Snook v Registrar of Fines Enforcement Registry [No 3]
[2023] WASC 137
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: SNOOK -v- REGISTRAR OF FINES ENFORCEMENT REGISTRY [No 3] [2023] WASC 137
CORAM: TOTTLE J
HEARD: 25 JANUARY 2023 AND ON THE PAPERS
DELIVERED : 3 MAY 2023
FILE NO/S: CIV 2749 of 2018
BETWEEN: PIPPA SNOOK
Applicant
AND
REGISTRAR OF FINES ENFORCEMENT REGISTRY
Respondent
Catchwords:
Administrative law - Judicial review - Review order under s 36(1)(c) of the Magistrates Court Act 2004 (WA) and O 56A r 3 of the Rules of the Supreme Court 1971 (WA) - Registrar's decision to refuse application for a time to pay order under s 27A of the Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA) - Meaning of 'court officer' under s 36 of the Magistrates Court Act 2004 (WA) - Whether registrar breached rules of procedural fairness - Whether there was reasonable apprehension of bias on the part of the registrar - Whether the registrar's decision was legally unreasonable - Whether the registrar has satisfied the court that the time to pay decision should not be set aside - Turns on own facts
Legislation:
Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA) (as at 2018), s 7, s 15, s 16, s 17, s 18, s 19, s 20, s 21B, s 21C, s 27A, s 27 D, s 103
Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA), s 9 sch 2
Fines, Penalties and Infringement Notices Enforcement Act 2020 (WA)
Fines, Penalties and Infringement Notices Enforcement Regulations 1994 (WA), r 9, sch 2
Magistrates Court Act 2004 (WA), s 36(1)(c)
Rules of the Supreme Court 1971 (WA), O 56A r 3
Result:
Application dismissed
Category: B
Representation:
Counsel:
| Applicant | : | In person |
| Respondent | : | Mr J F Bennett |
Solicitors:
| Applicant | : | In person |
| Respondent | : | State Solicitor's Office |
Case(s) referred to in decision(s):
Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596
Commissioner of Stamp Duties v Permanent Trustee Co Ltd (1987) 9 NSWLR 719
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Jacob v Save Beeliar Wetlands (Inc) [2016] WASCA 126; (2016) 50 WAR 313
Leighton v The Honourable Mr John Day MLA [2014] WASC 164
Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507
Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka [2001] HCA 23; (2001) 206 CLR 128
Russell v Stephen [2013] WASCA 284
Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252
Seiffert v The Prisoners Review Board [2011] WASCA 148
Snook v Registrar of Fines Enforcement Registry [2018] WASC 402
Snook v Registrar of Fines Enforcement Registry [2019] WASCA 204
Snook v Registrar of Fines Enforcement Registry [No 2] [2020] WASC 435
Western Australian Planning Commission v The Board of Valuers [2018] WASCA 145
TOTTLE J:
Introduction
On 23 July 2019 I made a review order under s 36(1)(c) of the Magistrates Court Act 2004 (WA) (Magistrates Court Act) and O 56A r 3 of the Rules of the Supreme Court 1971 (WA) in respect of a decision of the respondent registrar to refuse an application made by the applicant for a time to pay order under s 27A of the Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA) (FPINE Act).
The application for review of the registrar's decision was commenced by the applicant on 5 October 2018. On that day the applicant sought an interlocutory injunction the effect of which would have been to cancel a licence suspension order made under the FPINE Act in respect of the applicant's driving licence. The circumstances in which the application was brought before the court as a matter of urgency are more fully described in Snook v Registrar of Fines Enforcement Registry,[1] and are touched upon later in these reasons. For present purposes, it is sufficient to record that on 5 October 2018 the registrar cancelled the licence suspension order with immediate effect without making any concession as to the substantive merits of the application made under s 36 of the Magistrates Court Act.
[1] Snook v Registrar of Fines Enforcement Registry [2018] WASC 402.
The central issue raised by the application is whether in deciding not to make a time to pay order the registrar failed to consider the applicant's medical conditions and her need to maintain her driving licence so she could obtain urgent medical treatment. As I explain below, I am satisfied that the registrar's decision to refuse the time to pay application should not be set aside. I am satisfied that none of the grounds relied on by the applicant as a basis for arguing that the decision was invalid have been established. The application must be dismissed.
These reasons and the procedural history
Given the confined nature of the central issue it is necessary to provide a short explanation for the length of these reasons and why it has taken so long to bring the application to a final determination.
The applicant is a litigant in person. There are a number of matters which taken in combination have complicated the application and delayed its progress. Those matters include the following. First, the applicant suffers from various health conditions which have impaired her capacity to manage the application. Dates set for the final hearing in 2019, 2020 and 2021 were vacated at the applicant's request shortly before the hearings were due to commence on the grounds that her ill‑health prevented her from attending and presenting her case effectively. Secondly, the applicant has viewed the application as an opportunity to raise many issues that fall outside the permissible scope of this review application. This is best illustrated by referring to the orders sought by the applicant which are reproduced at [100] below. Thirdly, the applicant has a strongly held conviction that she has been treated improperly by the registrar, the registrar's predecessor and Registry staff. This conviction has distracted the applicant from the limited issues that may be considered on a review application under s 36 of the Magistrates Court Act and has led the applicant to allege misconduct against the registrar, the Registry staff and the lawyers who have represented the registrar in these proceedings. These allegations have no basis in fact. They are unjustified and should not have been made. The registrar and her solicitors have conducted themselves in the manner expected of model litigants.
In the paragraphs which follow I have set out the procedural history in some detail to explain that in managing this application account has been taken of the applicant's status as a litigant in person whose capacity to manage the litigation is impaired. I have also explained why, notwithstanding the latitude that is extended to litigants in person, it was necessary to determine the application without acceding to the applicant's request to adjourn the final hearing and her subsequent requests for further opportunities to advance her case in various ways or otherwise defer the ultimate determination of the application.
As mentioned earlier, the registrar attended the hearing of the applicant's application for urgent injunctive relief on 5 October 2018 and informed the court that the licence suspension order made in respect of the applicant's driving licence would be cancelled. The decision to cancel the licence suspension order enabled the applicant to renew her driving licence. The applicant's concern to renew her licence was the motivation for applying for urgent injunctive relief on 5 October 2018. At a later hearing on 25 October 2018, through her counsel, the registrar undertook not to commence or proceed with any enforcement action while the current proceedings were on foot without providing the applicant with two weeks notice.[2]
[2] ts 67.
At the hearing on 5 October 2018 I referred the application to mediation and a mediation conference was held on 16 January 2019. The conference was adjourned to enable the applicant to obtain legal representation.
In March 2019 the applicant was referred to a law firm for legal advice and assistance under the Law Access scheme operated by the Law Society of Western Australia. Unfortunately, the referral did not lead to the provision of any substantive legal advice or assistance.
In May 2019, at the request of the court, the Western Australian Bar Association arranged for a barrister, Dr John Cameron, to assist the applicant on a pro bono basis.
At a hearing held on 23 July 2019, at which the applicant was represented by Dr Cameron, a review order was made. The making of the review order was not opposed by the registrar. The applicant was given leave to file an amended application by 26 August 2019 (at that stage a draft amended application had been prepared by Dr Cameron). The application was listed for a final hearing on 13 November 2019.[3]
[3] Orders 23 July 2019.
On 19 August 2019 the applicant informed the court that she had terminated her instructions to Dr Cameron.
On 26 August 2019 the applicant's time for filing an amended application was extended to 9 September 2019.
On 2 October 2019 the applicant's time for filing an amended application was further extended. The hearing listed for 13 November 2019 was vacated and relisted for 18 December 2019.
On 11 December 2019 the applicant applied for an adjournment of the hearing listed for 18 December 2019 on the ground that her 'trauma trained dog had medical issues' and that she had been unable to attend to any court matters. She sought an adjournment of between four and six months. The application was refused. The applicant appealed against the decision and the appeal was dismissed.[4]
[4] Snook v Registrar of Fines Enforcement Registry [2019] WASCA 204.
The applicant renewed her application for an adjournment of the hearing on 18 December 2019 at the hearing itself. On this occasion the application was based on the applicant's ill‑health and supported by medical evidence to the effect that she was unfit to attend court.[5] On the basis that the applicant was unwell the hearing was adjourned.
[5] ts 90.
In early 2020 the applicant pressed for production of various categories of documents she contended should be in the possession of the registrar. She produced a list of these documents. On 30 January 2020 I made an order that the registrar file and serve a schedule setting out her position in relation to the categories of documents sought by the applicant.
On 6 February 2020 the registrar filed a schedule setting out her position in relation to each category of documents.
On 14 February 2020 the applicant's time for filing an amended application was extended to 28 February 2020.
On 20 February 2020 there was a mediation conference.
On 6 March 2020 the registrar affirmed an affidavit in which she verified the contents of the schedule of documents filed on 6 February 2020.
On 20 March 2020 the applicant's time for filing an amended application was extended to 22 May 2020.
On 22 May 2020 the applicant filed an amended application.
On 22 June 2020 the applicant was given leave to file a further amended application by 13 July 2020. The substantive application was listed to take place over four days on 5, 6, 10 and 11 November 2020. Four days were set aside on the basis that the court would sit for only half a day on each sitting day to take account of the applicant's concern that she would not be able to manage a full hearing day.
On 13 July 2020 the applicant filed a further amended application (entitled 'amended application').
On 4 November 2020 the hearing listed to commence on 5 November 2020 was adjourned at the applicant's request on the basis that she was unable to proceed with the final hearing by reason of ill-health. The applicant relied on medical certificates sent by email to the court. The matter was adjourned to a directions hearing to be held on 2 March 2021. Reasons for adjourning the application were published.[6] An order was made that the registrar be released from the undertaking given by her on 25 October 2018 with effect from 2 March 2021.
[6] Snook v Registrar of Fines Enforcement Registry [No 2] [2020] WASC 435.
At the directions hearing on 2 March 2021 the application was listed for final hearing on 27, 28, 29 and 30 July 2021. The applicant did not attend the directions hearing but had sent emails to the court attaching a medical certificate. The medical certificate stated that the applicant was unable to attend work or court from 24 February to 24 May 2021.
On 26 July 2021 the hearing listed to commence on 27 July 2021 was vacated. The reason for the adjournment was the applicant's inability to attend the hearing due to ill-health.
At a directions hearing held on 31 August 2022 the applicant sought an order that the application be referred to mediation. The applicant said that she had a lawyer in mind who would assist her at a mediation. I refused the application to refer the matter to mediation but informed the applicant that if a lawyer confirmed to the court that they would represent the applicant at a mediation then I would refer the application to mediation without requiring the lawyer to go on the record as acting for the applicant. Directions were made to the effect that the applicant file and serve any further materials on which she wished to rely by 3 November 2022 and the application was listed for a final hearing on 25 and 27 January 2023. An order was made for there to be a further directions hearing on 13 December 2022.
At the directions hearing on 13 December 2022 the applicant's position was that she had hoped to be represented by a lawyer at the final hearing and that the lawyer would take over negotiations on her behalf with the registrar and the registrar's lawyers. In her submissions the applicant sought an adjournment of the hearing listed to commence on 25 January 2023. I refused to grant an adjournment of the hearing on the grounds that I had no confidence that, if I acceded to the application, the applicant would not apply to adjourn any subsequent hearing and the application should be determined without further delay. In view of her medical conditions, the applicant was given leave to appear at the final hearing by video link.
By email sent to the court on 10 January 2023 the applicant sought the court's assistance in appointing someone to assist her 'to mediate a settlement'. The applicant was informed that the court could not assist her.
By email sent on 19 January 2023 the applicant foreshadowed an intention 'to summons a lot of papers today that [she had] previously asked the court for'.
On 23 January 2023 the applicant attempted to issue a subpoena for the production of documents by 'Fines Enforcement'. The applicant was informed that any application to issue a subpoena would be dealt with at the beginning of the hearing listed to take place on 25 January 2023.
By email sent on 23 January 2023 the applicant informed the court that she had secured an offer of legal assistance from a barrister.
On 24 January 2023 the applicant sent the court an affidavit sworn by her to which she attached a letter to my associate dated 23 January 2023 from Mr Philip Hardless, a member of the bar, to the effect that he was prepared to assist the applicant in a mediation if the hearing listed to commence on 25 January 2023 was vacated.
By email sent to my associate at 10.19 am on 25 January 2023 the applicant informed my associate that she had agreed to meet Mr Hardless and another counsel at the court at 10.00 am and that as neither had arrived by 10.20 am, and in view of her various health conditions (in later materials sent to the court the applicant said that she had attended court wearing a full respirator) she had returned home and asked that the commencement of the hearing be postponed until 11.15 am to enable her to appear by video-link.
The hearing on 25 January 2023 commenced at 10.30 am. Mr Hardless appeared as 'a friend of the court' and sought an adjournment of the hearing to enable a further mediation to take place.
Enquiries established that a mediation registrar was available to conduct a mediation immediately. On that basis, I adjourned the commencement of the hearing until 2.30 pm to enable the mediation to take place. The applicant was represented at the mediation by Mr Hardless and Dr Colin Huntly. The mediation was not successful.
The hearing resumed at 2.45 pm. The applicant did not attend the hearing in person and did not open the video‑link that had been sent to her or respond to telephone calls from my associate. At 2.48 pm the applicant sent an email to the court in which, in effect, she said that her health had deteriorated over the course of the day, that she was unfit to represent herself and that she could try to be available on 27 January 2023.
Against the background of the procedural history as outlined above I decided that the appropriate course was to adjourn the hearing and determine the application on the papers. I made orders giving leave to the applicant to file and serve written submissions in support of her application and granting leave to the registrar to file submissions in reply. I gave oral reasons for that decision and a transcript of those reasons was provided to the applicant. Put shortly, having regard to the history of the matter generally and to the events immediately preceding the hearing and what had taken place on the first day of the hearing, I was satisfied that it was unlikely that the hearing would proceed on the second day set aside for the hearing (27 January 2023) and further I was satisfied that whatever further procedural indulgence was provided to the applicant she would never accept that the steps required for a fair hearing of the application had been completed and that the application was ready for hearing. The public interest in the efficient use of court resources weighed significantly against extending any further latitude to the applicant. The orders made at the conclusion of the 25 January 2023 hearing were as follows:
1.The applicant's application be determined on the papers.
2.The applicant have leave to file and serve any further submissions by 15 February 2023.
3.The respondent have leave to file and serve any responsive submissions by 1 March 2023.
4.There be liberty to apply on two days' notice.
5.Costs be reserved.
Before concluding this section of these reasons I express my appreciation and gratitude to Dr Cameron, Mr Hardless and Dr Huntly for their willingness to provide assistance to the applicant and to the court on a pro bono basis.
Events following 25 January 2023 hearing
The applicant renewed her application for the production by the registrar of documents. At a directions hearing held on 14 February 2023 the directions made on 25 January 2023 were vacated and the applicant was directed to file and serve any written submissions in support of her application for discovery by 14 March 2023. She did not do so. At a further directions hearing held on 16 March 2023 the following directions were made:
1.By 6 April 2023 the applicant file and serve any further submissions upon which she wishes to rely.
2.By 20 April 2023 the respondent file and serve any responsive submissions on which they wish to rely.
The applicant did not comply with the direction that she file and serve any further submissions on which she wished to rely by 6 April 2023. By emails to my associate she explained her non-compliance by reference to episodes of ill-health and by her wish to obtain legal advice from lawyers located in Victoria who had assisted those who had suffered as a result of the administration of the Robodebt scheme. The applicant drew a parallel between the way in which her application for a time to pay order had been dealt with and the victims of the Robodebt scheme.
By email sent to her by my associate on 24 April 2023 the applicant was informed that unless she filed further submissions by 1 May 2023 the application would be determined by reference to the materials that she had filed to date.
Legislative framework
The following outline of the statutory framework substantially reproduces the outline contained in the registrar's written submissions.
On 19 June 2020, the Fines, Penalties and Infringement Notices Enforcement Amendment Act 2020 (WA) (FPINE Amendment Act) was given royal assent. As a result, pt 3 of the FPINE Act, including s 27A, has been significantly amended. Those amendments took effect from 30 September 2020. I will outline the relevant provisions of the FPINE Act prior to its amendment and under which the registrar's decision was made before outlining the relevant provisions as amended.
FPINE Act pre-amendment
Division 2 of pt 3 of the FPINE Act provides for the enforcement of infringement notices issued under prescribed enactments.
Prosecuting authorities may register an infringement notice with the Registry if 28 days have elapsed since the issue of a final demand to an alleged offender, and the modified penalty (plus any enforcement fees) remains unpaid and the alleged offender has not made an election to have the matter dealt with by a court.[7]
[7] Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA) s 15.
Section 16(1) of the FPINE Act provides that a prosecuting authority may register an infringement notice by giving the Registry a signed enforcement certificate in the relevant manner and paying the prescribed registration fees (if applicable).
Once an infringement notice is registered, s 17 of the FPINE Act imposes a requirement on the registrar to issue 'an order to pay or elect' to the alleged offender. This is, in essence, an order that within 28 days either the modified penalty and enforcement fees are paid to the registrar or an election under s 21 to have the matter dealt with by a court is made by the alleged offender.
If an election is made under s 21 of the FPINE Act, the registrar commences a prosecution by lodging a prosecution notice in relation to the alleged offence that is the subject of the infringement notice.
If neither payment nor an election is made following the issue of an order to pay or elect and 28 days have elapsed since that order was issued, the registrar may issue a notice of intention to enforce. A notice of intention to enforce informs the alleged offender that if the relevant penalty and enforcement fees are not paid to the Registry, or an election under s 21 is made, the registrar may make a licence suspension order and, in certain circumstances, may issue an enforcement warrant.[8]
[8] Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA) s 18.
The amounts of the various enforcement fees required to be paid under the Act are prescribed by the Fines, Penalties and Infringement Notices Enforcement Regulations 1994 (WA), reg 9 and sch 2. Separate fees are specified for the issuing of a final demand for payment, preparing an enforcement certificate, registering an infringement notice and issuing a notice of intention to enforce. The latter fee is imposed when a licence suspension order is made.
The registrar may issue a licence suspension order if 28 days have elapsed following the notice of intention to enforce and neither payment of the outstanding amount nor an election has been made. A licence suspension order may, among other things, disqualify an alleged offender from holding or obtaining a driver's licence.[9]
[9] Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA) s 19.
There are two ways in which a licence suspension order may be cancelled under pt 3 of the FPINE Act. First, the registrar may cancel the licence suspension order pursuant to s 20 of the FPINE Act. Second, and relevantly to these proceedings, the registrar may cancel the licence suspension order under s 27A in certain cases of hardship.
Section 27A of the FPINE Act reads, relevantly, as follows:
(1)If an infringement notice has been registered, the alleged offender may request the Registrar -
(a)not to make a licence suspension order; or
(b)to cancel a licence suspension order that has been made, in respect of the alleged offender on the grounds that the licence suspension order would or does deprive the alleged offender of -
(c)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; or
(d)the principal means of obtaining income with which to pay the modified penalty and enforcement fees,
or on the grounds that the licence suspension order would or does seriously hinder the alleged offender in performing family or personal responsibilities.
...
(3)A request -
(a)must be made in accordance with the regulations; and
(b)must include an offer to pay the modified penalty and enforcement fees before a specified date or by regular instalments.
(4)If the Registrar is satisfied that -
(a)there are grounds to accede to the request; and
(aa)the alleged offender has a reasonable excuse for any contravention of a time to pay order made previously under this section in respect of the infringement notice; and
(b)the alleged offender's offer to pay by regular instalments is reasonable, the Registrar must make a time to pay order and, as the case requires -
(c)suspend the process in Division 2 for enforcing the infringement notice; or
(d)cancel a licence suspension order that has been made in respect of the alleged offender.
If the registrar is satisfied that there are grounds to cancel the licence suspension order, and the alleged offender has a reasonable excuse for any prior contravention of a time to pay order, and the offer to pay by regular instalments is reasonable, the registrar must make a time to pay order and cancel the licence suspension order.
Section 27D of the FPINE Act provides, relevantly, that a decision of the registrar under s 27A is final.
Part 4 of the FPINE Act contains a separate regime governing the payment of fines (s 31 to s 55E).
FPINE Act post-amendment
The amendments passed by the FPINE Amendment Act effectively separated the requirement for the registrar to be satisfied that the alleged offender has demonstrated grounds specified in s 27A(1) of the pre-amendment Act from the requirement that the offer to pay is reasonable. These requirements are no longer cumulative. Section 20A and s 20B of the amended FPINE Act govern the cancellation of licence suspensions and the new div 2A govern time to pay orders. As a result:
(a)pursuant to the new s 20A, a licence suspension order may now be cancelled on the same grounds as s 27A(1) of the pre-amendment Act but the cancellation is not contingent on a reasonable offer to pay the amount by regular instalments; and
(b)pursuant to the new s 21B, an alleged offender can apply for a time to pay order without any requirement to demonstrate hardship.
Section 20A of the amended FPINE Act reads, relevantly, as follows:
(1)An alleged offender who is an individual may, in accordance with the regulations, request the Registrar to cancel a licence suspension order that has been made in respect of the alleged offender and an infringement notice.
...
(3)A request under subsection (1) may be made by an alleged offender if -
(a)the licence suspension order deprives the alleged offender of -
(i)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 the alleged offender's family; or
(ii)the principal means of obtaining income with which to pay the unpaid infringement amount; or
(b)the licence suspension order seriously hinders the alleged offender in performing family or personal responsibilities.
(4)Without limiting subsection (3)(a)(ii), the Registrar may, for the purposes of that subsection, consider the effect that the licence suspension order has had or will have on the ability of the alleged offender to seek or obtain employment.
Pursuant to s 20B of the amended FPINE Act, the registrar may request further information or evidence from the alleged offender in respect of s 20A(3).
If the registrar is satisfied that the licence suspension order deprives the alleged offender of the means of obtaining urgent medical treatment for them or a family member or the principal means of obtaining an income or that it seriously hinders the alleged offender in performing personal or familial duties, the registrar must cancel the licence suspension order.[10]
[10] Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA) s 20A(5)(b).
Further, if the licence suspension order is cancelled under s 20A, the registrar is barred from making another licence suspension order under s 19 in respect of the alleged offender and the infringement notice unless they are satisfied that s 20A(3) no longer applies to the alleged offender, or the alleged offender has failed to comply with a request under s 20B(2).[11]
[11] Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA) s 20A(5)(c).
Additionally, the FPINE Amendment Act also inserted s 19(2A) into the FPINE Act, which provides, relevantly, that:
(2A)The Registrar cannot make a licence suspension order in respect of an alleged offender who is an individual if –
…
(b)the alleged offender has given the Registrar information about the alleged offender's personal circumstances that gives the Registrar reasonable grounds to believe that section 20A(3) would apply to the alleged offender if the licence suspension order were made.
In addition to expanding the ability to cancel licence suspension orders, the FPINE Amendment Act amended the time to pay provisions.
The provisions regarding time to pay orders are now provided in s 21B to s 21H of the FPINE Act. Section 21B is as follows:
(1)An alleged offender may apply to the Registrar for a time to pay order in respect of an infringement notice that has been registered.
(2)An application under subsection (1) must be made in accordance with the regulations and must include an offer to pay the unpaid infringement amount in respect of the infringement notice before a specified date or by regular instalments.
(3)An application under subsection (1) —
(a)can be made at any time after the infringement notice is registered, whether or not a licence suspension order is in force in respect of the alleged offender and the infringement notice; but
(b)cannot be made if -
(i)an enforcement warrant is in force in relation to the alleged offender and the infringement notice; or
(ii)the alleged offender has made an election under section 21.
Once a time to pay application is made, the registrar may require the alleged offender undergo a means test.[12] If the registrar is satisfied that: the alleged offender does not have the means to pay the infringement within 28 days, the alleged offender's offer to pay is reasonable and the alleged offender has not previously contravened a time to pay or had a reasonable excuse for contravening, the registrar must make the time to pay order.[13]
[12] Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA) s 21C(1).
[13] Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA) s 21C(3).
Section 21D of the FPINE Act provides that once a time to pay arrangement is in place, the alleged offender may apply to have the time to pay order amended.
Section 21E of the FPINE Act provides that once a time to pay arrangement is in place, the registrar may request an alleged offender to undergo a means test and amend the time to pay order accordingly. The ability to require a means test cannot be exercised more than once in a 12‑month period, unless the registrar is advised that the alleged offender's financial circumstances have changed.
The facts
The following factual findings are based on the affidavit evidence filed by the parties.[14] Many of the critical facts are evidenced by the documentary materials attached to the affidavits.
[14] Two affidavits of Pippa Snook sworn 5 October 2018; affidavit of Pippa Snook sworn 3 May 2019; two affidavits of Pippa Snook sworn 24 January 2023; affidavit of Alison Jackson affirmed 13 September 2019; affidavit of Alison Jackson affirmed 6 March 2020.
On 26 February 2016, the former registrar of the Fines Enforcement Registry placed the applicant on a time to pay order for 51 outstanding infringements, at the rate of $30 per fortnight. The amount outstanding at the time was $9,462.65.[15]
[15] Affidavit of Alison Jackson affirmed 13 September 2019 'Annexure AJ2', 18 - 19.
The infringements incurred by the applicant and registered with the Registry are set out in an annexure to the registrar's affidavit.[16] It is unnecessary to detail the infringements but to provide some context I note that in the four years between 2014 and 2018 29 infringements were registered against the applicant.
[16] Affidavit of Alison Jackson affirmed 13 September 2019 'Annexure AJ37'.
In placing the applicant on the time to pay order in February 2016 the then registrar cancelled enforcement warrants that had been issued and removed the enforcement warrant fees that had been imposed.[17]
[17] Affidavit of Alison Jackson affirmed 13 September 2019 [6] - [7].
Between June 2016 and July 2017, a further five infringements issued to the applicant were registered with the Registry and the enforcement process in respect of these infringements reached the stage at which licence suspension orders were made in relation to each infringement.[18] The details of infringement notices and actions taken are as follows:
[18] Affidavit of Alison Jackson affirmed 13 September 2019 [8] - [20].
Prosecuting Authority and infringement notice number
Nature of Infringement and date
Amount due following notice of intention to enforce
Date of confirmation of licence suspension
Public Transport Authority - PT11805017
Parking (Kingsley) - 4 April 2016
$170.75
13 August 2016
Police Department - RAC09258A9
Contravening traffic signal (Nollamara) - 24 November 2016
$430.10
17 May 2017
City of Subiaco - 11303181
Parking (Coghlan Rd) -
27 June 2016$230.10
13 June 2017
Police Department - SCF50216A9
Speeding (Graham Farmer Freeway) -
1 April 2017$332.06
21 September 2017
Police Department - SCF50839A8
Speeding - (Graham Farmer Freeway) -
1 April 2017$332.05
20 September 2017
On 1 September 2017, with the assistance of a financial counsellor the applicant lodged an application for a time to pay order under s 27A of the FPINE Act in relation to the five infringements detailed in the table set out above.[19] That application was refused by email dated 4 September 2017.[20] In the refusal, the applicant was advised that she needed to increase her rate of payment if she wanted to include those infringements in her current time to pay arrangement.
[19] Affidavit of Alison Jackson affirmed 13 September 2019 'Annexure AJ17', 61 - 63.
[20] Affidavit of Alison Jackson affirmed 13 September 2019 'Annexure AJ18', 64.
In June and July 2018, two additional infringements were registered in relation to the applicant. These infringements resulted in further licence suspension orders being issued.[21] The details are set out in the table below.
[21] Affidavit of Alison Jackson affirmed 13 September 2019 [23] - [26].
Prosecuting Authority and infringement notice number
Nature of Infringement and date
Amount due following notice of intention to enforce
Date of confirmation of licence suspension
City of Joondalup - P363512
Parking (Hillary's Boat Harbour) -
11 March 2018$195.25
5 September 2018
City of Joondalup - P365370
Parking (Mullaloo Beach) -
14 April 2018$200.95
3 October 2018
The applicant described the circumstances that caused her to make her time to pay application in September 2018 as follows:[22]
Beginning in the middle: On Tues 25th Of Sept 2018 I received a letter dated I think 27th August (I had been away and had mail redirect), saying that my licence due to expire 7 oct 2018 would not be renewed due to outstanding fines, and to contact them.
I rang FER and notwithstanding the situation explained elsewhere in this document, a Danielle said to reapply for a Time to Pay and that they would properly consider all the supporting documentation and, if adequately supported by documentation it would all be in place in time to renew my licence, vital to me for medical and other needs.
I said that we were running short of time, to please include a list of ALL the supporting documents needed. She forwarded me by email the applications, Centrepay forms and a list of all supporting documents needed, which I duly completed.
[22] Affidavit of Pippa Snook in support of application for review order of decisions of Registrar of Fines Enforcement Registry sworn 5 October 2018 [4] - [6].
I accept the applicant's general description of the events that immediately preceded the application for a time to pay order. By reference to emails exchanged I find that a member of the Registry staff sent the applicant the paperwork to enable her to make a time to pay application on 21 September 2018. On that basis I find that the conversation to which the applicant referred in her affidavit took place on 21 September 2018 and not on 25 September 2018.
On 28 September 2018, by email the applicant submitted her application for a time to pay order under s 27A of the FPINE Act. The time to pay application related to the seven infringements registered with the Registry between June 2016 and July 2018, the details of which are set out in the tables set out at [75] and [77]. The effect of the application was that, if successful, the amounts owed in respect of the seven infringements would be added to the amounts to be paid off under the February 2016 order without any additional payments being made and the licence suspension orders made in respect of those infringements would be cancelled.[23]
[23] Affidavit of Alison Jackson affirmed 13 September 2019 [27].
The time to pay application was accompanied by a number of photographs (in JPEG format) of documents evidencing the applicant's living expenses. The quality of the photographs was poor. Many of the documents are difficult, though not entirely impossible, to read. The documents were as follows:
(a)a covering letter dated 27 September 2018;
(b)a time to pay application signed by the applicant and dated 25 September 2018;
(c)an unsigned statutory declaration;
(d)Centrepay deduction form;
(e)Centrelink Income Statement dated 27 September 2018;
(f)Department of Communities, Housing, Statement of Accounts for the period 28 April 2018 to 28 July 2018;
(g)Department of Communities, Housing Water Consumption Account issued 20 September 2018;
(h)Alinta Energy Tax Invoice issued on 3 July 2018; and
(i)a bank statement.
The material parts of the applicant's covering letter read as follows:[24]
[24] Affidavit of Alison Jackson affirmed 13 September 2019 'Annexure AJ 23', 88, 89.
Thank you for your urgent attention:
Because my licence is due for renewal on October 7th, I submit this application to you, even though I am still waiting on utilities for requested latest copies of bills. I will have it sworn at lunchtime and scanned and the sworn copy sent to you this afternoon.
I do not have birth certificate nor passport to renew my licence if it expires, due to submitting them to court during a custody battle, which court would not return, (passport would be expired now), nor do I have a current copy of the licence, nor am I entitled to an identity card, so that if my licence runs out I will be without an ID, and unable to obtain it in the future, as you need ID to obtain ID.
As a disability pensioner the outgoings exceed incomings, and many weeks it's a choice of eating properly or medical. I do have outstanding medical bills as well at outstanding utilities:
Water: 42.89, Electricity, around $300, I have been waiting on a requested email bill, Gas 375 (estimated amount by Alinta from reading the meter over the phone to them as formal reading was yesterday and bill takes 14 days to arrive).
I have calculated that I have paid you over 5 times the amount of the original fines, (and maybe more because I used current legislation for fine amounts) most of which were not mine, because when you hold the Time to Pay and/or refuse to add fines, they compound and compound again.
Whilst I appreciate the law allows you to do this, I believe its ethically unconscionable to poor people who struggle for every penny. I am well-educated and was an international project manager, civil engineer, how much harder for others, and a Victoria for example does not allow this via its tribunals. All the while the fines compound. I used to be able to call you up (albeit that it takes a minimum of half an hour and I had to travel to Joondalup Court to make the calls, not having a landline) and add any fine as soon as it arrives. However in recent years you have not allowed me to do this, hence compounding fines.
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.
Dental will seem high to you but in January I had a government dentist make a severe mistake and damage nerves in my jaw which was agonising and which has resulted in dozens of repeat visits.
Anyway, I submit this to you with the confidence, that, whatever arises the suspension will be lifted, if only for one day so that I can renew my licence and retain ID.
Given the very short timescale here ( I have spent all week trying to get the relevant paperwork out of government agencies and previously I was away with mail redirect), would you please phone me with any queries on [redacted].
On the afternoon of 28 September 2018 a member of the Registry staff had a telephone conversation with the applicant. The applicant deposes that the conversation occurred on the afternoon of 27 September 2018 but in this respect the applicant's recollection is incorrect because the time to pay application was lodged by email at 9.45 am on 28 September 2018. In any event the applicant gives an account of the conversation in her affidavit and deposes that the Registry staff member was rude and disparaging. In summary the applicant deposes that the staff member expressed disbelief about the applicant's expenditure on food and other items and was sceptical about the applicant's need for 'therapy and wellbeing measures'. I do not accept the applicant's description of the manner of the member of the Registry's staff but I accept the applicant was upset by what she perceived to be inappropriate questioning of her expenditure and her need for treatment of various kinds by someone without appropriate medical qualifications. Complaints about the conduct of the Registry staff featured significantly in the applicant's subsequent correspondence with the Registry and in her evidence. It is apparent from my assessment of the totality of the applicant's evidence and from the submissions that she has made at various hearings that she has a propensity to resort to criticism of a personal nature, often involving allegations of impropriety, if the position she is advancing is not accepted or indeed, if it is even questioned.
At 3.57 pm on 28 September 2018 the Registry staff member who had spoken to the applicant over the telephone sent an email asking the applicant to provide further documentation to prove the expenditure listed in her application. The email read:[25]
[25] Affidavit of Alison Jackson affirmed 13 September 2019 'Annexure AJ24', 104 ‑ 105.
Thank you for your email with the documentation.
As discussed before please provide the following documentation to proof your expenditure as per your Statutory Declaration provided:
Food expenses $420.00 pfn
Electricity
Telephone/ Internet $80.00 pfn
Vehicle running cost $70.00 pfn
Public transport $40.00 pfn
Medical expenses $60.00 pfn
Mental Health expenses $35.00 pfn
Dental $25 pfn
Please provide these before your case could be presented to the Registrar.
At 4.37 pm on 28 September 2018 the applicant sent an email to the Registry in which she referred to a telephone conversation with an officer of the Registry. In that email the applicant provided an explanation of her expenditure on food, dental and medical expenses. She complained that it was not for the Registry staff to 'gainsay' the medical advice she had received and which she said explained her level of expenditure on food and she complained that having to inform the Registry of her 'medical needs' was an 'invasion of her privacy'. I note, parenthetically, that it was not surprising that the Registry required further detail of the applicant's expenditure on food because in the materials supporting her time to pay application in 2017 she had stated that her expenditure on food was $240 per fortnight rather than the $420 per fortnight claimed in the materials lodged 12 months later.
At 5.05 pm on 28 September 2018 the applicant sent an email to the Registry in which she stated:[26]
Further to the above, since I have spent much of a week and many phone calls to do this and set off very urgent legal and house matters that can't be further delayed next week, in order to respond to you. I cannot supply what you need in time so go ahead and make your decision so that I may appeal it. I would have been in bed today and yesterday with an eye infection were it not for trying to get documents and figures together for you. Further it is also not your business what clinical psychs tell me to do for mental wellbeing. Nor am I paying because I couldnt possibly afford it to go back and pay them to say what they recomended. I will phone and ask but I doubt they will. I can copy you the adrenal cortosol tests and heavy metal tests but its none of your business what is wrong with me or what i choose to do about it, just as you wouldn't want to tell me about your health problems and would hate for me to tell you how to deal with your health problems. You are not a doctor or psychiatrist and should not assume any knowledge nor wonder why I get irritated when you tell me to take pills for complex ptsd. Obviously If I could afford more than 30 I would pay it and not be stuck without a licence and a prisoner at home for more than a year.
[26] Affidavit of Alison Jackson affirmed 13 September 2019, 'Annexure AJ25', 106.
On 1 October 2018 an officer of the Registry sent an email to the applicant in which she stated that the 'attachments on both emails did not come through' and asked the applicant to scan the documents in pdf format.
The applicant sent a lengthy response to that email on 1 October 2018 in which she stated that she had 'paperwork' to provide to the Registry but that she would not be able to provide it until later in the day. In her email the applicant emphasised her difficult financial circumstances, her health conditions and her need to maintain her driving licence. The applicant stated that she 'normally [did] 500 - 800km per week with a [driving] licence'. The applicant requested that the Registry 'get on' with making the decision so that the matter could be brought into the courts.[27]
[27] Affidavit of Alison Jackson affirmed 13 September 2019 'Annexure AJ26', 107 ‑ 108.
At 10.02 am on 3 October 2018 the applicant emailed a letter to the officer of the Registry who was dealing with her application. The email said '28 attachments to letter to follow'. In the letter the applicant elaborated on her expenditure as set out in the unsigned statutory declaration that accompanied the time to pay application.[28] The only attachment to the email was the letter.
[28] Affidavit of Alison Jackson affirmed 13 September 2019 'Annexure AJ27'.
On the morning of 3 October 2018 the registrar determined the applicant's time to pay application. In her affidavit the registrar explained her approach as follows:[29]
Although Ms Snook indicated that further documents were to follow, in light of her previous correspondence on this issue and the absence of a follow up from Ms Snook in the hours following her email at 10:02 am that morning, I determined the application.
I made the decision on the information I had at hand at the time, which included the documents [provided by the applicant on 28 September 2018].
In considering Ms Snook's application for a time to pay order, I was satisfied that there were grounds to grant the application, but I did not consider that her offer to pay was reasonable after reviewing her expenditure. In forming this view, I had regard to the fact that Ms Snook was applying to add the seven additional infringement notices that she had incurred following the time to pay order granted in March 2016, yet made no additional offer to pay in relation to those infringements.
I also considered the FER Payment Arrangement Schedule. The Schedule provides a guide and starting point for negotiating time to pay arrangements based on a debtor's income. It has two tiers, one relating to a 'Base Payment' and the second being for customers that pay via a Centrelink deduction. Payments under Ms Snook's earlier time to pay arrangement are made via a Centrelink deduction.
[29] Affidavit of Alison Jackson affirmed 13 September 2019 [34] - [37].
I accept the registrar's evidence and find that she determined the applicant's time to pay application in the manner and on the basis she described in her affidavit.
On 3 October 2018 at 12.14 pm, the Registry communicated the registrar's decision to refuse the time to pay application by email.[30] The email read 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.
[30] Affidavit of Alison Jackson affirmed 13 September 2019 'Annexure AJ29', 121 ‑ 122.
At 12.22 pm on 3 October 2018, the applicant emailed the Registry the supporting documentation referred to in her email and letter sent at 10.02 am.[31] The documents included a number of receipts for expenditure on utilities, dental care, and groceries. The documents also included two short letters from medical practitioners addressed '[t]o whom it may concern' commenting on the applicant's medical conditions.
[31] Affidavit of Alison Jackson affirmed 13 September 2019 'Annexure AJ30', 123-153.
In her evidence the registrar explained that following the receipt of the further documents from the applicant, she considered those documents and determined that they did not alter her earlier decision to refuse the time to pay application.[32] I accept the registrar's evidence.
[32] Affidavit of Alison Jackson affirmed 13 September 2019 [41].
At 1.11 pm the applicant telephoned the Registry and spoke to one of its officers and was informed that the registrar had not changed her decision.
On 4 October 2018 the following emails were exchanged between the applicant and Registry staff:[33]
[33] Affidavit of Alison Jackson affirmed 13 September 2019 'Annexure AJ32'.
(a)the applicant to Registry staff at 11.40 am:
You failed to state what exactly the Registrar's decision was-bit hard to appeal if you don't [say] what it is.
(b)Registry staff to the applicant at 11.48 am:
Good morning Ms Snook
Please see the following highlighted as per previous email and again reference in the email for you:
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.
You were advised that you must increase your offer of payment to $70 per fortnight which is commensurate with your debt and Centrelink income.
Kind regards
(c)the applicant to Registry staff at 12.18 pm:
Thank you for prompt reply. What date do you claim that was sent and was it email or snail mail. Are you still refusing to supply registrar name and 2nd decision in writing after you say you showed him the 40+pages of evidence and receipts? Given that he made his decision with no evidence? Bearing in mind that the Supreme Court will scrutinise your reply. Pippa Snook
(d)Registry staff to the applicant at 1.58 pm:
Good Afternoon Ms Snook
Thank you again for your email.
Please see below correspondence for date and time stamp.
Registrar Jackson's decision in relation to your Time to Pay application for $30.00 is final as per previous correspondence.
Please note if you wish to increase your Time to Pay application to $70.00 pfn as required by the Registrar, Fines Enforcement, you are welcome to submit a new application for processing. For easy reference I attached a new Time to Pay application and Centrepay application.
Any correspondence, except an application for $70.00 pfn will be noted and filed, but will not be responded to.
Following the filing of the application for review, two further infringements have been registered with the Registry in relation to the applicant. The details are as follows:[34]
[34] Affidavit of Alison Jackson affirmed 13 September 2019 'Annexures AJ33 ‑ AJ36'.
| Prosecuting Authority and infringement notice number | Nature of Infringement and date | Amount due recorded on enforcement certificate |
| Police Department - SCN50227A7 | Speeding (Mullaloo Drive) - | $300.35 |
| City of Perth - 1049078 | Parking (St Georges Terrace) - | $408.55 |
The infringements detailed in the table above have proceeded to the point where a court order to pay or elect has been issued.[35] Ms Snook has not made an election in relation to either matter.[36]
[35] Affidavit of Alison Jackson affirmed 13 September 2019 'Annexures AJ34 and AJ36'.
[36] Affidavit of Alison Jackson affirmed 13 September 2019 [49].
Grounds of the application
The originating motion filed on 5 October 2018 did not identify the ground upon which the application was based. The applicant filed two affidavits both sworn on 5 October 2018. The contents of the affidavits were a combination of evidence and argument. The grounds initially relied upon by the applicant appear from the following paragraphs of one of the 5 October 2018 affidavits. I set them out below because they provide some context for some of the grounds set out in the further amended application filed on 13 July 2020.[37]
[37] Affidavit of Pippa Snook in support of urgent injunction/stay/freeze in an application for a review order sworn 5 October 2018 [6] ‑ [14].
6.The application for Review Order will show that Registrar Jackson made the decision to charge me $70 pfn without the benefit of supporting papers, all the papers having been sent by email at 12.21pm whereas the decision was timed same day at 12.14pm i.e. 7 minutes before receipt of those papers! Attached hereto and marked with the letter 'B' are those emails.
7.Mercia then claims she downloaded and analysed the 40+ documents I sent, cross-referenced them to my financial statement and the 9 page covering and explanatory letter, made her decision and recommendations to the Registrar, who likewise evaluated all the 40+ documents, financial statement and extensive covering letter, all of this together in less 23 minutes as evidenced by a phone call with Mercia, 23 minutes after sending the materials. Mercia has repeatedly refused to supply the reasons or 'reconsidered' decision of the Registrar, after receiving all the supporting documents.
8.The implication being that materials were not considered, not properly considered, or wrongly decided in haste.
9.I make this application because my driving licence expires on 7th October. It will be devastating to me if I cannot drive for medical, psychiatric, social and basic living needs, I would effectively be a prisoner in my home for years.
10.If the licence was to expire, it will be very hard if not impossible to regenerate the necessary documents to renew it if it expires, since I do not currently have a passport. I am not entitled to an ID card, thus I cannot regenerate my birth certificate and so on. Even if I was able to regenerate the paperwork it would take probably years, aft too late for my health needs and my ability to survive.
11.The documents submitted for the Review Order clearly show, that as a disability pensioner living in a government army vet house, with extensive medical needs, I cannot afford more than $30 a fortnight and this has been endorsed by financial counsellors. Attached hereto and marked with the letter 'C' are the documents submitted to FER in an application to again pay $30 pfn.
12.The Registrar argues that I must pay $70 no matter what, to pay off outstanding traffic fines, but I claim that I do not owe much of those monies and that improper, unethical and unconscionable behaviour, if not outright discrimination against a disability pensioner, has amassed the outstanding amount.
13.I argue that I have already paid the full amount of the five times over including the majority of the fines that were not mine in the first place.
14.The covering letter to the application to the Fines Enforcements Registry, dated 3 October 2018, with all its attachments fully lays out my medical conditions and the urgent need for a licence to prevent medical and psychiatric deterioration, as well as other significant reasons I must have a licence. Attached hereto and marked with the letter 'D' is that cover letter.
The further amended application filed on 13 July 2020 consists of 114 paragraphs. Many of the matters raised in this document fall outside the matters which are properly the subject of an application under s 36 of the Magistrates Courts Act. The relief sought by the applicant was as follows:[38]
[38] Further amended application filed 13 July 2020 [28].
1.A finding that the Registrar has breached one or more of the torts of Negligence, Duty of Care, Statutory Duty of Care, Nuisance, or Misfeasance in Public Office.
2.An order that the dismissal of my application for the lifting of the suspension of my licence be set aside.
3.An order that the previous decisions of FER resulting in suspension of my licence be set aside, or were wrongful.
4.An Order that all fees, costs, compounding and other monies added to fines because of the 'wrong' decisions or decisions made not fully compliant with the intent or meaning of the law 'within the Offender's means to pay, be discounted from the total owed.
5.A mechanism whereby the findings of this case do not result in the same wrongdoings by FER re-commencing shortly after this case. For example an agreement to accept what a qualified financial counsellor says I can pay, and to add any subsequent fines when requested without 'compounding' them.
6.A revision of the sums owing, taking into account sums already paid that should not have been 'compounded', as being the actual costs of fines incurred by me.
7.A waiver of a significant sum said to be owed by me, because of the wrongly, improper or immoral decisions of FER.
8.The Registrar pay the costs of the application.
9.Leave to amend with further orders sought after seeking further legal advice.
In written submissions counsel for the registrar distilled the following issues from the further amended application and the issues raised by the applicant at various directions hearings:[39]
(a)the registrar failed to take into account a relevant consideration under the FPINE Act, namely the applicant's medical needs;[40]
(b)the registrar denied the applicant procedural fairness;[41]
(c)the registrar's decision, and the manner in which it was determined, gave rise to a reasonable apprehension of bias in her treatment of the applicant's application;[42]
(d)the registrar's decision to refuse the application for a time to pay order under s 27A of the FPINE Act was legally unreasonable; and
(e)the applicant has repaid the debts she otherwise owed under the FPINE Act and the Registry is, in fact, in debt to her.[43]
[39] Registrar's outline of submissions filed 4 December 2019 [7].
[40] Further amended application filed 13 July 2020 [9] and [10].
[41] Further amended application filed 13 July 2020 [24].
[42] Further amended application filed 13 July 2020 [25].
[43] Further amended application filed 13 July 2020 [74].
These five issues are a fair summary of the arguments raised by the applicant and, subject only to dealing with the preliminary issue to which I refer, I will adopt them as a framework for the balance of these reasons.
Preliminary issue - the registrar is a court officer for the purposes of s 36 of the Magistrates Court Act
At the hearing on 5 October 2018 I questioned whether the registrar was a court officer for the purposes of s 36 of the Magistrates Court Act. The statutory context in which this question arose is as follows.
'Court officer' is defined by s 3 of the Magistrates Court Act to mean: 'a magistrate, a JP when constituting the Court, or a registrar when performing functions delegated to a registrar under section 28'. The registrar is not a 'magistrate', nor is she a 'JP'. Further, the registrar is not a 'registrar' for the purposes of the Magistrates Court, that, she is not a member of the court's administrative staff appointed under s 26 of the Magistrates Court Act as the 'Principal Registrar, a registrar or a deputy registrar'. Rather, the registrar is appointed under s 7 of the FPINE Act which provides that:
7.Registrar
(1)Under Part 3 of the Public Sector Management Act 1994, a person is to be appointed as the Registrar of the Registry.
(2)The Registrar is an officer of the Magistrates Court and the functions of the Registrar are to be taken to be functions of that Court.
(3)Any notice, order or warrant issued by the Registrar is to be taken to be a notice, order or warrant issued by the Magistrates Court.
I accept the registrar's submission that, having regard to s 7, the Magistrates Court Act and the FPINE Act comprise an overlapping legislative scheme and that they should be construed to produce a sensible, efficient and just operation in preference to an inefficient, conflicting or unjust operation.[44] I accept the registrar's further submission to the effect that there is no relevant distinction to be drawn between the registrar exercising functions which are taken to be functions of the Magistrates Court and the exercise of the functions by magistrates, JPs or registrars falling within the definition of court officers. As decisions of the latter are amenable to review under s 36 of the Magistrates Court Act a sensible, efficient and just operation of the legislative scheme would support the conclusion that s 36 of the Magistrates Court Act applies to the decision of the registrar under s 27A of the FPINE Act.
[44] Russell v Stephen [2013] WASCA 284 [52] - [53] citing Commissioner of Stamp Duties v Permanent Trustee Co Ltd (1987) 9 NSWLR 719, 722.
The registrar did not fail to take into account a relevant consideration
Legal principles
In Jacob v Save Beeliar Wetlands (Inc),[45] McLure P (Buss and Newnes JJA agreeing) summarised the legal principles applicable to an allegation of jurisdictional error based on an alleged failure to take into account a relevant consideration as follows:[46]
A relevant consideration is one which the decision-maker is obliged to take into account in the course of reaching the decision or conduct under review: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39. The legislation imposing the obligation to decide (or in this case, report and recommend) may expressly identify particular matters that must be considered or the obligation to consider may arise by implication from the subject matter, scope and purpose of the legislation. Any obligation to take into account a relevant consideration relied on as giving rise to jurisdictional error must of necessity be a condition of the validity of the decision.
Thus, in order to constitute a jurisdictional error that entitles a court to quash an administrative decision, the consideration not taken into account must be (1) relevant, (2) mandatory and (3) result in invalidity.
In the absence of an express provision, the question whether the legislative intent is that invalidity should result from the failure to comply with an express or implied statutory condition gives rise to a contestable judgment: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 389.
The duty to take into account relevant considerations is confined to the decision-making process. It does not extend to the content of the reasons for the decision or recommendation, although the reasons are inevitably relied upon as evidence of a claim that the decision-maker failed to take into account a relevant consideration. However, as decision-makers who are required to give reasons are not obliged to canvass all matters or evidence that have been taken into account, the failure to refer to a relevant consideration in the reasons (or report) is necessary, but not determinative.
Application of principles
[45] Jacob v Save Beeliar Wetlands (Inc) [2016] WASCA 126; (2016) 50 WAR 313.
[46] Jacob v Save Beeliar Wetlands (Inc) [50] - [53].
Section 27A of the FPINE Act imposes an obligation on the registrar to make a time to pay order and, as the case may be, suspend the process for enforcing an infringement notice or cancel a licence suspension order if the registrar is satisfied of three matters. First, the existence of grounds to accede to the request, second, the existence of a reasonable excuse for any contravention of a time to pay order made previously under s 27A and third, that the offer to pay by regular instalments is reasonable. The grounds are specified in s 27A and are that 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' or 'the principal means of obtaining income with which to pay the modified penalty and enforcement fees' or on the grounds that 'the licence suspension order would or does seriously hinder the alleged offender in performing family or personal responsibilities'.
It is not in dispute that the registrar was required to consider the applicant's need for medical treatment for the purposes of determining whether grounds for acceding to the applicant's request for a cancellation of the licence suspension order that had been made, that is, whether the licence suspension order deprived the applicant of the means of obtaining urgent medical treatment. It is important, however, to remember that the existence of grounds for acceding to the request for a cancellation was one of three matters of which the registrar was required to be satisfied.
The question raised by this aspect of the application is: did the registrar take into account whether the licence suspension order deprived the applicant of the means of obtaining urgent medical treatment.
No formal reasons for decision were prepared by the registrar. As might be expected given the volume of infringements and fines with which the Registry is required to deal, there is no requirement in the FPINE Act for reasons for decision to be prepared. The email sent from the Registry's team leader to the applicant at 12.14 pm on 3 October 2018 informed the applicant of the reason for the refusal of her application but the email should not be viewed as constituting reasons and should not be scrutinised zealously with a view to discerning whether some inadequacy may be gleaned from the way in which the reasons are expressed.[47]
[47] Leighton v The Honourable Mr John Day MLA [2014] WASC 164 [58].
The email sent at 12.14 pm on 3 October 2018 must be considered in the following context. First, in 2016 the registrar had made a time to pay order in the applicant's favour. Necessarily, the registrar had been satisfied that there were grounds to accede to the applicant's request for time to pay the amount of the infringements which were then outstanding. Second, the applicant's time to pay application made in September 2017 had been refused on the basis that the applicant had not offered to increase her payments. Implicitly, the existence of grounds to accede to the request was not a matter in issue at that time. Third, the focus of the email communications between Registry staff and the applicant that preceded the 3 October 2018 email was whether the applicant had the ability to make payments of more than $30 per fortnight. The medical grounds on which the application was made and the applicant's need to retain her driving licence were not raised as an issue in those communications. Read with these matters in mind it is understandable that the email of 3 October 2018 focussed on whether the applicant's offer to pay by instalments of $30 per fortnight was reasonable and did not refer to the applicant's medical conditions.
In other words it cannot be inferred from the absence of a reference to the applicant's medical conditions in the email of 3 October 2018 that the registrar did not take those conditions into account in making her decision. Rather, in my view, when regard is had to the history of the applicant's dealing with the Registry and, in particular, the time to pay order made in March 2016 by the then registrar, it may be inferred from the absence of any reference in the email challenging the existence of the medical grounds on which the applicant relied, that the registrar was satisfied that such ground for acceding to the request in fact existed.
I have reached the conclusion that the registrar did not fail to consider the applicant's medical conditions in the manner she contends for the reasons I have set out above and independently of the registrar's is evidence. The registrar's evidence that she was satisfied that there were grounds to grant the application but that she did not consider that the offer to pay was reasonable after reviewing her expenditure, which is evidence I accept, provides a separate path of reasoning to the conclusion that there was no failure to take a relevant consideration into account.
In her further amended application, the applicant relied on s 33, s 35 and s 35A of the FPINE Act. Those provisions are not relevant because they apply to fines rather than infringements.
No breach of the rules of procedural fairness
The applicant alleges that in making the decision to refuse her time to pay application the registrar failed to accord her procedural fairness. The essence of the applicant's argument appears to be that having asked her to provide further documentary evidence of her expenditure the registrar made her decision before the further evidence was provided and declined to reconsider the decision when the further evidence was provided.
There are two difficulties with this aspect of the case. The first is that the FPINE Act expressly excludes the rules of natural justice. In her further amended application the applicant acknowledged that the rules of natural justice did not apply.[48] The matter is put beyond doubt by s 103 of the FPINE Act that provides:
The rules known as the rules of natural justice (including any duty of procedural fairness) do not apply to or in relation to the doing or omission of any act, matter or thing under this Act by the Registrar or the CEO (corrections).
[48] Further amended application filed 13 July 2020 [109].
Section 103 comprises 'plain words of necessary intendment' sufficient to exclude the requirements of natural justice - including any duty of procedural fairness - in the decision-making of the registrar.[49]
[49] Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596, 598; Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 [14].
The second difficulty is that the evidence does not support the applicant's argument. To recap:
(a)On the afternoon of 28 September 2018 a member of Registry staff asked the applicant for further documentary evidence of certain items of expenditure.
(b)In her email sent to the Registry sent at 5.05 pm on 28 September 2018 the applicant stated:
I cannot supply what you need in time so go ahead and make your decision so that I may appeal it.
(c)In her email to the Registry sent on 1 October 2018 the applicant stated:
So as I said I'm sure that however much work I put into supplying papers which I note you didn't want weeks ago when there was time to get them, you will turn me down. So do please get on with it and we can get the matter into the courts.
(d)In her email to the Registry sent on 3 October 2018 at 10.02 am the applicant stated '28 attachments to letter follow'.
(e)As the registrar explained in the paragraphs of her affidavit reproduced at [90] in the absence of the immediate receipt of further documents from the applicant she determined the application by reference to the documents that had been provided by the applicant to that point.
(f)On receipt by the Registry of the further documents sent by the applicant at 12.22 pm on 3 October 2018 the registrar reviewed those documents to consider whether her earlier decision needed to be revisited and considered that they did not alter her earlier decision to refuse the time to pay application.
On the facts as I have found them the registrar did not fail to consider the further materials submitted by the applicant in support of her application and there was no failure by the registrar to accord procedural fairness.
No reasonable apprehension of bias on the part of the registrar
Counsel for the registrar properly drew my attention to the possibility that the exclusion of the rules of natural justice effected by s 103 of the FPINE Act might not extend to excluding the rules of natural justice concerning bias. In this respect counsel for the registrar referred to what was said by Martin CJ in Seiffert v The Prisoners Review Board,[50] and to the decision of the High Court in Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka.[51]
[50] Seiffert v The Prisoners Review Board [2011] WASCA 148 [75], [110].
[51] Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka [2001] HCA 23; (2001) 206 CLR 128 [28], [58].
Given that the applicant is a litigant in person it is undesirable to engage in an analysis of whether s 103 of the FPINE Act excludes the rules of natural justice concerning apprehended bias. I have assumed in the applicant's favour that it does. In the paragraphs that follow I state the applicable principle and explain why I am satisfied that the applicant has not established any reasonable apprehension of bias on the part of the registrar.
The reasonable apprehension of bias principle
The essential principle is that a decision may be tainted by a reasonable apprehension of bias if a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the question to be decided.[52] The application of this principle involves two steps. First, it requires the identification of the matter which it is said might lead the decision-maker to decide the question other than on its legal and factual merits. The second step is that there must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the question on its merits.[53]
[52] Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 [6].
[53] Ebner v Official Trustee in Bankruptcy [8].
The registrar's submissions identified two matters that might be considered as matters that might have led the registrar to determine the time to pay application other than on its merits. They are first, 'pre‑judgment' on the part of the registrar and secondly, that the registrar's decision to determine the application on the material available to her before receipt of the applicant's email of 12.22 pm attaching the documents referred to in the letter sent to the Registry by email at 10.02 am on 3 October 2018.
In Minister for Immigration and Multicultural Affairs v Jia Legeng,[54] in the course of a discussion of the relevant state of mind in the context of pre-judgment bias Gleeson CJ and Gummow J explained:[55]
[t]he question is not whether a decision-maker's mind is blank; it is whether it is open to persuasion … The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented.
The application of the principle
[54] Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 [72].
[55] Minister for Immigration and Multicultural Affairs v Jia Legeng [71] ‑ [72].
The applicant has shown no basis for concluding that the registrar was not open to persuasion. As counsel for the registrar pointed out in written submissions:
(a)The registrar was not the registrar who made the time to pay order in February 2016 nor was she the registrar when the applicant made her application for a time to pay order in September 2018.
(b)It was the Registry which sought further documents from the applicant and asked for 'pdf' versions of the documents that accompanied her original application.
(c)It was the applicant who pressed for a decision to be made on the materials she had provided to the Registry so that she could appeal against the decision.
The matters in (a) and (b) support the conclusion that the registrar was open to persuasion. And as to (c) that it was the applicant who pressed for an immediate decision undermines the reliance that may be placed on the fact that the registrar made the decision on the basis of the materials available to her on the morning of 3 October 2018.
Further, the registrar has explained why she determined the application on the basis of the materials available to her on the morning of 3 October 2018, and that she did so does not give rise to a reasonable apprehension of bias.
The decision was not legally unreasonable
In Western Australian Planning Commission v The Board of Valuers,[56] Buss JA (as his Honour then was) summarised the essential principles underpinning the notion of legal unreasonableness as follows:[57]
The notion of legal unreasonableness is concerned with the lawful exercise of power. The role of a court in determining whether a decision is vitiated for legal unreasonableness is supervisory and does not involve the court in a merits-based review of the decision. A decision may be legally unreasonable on process-related grounds. Alternatively, a decision may be legally unreasonable on outcome-related grounds.
The task of a court, in determining whether a decision is legally reasonable or unreasonable involves the evaluation of the nature and quality of the decision in the context of the subject matter, scope and purpose of the relevant statutory power, combined with associated common law principles concerning reasonableness in decision-making.
Process-related grounds of legal unreasonableness include, for example, the failure to take into account mandatory relevant considerations, taking into account irrelevant considerations, improper purpose and serious illogicality or irrationality.
Outcome-related grounds of legal unreasonableness include, for example, a decision which lacks an evident and intelligible justification having regard to the boundaries of the area within which a decision‑maker has a genuinely free discretion, those boundaries being determined by reference to the subject matter, scope and purpose of the statutory discretionary power.
[56] Western Australian Planning Commission v The Board of Valuers [2018] WASCA 145.
[57] Western Australian Planning Commission v The Board of Valuers [173] - [176].
The applicant's grounds and submissions did not expressly invoke 'legal unreasonableness' as a ground for setting aside the registrar's decision but it is the principle that comes closest to reflecting the contentions made by the applicant to the effect that the registrar's decision was illegal, erroneous, and recklessly indifferent to the applicant's circumstances.
Two of the applicant's complaints are first, that in respect of many of the infringements she was not the offender, and second, that the registrar has wrongly (if not unlawfully) 'compounded' the infringement penalties by adding extra fees and charges. These complaints misunderstand the registrar's powers and the statutory requirements imposed on her. The registrar does not have the power to determine whether the applicant was the offender nor to waive or cancel infringement penalties if she concluded the applicant was not the offender. Those are actions that are simply beyond the registrar's statutory power. If the applicant disputed that she was the offender in respect of any infringement it was open to her to make an election under s 21 of the FPINE Act with the consequence that the matter would be determined by a court. It was not open to the registrar to determine whether or not the applicant was the offender in the course of determining the time to pay application. Similarly, the registrar was obliged by the provisions of the FPINE Act to add the enforcement fees to the amount of the modified penalty shown in the enforcement certificate. The registrar did not have a discretion to waive the enforcement fees.
Separately the applicant complains that she has paid all amounts due by her. It is sufficient to refer to the records maintained by the Registry, which have not been controverted by any evidence adduced by the applicant, to reject this complaint.[58]
[58] Affidavit of Alison Jackson 13 September 2019 'Annexure AJ2'.
Assessed at a more general level I do not accept that the applicant is able to satisfy the test for 'outcome legal unreasonableness'. To the contrary, in my judgment, the registrar's decision had an intelligible basis having regard to the amount owed by the applicant and the information she had provided about her means, and the decision made by the registrar fell within the area in which the registrar had a genuinely free discretion.
The registrar has satisfied the court that the time to pay decision should not be set aside
For the reasons I have given the registrar has satisfied me that her decision to refuse the applicant's time to pay application should not be set aside. None of the grounds relied on by the applicant can be sustained. Her application must be dismissed.
Before concluding these reasons, however, there is a further point to be made.
The decision that is the subject of this application has been overtaken by events. The licence suspension orders made before 5 October 2018 were cancelled by the registrar on 5 October 2018 and the further infringement notices detailed at [97] have been registered. In addition the FPINE Act has been amended in ways which are material. Thus, had the application been successful it would not have been possible to remit the matter to the registrar for reconsideration on the same factual and legal basis as existed on 3 October 2018.
On the materials before the court the applicant would have found it necessary to seek a time to pay order in relation to the two further infringement notices in addition to the five that were the subject of the application made in 2018. Further the registrar would be required to consider the application in accordance with the terms of the FPINE Act as amended. It would not have been necessary for the applicant to have established hardship for the purposes of a time to pay application. Moreover, of particular relevance to the applicant's circumstances, assuming that she could establish what may be termed the hardship grounds in s 20A(3) (and the registrar was satisfied that the ground specified in s 20A(3) existed in September 2018), by reason of s 19(2A) the registrar could not make a licence suspension order in respect of the applicant's licence
Had the applicant's challenge to the decision been otherwise upheld, the change in circumstances that I have described would have constituted a discretionary reason to refuse relief.
Conclusion
The application will be dismissed. I will hear the parties as to costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JM
Associate to the Judge
3 MAY 2023
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