Riessen v the State of South Australia No. Scciv-99-396

RIESSEN v THE STATE OF SOUTH AUSTRALIA
[2001] SASC 71

In the Civil Jurisdiction

1................ MARTIN J......... At about 8.30 pm on 25 November 1997, the plaintiff drove a motor vehicle through an area marked as a school speed zone on Burbridge Road at West Beach at a speed of 54 kph. The Minister of Transport had fixed a speed limit of 25 kph for that area, but only for specified hours on school days. A member of the police force issued an expiation notice in the amount of $183 to the plaintiff for exceeding the speed limit. The plaintiff paid that amount to the Commissioner of Police on 20 January 1998. On 30 January 1998 a Magistrate delivered a judgment in another matter in which her Honour found that the establishment of speed zones operating only within specified periods was beyond the power of the Minister of Transport. The plaintiff now seeks restitution of the amount of $183 on the basis that the speed zone through which she travelled was not a valid zone and, therefore, the State has been unjustly enriched.

At the relevant time, the power of a Minister to establish speed limits was found in s 32 of the Road Traffic Act 1961 (“the RTA”). That section was in the following terms:
“Speed zones
32.    (1)    The Minister may, by notice published in the Gazette -
(a)     designate an area as a speed zone;
(b)     vary or revoke a notice under this subsection.
(2)    The Minister may, at any time, fix a speed limit for any speed zone established under subsection (1) or for any road or portion of a road, or any carriageway or portion of a carriageway.
(3)    A speed limit must be indicated by signs erected in accordance with subsection (4).
(4)    The signs must -
(a).... in the case of a speed zone established under subsection (1), be placed at or near the boundary of the area on every road providing entrance to or exit from the area; and
(b)in any other case, be placed at or near the beginning and end of the speed zone,
and must comply with such requirements as are prescribed.”
In respect of the section of road through which the plaintiff travelled, pursuant to s 32(2) the Minister had purported to fix a speed limit of 25 kph to operate from 8 am to 9 am and 3 pm to 4 pm on school days. Pursuant to s 5(1) of the RTA, following the fixing of a speed limit for that section of the road, that section became a speed zone for the purposes of the RTA.
Two other sections of the RTA also require consideration. Sections 49 and 50 were as follows:
“Special speed limits
49.    (1)    A person must not drive a vehicle at a greater speed than -
(a)     60 kilometres an hour in a municipality, town or township; or
(b).... 25 kilometres an hour while passing a school bus that has stopped on a road apparently for the purpose of permitting children to board or alight; or
(c)25 kilometres an hour on a portion of a road that is between a sign bearing the word “SCHOOL” and a further sign bearing the words “END SCHOOL LIMIT” at a time when children proceeding to or from a school are on that portion of the road; or
(d).... 25 kilometres an hour when approaching and within 30 metres of a pedestrian crossing at which flashing lights are for the time being in operation and at the approach to which there is erected a sign bearing the words “SCHOOL CROSSING AHEAD” or words to that effect; or
(e)10 kilometres an hour in a shared zone; or
(f)..... 10 kilometres an hour when proceeding from land abutting on a road into that road; or
(g)10 kilometres an hour when passing a tram that has, in the course of a journey in the same direction as the vehicle, stopped for the purpose of allowing passengers to board or alight; or
(h).... 10 kilometres an hour when the vehicle is on a ramp or jetty leading to a ferry.
(2)In this section -
“school” includes a Sunday school and school grounds abutting on or surrounding a school.
(3)    The speed limit fixed by section 49(1)(a) does not apply within a speed zone.
Speed limits in zones
50.    (1)    A person must not drive a vehicle within a speed zone at a greater speed than the speed fixed for that zone and indicated by a sign or signs erected under this Act.”
The section of road under consideration was not bounded by the type of signs specified in s 49(1)(c) of the RTA. Different signs identifying the section of road as a “school zone” with a speed limit of 25 kph from 8 am to 9 am and 3 pm to 4 pm on school days had been erected. There is no suggestion that the signs did not comply with the requirements of the RTA.
The expiation notice issued to the plaintiff identified the choices available to her. One of those choices was to pay the expiation fee prior to the expiration of a period of 28 days from 25 November 1997. The plaintiff paid the expiation fee prior to the expiration of that period. If the speed zone through which the plaintiff travelled was validly created, any claim for restitution of the expiation fee must necessarily fail. However, the plaintiff argued that the zone was not validly created and pointed to the judgment of the Magistrate that the creation of the zone was beyond the power of the Minister.
In essence, the plaintiff submitted that there were two grounds upon which the Court should find that the creation of the speed zone through which the plaintiff travelled was invalid. First, the offence was said to be constituted by s 50 of the RTA but, in respect of a school zone, a repugnancy existed between s 50 and s 49(1)(c). Secondly, s 32(2) did not authorise the Minister to create a speed zone that operated only between specified hours on school days.
The first contention was based upon the proposition that the legislature has chosen to address the subject matter of speed limits within school speed zones exclusively and exhaustively in s 49(1)(c) of the RTA. It followed that the special provision related to school zones must prevail over the combined operations of ss 32 and 50 (Refrigerated Express Lines v Australian Meat and Livestock Corporation (1979) 29 ALR 333 at 347). Counsel pointed out that specific provision was made in s 49(3) that the speed limit fixed by s 49(1)(a) does not apply within a speed zone. Specific provision having been made for a speed zone limit to prevail over s 49(1)(a), Parliament must have intended that the remaining provisions of s 49 should prevail to the exclusion of ss 32 and 50.
With the exception of the speed limit of 60 kph in a municipality, town or township fixed by s 49(1)(a) of the RTA, the speed limits fixed by virtue of subparagraphs (b)-(h) of s 49(1) apply within a speed zone. It is not surprising that Parliament saw fit to identify circumstances in which specific speed limits would apply within a speed zone to the exclusion of the limit applicable to the balance of the zone. Similarly, it is not surprising that Parliament would have seen fit to determine that a speed zone should apply to the exclusion of the 60 kph limit fixed by s 49(1)(a) in respect of a municipality, town or township. A freeway passing through a municipality is an obvious example of why specific provision had to be made to enable a speed zone to prevail.
The 25 kph limit fixed by s 49(1)(c) only comes into operation if the relevant portion of road is bounded by the specific signs designated in s 49(1)(c). If those signs are in place, the 25 kph speed limit in that portion of road would apply when children are proceeding to or from a school on that portion of road to the exclusion of any speed zone otherwise applicable to that portion of road. However, if the designated signs are not in place, s 49(1)(c) has no application and the speed zone otherwise fixed for that portion of road applies. The critical question is whether Parliament intended that the only way a speed limit can be fixed in respect of roads in the vicinity of schools is to bring s 49(1)(c) into operation through the erection of the designated signs. To put it another way, did Parliament intend that the Minister should be prevented from fixing a speed limit in the vicinity of a school which would operate in circumstances other than those contemplated by s 49(1)(c)?
In my opinion, the scheme of the RTA does not lend itself to the construction for which the plaintiff contended. The RTA was designed to give the Minister the necessary flexibility to create speed limits and zones required to meet a variety of circumstances. One of those circumstances concerns minimising the risks created by passing traffic to students in the vicinity of schools. Viewed in this way, for present purposes the creation of speed limits should not be seen as the creation of an offence. It is the exercise of a power vested in the Minister to control the movement of traffic in the vicinity of schools in the interests of the safety of students. Provided s 49(1)(c) is not capable of operating because the designated signs are not in position, in my opinion the general power of the Minister to fix speed limits and speed zones pursuant to s 32 can be used by the Minister to fix speed limits or speed zones to apply in the vicinity of schools. In these circumstances, there is no repugnancy as submitted by the plaintiff.
As to the power of the Minister to fix speed limits or create speed zones which operate only during restricted periods, s 32(2) contemplates two sets of circumstances. First, if the Minister has designated an area as a speed zone pursuant to s 32(1)(a), the Minister is empowered to fix a speed limit for such a speed zone. Secondly, s 32(2) provides that the Minister may, “at any time”, fix a speed limit “for any road or portion of a road, or any carriageway or portion of a carriageway.”
As mentioned, when a speed limit is fixed the section of road in respect of which that speed limit is fixed becomes a speed zone. The RTA contemplates, therefore, the possibility of a special speed zone for portion of a road or carriageway that is otherwise the subject of a more general speed zone.
Observing that s 32(2) does not explicitly confer a power to set speed limits which operate only for specified periods, the plaintiff submitted that the language of the section is clear and that the power of the Minister is limited to fixing a speed limit to operate at all times. Counsel referred to s 18 of the RTA which provides that a speed zone, once lawfully created, operates indefinitely or until the Minister directs the appropriate authority to remove the relevant signs.
In response, counsel for the defendant urged a more liberal interpretation which he submitted would be in keeping with the objects of the RTA. He contended it was not necessary for Parliament to specifically empower the Minister to fix a commencement date for the operation of a speed zone or speed limit and there was no reason to restrict the power of the Minister in the manner suggested. The fixing of speed limits to operate during specified times should be viewed as a true partial exercise of the power granted by s 32(2).
Parliament has empowered the Minister to fix speed limits to operate for indefinite periods. Bearing in mind the purposes of the RTA to which I have referred, in my view it is not appropriate to apply the restrictive interpretation for which the plaintiff contended. It is an obvious aid to the safe and efficient movement of traffic and pedestrians that the Minister be able to fix speed limits to operate at specified times. The wider power enables the Minister also to exercise the power for a more limited purpose: The President of the Shire of Charlton v Ruse (1912) 14 CLR 220 at 226.
For these reasons, in my opinion the Magistrate erred in finding that the establishment of speed zones operating only within specified periods was beyond the power of the Minister. In those circumstances, the plaintiff’s claim for restitution of the expiation fee fails. In view of that conclusion, strictly speaking it is not necessary for me to consider the issue of restitution based on the principles of unjust enrichment. However, as full argument was addressed to the issue, it is appropriate that I indicate my views.
The expiation notice was issued in accordance with the Expiation of Offences Act 1996 (“the EOA”). The EOA is concerned with the expiation of minor offences and s 5(1) provides that an expiation notice may be given “to a person alleged to have committed” an expiable offence. An expiation notice cannot be given after the expiry of a period of six months from the date on which the offence was alleged to have been committed and it cannot be given if a prosecution has been commenced against the person in respect of the alleged offence. The prescribed form of expiation notice identifies the following choices which the alleged offender may adopt in response to receipt of the notice:
(i).... payment of the expiation fee within 21 days of the date of the notice, or
(ii)make application to pay the fee in instalments or to work it off by community service, or
(iii).. dispute the offence and elect to be prosecuted.
The notice includes specific provision for an election to be prosecuted. Section 8 of the EOA provides that if an election is made to be prosecuted, the notice will be taken to have been withdrawn in respect of the offence to which the election relates. If the alleged offender has sought and been granted relief by payment in instalments or by an extension of time within which to pay, s 8 specifically provides that the alleged offender cannot elect to be prosecuted.
If an alleged offender takes no action, s 11(1) requires that a reminder notice be sent by post. A reminder notice fee is added to the unpaid expiation fee and, for the purposes of the EOA, forms part of the expiation fee. If the alleged offender fails to respond to the reminder notice, s 13 provides that the Registrar of the relevant court may make an order for enforcement of the expiation notice. Subs(6) provides that on an enforcement order being made, the alleged offender will be taken to have been convicted by the court of the offence to which the order relates and the order will be taken as an order of the court imposing a fine of an amount equivalent to the unpaid expiation fee. An enforcement order cannot be the subject of an appeal, but the person liable under the order may apply to the relevant court for a review of the order within 30 days of being given notice of that order (s 14). Once an enforcement order has been made, the alleged offender cannot elect to be prosecuted for the offence.
Section 15 of the EOA provides that if the offence to which an expiation notice relates is expiated in accordance with the EOA, the alleged offender is not liable to prosecution for that offence or any other expiable offence arising out of the same incident. That protection provided to the alleged offender is subject to s 16 which enables the issuing authority, in limited circumstances, and within a specified period from the expiration of the notice, to withdraw the notice. In that event, the amount paid by way of expiation is refunded and the fact of payment by the alleged offender is not admissible in any subsequent prosecution for an offence to which the notice related. Section 16 is also capable of operating to the benefit of the alleged offender. The issuing authority may withdraw the expiation notice and refund the fee without a view to subsequent prosecution. An application by the plaintiff for a withdrawal has been refused.
The EOA does not specifically provide that a person who pays an expiation fee no longer has a right to elect to be prosecuted for the offence. It would appear to be a necessary implication of the scheme of the EOA, however, that once payment is made the alleged offender is not entitled to elect to be prosecuted.
When the scheme of the EOA is viewed in its entirety, it is not difficult to conclude that it amounts to a code governing the expiation of minor offences. If the fee is expiated, subject to the limited exceptions found in s 16, no further action can be taken against the alleged offender in respect of the expiated offence. If no action is taken and an enforcement order is made, that order has the effect of a court order. Provision is made to apply to a court for a review of such an order. If there is an election to be prosecuted, the matter will proceed in the usual way and the order of the court will be subject to the usual right of appeal. It is reasonable to observe that if a person has been convicted by a court following a prosecution, restitution cannot be sought on the basis of unjust enrichment or mistake. The remedy is by way of appeal. Similarly, if an enforcement order is made, the remedy is by way of review pursuant to s 14 of the EOA. Time limits apply in respect of both procedures.
Against that background, the defendant submitted that the code excludes a right to seek restitution of an expiation fee upon the basis of unjust enrichment or mistake. If the defendant is correct, the only remedy available to a person who has paid an expiation fee that was not payable is to appeal to the discretion of the issuing authority for the withdrawal of the expiation notice and refund of the fee pursuant to s 16 of the EOA.
There is considerable force in the defendant’s position. The EOA is concerned with minor offences and provides a detailed scheme for expiation of those offences. Subject to s 16, expiation finalises the rights and liabilities of the prosecuting authority and the alleged offender. The choice to expiate the offence rests with the alleged offender. The scheme is designed to facilitate the efficient disposal of matters involving minor offences. It is in the public interest that matters be finalised pursuant to the scheme of the legislation and not be subject to the uncertainty which would ensue if the common law principles of restitution and unjust enrichment can be invoked at any time after expiation.
In my opinion, the EOA is an exhaustive code governing the circumstances in which offences may be expiated and in which a person who has paid an expiation fee may seek to recover that fee. The common law remedies related to restitution and unjust enrichment have been excluded: The Commonwealth of Australia v SCI Operations Pty Ltd (1998) 192 CLR 285 and Chippendale Printing Co. Pty Ltd v Commonwealth of Australia (1996) 135 ALR 471.
If, contrary to my view, the common law principles of restitution are not excluded by the operation of the EOA, the defendant submitted that the plaintiff could not recover pursuant to those common law principles because her payment was voluntary and not made as a consequence of a relevant mistake. The defendant argued that having made a practical decision based upon the assessment of the risks and expenses involved, the plaintiff entered into a voluntary compromise which, for the purposes of the statutory scheme, created a statutory bargain. Counsel contended it was important as a matter of policy that such bargains be upheld. The plaintiff submitted, however, that on the assumption that the speed zone was not valid, she made a payment as a consequence of a mistake of law. In those circumstances, for the purposes of the principles of restitution, the payment was not voluntary. The State imposed upon her unlawfully and, as a consequence, the State has been unjustly enriched.
The plaintiff gave evidence and I accepted her as a witness of truth. She said that after she received the notice, having heard something on the radio about the RAA contesting the legality of school signs, she rang the RAA. She was told that the legality was being contested, but that the zones were legal at the time. She believed she was legally liable to pay the expiation fee. The plaintiff was aware, however, of her choices. She decided to pay rather than elect to be prosecuted because she thought she was not likely to win and it could have been expensive.

The plaintiff assessed her prospects of winning and made a calculated decision not to elect to be prosecuted. Although she was aware of a challenge to the legality of the school zones, she thought the zones were probably legal. Underpinning her decision, therefore, was the erroneous assessment as to the likelihood that the zone through which she travelled was legal. In that state of mind she felt obliged to pay the expiation notice because she thought a challenge would not be successful. However, the plaintiff was well aware that she could elect to be prosecuted rather than pay the expiation fee before the due date.
In David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353, in considering the law of restitution, the majority of five justices of the High Court made the following observations (p 373):
“An important feature of the relevant judgments in these three cases is the emphasis placed on voluntariness or election by the plaintiff. The payment is voluntary or there is an election if the plaintiff chooses to make the payment even though he or she believes a particular law or contractual provision requiring the payment is, or may be, invalid, or is not concerned to query whether payment is legally required; he or she is prepared to assume the validity of the obligation, or is prepared to make the payment irrespective of the validity or invalidity of the obligation, rather than contest the claim for payment. We use the term “voluntary” therefore to refer to a payment made in satisfaction of an honest claim, rather than a payment not made under any form of compulsion or undue influence. If such qualifying, factual circumstances are considered relevant, the sweeping principle that money paid under a mistake of law is irrecoverable or even the Federal Court’s modification of that principle to the effect that mistake of law does not on its own found an action for the recovery of money paid is broader and more preclusive than is necessary. As the authorities cited earlier in explanation of the term “mistake of law” make clear, the concept includes cases of sheer ignorance as well as cases of positive but incorrect belief. To define “mistake” as the supposition that a specific fact is true, as Parke B. did in Kelly v Solari [(1841) 9 M. & W., at p. 58 [152 E.R., at p. 26].], which was a mistake of fact case, leaves out of account many fact situations. A narrower principle, founded firmly on the policy that the law wishes to uphold bargains and enforce compromises freely entered into, would be more accurate and equitable.”
In my opinion, even if the speed zone was invalid and the EOA does not exclude the common law remedy, the plaintiff’s claim for restitution would fail. She was aware that she was not obliged to pay the expiation fee. She chose to do so after considering her options and making a calculated decision on pragmatic grounds. Her payment was voluntary in the relevant sense. The plaintiff freely entered into a statutory bargain or compromise.
The application for restitution of the expiation fee is dismissed.

[2001] SASC 71

20 March 2001