Roads and Traffic Authority of NSW v Sparkes

[2007] NSWSC 667

CITATION:	Roads and Traffic Authority of NSW v Sparkes [2007] NSWSC 667
HEARING DATE(S):	25 June 2007
JUDGMENT DATE :	10 July 2007
JUDGMENT OF:	Price J at 1
DECISION:	1. The order made by the second defendant in the Toronto Local Court on 3 April 2007 which dismissed the proceedings against the first defendant for an offence contrary to s 56 of the RTG Act be set aside. 2. The order made by the second defendant in the Toronto Local Court on 3 April 2007 that the Roads and Traffic Authority pay the first defendant's costs in the sum of $3,080.00 be set aside. 3. The matter is to be remitted back to the Local Court to be determined according to law.
CATCHWORDS:	Summary procedure - time limit for commencement of proceedings for an offence contrary to Road Transport (General) Act 2005.
LEGISLATION CITED:	Criminal Procedure Act 1986 s 172(1), s 179, s 179(1), s 179(2)(a) Crimes (Appeal and Review) Act 2001 s 59(2)(a) Road Transport (General) Act 2005 s 56, s 56(1), s 182 s 182(1),s 182(2)
CASES CITED:	Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106 Minister v Dover Fisheries 116 ALR 54 Solution 6 Holdings Ltd v Industrial Relations Comm (NSW) (2004) 60 NSWLR 558
PARTIES:	Roads and Traffic Authority of New South Wales Raymond Garry Sparkes & Anor
FILE NUMBER(S):	SC 2007/12099
SOLICITORS:	Ms B Baker for Crown Solicitor's Office
LOWER COURT JURISDICTION:	Local Court
LOWER COURT JUDICIAL OFFICER :	Trad LCM
LOWER COURT DATE OF DECISION:	3 April 2007

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

PRICE J

10 JULY 2007

2007/12099 Roads and Traffic Authority of
New South Wales v
Raymond Garry Sparkes & Anor


JUDGMENT

1 HIS HONOUR: The issue in this case is the time limit for the commencement of a prosecution for an offence contrary to s 56 of the Road Transport (General) Act 2005 (RTG Act). Section 56(1) of the RTG Act is as follows:

“(1) A person is guilty of an offence if:
(a) a breach of a mass, dimension or load restraint occurs, and
(b) the person is the operator of the vehicle or combination concerned”.

2 On 18 May 2006 a Hino truck registered number AH 93 ZW was stopped for a Roads and Traffic Authority (RTA) compliance check. The load was found to have been impermissibly wide in that it measured 2.680 metres when the allowed width was 2.5 metres. The driver of the truck was Raymond Garry Sparkes (the first defendant).

3 Proceedings were commenced by the RTA against Mrs Jeanette Sparkes, the first defendant’s wife, who was the registered owner of the vehicle. Following representations to the RTA that Mrs Sparkes was not the driver of the vehicle at the time of the offence, the proceedings were withdrawn on 1 December 2006 with a costs order in favour of Mrs Sparkes.

4 A court attendance notice (CAN) alleging that the first defendant had breached s 56 of the RTG Act was issued on 8 February 2007 and was filed on 26 February 2007 in the Local Court at Toronto. Accordingly, the proceedings against the first defendant were not commenced until the latter date as s 172(1) of the Criminal Procedure Act 1986 (the CP Act) provides:

“ 172 (1) Proceedings for an offence are to be commenced in a
Court by the issue and filing of a court attendance notice in accordance with this Division.”

5 At the hearing of the proceedings on 3 April 2007, the solicitor appearing for the first defendant, submitted that the proceedings were commenced outside the time limit provided in s 179 of the CP Act. Section 179 relevantly is as follows:

“ Time limit for commencement of summary proceedings
179 (1) Proceedings for a summary offence must be commenced not later than 6 months from when the offence was alleged to have been committed.

(2) Subsection (1) does not apply:

(a) to an offence for which an Act or law specifies another period within which proceedings must be commenced……”

6 As proceedings alleging a breach of s 56 of the RTG Act are proceedings for a summary offence, the proceedings against the first defendant should have been commenced not later than 6 months after 18 May 2006 unless s 179(1) of the CP Act did not apply.

7 The prosecutor argued that the applicable time limit for the offence was not found in s 179(1) of the CP Act but was contained in s 182 of the RTG Act which relevantly provides:

“ 182 Period within which proceedings for certain mass, dimension and load offences may be commenced.
(1) This section applies to applicable road law offences, other than:
(a) offences prescribed by the regulations for the purposes of this section, and
(b) offences in respect of which proceedings may only be
commenced within a period of less than 2 years after their alleged commission.
(2) Despite any other Act, proceedings for an applicable road law offence to which this section applies may be commenced within:
(a) the period of 2 years after the commission of the
alleged offence……”

8 The prosecutor submitted that as the proceedings against the first defendant were commenced within the period of 2 years after 18 May 2006, the proceedings were within time. After hearing the brief submissions of both parties, the presiding Magistrate delivered an ex tempore judgment during which her Honour said:

“ …………but the wording between the two acts is so different, and the two pieces of legislation are so different, I look at the Criminal Procedure Act which appears to be prescriptive in saying ‘must be’ and refers to the way proceedings must be dealt with. But when I look at 182 it only refers to “may be” and even then it is not clear that sub-section 1.B of 182 wouldn’t apply to this offence in any event.
On that basis I hold that section 179 applies and on that basis I also hold that the proceedings were commenced outside the time period and on that basis they are invalid and it must be dismissed.”

Her Honour then made an order for costs in favour of the first defendant.

9 By a summons filed in this Court on 27 April 2007, the RTA seeks orders pursuant to s 59(2)(a) of the Crimes (Appeal and Review) Act 2001 setting aside her Honour’s orders and an order remitting the proceedings to the Local Court to be determined according to law. In the alternative orders in the nature of certiorari and mandamus are sought. The RTA contends that her Honour erred in law by:

“(a) Applying the six month time limit provided for by s 179 of the Criminal Procedure Act 1986 rather than the two year time limit provided by s 182 of the Road Transport (General) Act 2005.”

10 The first and second defendants submit to the orders of the Court.

11 The principal contention for the RTA is that her Honour erred in distinguishing the word “must” in s 179 of the CP Act and the word “may” in s 182 of the RTG Act. The position is analogous to the situation, the RTA argues, considered in Disher v Disher [1965] P31. In Disher a provision under the Magistrates’ Courts Rules 1952 that “[at] the conclusion of the evidence for the complainant the defendant may address the court, whether or not he afterwards calls evidence” was held to be permissive in so far as the defendant was concerned but obligatory as far as the court was concerned. If the defendant chose to address the court, the court was bound to hear him. Similarly, by s 182, the RTA contends, an absolute authority is conferred upon a prosecutor to commence proceedings within 2 years. If the prosecutor elects to do so, the court is bound to hear the proceedings. The RTA furthermore submits that in the context of a time limitation provision, the distinction which is often drawn between determining whether or not a provision is “obligatory” or “discretionary” has no relevance.

12 With this final submission, I do not agree. As to s 182 of the RTG Act, should proceedings not be commenced within a period of less than 2 years after the alleged commission of the offence, the prosecution will be out of time. Although the prosecutor has a discretion within the 2 year period to decide when to commence the proceedings, he has the obligation to ensure that they are commenced within the limitation period.

13 The interpretation of the word “may” depends upon the particular statutory context in which it appears. As was said by Windeyer J in Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106 at 134:

“This does not depend on the abstract meaning of the word “may” but of whether the particular context of words and circumstance make it not only an empowering word but indicate circumstances in which the power is to be exercised – so that in those events the “may” becomes a “must”.”

14 Where the purpose or object of the Act would be defeated if a task was not carried out, the Court will rule that the provision is obligatory: see Pearce & Geddes, Statutory Interpretation in Australia, 6th ed, (2006) at [11.3].

15 The principal purpose of the RTG Act is stated as that of providing:

“……..for the administration and enforcement of road transport legislation…………”

Section 182 is found within Chapter 5 Part 5.2 of the RTG Act. Chapter 5 provides for the enforcement of road transport legislation . Part 5.2 provides for proceedings for offences .

16 Should proceedings not be commenced within the limitation period the enforcement of the road transport legislation would plainly be defeated. Whilst the “may” in s 182(2) of the RTG Act is used to confer an authority upon a prosecutor to commence proceedings within the 2 year period, that authority must be exercised within that time limitation. The “may”, in my view, is to be construed as a “must”.

17 It follows that proceedings for an applicable road law offence to which s 182(1) of the RTG Act applies are proceedings for an offence to which s 179(1) of the CP Act does not apply as s 182(2) of the RTG Act specifies another period within which proceedings must be commenced: see s 179(2)(a) of the CP Act.

18 The phrase “applicable road law offence” is defined in s 3 of the RTG Act to mean “an offence against an applicable road law.” The phrase “applicable road law” is in turn defined in s 3 to include Chapter 3 of the RTG Act. Section 56 of the RTG Act is contained within Chapter 3. Accordingly, an offence contrary to s 56 of the RTG Act is an “applicable road law offence” within the meaning of s 182 of the RTG Act.

19 Section 182, however, does not apply to applicable road law offences “in respect of which proceedings may only be commenced within a period of less than 2 years after their alleged commission”: see s 182(1)(b) of the RTG Act.

20 A literal approach to the interpretation of s 182(1)(b) would deprive s 182(2)(a) of any practical effect as proceedings may there be commenced within a period of less than 2 years. However, as was said in Solution 6 Holdings Ltd v Industrial Relations Comm (NSW) (2004) 60 NSWLR 558 by Spigelman CJ at [81]:

“………..In contemporary Australian jurisprudence, a purposive approach to interpretation is to be adopted, not a narrow literalism.”

21 The RTA contends that the exception in s 182(1)(b) is intended to be confined to offences for which there is a specified time limit for the particular offence and is not intended to have a general operation. To my mind, this submission is clearly correct.

22 Where two provisions in the same piece of legislation appear to conflict, the court is required to consider whether any other meaning produces a more reasonable result as it is improbable that the framers of the legislation could have intended to insert a provision which has virtually no practical effect: see Minister v Dover Fisheries 116 ALR 54 at [63] per Gummow J. In the present case, a “more reasonable result” is to interpret s 182(1) in the way the RTA contends.

23 Such an interpretation finds support in the opening words of s 182(2) “[d]espite any other Act” which predicate that the section will modify general time limitation provisions in other Acts. As the RTA contends, this interpretation accords with the legislature’s intention as expressed in the Explanatory Note to the RTG Bill which is as follows:

“[Part 5.2 of the Act] also provides for a 2 year limitation period for applicable road law offences (or a further 1 year period where evidence is obtained and the period would otherwise expire).”

24 In the present case there is no specified time limit for the particular offence being an offence contrary to s 56 of the RTG Act. Accordingly the exception provided by s 182(1)(b) of the RTG Act does not apply. The applicable time limitation for the offence which the first defendant is alleged to have committed is 2 years and not 6 months.

25 The proceedings against the first defendant were commenced on 26 February 2007 and the offence is alleged to have been committed on 18 May 2006. With respect to her Honour, the proceedings were not commenced out of time.

26 It is unnecessary to consider the principles that are said to arise from cases such as Disher.

27 I make the following orders:

1. The order made by the second defendant in the Toronto Local Court on
3 April 2007 which dismissed the proceedings against the first

defendant for an offence contrary to s 56 of the RTG Act be set aside.

2. The order made by the second defendant in the Toronto Local Court on

3 April 2007 that the Roads and Traffic Authority pay the first

defendant’s costs in the sum of $3,080.00 be set aside.

3. The matter is to be remitted back to the Local Court to be determined
according to law.
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