Tay v Director of Public Prosecutions (NSW)

[2014] NSWCA 53

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Tay v Director of Public Prosecutions (NSW) [2014] NSWCA 53

Hearing dates:

10 March 2014

Decision date:

10 March 2014

Before:

Basten JA

Decision:

Declare that the effect of the proceedings commenced under s 69 of the Supreme Court Act 1970 in respect of the judgment of the District Court delivered on 21.11.13 is to stay the operation of the order that the appellant, Joseph Tay, is disqualified from holding a driver licence until 4 August 2014.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

ADMINISTRATIVE LAW - traffic offence - disqualification from holding driver licence by order of District Court - proceedings for review in supervisory jurisdiction - effect of statutory stay - Supreme Court Act 1970 (NSW), s 69C

CRIMINAL LAW - traffic offence - whether disqualification from holding driver licence stayed by application to review judgment and order of District Court - whether order part of a sentence

PRACTICE AND PROCEDURE - effect of statutory stay pending determination of proceedings - declaration of effect of stay - whether interlocutory order

Legislation Cited:

Crimes (Appeal and Review) Act 2001 (NSW), ss 63, 68
Justices Act 1902 (NSW), s 127
Supreme Court Act 1970 (NSW), ss 46, 69C

Cases Cited:

Roads and Traffic Authority v Higginson [2011] NSWCA 151

Category:

Interlocutory applications

Parties:

Joseph Tay (Applicant)
Director of Public Prosecutions (NSW) (Respondent)

Representation:

Counsel:

Applicant self-represented
Ms K Parouchais (Solicitor) (Respondent)
Solicitors:

Applicant self-represented
Solicitor for Public Prosecutions (Respondent)

File Number(s):

CA 2013/360431

 Decision under appeal 

Jurisdiction:

9101

Date of Decision:

2013-11-21 00:00:00

Before:

Arnott DCJ

File Number(s):

DC 2012/368179

Judgment

1. BASTEN JA: This is an application brought by Joseph Tay in respect of proceedings instituted in the supervisory jurisdiction of this Court with respect to a judgment of the District Court.

1. In the District Court there were matters arising out of convictions for traffic offences which convictions were imposed in the Local Court. One of the consequences of the convictions of Mr Tay was that his licence was suspended and a period of disqualification imposed which ran from 5 August 2013 until 4 August 2014.

1. Following his appeal to the District Court he had no further right of appeal. Nevertheless, he sought to commence proceedings in this Court, which are presently pending.

1. The question is whether the effect of commencing proceedings for judicial review, an event which occurred on 29 November 2013, is an automatic stay of the suspension of his licence. If there were a stay, then there is no call for an order of this Court imposing such a stay. Indeed it would be both unnecessary and inappropriate to do so. If there were no automatic stay, a real question would arise as to whether this Court should now impose a stay and as to whether it should (and could) be backdated to the date on which the proceedings in this Court were commenced. The reason for seeking to have it effective from an earlier point in time is that Mr Tay continued to drive and was stopped on 28 February 2014, as a result of which a further court attendance notice was issued for driving whilst disqualified.

1. The matter turns on the operation of s 69C of the Supreme Court Act 1970 (NSW), the relevant provisions of which presently state:

69C Stay of execution of conviction, order or sentence pending review

(1) This section and section 69D apply to proceedings in the Court for judicial review of a determination made by the District Court in appeal proceedings relating to a conviction or order made by the Local Court (or part of such a conviction or order) or sentence imposed by the Local Court.

(2) The execution of a sentence imposed as a consequence of a conviction, or of any other order, is stayed when proceedings seeking judicial review are commenced.

...

(5) Despite subsection (2), any period during which the stay is in force is not to be taken into account when calculating the length of a period of disqualification from holding a driver licence resulting from a conviction under the road transport legislation within the meaning of the Road Transport Act 2013.

1. The question accordingly is whether the disqualification is part of the sentence so that the licence suspension is automatically stayed when the proceedings for judicial review were commenced. That there may be some such result is implied by subs (5), because it refers to the effects of a calculation of a period of disqualification and the effect on it of "the stay", apparently a reference to the stay imposed by subs (2).

1. In Roads and Traffic Authority v Higginson [2011] NSWCA 151, this Court was required to consider the operation of a number of similar provisions, both in the road transport legislation and in the Crimes (Appeal and Review) Act2001 (NSW) ("Appeal and Review Act"). In particular, it was required to consider the operation of a stay of execution of sentence under s 63 of that Act and the power of a court on an appeal to vary that effect under s 68.

1. For present purposes it is sufficient to note that prior to the commencement of the Appeal and Review Act, the Justices Act 1902 (NSW) contained a provision which was in very similar wording to that which is now found in s 69C(2) and (5) of the Supreme Court Act. In fact, the wording of subs (4) of s 127 was relevantly identical. In Higginson, it was accepted that the effect of the stays imposed under the Appeal and Review Act (and previously under the Justices Act), had the effect of suspending the disqualification from holding a driver's licence.

1. Accordingly, it is appropriate to accept that the virtually identical provisions in s 69C, should be understood to have the same effect. The consequence is that upon Mr Tay commencing proceedings for judicial review of the District Court judgment, his licence suspension was automatically stayed. Because the statutory stay appears not to have found its way into the police records, with the result that he was stopped again for driving whilst disqualified in February of this year, it is appropriate that the Court make a declaration to the following effect; namely that, so far as his disqualification which formed the basis of the further offence on 28 February 2014 depended upon a judgment of the District Court made on 21 November 2013, which is the subject of the proceedings in this Court, the effect of s 69C is to stay the suspension of his driver licence. That will no doubt have consequences for the proceedings which are pending in the Local Court.

1. The only order I think I need make at the present stage is to declare that consequence. I do so conscious of the fact that a declaration is usually a final order, but it is nevertheless an interlocutory order in this case because it refers to the effect of a stay pending determination of the proceedings in this Court. The statute reflects the order which might otherwise be made by this Court: it does not dispose of the proceedings: cf Supreme Court Act, s 46(2)(b). No objection is taken to me (sitting alone) making an order in this form. Accordingly, I make the following declaration.

The effect of the proceedings commenced under s 69 of the Supreme Court Act in respect of the judgment of the District Court delivered on 21 November 2013, is to stay the operation of the order that the applicant, Joseph Tay, is disqualified from holding a driver licence until 4 August 2014.

**********