Roads Corporation v Numa
[2018] VSC 70
•22 February 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2017 02460
| THE ROADS CORPORATION (TRADING AS VICROADS) | Plaintiff |
| v | |
| GREGORY CHARLES NUMA | Defendant |
| and | |
| THE MAGISTRATES’ COURT OF VICTORIA | Second Defendant |
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JUDGE: | GARDE J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 22 February 2018 |
DATE OF JUDGMENT: | 22 February 2018 |
CASE MAY BE CITED AS: | Roads Corporation v Numa |
MEDIUM NEUTRAL CITATION: | [2018] VSC 70 |
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CATCHWORDS
JUDICIAL REVIEW AND APPEALS – Road safety – Traffic infringements – Licence suspended after 12 demerit points incurred – Appeal to the Magistrates’ Court of Victoria – Scope of permitted appeal – Grounds of appeal – Permissible orders – Order in the nature of certiorari – Decision and orders of Magistrates’ Court beyond jurisdiction – Misconstruction – Decision and orders quashed – Road Safety Act 1986 (Vic), s 43(2) and 46H.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms S Fitzgerald | Maddocks |
| For the first Defendant | Mr Numa in person | |
| For the second Defendant | No appearance |
HIS HONOUR:
Introduction
In an application made by originating motion, VicRoads seeks an order in the nature of certiorari quashing orders made on 4 May 2017 by the Magistrates’ Court of Victoria (‘the Court’) in proceeding H10739865 (‘the appeal’).
The appeal by Mr Numa was made under s 46H of the Road Safety Act 1986 (Vic) (‘the Act’) in respect of the suspension of his licence by VicRoads by notice dated 6 March 2017 (‘the second notice’).
VicRoads suspended Mr Numa’s licence under s 40(2) of the Act because he had incurred an excessive number of demerit points in an extended demerit point period. Mr Numa disputed the suspension, and the legality of the process by which it occurred.
Relevant legislation
The relevant purposes set out in s 1 of the Act are:
(a)to provide for safe, efficient and equitable road use; and
(ab)to set out the general obligations of road users in relation to responsible road use; and
(b)to improve and simplify procedures for the registration of motor vehicles and the licensing of drivers…
Section 35 makes provision for a Demerits Register:
(1) The Corporation must keep a Demerits Register.
(2) In the Demerits Register, the Corporation must record against any of the following persons any demerit points that are incurred by that person—
(a) the holder of a Victorian driver licence or learner permit;
(b) the holder of an overseas licence;
(c) an unlicensed driver.
(3) The regulations may prescribe the following—
(a) the circumstances in which demerit points are incurred and the number of points incurred in those circumstances;
(b) the determination of the date on which demerit points are to be recorded as incurred;
(c) the circumstances in which demerit points may be cancelled.
Section 36 provides for VicRoads to serve demerit point option notices:
(1)The Corporation must serve a notice (a "demerit point option notice") on—
(a)the holder of a full driver licence … who also holds, or has held, a full driver licence if he or she incurs 12 or more demerit points within any 3 year period…
Section 40 provides:
(1)This section applies if a person on whom a demerit point option notice is served—
(a)notifies the Corporation in accordance with section 38(1) that he or she elects to extend the demerit point period; and
(b)incurs one or more additional demerit points in relation to any offence committed within the extended demerit point period.
(2)If the person holds a full driver licence … the Corporation must—
(a)suspend the licence or permit for—
(i)6 months; and
(ii)an additional 2 months for each 4 demerit points in excess of the 12 recorded against the person as at the date of issue of the demerit point option notice; and
(b)serve on the person a notice containing the prescribed particulars and specifying the date on which the suspension takes effect…
The date when suspension of a driver licence takes effect is determined by notice under s 42(1):
The suspension of a driver licence … under section 40(2)… takes effect on and from the date determined by the Corporation and specified in the notice served under that section.
In some cases, a demerit point option notice or a notice under s 40(2)(b) or (3)(b) of the Act may not be served. In these circumstances, s 43 provides:
(1)The service of a demerit point option notice or a notice under section 40(2)(b)… is not a condition precedent to a suspension under this Division taking effect.
(2)Despite subsection (1), if at any time after the period of 7 days after the date of issue of the notice the Corporation is satisfied that the holder of the driver licence … has not been served with the notice, it must—
(a)cancel the suspension with effect from the date on which it took effect; and
(b)determine another effective date; and
(c)serve on the person another demerit point option notice or a notice under section 40(2)(b)… specifying the date determined under paragraph (b).
(3)Subsection (2) does not apply if—
(a)a person is charged with an offence against section 30 for driving while a suspension under this Division is in effect; and
(b)he or she is found not guilty on the grounds that he or she was not aware at the relevant time that his or her driver licence … had been suspended.
A holder of a drivers licence whose licence is suspended under s 40(2)(a) of the Act has a limited right of appeal to the Court. There are only two available grounds of appeal. Section 46H provides:
(1)Subject to subsection (3), the holder of a driver licence … may appeal to the Magistrates' Court against the suspension of his or her driver licence… by the Corporation under section 40(2)(a)…
(3)An appeal under subsection (1)
(a)must be made in accordance with the regulations; and
(b)may only be made on either or both of the following grounds—
(i)that the Corporation recorded certain demerit points other than as required by the regulations;
(ii)that an error has been made in the addition of the number of demerit points incurred by the appellant in a relevant period.
(4)If the Magistrates' Court is satisfied that the suspension or disqualification was required by the regulations or this Part, the Court must confirm the suspension or disqualification.
(5)In allowing an appeal under subsection (1) or (2), the Court may direct the Corporation—
(a)to record the demerit points as required by the regulations; or
(b)to correct the error made in the addition of the number of demerit points incurred by the appellant in a relevant period.
(6)In dismissing an appeal under subsection (1) or (2), the Magistrates' Court may, if the suspension or disqualification has been stayed under section 46I, order that the suspension or disqualification take effect from a date specified in the order.
(7)The Corporation must give effect to every decision of the Magistrates' Court on an appeal under this section.
Part 4 of the Act and the Road Safety (Drivers) Regulations 2009 (Vic) (‘the Regulations’) govern the way in which demerit points are accrued in Victoria.
Regulation 73(1) imposes a duty on VicRoads to record demerit points ‘if duly notified’ of them:
For the purposes of section 35(3) of the Act, the Corporation must record in the Demerits Register the appropriate number of demerit points against a person if it is duly notified that—
(a)the person has been convicted, or found guilty, of a relevant offence; or
(b)the penalty specified in an infringement notice issued to the person in relation to a relevant offence has been paid; or
(c)the person has had a conviction imposed by a court under section 89(4) of the Act in relation to a relevant offence; or
(d)an infringement notice issued to the person in relation to a relevant offence has taken effect as a conviction under section 89A(2) of the Act…
The licence suspension process
VicRoads was notified that Mr Numa had incurred 14 demerit points in the period from 20 June 2012 to 14 March 2014, and accordingly, sent Mr Numa a ‘demerit point option notice’ pursuant to s 36 of the Act, to which he could elect to either:
(a) incur a 3 month suspension of his licence; or
(b) extend the demerit point period.
The effect of an election to extend the demerit point period is that, if the person incurs one or more demerit points within the ‘extended demerit point period’ then, VicRoads is obliged to suspend the person’s licence for a period of 6 months, plus an additional 2 months for every 4 demerit points in excess of the 12 recorded against the person as at the date of issue of the demerit point option notice.
On 24 July 2014, VicRoads sent Mr Numa a demerit point option notice to his nominated address for service. On 5 August 2014, Mr Numa elected by interactive voice response system to extend the demerit point period. VicRoads then sent Mr Numa a letter confirming his election to extend his demerit point period for 12 months commencing on 4 September 2014.
On 19 June 2015, VicRoads was notified that on 14 November 2014, Mr Numa had breached his extended demerit point period by committing the offence of exceeding the speed limit by 16km/h or more, but less than 30km/h.[1] As a consequence of that offence, he incurred 3 demerit points. On the same day, VicRoads sent Mr Numa a notice of licence suspension (‘the first notice’) to his nominated address for service. The first notice was returned to VicRoads undelivered on 29 June 2015.
[1]Road Safety Road Rules 2009 (Vic) r 20 (as at the relevant period).
On 1 July 2015, the first suspension was marked as deleted on VicRoads’ computer system with the effect that it was cancelled before it had taken effect.
On 6 March 2017, Mr Numa notified VicRoads of his new address.
On the same day, VicRoads served Mr Numa with the second notice.
The appeal
Mr Numa’s appeal was heard on 4 May 2017 at the Geelong Magistrates’ Court. At the hearing of the appeal:
(a) Counsel for Mr Numa submitted that VicRoads had failed to cancel the initial suspension in the manner it was required to under s 43(2)(a) of the Act, with the effect that the suspension had run its course, making the second suspension invalid. Counsel argued that this involved an error of the kind referred to in s 46H(3)(b)(ii) of the Act.
(b) Counsel for VicRoads submitted that VicRoads had cancelled the initial suspension in accordance with s 43(2)(a), and that the error alleged by Mr Numa even if made, did not provide a ground for appeal under s 46H(3) of the Act.
(c) The submissions made on behalf of Mr Numa were accepted by the Court which ruled:
Looking at s 46H(1) the Court’s view is that this application can properly be made pursuant to the sections relied upon by the applicant in the matter that is listed before the Court today.
Clearly it is a complex matter, I have concerns in relation to Attachment B that is annexed to the Roads Corporation certificate. It is an internal memo. It does seem that there was no formal withdrawal of the cancellation. I have regard to s 43(2)(a), and I am not satisfied that there has been sufficient compliance with that section.
I am going to allow the appeal for those reasons. If the matter is corrected in another place, so be it.
The magistrate made orders setting aside the second notice stating that it had no effect and ordering VicRoads to pay Mr Numa’s costs of the appeal (‘the orders’).
VicRoads application
VicRoads relies on the affidavit of Elisabeth Brett filed on 28 June 2017, which exhibits the evidence and transcript before the Court, and the orders of the Court.
VicRoads in substance, contends that in making the orders the magistrate misconstrued s 43(2)(a) of the Act, and acted in excess of the jurisdiction of the Court under s 46H of the Act.
The issues
There are two main issues that arise for decision. They are:
Was the magistrate correct when she held:
(a) that the Court had jurisdiction to hear the appeal under s 46H of the Act?
(b) that she was not satisfied that there had been sufficient compliance by VicRoads with s 43(2)(a) of the Act?
In the decision of Kirk v Industrial Court (NSW),[2] the High Court adopted the description of jurisdictional error enunciated in Craig v South Australia:[3]
As a general description of what is jurisdictional error by an inferior court, that an inferior court falls into jurisdictional error “if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist”. Secondly, the Court pointed out that jurisdictional error “is at its most obvious where the inferior court purports to act wholly or partly outside the general area of its jurisdiction in the sense of entertaining a matter or making a decision or order of a kind which wholly or partly lies outside the theoretical limits of its functions and powers”. (The reference to “theoretical limits” should not distract attention from the need to focus upon the limits of the body’s functions and powers. Those limits are real and are to be identified from the relevant statute establishing the body and regulating its work.) Thirdly, the Court amplified what was said about an inferior court acting beyond jurisdiction by entertaining a matter outside the limits of the inferior court’s functions or powers by giving three examples:
(a) the absence of a jurisdictional fact;
(b) disregard of a matter that the relevant statute requires be taken to account as a condition of jurisdiction (or the converse case of taking account of a matter required to be ignored); and
(c) misconstruction of the relevant statute thereby misconceiving the nature of the function which the inferior court is performing or the extent of its powers in the circumstances of the particular case.[4]
[2](2010) 239 CLR 531 (‘Kirk’).
[3](1995) 184 CLR 163 (‘Craig’).
[4]Kirk (2010) 239 CLR 531, 573–574 [72] (citations omitted) (emphasis in original), citing Craig (1995) 184 CLR 163.
Issue 1 - The scope of jurisdiction under s 46H(3)
The scope of appeals to the Court under the predecessor of s 46H(3) was considered in Roads Corporation v Magistrates’ Court of Victoria, where Hargrave J said:
Where the identity of the driver is not in issue, as in this case, then the scope of the appeal under s.26(1)(c) is limited to “miscalculation” in the assessment of the relevant number of demerit points attributable to the appellant. The choice of the term “miscalculation”, in my view, limits the scope of appeal to, and provides a “safety net” in respect of, errors made in the calculation of demerit points attributable to the appellant whose licence has been suspended.
Demerit points arise from the service of an infringement notice or, if objection is taken, a conviction following a charge. Once demerit points are incurred, it is necessary that the raw information be collated by VicRoads in its Demerits Register required to be maintained by s.25(1) of the Act. In maintaining that register, VicRoads must rely upon information which it receives from others, in particular Civic Compliance Victoria which, in turn, must rely upon the Victoria Police and others responsible for the issue of infringement notices.
There are many opportunities for errors to be made. No doubt the register is maintained by computer, thus increasing the scope for error in the course of processing data on the computer system. Infringement notices consist of standard forms on which are completed, in handwriting, the essential details enabling the calculation of demerit points and the allocation of those points to the driver in question. There is much scope for error as to matters such as the date of the alleged offence and the particulars of the offence. For example, an error in the date of the offence could mean the difference between demerit points being incurred within a relevant three year period or outside of it. A mistake as to the alleged speed could result in a higher number of demerit points being allocated than was appropriate.
…
In my opinion, the above reasoning applies irrespective of whether the 0.05 infringement notice in this case was misleading as contended for on behalf of Sear. Furthermore, although it is not necessary for me to decide it, it is my view that an appeal under s.26(1)(c) could not be based upon an allegation that the relevant infringement notice did not contain all of the prescribed particulars as required by the regulations made under s.88(1) of the Act. In my opinion, the recipient of a defective notice has the remedy of objecting to the notice and taking his or her chances in court when a charge is laid. To hold otherwise would leave open the distinct possibility that, with the effluxion of time involved with appeals, an alleged offender could escape all liability due to the statutory time limit of 12 months for prosecution for summary offences provided for by s.26(4) of the Magistrates’ Court Act 1989.[5]
[5][2005] VSC 99, [37]–[39], [42] (citations omitted).
The current form of the grounds of appeal was introduced by s 27 of the Transport Legislation (Amendment) Act 2004 (Vic). The Explanatory Memorandum to that Act gives the reasons for the insertion of the two grounds of appeal:
These amendments are in response to defects in the present legislation that became apparent as a result of the recent Supreme Court decision in the case of Roads Corporation v Magistrates’ Court; Parsons & Holloway.
The amendments to the Act made by clause 27 are intended to reflect the intention that appeals against demerit point suspensions are to be restricted to cases of clerical errors made by VicRoads in relation to the recording and the addition of demerit points…
Under section 25 and the Road Safety (Drivers) Regulations 1999 (Vic), VicRoads must record points when notified by the courts or Police or other relevant agency of the outcome of a matter that results in points being incurred. In the recording and adding of points as required by section 25 and the Regulations, VicRoads does not exercise independent discretion but is performing a purely clerical function I carrying out the requirements of the Act and regulations.
It is therefore intended that demerit point appeals under section 26AA are to be confined to the correction of clerical errors by VicRoads…[6]
[6]Explanatory Memorandum, Transport Legislation (Amendment) Bill 2004 (Vic) 17-18, citing Roads Corporation v Magistrates’ Court; Parsons & Holloway [2004] VSC 384.
VicRoads is required to keep a Demerits Register and record demerit points incurred by the holder of a licence under s 35(1) and (2). Section 35(3) provides that the Regulations may prescribe the circumstances in which demerit points are incurred, the number of points, and the date on which demerit points are incurred. The Regulations may also deal with the circumstances in which demerit points may be cancelled. Consequently the possible grounds of appeal are narrow and are confined to just two situations.
The first ground of appeal is solely concerned with compliance by VicRoads with the Regulations in maintaining its records. The first ground is only satisfied if the record of demerit points maintained by VicRoads is not as required by the Regulations.
The second ground is restricted to addition errors when totalling the number of demerit points incurred by a person in a relevant period. Only addition errors in the summation of demerit points can be corrected under this ground.
The limited nature of the two available grounds of appeal is confirmed by the relief available under s 46H(5). There are only two types of relief that can be granted if an appeal is successful. Firstly, the Court may order VicRoads to record the demerit points as required by the Regulations. Secondly, the Court may direct VicRoads to correct the error made in the addition of the number of demerits points incurred in a relevant period. The two types of relief correspond to the two grounds of appeal.
In the present case, the magistrate did not make either of the two permissible orders. Apart from costs, Her Honour’s order was in substance, that the second notice be set aside and have no effect. The magistrate had no power to make such an order.
It is plain that the legal issue raised by Mr Numa with the Court does not fall under either ground. Mr Numa’s concern is whether VicRoads complied with its obligations under s 43(2) of the Act. The concern is unrelated to the Regulations, and does not allege any error in the addition of demerit points.
This is not to say that an error by VicRoads in this respect must go uncorrected. Such an error can be corrected by judicial review, or by a proceeding under the Administrative Law Act 1978 (Vic). However, it cannot be corrected by an appeal to the Court under s 46H(3).
Accordingly I uphold the first ground of review.
Issue 2 - Did VicRoads comply with s 43(2)(a) of the Act?
In the present case, the first notice was returned undelivered to VicRoads on 29 June 2015. Under s 43(2), it was open to VicRoads to be satisfied that Mr Numa had not been served with the first notice. VicRoads was then obliged to cancel the suspension from the date on which it took place, determine a new effective date and serve another notice on Mr Numa specifying the new effective date.
The undisputed evidence before the Court included a certified extract from computer records. The record was in abbreviated form and was:
The record shows that the first notice was ‘withdrawn’, and on 19 July 2015 the six months suspension ‘deleted’. It further records that a new breach notice will be issued. Although it does not use the word ‘cancel’ found in s 43(2)(a), in my view its substance and tenor are clear and consistent with the exercise of the power contained in s 43(2)(a). There is no real controversy about what VicRoads was doing, or what it was required to do by s 43(2), particularly when considered in the context of the first and second notices. Although the language used in the record is slightly different from the statutory language, its meaning, intent and purport are plain. The record shows that VicRoads withdrew and deleted the first notice and the six months suspension commencing from 19 July 2015.
In all the circumstances, I am of the view that on the undisputed evidence, the magistrate was bound to conclude that VicRoads had complied with s 43(2)(a)-(c) of the Act.
Finally, there was no real issue about the operation or effect of s 43(1). While the service of a demerit point option notice is not a condition precedent to a suspension taking effect, s 43(2) commences with the words ‘Despite subsection (1)’. Plainly, if VicRoads exercises its power under s 43(2) (as it did), s 43(1) does not apply.
Conclusion
For the reasons given, an order for certiorari will be made quashing the decision and orders of the Court in the appeal. The appeal will be remitted to the Court for hearing and determination in accordance with law. This will give the parties the opportunity to provide the Court with updated information as to the demerit points incurred by Mr Numa.
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