Snook v Registrar of Fines Enforcement Registry
[2018] WASC 402
•5 OCTOBER 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: SNOOK -v- REGISTRAR OF FINES ENFORCEMENT REGISTRY [2018] WASC 402
CORAM: TOTTLE J
HEARD: 5 OCTOBER 2018
DELIVERED : 5 OCTOBER 2018
FILE NO/S: CIV 2749 of 2018
BETWEEN: PIPPA SNOOK
Plaintiff
AND
REGISTRAR OF FINES ENFORCEMENT REGISTRY
Defendant
Catchwords:
Judicial review - Whether Registrar of Fines Enforcement Registry a 'court officer' under Magistrates Court Act - Whether Registrar made a reviewable error - Where case brought by plaintiff arguable
Injunctions - Where plaintiff applies to have licence suspension order cancelled - Where licence due to expire - Whether special circumstances present
Legislation:
Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA)
Magistrates Court Act 2004 (WA)
Result:
Application adjourned, order for mediation made
Category: B
Representation:
Counsel:
| Plaintiff | : | In Person |
| Defendant | : | Ms A Jackson |
Solicitors:
| Plaintiff | : | In Person |
| Defendant | : | TBA |
Case(s) referred to in decision(s):
Stampalia v Racing Penalties Appeals Tribunal [1999] WASC 7
TOTTLE J:
(These reasons were delivered extemporaneously and have been edited from the transcript)
The application
The applicant, Ms Pippa Snook, holds a driver's licence within the meaning of the Road Traffic (Authorisation to Drive) Act 2008 (WA). That licence has been suspended from at least 5 September 2017 as a consequence of the non-payment by Ms Snook of various fines that have been imposed on her. Ms Snook disputes that she incurred all of those fines but she accepts that at least a proportion of the fines were incurred by her.
Ms Snook's licence is due to expire before the commencement of business on Monday 8 October 2018. The imminent expiration of her licence was the catalyst for Ms Snook's application to the Registrar of the Fines Enforcement Registry for a cancellation of the suspension of her driver's licence. She is concerned that if the licence expires when it is suspended she will not be able to obtain a new licence administratively and will be required to take a driving test and comply with the other formalities required to obtain a driving licence.
Ms Snook's application consists of the following documents:
(a)an application for a review order filed on 5 October 2018;
(b)a certificate of urgency;
(c)an application for an injunction setting out nine forms of injunctive relief; and
(d)two affidavits sworn by Ms Snook in support of her application.
Ms Snook has prepared these papers herself as she is self‑represented.
Factual background
On either 21 or 25 September 2018 - there is a degree of uncertainty as to the precise date - Ms Snook applied to the Registrar for an order to lift the suspension. The application to the Registrar was made on a pre‑printed time to pay application form, which I infer is a pro forma document made available by the Fines Enforcement Registry (the Registry).
The form refers to s 27A and s 55A of the Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA) (the Fines Enforcement Act). Those provisions confer upon the Registrar a discretion either not to make a licence suspension order or to cancel a licence suspension order on certain grounds, which include:
a)where the licence suspension order would or does deprive the alleged offender of the means of obtaining urgent medical treatment for an illness, disease or disability known to be suffered by the alleged offender or a member of his or her family.[1]
b)where the licence suspension order would or does seriously hinder the alleged offender in performing family or personal responsibilities.[2]
[1] Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA) s 27A (1)(c).
[2] Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA) s 27A (1).
Ms Snook submitted the application by email and attached various documents evidencing her financial position, and records relating to her state of health. The printed form contained a box headed 'Reasons for Application'. There are three possible reasons listed on the printed form and applicants are invited to choose one reason by ticking a box. The box ticked by Ms Snook was 'Medical reason for you or your family', and the papers attached to Ms Snook's email included health records outlining her health difficulties.
The Registry staff were, unfortunately, unable to open the attachments to Ms Snook's email. When Ms Snook became aware of this, she took steps to resubmit those attachments. For various reasons, there was a time delay in so doing.
In a letter dated 27 September 2018 and addressed to the Team Leader of the Fines Enforcement Registry,[3] which was included in material submitted to the Registry, Ms Snook outlined what she described as a 'Catch 22' situation.
[3] Affidavit of Pippa Snook filed on 5 October 2018, Annexure "C".
The relevant part of the letter reads as follows:
Then we get into the catch 22 situation that any payments over $30 a fortnight would lead to rent or utilities default and I would be homeless, since as a disability pensioner every penny I could earn is deducted from my pension, and then if I did earn, Homeswest would evict me anyway. If I can't drive, the stress of being almost housebound and not getting to medical, psychiatric, social and exercise appointments, has rapidly escalated my medical needs and mental health needs, which results in thousands of dollars costs to the government, as then I am unable to manage my conditions if I cannot drive to medical appointments, exercise and wellness needs. When you have compound PTSD as I do, exercise, social interaction, counselling, getting to spaces of safety are not a luxury but a necessity.
Ms Snook stated that the reason she required a driver's licence was to assist her in dealing with her health issues.
On 3 October 2018 Ms Snook received an email from the Registry which informed her that the application for a cancellation of the licence suspension had been unsuccessful.
It is convenient to set out the contents of the email, which is as follows:
Dear Ms Snook
Thank you for your Time to Pay application with some of the supporting documentation requested from you.
You currently have 39 cases that are on a payment arrangement with a total amount of $7,415.45 outstanding. The payment arrangement was entered into on 26 February 2016.
On 26 February 2016, the Registrar personally communicated with you and agreed to your application for a payment arrangement with special consideration being given to your circumstances. At the time, you had a debt of approximately $15,000 and the Registrar applied his discretion by removing $6,000 of enforcement warrant fees which subsequently reduced your debt to $9,487.65. The Registrar extended further leniency by agreeing to accept your offer to pay in instalments of $30 per fortnight. This amount was $40 below what the Registrar deemed an acceptable repayment amount, given the volume of your debt. It was also noted that you were still paying off 10 fines registered with FER in 2010. The Registrar deems 7 years to be a suitable time frame for a fine to be paid in full and again applied leniency and discretion to assist you in managing your debt.
An explicit condition that the Registrar stipulated in order to approve the payment arrangement and remove the $6,000 in enforcement warrant fees was that you were not able to add any new infringements to this arrangement in the future without increasing the repayment amount. The Registrar advised you of these conditions.
On 5 September 2017, FER received an application from you to add five new cases that you had incurred to the existing payment arrangement. The value of the debt on those five cases were $1,495.65, with the total debt then being $9,690.50. You were advised that you must increase your offer of payment to $70 per fortnight which is commensurate with your debt and your Centrelink income. As your payments did not increase, the Registrar declined to add these new cases to your existing arrangement and your driver's licence was suspended.
On 21 September 2018, you again applied to add the previous five cases and two new cases registered in 2018 to your existing payment arrangement. The value of the debt on these seven cases are $1,849.85, with the total debt now being $9,264.70. This indicates that you have only reduced your debt by $222.95 in 30 months. Given the generous and lenient conditions that the Registrar has previously extended you, further leniency will not be extended.
As per our previous advice, the Registrar's decision in relation to Time to Pay arrangements is final. However, section 36 of the Magistrates Court Act 2004 (WA) does make provision for a person aggrieved by an act, direction or order of a court officer to apply to the Supreme Court for a review order. It would be advisable for you to seek independent legal advice should you wish to make such an application.
Ms Snook says that at about the same time as that email was sent, she spoke to the Team Leader at the Registry and was informed of the decision. Ms Snook says that she expressed her concern that the decision had been made without reference to the materials that had accompanied her original application, and which had been re-sent to the Registry by her. I am informed by Ms Snook that the Team Leader then told her that the Registrar had considered those materials and that the Registrar's decision remained as set out in the email.
Ms Snook was informed that the Registrar's decision was final but that if she wished to challenge the decision, she could make an application under s 36 of the Magistrates Court Act 2004 (WA) (Magistrates Court Act) for a review order in respect of the decision.
Ms Snook has applied for an order reviewing the Registrar's decision under s 36 of the Magistrates Court Act and injunctive relief to be granted on an urgent basis.
The orders sought
Ms Snook seeks the following orders:
1.Order to lift suspension on my licence immediately today so that it may be renewed later today Friday 7th or Saturday 8th morning
2.In the alternative, order allowing me to pay $70 for the first fortnight, allowing me to renew licence, then reverting to 30 per fortnight until the full case for Review Order is heard,
3.Order requiring attendance today of Registrar Jackson FER and 'Mercia' (FER refuses to supply either full name) with papers I need to sign in order for suspension to be lifted, and for action to lift the suspension today Friday 5th October
4.Order allowing me to drive until the full matter comes before the court, subject to continuing to pay the $30 per fortnight
5.In the alternative, Order allowing me to drive until the full matter comes to court without making payments -since in the long run I anticipate that FER will owe me a substantial sum
6.Order staying any further costs added to my outstanding amount from their decision of Mercia and Registrar Jackson yesterday
7.Order allowing summons of my file from FER
8.Order requiring immediate submission into court today, written reasons for decisions of Registrar both before and after receiving my supporting documents (note decision was made with no supporting documents at all see affidavit)
9.Order staying any Sherriff or Bailiff action, and staying any 'intention to enforce' or similar by Registrar or anyone associated with FER or contracted by them
10.Costs in this matter.
The effect of the orders sought by Ms Snook is to compel the Registrar to cancel the licence suspension order.
Issues
In order for Ms Snook to succeed in her application, she must overcome two potential difficulties which I identified in the course of the hearing. The first is whether the Registrar is a court officer for the purposes of s 36 of the Magistrates Court Act.
Is the Registrar a 'court officer' under the Magistrates Court Act?
Section 36 enables a review order to be made in relation to a decision or a failure to make a decision by a court officer. The definition of court officer is:[4]
A magistrate, a JP, when constituting a court, or a registrar when performing functions delegated to a registrar under section 28 of the Act.
[4] Magistrates Court Act 2004 (WA) s 3.
My concern is that the Registrar, when considering an application under s 27A or s 55A of the Fines Enforcement Act, is not exercising jurisdiction which has been delegated to the Registrar under s 28 of the Magistrates Court Act. Rather the Registrar is exercising powers conferred by the Fines Enforcement Act. Section 7(2) of the Fines Enforcement Act does, however, provide that the Registrar is an officer of the Magistrates Court and the functions of the Registrar are to be taken to be the functions of that court.
Despite these concerns, I think it is arguable that the Registrar is a court officer. It is arguable that this conclusion flows from the proper construction of s 7(2) of the Fines Enforcement Act read in the context of the Magistrates Court Act.
In my opinion it would be, arguably at least, a strange result if the decision of the Registrar, who is an officer of the Magistrates Court for the purposes of the Fines Enforcement Act, fell outside of the judicial review jurisdiction conferred by s 36 of the Magistrates Court Act. I do not express a final view, as the issue is not clear and is potentially difficult. I do think, however, that it is arguable that the Registrar's decision is reviewable under s 36.
Did the Registrar make a reviewable error?
The next difficulty that I explained in my exchanges with Ms Snook in the course of argument was that s 36 of the Magistrates Court Act is not an appeal provision and it is only engaged if jurisdictional error on the part of the court officer is established. I outlined for Ms Snook's benefit the five well established categories of jurisdictional error and invited her to make submissions as to which category of jurisdictional error she considered applied.
Ms Snook had some difficulty identifying the jurisdictional error that she contends was made by the Registrar. It appears, however, that the essence of Ms Snook's concern is that the Registrar did not give consideration to whether Ms Snook required a cancellation of the licence suspension order on the ground that if such an order was not made, she would be deprived of the means of obtaining urgent medical treatment. In other words Ms Snook's complaint is that the Registrar did not consider the ground on which the application was based.
Against that background I proceed on the basis that the ground of jurisdictional error relied upon by Ms Snook was that the Registrar had failed to take into account a matter that was specified in the Fines Enforcement Act as a matter that the Registrar was required to take into account.
My preliminary view is that when regard is had to the matters referred to in the email from the Registry to Ms Snook on 3 October 2018 it is arguable that a jurisdictional error has been made. My reasoning for coming to that conclusion is the email makes no reference to the question of medical treatment. The focus of the email and the reasons provided for the refusal to make the suspension order are directed to Ms Snook's financial resources and express the view that Ms Snook could afford to pay $70 per fortnight under a time to pay arrangement, as opposed to $30 per fortnight, which is what I understand Ms Snook has been paying.
Should the court grant an injunction?
The authorities and the principles dealing with the granting of a stay of an order say that a stay should only be granted in very limited circumstances or where the court is satisfied that there are special circumstances which satisfy the court that it is just and reasonable to order a stay to preserve the subject matter and integrity of litigation.[5]
[5] Stampalia v Racing Penalties Appeals Tribunal [1999] WASC 7.
This is not a case where the court is concerned with the stay of an order that has been made, but with the alleged failure by the Registrar to make an order which Ms Snook says should have been made. By parity of approach when considering whether any form of injunctive relief should be granted, I must be satisfied that special circumstances exist that make it just and reasonable to grant an injunction.
The special circumstances that exist in this case are as follows:
(a)If the licence suspension order that has been made is not cancelled then Ms Snook's application for a review order will be rendered nugatory because she will no longer have the licence and, on her evidence, she will not be able to obtain a new licence.
(b)Ms Snook's need for a driver's licence to enable her to obtain medical treatment and to obtain relief in urgent circumstances from the symptoms of the medical conditions from which, on her evidence, she suffers.
Ultimately, however, the court has not been required to grant an injunction because the Registrar has attended the hearing in person and informed the court that the licence suspension order will be cancelled immediately so that Ms Snook may renew her driving licence tomorrow, Saturday 6 October 2018. The Registrar makes no concession as to the substantive merits of Ms Snook's application.
In those circumstances the orders that I will make are:
1.The Registrar of the Fines Enforcement Registry be substituted as the respondent in the proceedings in place of the Fines Enforcement Registry.
2.The parties be referred to mediation and the payment of any fee in respect of the mediation be waived.
3.The parties notify the Associate to the Principal Registrar of their availability to attend mediation on or before 4.00 pm on 19 October 2018.
4.The application be otherwise adjourned to 9am on 25 October 2018.
5.The costs of the application be reserved.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JB
Associate to the Honourable Justice Tottle19 DECEMBER 2018
3
0
2