the nature and power of the decision-maker. The common law grounds of judicial review applicable to courts and analogous tribunals are significantly narrower than the grounds of review of decisions of administrative tribunals: Craig v South Australia (1995) 184 CLR 163 at 177–179; Re Carey; Ex parte Exclude Holdings Pty Ltd (2006) 32 WAR 501 [181].
[27]There can be no doubt that the power in s 36 of the Magistrates Court Act is a judicial review power. The purpose of s 36 is to replace, and provide a statutory alternative to, the common law relating to judicial review of the acts or omissions of officers of the court. The intention is to permit judicial review in those situations in which the specified prerogative writs would have been available but also to free the courts from the technical requirements associated with those ancient remedies. That purpose is evident in the language and context of ss 35 and 36. Section 35 takes away the Supreme Court’s power to issue a prerogative writ in the form of a writ of mandamus, prohibition or certiorari and substitutes the remedies in s 36(4). A review order, like an order nisi, is an order to show cause why the relief in s 36(4) should not be granted.
[28]The language and purpose of s 36 in its broader statutory context compels the conclusion that the power in s 36(4) to grant relief is only enlivened if one or more of the grounds listed in s 36(1)(a), (b) or (c) has been established.
[29]Section 36(1) is not solely concerned with the standing of a person to apply for a review order. Importantly, it identifies the purpose and content of a review order. The review order must require the court officer (and any other affected persons) to satisfy the Supreme Court at a hearing that the act, order or direction referred to in paras (a), (b) or (c) of s 36(1) should or should not be done, made or set aside by reference to the grounds of review specified in subparas (i) and (ii) of those paragraphs.
[30]The 'hearing' referred to in s 36(1) is the hearing for final relief in s 36(4). Thus, there is an express link between the grounds enlivening the power to make a review order in s 36(1) and the power to grant relief in s 36(4).
[31]Section 36(3), when read with s 36(1), provides the source and scope of the court’s power to make a review order. The Supreme Court 'may make any review order that is just, whether it has been applied for or not'. Satisfying the threshold (whatever that may be) for an error of a type identified in subparas (i) and (ii) of s 36(1)(a), (b) or (c) (a reviewable error) is a precondition to the exercise of the power to grant a review order. The expression 'that is just' is not intended to empower the court to make a review order requiring the decision-maker to show cause if the decision-maker has not made (at least) an arguable reviewable error. The expression 'that is just', in context, means the court has the power to grant a review order whether or not there is an application for such an order and whether or not a specific ground of reviewable error has been relied on by the applicant. The expression also empowers the court in appropriate circumstances (such as the availability of an appeal) to decline to make a review order even if the threshold test of a reviewable error has been established. The power is, in that limited sense, discretionary.
[32]The expression that 'the Supreme Court is not satisfied in accordance with the review order' in s 36(4) corresponds with the requirement in s 36(1) that the court officer (and any other affected persons) satisfy the Supreme Court in relation to the alleged reviewable error the subject of the review order. The central question in this case is the meaning of the words 'or if it is just to do so' in s 36(4). Those words are not intended to make the power to grant final relief at large. By analogy with the similar expression in s 36(3), the power in s 36(4) is conditioned upon establishing a reviewable error. The expression 'just to do so' is intended to permit the court to grant final relief in relation to a reviewable error falling within s 36(1) even if it falls outside the scope of the reviewable errors identified in the review order. Having regard to the language and statutory purpose of s 36 the expression cannot sensibly be interpreted to mean that the Supreme Court can exercise one or more of the powers s 36(4)(a), (b) or (c) whether or not there is a reviewable error or indeed any error at all. Such an approach would turn the notion of judicial review completely on its head.
[33]This construction of s 36(4) is consistent with the scope of the available relief in s 36(4). The power to grant the relief in paras (a) and (b) of s 36(4) corresponds precisely with the relief required to address the acts and omissions specified in paras (a), (b) and (c) of s 36(1). Further, the power in s 36(4)(c) 'to make any necessary consequential orders' can only be a reference to a prior substantive order made under paras (a) or (b) of s 36(4). A consequential order is one which follows logically or of necessity from a prior substantive order: Pera v Pera (2008) 218 FLR 222 [61].
[34]In summary, the power to make an order under s 36(4) only arises if the challenged act or omission of the court officer satisfies one or more of the grounds specified in s 36(1)(a), (b) or (c). As neither party contended in the appeal that the magistrate made any reviewable error, it follows that the primary judge did not have the power to make the disclosure order.
This is authority binding upon me that the power to grant relief under s 36 is discretionary and that a number of factors, including those relevant to granting or withholding the grant of the prerogative remedies of prohibition, certiorari or mandamus, including delay, are relevant on the question of whether or not relief should be withheld in the exercise of a discretion. With these principles in mind, it is now appropriate to turn to the circumstances of this case.

The Road Traffic Act 1974 s 60

It is necessary to set out the provisions of s 60 of the Road Traffic Act1974 as it stood, first, at the time of the applicant's conviction for reckless driving on 17 May 2002, and then again as it stood on 10 July 2009 when he had driven at a speed more than 45 km per hour greater than the prescribed speed limit, contrary to s 60(1b) of the Act as it then stood.
In February 2002 s 60 of the Road Traffic Act1974, so far as is presently material, provided:
60. Reckless driving
(1)Every person who wilfully drives a motor vehicle in a manner (which expression includes speed) that is inherently dangerous or that is, having regard to all the circumstances of the case, dangerous to the public or to any person commits an offence.
(2)A person charged with an offence against this section may, instead of being convicted of that offence, be convicted of an offence against section 61 or 62.
(3)A person convicted of an offence against this section is liable -
(a)for a first offence, to a fine of 20 PU or to imprisonment for 6 months; and, in any event, the court convicting that person shall order that he be disqualified from holding or obtaining a driver’s licence for a period of not less than 6 months;
(b)for a second offence, to a fine of 24 PU or to imprisonment for 6 months; and, in any event, the court convicting that person shall order that he be disqualified from holding or obtaining a driver’s licence for a period of not less than 12 months; and
(c)for a third or subsequent offence, to a fine of 48 PU or to imprisonment for 12 months; and, in any event, the court convicting that person shall order that he be permanently disqualified from holding or obtaining a driver’s licence.
By contrast, the section as it stood at the date of the second respondent's offence on the 10 July 2009 and his conviction and sentence on 11 August 2009, is as follows:
60. Reckless driving
(1)Every person who wilfully drives a motor vehicle in a manner (which expression includes speed) that is inherently dangerous or that is, having regard to all the circumstances of the case, dangerous to the public or to any person commits an offence.
(1a)A person who drives a motor vehicle at a speed of 155 km/h or more commits an offence.
(1b)A person who drives a motor vehicle at a speed exceeding the speed limit set under this Act for that vehicle or the place where the driving occurs by 45 km/h or more commits an offence.
(1c)Despite subsections (1a) and (1b), the driver of a motor vehicle is not guilty of an offence under those subsections if -
(a)either -
(i)the motor vehicle is being used to convey a member of the Police Force on official duty and the travelling at such speed is necessary to prevent the commission or continuation of an offence or to apprehend an offender or to assist a driver excused under subparagraphs (ii), (iii) or (iv);
(ii)the driver is on official duty responding to a fire or fire alarm;
(iii)the driver is on official duty responding to an emergency or rescue operation where it is reasonable to assume that human life is likely to be in danger; or
(iv)the motor vehicle is an ambulance and is being used to answer an urgent call or to convey a person to a place for the provision of urgent medical treatment;
(b)the driver is taking reasonable care; and
(c)the vehicle is displaying a blue or red flashing light or sounding an alarm unless, in the circumstances, it is reasonable for a light not to be displayed or an alarm not to be sounded.
(1D)A member of the Police Force who reasonably suspects that a person has committed an offence against this section may, without a warrant, arrest the person.
(2)A person charged with an offence against this section may, instead of being convicted of that offence, be convicted of an offence against section 61 or 62 or, if the charge is of an offence against subsection (1), an offence against section 62A.
(3)A person convicted of an offence against this section is liable -
(a)for a first offence, to a fine of 40 PU or to imprisonment for 9 months; and, in any event, the court convicting that person shall order that he be disqualified from holding or obtaining a driver’s licence for a period of not less than 6 months;
(b)for a second offence, to a fine of 60 PU or to imprisonment for 9 months; and, in any event, the court convicting that person shall order that he be disqualified from holding or obtaining a driver’s licence for a period of not less than 12 months; and
(c)for a third or subsequent offence, to a fine of 80 PU or to imprisonment for 12 months; and, in any event, the court convicting that person shall order that he be permanently disqualified from holding or obtaining a driver’s licence.
The submission for the applicant is that by virtue of s 60(3)(b) the second respondent should have been subject to a mandatory disqualification of not less than 12 months rather than the period of nine months' suspension imposed by the learned magistrate, where his Honour acted, obviously, on the basis that this was a first offence to which s 60(3)(a), as it presently stands, applied.
A simple comparison of the two different versions of the section immediately confirms that driving a motor vehicle at a speed exceeding the speed limit for the locality by 45 km or more was not an offence against the section until the introduction of s 60(1b) by Act number 54 of 2006. It is this feature which led the learned magistrate to conclude that the offence for which the applicant had then been convicted upon his plea of guilty was the first occasion upon which he had been convicted of an offence under s 60(1b) and that s 60(3) when referring to an offence against this section should be taken as meaning an offence against the particular subsection (in this case, s 60(1b)) of which he had then been convicted. This approach by the learned magistrate is tantamount to treating s 60 as imposing three separate offences, as designated in s 60(1); s 60(1a); and s 60(1b), each of which renders the offender subject to the same range of penalties. However, on his Honour's approach a conviction for one of the three varieties of offence, if followed by a conviction for one or other of the two remaining varieties of offence may not involve a second offence but, rather, two separate convictions for slightly different offences. Furthermore, having regard to the learned magistrate's reasons for decision referring to the rule of construction that, in the absence of clear indications to the contrary, a statutory provision should be interpreted to avoid giving it retrospective effect, his Honour concluded that this should mean that the recent conviction of the second respondent of an offence against s 60(1b) should not be treated as a second conviction against a section which, at the time of the earlier conviction, did not contain that subsection.
This reference to avoiding an interpretation leading to retrospective application of the section alludes to long‑established principles such as described in Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261, 267 (Dixon CJ):
The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that had already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events.
and to the similar statement by Fullagar J in Fisher v Hebburn Ltd [1960] HCA 80; (1960) 105 CLR 188, 194 where his Honour observed:
There can be no doubt that the general rule is that an amending enactment ‑ or, for that matter, any enactment ‑ is prima facie to be construed as having a prospective operation only. That is to say, it is prima facie to be construed as not attaching new legal consequences to facts, or events which occurred before its commencement.

See generally Pearce & Geddes, Statutory Interpretation In Australia (6th ed) 307 ‑ 320. As with all such general rules, however, there are exceptions and qualifications.
The essential proposition advanced for the applicant is that s 60(3) of the Road Traffic Act1974 does not differentiate between the different kinds of behaviours which constitute reckless driving. The submission is that that subsection merely provides that a person convicted of an offence against the section, irrespective of which subsection, is to be treated as having committed an offence against the section. On this approach, second or subsequent convictions will occur whenever an offender is convicted for a second or subsequent time of any of the behaviours which constitute an offence under s 60 no matter when one or other of the earlier convictions occurred or which of the three varieties it was.
Counsel for the applicant, when appearing on the application for the order nisi, cited Page v Winkler (1975) 12 SASR 126 in support of the submission that this was a second offence against s 60. The situation arising in Page v Winkler was in some respects similar but not identical to that presently under consideration. In Page v Winkler there was a conviction for driving a motor vehicle with excessive alcohol concentration in the blood contrary to provisions of the Road Traffic Act1961 (SA). The question at issue was whether or not that was a second offence for the purposes of determining a mandatory penalty where the offender admitted having previously been convicted of a different drink driving offence contrary to s 47 of the Act some three years before. When s 47B, imposing the offence of which the offender had been convicted, was first passed it provided that, for the purpose of determining whether or not an offence was a first, second or subsequent offence, regard should be had only to such convictions under that subsection has occurred within the five years immediately preceding the conviction, but that was later amended to provide that previous convictions against s 47 and s 47E should be taken into consideration. The issue which arose was whether or not, in order to avoid 'retrospective application', the section should be construed so as to exclude earlier offences which had been committed before the amendment. Hogarth J rejected that contention and held that the offender had committed a second offence and was subject to the mandatory penalty applicable to a second offence. In relation to the submissions dealing with retrospectivity, his Honour observed, at page 129:
Furthermore, the section in its amended form does not seek to impose criminal liability retroactively. It is not retroactive in that it penalises events which occurred before its enactment. It provides that such events may be taken into account in determining what is the appropriate penalty for offences committed after the re‑enactment of the sub‑section.
This, according to the submissions for the applicant, is also the effect of s 60(3) in the Road Traffic Act1974 notwithstanding the introduction by the 2006 amendments of different varieties of behaviour constituting offences against this section as set out in s 60(1), s 60(1b) and s 60 (1c). Pearce & Geddes at [9.20] cite Page v Winkler for the proposition that a requirement that previous convictions be taken into account in a particular way in determining a sentence will require convictions that occurred before the date of the enactment of the requirement to be considered and that to act in this way is to have regard to past events, not to give the requirement retrospective operation and cite, in further support of that proposition, Davies v Wylie & Geason (1992) 1 Tas R 73, 81. For a similar application of this principle, although in relation to the effect of time limits imposed by the statute in relation to certain contractual provisions, see Byrne v Gray [1956] VLR 520; [1956] ALR 1111.
One can readily understand why the learned magistrate recognised a distinction between an offence involving a breach of s 60(1) of the Act, that is the offence of reckless driving in its traditional form, namely driving in a manner (which expression includes speed) that is inherently dangerous or that is, having regard to all the circumstances of the case, dangerous to the public or to any person, on the one hand, and an offence involving a breach of s 60(1a) or s 60(1b) of driving a motor vehicle at 155 km per hour or more or at a speed exceeding the speed limit for the area by 45 km per hour or more, on the other hand. For the first species of offence it is necessary for the dangerous nature of the driving to be proved as an objective element by admissible evidence. For the other offences there is no necessity for proof that the particular driving was dangerous to the public or to any person to be proved. Rather, driving at a speed in excess of 45 km per hour above the local speed limit is treated as having the same consequences as if it were dangerous driving.
In the present instance, if the second respondent had been charged with an offence against s 60(1), he might have pleaded not guilty and the evidence at trial may not have been sufficient to establish that, in all the circumstances, his driving was dangerous to the public or to any person having regard to the particular circumstances ‑ thus leading to a dismissal of a charge formulated in that way. However, what the amended section does is to treat each of the three varieties of offence specified by s 60(1), (1a) and (1b) as being a conviction against the section notwithstanding the differences between them and so susceptible to the same penalties. Section 60(3) adopts this characterisation process further by treating a conviction for any one of these varieties of offence as being equivalent to a conviction for any other so that, despite differences between them, two or more convictions under the section can be aggregated and treated as second and third convictions and so on. This is somewhat akin to the process of 'deeming' certain acts or circumstances to have a particular feature notwithstanding some incongruities but it is this process of characterising the different varieties of offence as all being an offence against s 60 which produces the result which caused the learned magistrate an understandable sense of unease.
However, once the real nature and effect of the tripartite variety of offences now existing under s 60 is recognised, it can be seen that each variety does constitute an offence against that section and, when it comes to the imposition of penalties and a calculation of first, second or subsequent offences, can each be tallied in that process.
That then leaves the question of whether or not the effect of the amendment is to give impermissible retrospective effect to the section. With respect to his Honour, I do not think that it does because all that is done is that, for the purposes of determining what sentence should apply, the court is directed to whether or not any offence against s 60 had been committed in the past, and here it clearly had. The submissions of the applicant in reliance on Page v Winkler are apt and should be upheld.
It follows that I consider that the learned magistrate did make an error of law in dismissing the application to correct the sentence on the erroneous basis that this was not a second offence for the purposes of the section. The question which now arises is what, if any, relief this court should grant in those circumstances. Under s 36(4) of the Magistrates Court Act 2004 this court may order that the decision of the learned magistrate may be set aside and/or grant any relief or remedy that might have been granted on a prerogative writ or make any necessary consequential orders.
Counsel for the applicant submitted that the order dismissing the application to correct the sentence should be set aside and that this court should order that the second respondent be sentenced to 12 months' disqualification in place of the nine months' disqualification imposed by the learned magistrate. However, to do so might give rise to some practical problems because by order of the Magistrates Court of 11 August 2009 the second respondent was sentenced to a period of disqualification of nine months which has, by now, expired. In fact, 12 months has now elapsed since that conviction and disqualification.
Counsel for the applicant submitted that ordinarily a correction of sentence takes effect from the date when the original sentence was imposed as, indeed, is specified by s 37(3a) of the Sentencing Act 1995 'unless the court orders otherwise'. This has led to the further submission that in the event that a review order is granted this court should direct that the corrected sentence should apply from whatever date that this court thinks is appropriate, leading to another further submission that a period of 12 months' suspension should be imposed but ordered to take effect from a date nine months before this court's order (to give effect to the period of nine months' disqualification already served). The reason advanced for this course was to produce a practical result that the second respondent would be subject to a further period of three months' suspension commencing on the date when orders are made following these reasons for judgment.
A not insignificant difficulty with this is that the second respondent presently outside Australia, working in Indonesia and, quite probably, driving motor vehicles on the basis of his Western Australian motor driver's licence which is no longer under disqualification. Another potentially significant feature is that, as shown by the affidavit of Mr Sadler sworn 5 February 2010 and filed in support of the application, it is evident that the second respondent was granted an extraordinary licence pursuant to the provisions of s 671 of the Road Traffic Act1974 in the Perth Magistrates Court on 30 September 2009 which would, in part, have relieved him from the consequences of the period of suspension actually imposed. Whether it is likely that the extraordinary licence would have been granted had the original sentence included an order for 12 months' disqualification as it should have, and what consequences this is likely to have for the second respondent, are matters which need to receive consideration. To leave the extended period of disqualification as operating for 12 months after 11 August 2009 as contemplated by s 37(3a) of the Sentencing Act 1995 may not be satisfactory either because that may have the result that the second respondent had been driving since the expiration of the disqualification period of nine months in reliance upon the validity and effect of the sentence which had been imposed, meaning that he had by then completed his period of disqualification. To make an order now which would mean that he was driving while disqualified for three months after that period would be to risk the imposition of retrospective criminal liability and it could have very adverse effects, not only upon the second respondent but upon third parties, should it have the effect that if any accident or injury have arisen from the second respondent's driving during that three-month period, insurance cover for personal injury or damage to property was lost or jeopardised.
I do not consider that a decision about when the corrected sentence should take effect from should be made without investigating these matters and hearing further from the second respondent. Indeed, the entire question of what penalty should be imposed now that it is recognised that this was a second offence is essentially a matter for the sentencing magistrate. The complications which I have identified show even more clearly why these are matters which should be considered and evaluated in the exercise of the discretion of the judicial officer when actually imposing the sentence.
In the circumstances, I consider that this court should order that the order of the Magistrates Court of 12 January 2010 dismissing the application to correct the sentence should be set aside. The matter should be remitted to the Magistrates Court for further consideration of the application to correct the sentence in accordance with the law as determined by this decision, that is on the basis that this was a second offence under s 60 of the Road Traffic Act 1974.
There is no reason why the remitted application should not be heard by the first respondent or, if his Honour were not, for any reason, available, by another magistrate. This course will mean that notice of the further hearing of the application to correct sentence will need to be given to the second respondent, who will then have an opportunity to appear and make submissions to bring to the attention of the court any fact or circumstance which might bear on the question of what should be the date from which the corrected sentence should apply. It would then be for the learned magistrate dealing with that application to decide, in relation to the evidence bearing on the issue, including events subsequent to 11 August 2009, the date from which the extended period of disqualification should apply.
Because I was assured by counsel for the applicant that this matter was brought essentially as a test case because of its potential application to many other cases, and because the rather obscure issues of law involved are by no means due to any act or omission of the second respondent, the respondent did not seek any order for costs.