Waddington v State of Victoria
[2018] VSC 746
•4 December 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST
S CI 2016 03803
| NIGEL WADDINGTON | Plaintiff |
| v | |
| STATE OF VICTORIA | First Defendant |
| THE SHERIFF FOR THE STATE OF VICTORIA | Second Defendant |
| KIRK BRANTON (SHERIFF’S OFFICER) | Third Defendant |
| VICTORIA POLICE | Fourth Defendant |
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JUDGE: | McDonald J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 6 September 2018 |
DATE OF JUDGMENT: | 4 December 2018 |
CASE MAY BE CITED AS: | Waddington v State of Victoria & Ors |
MEDIUM NEUTRAL CITATION: | [2018] VSC 746 |
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PRACTICE AND PROCEDURE – Application for determination of separate questions – Whether claims in tort statute-barred – Whether claims for declaration statute-barred – Whether Free Access to Courts Act 1400 2 Hen 4, c 1 imposed a statutory duty upon the second and third defendants – Whether ss 54–59, 80 and 160 of the Infringements Act 2006 (Vic) invalid by reason of inconsistency with Imperial Acts Application Act 1922 and/or Imperial Acts Application Act 1980 – Whether Infringements Act 2006 invalid by reason of imposing functions upon the Magistrates’ Court repugnant to or incompatible with the institutional integrity of the Court – Civil Procedure Act 2010 ss 63–4 – Imperial Acts Application Act 1922 – Imperial Acts Application Act 1980 s 3 – Infringements Act 2006 (Vic) ss 3, 16, 22, 54–59, 65, 68, 80, 82, 88 and 160 – Limitation of Actions Act 1958 (Vic) s 5 – Magistrates’ Court Act 1989 s 4 – Victoria Police Act 2013 s 74 – Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 1.15 – Bill of Rights Act 1688 1 Wm & M sess 2, c 2 – Free Access to Courts Act 1400 2 Hen 4, c 1.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | In person | |
| For the First and Fourth Defendants | Mr R I Gipp | Victorian Government Solicitor’s Office |
| For the Second and Third Defendants | Ms R Ellyard | Russell Kennedy Lawyers |
HIS HONOUR:
By writ filed on 16 September 2016, the plaintiff seeks relief against the State of Victoria, the Sheriff for the State of Victoria, Kirk Branton (Sheriff’s Officer) and Victoria Police. In his statement of claim, he alleges that the four defendants are liable for trespass to goods, false imprisonment, battery, and breach of statutory duty.
The plaintiff was issued with numerous infringement notices for minor offences between 2004 and 2009, primarily for driving an unregistered vehicle in a toll zone. The fines were not paid and enforcement orders were made pursuant to the Infringements Act 2006 (Vic) by an infringements registrar. The orders were not complied with.
On 25 January 2010, a seven-day notice pursuant to s 88 of the Infringements Act in respect of 476 infringement warrants was served on the plaintiff, representing a total amount unpaid of $113,287.80. On 28 January 2010, a further seven-day notice in respect of 487 infringement warrants (including the previous 476 warrants) was served on the plaintiff, representing a total amount unpaid of $116,450.20. His vehicle was detained and removed on 28 January 2010, and then seized by the Sheriff’s Office on 3 February 2010. The plaintiff’s vehicle was subsequently sold at auction and the proceeds were applied to pay eight of the outstanding infringement warrants on 8 June 2010. Seven of those warrants were paid out in full and were not used as the basis for the plaintiff’s arrests on 27 August 2010 and 17 September 2010.
On 9 July 2010, the third defendant served the plaintiff with a further seven-day notice in respect of 574 infringement warrants, representing a total amount unpaid of $138,742.57. The plaintiff was arrested on 27 August 2010 in respect of 574 infringement warrants and a further Magistrates’ Court warrant in the sum of $190.60, taken to the Moorabbin Justice Centre and bailed to appear on 17 September 2010. On 27 August 2010, the plaintiff received notice of a further 31 infringement warrants, representing a total amount unpaid of $8,081.70. When the plaintiff attended the Moorabbin Justice Centre on 17 September 2010, he was arrested and taken into custody by the third defendant in respect of the 31 infringement warrants. On the same day, he was taken before a Magistrate and granted bail until 19 November 2010.
By order of the Magistrates’ Court made on 19 November 2010 (‘the Court Order’) pursuant to s 160 of the Infringements Act, the outstanding 605 infringement warrants totalling $146,824.27 were reduced by two thirds to $43,500 and, in default of payment, the plaintiff was imprisoned for 365 days. The plaintiff was also imprisoned for one unpaid infringement totalling $190.60 in default of which he was imprisoned for two days. Under the Court Order, the plaintiff was imprisoned from 19 November 2010 to 20 November 2011. The plaintiff was initially in the custody of police and then in the custody of the first defendant.
The plaintiff contends, inter alia, that the Court Order and infringement warrants are invalid ab initio by reason of ss 54–59, 80 and 160 (‘the impugned provisions’) of the Infringements Act imposing functions on the Magistrates’ Court that are incompatible with the institutional integrity of that court.
At the relevant time, being 28 January 2010, 27 August 2010, 17 September 2010 and 19 November 2010, the impugned provisions of the Infringements Act provided:
54 Lodgement of infringement penalty with infringements registrar
(1) An enforcement agency may lodge details of any outstanding amount of an infringement penalty in respect of a lodgeable infringement offence together with the prescribed costs (if any) with an infringements registrar if—
(a)the infringement penalty is not less than the prescribed minimum infringement penalty amount; and
(b)the criteria set out in subsection (2) are satisfied.
(2) For the purposes of subsection (1)(b), the criteria are—
(a)a penalty reminder notice has been served on a person; and
(b)the period specified in the penalty reminder notice for payment under the penalty reminder notice has passed; and
(c)full payment of the infringement penalty and any prescribed costs have not been received by the enforcement agency; and
(d)the enforcement agency has not—
(i) filed a charge-sheet charging the offence alleged to have been committed; or
(ii) referred the matter to the Court under section 17; and
(e)if the infringement notice was served under section 87 of the Road Safety Act 1986, the person was at the time of the infringement offence the responsible person (within the meaning of Part 6AA of the Road Safety Act 1986) in relation to the vehicle involved in the offence; and
(f)if the infringement notice was issued in respect of an offence to which section 66 of the Road Safety Act 1986 applies, the person was at the time of the infringement offence the responsible person (within the meaning of Part 6AA of the Road Safety Act 1986) in relation to the motor vehicle or trailer involved in the offence; and
(g)if the infringement notice was issued in respect of an offence against section 73(1) of the Melbourne City Link Act 1995, the person was at the time of the infringement offence the responsible person (within the meaning of Part 6AA of the Road Safety Act 1986) in relation to the vehicle involved in the offence; and
(h)if the infringement notice was issued in respect of an offence under section 204 of the EastLink Project Act 2004, the person was at the time of the trip to which the infringement offence relates the responsible person (within the meaning of Part 6AA of the Road Safety Act 1986) in relation to the vehicle involved in the offence.
55 Extended period for lodgement
Details of an infringement penalty and prescribed costs in respect of a lodgeable infringement offence must be lodged—
(a)no more than 6 months after the date of the offence alleged to have been committed; or
(ab)if the offence has been committed against section 166(1) of the Electoral Act 2002, no more than 6 months after the date of service of the infringement notice in respect of that offence under section 167 of that Act; or
(ac)if the offence has been committed against section 40(1A) of the Local Government Act 1989, no more than 6 months after the date of service of the infringement notice in respect of that offence under section 40(3) of that Act; or
(b)if a person to whom a payment plan applies defaults on a payment, no more than 6 months after the date on which the person has defaulted under the payment plan; or
(c)if a person to whom a payment plan applies removes an infringement penalty and prescribed costs in respect of a lodgeable infringement offence from the plan, no more than 6 months after the date on which the person has removed that infringement penalty and prescribed costs from the payment plan; or
(d)if a payment plan is cancelled—
(i) by the person to whom the payment plan applies, no more than 6 months after the person cancels the plan; or
(ii) under section 48(2), no more than 6 months after the date on which the payment plan is cancelled under that section; or
(e)if an enforcement order is revoked under section 66(4)(b), no more than 6 months after the date of revocation of that order; or
(f)if an infringement notice is cancelled under this Act or any other Act or other instrument and a new infringement notice is issued or served in accordance with section 38(4) or any corresponding provision of another Act or other instrument, no more than 6 months after the date of cancellation of the cancelled infringement notice; or
(g)if an infringement notice is reviewed under Division 3 of Part 2, no more than 6 months after the date of service of the advice of the outcome on the applicant under section 24(3); or
(h)if a person has nominated another person for an offence committed under the Road Safety Act 1986, the Melbourne City Link Act 1995 or the EastLink Project Act 2004, no more than 6 months after the date of service of the infringement notice on the nominated person; or
(ha)if a nomination of a kind specified in paragraph (h) is made and subsequently cancelled under section 84BF(1) of the Road Safety Act 1986 so that liability reverts to the person who made the nomination, no more than 6 months after the date of cancellation of the nomination; or
(i)subject to paragraph (h), if an offence has been committed under section 204 of the EastLink Project Act 2004, no more than 6 months after the date of service of the infringement notice under section 210(1) of that Act; or
(j)subject to paragraph (h), if the offence has been committed under section 73 of the Melbourne City Link Act 1995, no more than 6 months after the date of service of the infringement notice under section 80(1) of that Act.
56 Extension of period for bringing prosecution for summary offences
Section 55 has effect despite section 7(1) of the Criminal Procedure Act 2009 or any other provision of any Act or other instrument providing for the period during which proceedings must be commenced for an offence alleged to have been committed.
57Reliance on lodged material
An infringements registrar is entitled—
(a)to rely on the accuracy of the material provided by an enforcement agency when the details of an infringement penalty and prescribed costs (if any) in respect of a lodgeable infringement offence are lodged under section 54; and
(b)to assume that the details are true and correct.
58 Agency may request enforcement order not be made
At any time before an enforcement order is made, an enforcement agency may request an infringements registrar not to make an enforcement order in respect of details of any outstanding amount of an infringement penalty and prescribed costs (if any) in respect of a lodgeable infringement offence lodged under section 54.
Division 2—Enforcement orders
59 Enforcement orders
(1)If an infringements registrar has not received a request under section 58 from an enforcement agency, the infringements registrar may make an enforcement order that the person pay to the Court the outstanding amount of the infringement penalty and the prescribed costs in respect of a lodgeable infringement offence.
(2)An enforcement order is deemed to be an order of the Court.
…
80 Issue of infringement warrants
(1)An infringements registrar must issue an infringement warrant against a person to whom an enforcement order notice is sent (including a director to whom a declaration under section 91 applies) if the person for a period of more than 28 days—
(a) defaults in the payment of the outstanding amount of the fine; or
(b) in the case of a natural person other than a director to whom a declaration under section 91 applies, defaults in the payment of a payment under a payment order.
(2)An infringements registrar who issues an infringement warrant against a natural person, including a director to whom a declaration under section 91 applies, may endorse the warrant with a direction that the person arrested must be released on bail as specified in the endorsement.
(3)An endorsement under subsection (2) must fix the amounts in which the principal and the sureties, if any, are to be bound and the amount of any money or the value of any security to be deposited.
…
160Powers of the Court
(1)The Court may order that the infringement offender be imprisoned for a period of one day in respect of each penalty unit, or part of a penalty unit, to which the amount of the outstanding fines under the infringement warrant or warrants is an equivalent amount.
(2)If the Court is satisfied—
(a) that an infringement offender has a mental or intellectual impairment, disorder, disease or illness; or
(b) without limiting paragraph (a), that special circumstances apply to an infringement offender—
the Court may—
(c) discharge the outstanding fines in full; or
(d) discharge up to two thirds of the outstanding fines; or
(da) discharge up to two thirds of the outstanding fines and order that the infringement offender be imprisoned for a period of one day in respect of each penalty unit, or part of a penalty unit, to which the remaining undischarged amount of the outstanding fines under the infringement warrant or warrants is an equivalent amount; or
(e) adjourn the further hearing of the matter for a period of up to 6 months.
(3)If the Court is satisfied that, having regard to the infringement offender's situation, imprisonment would be excessive, disproportionate and unduly harsh the Court may—
(a) order the infringement offender to be imprisoned for a period that is up to two thirds less than one day in respect of each penalty unit, or part of a penalty unit, of the penalty units to which the amount of the outstanding fines is an equivalent amount; or
(b) discharge the outstanding fines in full; or
(c) discharge up to two thirds of the outstanding fines; or
(ca) discharge up to two thirds of the outstanding fines and order that the infringement offender be imprisoned for a period that is up to two thirds less than one day in respect of each penalty unit, or part of a penalty unit, of the penalty units to which the undischarged amount of the outstanding fines is an equivalent amount; or
(d) adjourn the further hearing of the matter for a period of up to 6 months; or
(e) make a community based order under Division 4 of Part 3 of the Sentencing Act 1991.
(4)If the Court has made an order under subsection (1), (2)(da), (3)(a) or (3)(ca) for imprisonment in default of payment of outstanding fines—
(a) a warrant to imprison may be issued under section 68 of the Magistrates’ Court Act 1989; and
(b) the Court may make an instalment order under the Sentencing Act 1991 in respect of the payment of the outstanding fines.
The plaintiff seeks general, aggravated and exemplary damages. He also seeks the following declarations:
(a) that the seizure of his vehicle was unlawful and invalid;
(b) that his arrest on 27 August 2010 was unlawful and invalid;
(c) that his arrest on 17 September 2010 was unlawful and invalid; and
(d) that his imprisonment between 19 November 2010 and 20 November 2011 was unlawful and invalid.
On 1 June 2018, Daly AsJ ordered that a number of separate questions be determined:
1.Does section 5(1) of the Limitation of Actions Act 1958 operate to prevent the plaintiff from bringing the claims outlined in paragraphs 5 to 8 of the Statement of Claim filed 16 September [2016] or obtaining declaratory relief in respect of those claims?
2.In relation to paragraphs 9 and 10 of the Statement of Claim, does section 4 of the Free Access to Courts Act 1400 2 Hen 4 c 1 impose a statutory duty upon the Second and/or Third Defendant?
2.1If so, does that statutory duty take precedence over or otherwise limit the duties and powers given to the Second and Third Defendants by the Sheriff Act 2009 and the Infringements Act 2006; and
2.2If so, does that statutory duty create a private right to have that duty performed which the plaintiff is entitled to assert as a cause of action in civil proceedings; and
2.3If so, did the actions of the Second and/or Third Defendants interfere with the plaintiff’s unimpeded access to the Magistrates’ Court at the Moorabbin Justice Centre on 17 September 2010 in circumstances where:
2.3.1 The Plaintiff was required to attend the Moorabbin Justice Centre that day to answer his bail;
2.3.2 The Plaintiff was arrested at the Moorabbin Justice Centre, brought before the Court in custody and granted bail by the magistrate.
3.Are those sections of the Infringements Act 2006 which authorised or permitted the conduct of the Second and Third Defendants invalid by reason
3.1of inconsistency with section 8 of the Imperial Acts Application Act 1980 which states “12. That all grants and promises of fines and forfeitures of particular persons before conviction, are illegal and void”; or
3.2of inconsistency with the Imperial Acts Application Act 1922; or
3.3of those provisions imposing functions upon the Magistrates’ Court which are repugnant to or incompatible with the institutional integrity of that court, which may exercise Commonwealth judicial power?
4.Can the Infringements Act 2006 (‘the IA’) be interpreted consistently with the human rights which Parliament specifically seeks to protect and promote in the Charter of Human Rights and Responsibilities Act 2006 (‘The Charter’ specifically:
4.1Sections 54 to 59 and Section 80 of the IA which engage The Charter provisions:
4.1.1Section 8 (Recognition and equality before the law);
4.1.2 Section 20 (Property rights);
4.1.3 Section 21 (Right to liberty and security of person);
4.1.4. Section 24 (Fair hearing);
4.1.5 Section 25 (Rights in criminal proceedings).
4.2 Section 160 of the IA which engages The Charter provisions:
4.2.1 Listed from 4.1.1 to 4.1.5 above;
4.2.2 Section 12 (Freedom of movement);
4.2.3 Section 13 (Privacy and reputation);
4.2.4 Section 22 (Humane treatment when deprived of liberty).
On 6 September 2018, the Court ordered that question 4 in the schedule of separate questions be deleted and replaced with the following question:
4.Was the order of the Magistrates’ Court made on 19 November 2010 in proceeding number A12309295, the certified extract of which is exhibit ‘BM-1’ to the Affidavit of Brendan Money sworn 15 June 2018, invalid by reason of sections 54 to 59, 80 and 160 of the Infringements Act 2006 imposing functions upon the Magistrates’ Court which are repugnant to or incompatible with the institutional integrity of that Court?
On 15 June 2018, the first and fourth defendants filed a summons applying for the following orders:
1. The Fourth Defendant cease to be a party to this proceeding, pursuant to rule 9.06(a) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (the Rules), as it is not a proper party because it is not a legal entity capable of being sued.
2. Alternatively, the writ and statement of claim be amended, pursuant to rule 1.15 of the Rules, to remove Victoria Police as the Fourth Defendant.
3. That summary judgment be given in favour of the First Defendant pursuant, to sections 62 and 63 of the Civil Procedure Act 2010, on the grounds that the Plaintiff’s claims of false imprisonment and battery against it have no real prospect of success.
4. That the Plaintiff pay the First Defendant’s costs of this application.
Are the claims barred by the Limitation of Actions Act 1958 (Vic)?
The first question for separate determination is whether s 5(1) of the Limitation of Actions Act 1958 (Vic) operates to prevent the plaintiff from bringing the claims pleaded in the statement of claim filed on 16 September 2016, or obtaining the declaratory relief claimed in paragraphs D, E, F and G of the prayer for relief.
Section 5(1)(a) of the Limitation of Actions Act provides that, subject to some exceptions not relevant for present purposes, actions founded on tort including actions for damages for breach of a statutory duty shall not be brought after the expiration of six years from the date on which the cause of action accrued.
The plaintiff’s claims for trespass to goods[1] and the false imprisonment[2] and battery claims arising from his arrest on 27 August 2010[3] are statute-barred. The action for trespass to goods accrued on 28 January 2010 when the plaintiff’s vehicle was taken by the Sheriff’s Office. The actions for false imprisonment and battery in respect of the plaintiff’s arrest on 27 August 2010 accrued on that date.
[1]Plaintiff, ‘Statement of Claim’, 16 September 2018 [5]–[6].
[2]Ibid [7].
[3]Ibid [8].
Where false imprisonment is established, damages may be claimed for deprivation of liberty and any loss of dignity or harm to reputation, but these are not damages that relate to personal injuries.[4] ‘Personal injury’ is defined to include ‘any disease and any impairment of a person’s physical or mental condition’.[5] Damages that relate to personal injury were not claimed by the plaintiff. The applicable limitation period was six years from the date on which the cause of action accrued,[6] and had expired when the plaintiff filed the writ on 16 September 2016.
[4]Angeleska (known as Slaveska) v Victoria (2015) 49 VR 131, 151 [76] (Warren CJ, Tate JA and Ginnane AJA).
[5]Limitation of Actions Act 1958 (Vic) s 3(1).
[6]Ibid s 5(1)(a).
The claims for breach of statutory duty, false imprisonment and battery in relation to the plaintiff’s arrest on 17 September 2010, and the false imprisonment claim arising from his imprisonment from 19 November 2010 to 20 November 2011 were filed within time.
The first question for determination raises an issue of whether the declarations sought by the plaintiff, that the seizure of his vehicle on 28 January 2010 was unlawful and invalid,[7] and that his arrest on 27 August 2010 was unlawful and invalid,[8] are also statute-barred.
[7]Plaintiff, ‘Statement of Claim’, 16 September 2018 [D].
[8]Ibid [E].
The court’s jurisdiction to make a binding declaration of right without granting consequential relief is a statutory rather than an equitable remedy.[9] As such, the exception to the application of the limitation period to equitable relief in s 5(8) of the Limitation of Actions Act does not apply.
[9]XX v WW [2014] VSC 564 [45]; Langman v Handover (1929) 43 CLR 334, 343 (Isaacs J); Mayfair Trading Co Pty Ltd v Dreyer (1958) 101 CLR 428, 450–6 (Dixon CJ); Ambridge Investments Pty Ltd v Baker [2010] VSC 59 [70] (Vickery J).
In Declaratory Orders, PW Young stated:
Because one does not have a cause of action with a declaratory proceeding, Statutes of Limitation, in that they are usually linked to causes of action, do not directly apply but it would appear that by analogy the court will apply the relevant time limits when exercising its discretion: see, for example, Hogg v Scott [1947] KB 759 at 767.[10]
[10]PW Young, Declaratory Orders (Butterworths, 2nd ed, 1984) 215 [2405].
Section 3(1) of the Limitation of Actions Act provides that ‘action includes any proceeding in a court of law’. In Judamia v Western Australia,[11] the Full Court of the Supreme Court of Western Australia held that a declaration was a ‘right of action’ for the purposes of a limitation period in s 6 of the Crown Suits Act 1987 (WA). Malcolm CJ observed that Young’s reference to a cause of action appears to be in the historical or traditional sense of a recognised form of action.[12] Malcolm CJ and Rowland J each held that a ‘cause of action’ means ‘the facts or combination of facts which give rise to a right to sue’.[13] Therefore the occurrence of the last fact or circumstance which gives a right to bring proceedings for a declaration is the date upon which the action accrued.[14] In Coolgardie Gold NL v Minister for Mines,[15] Ng M applied the test expounded by Malcolm CJ to the Limitation Act 1935 (WA),[16] which contained a similar definition of ‘cause of action’,[17] and held that the claim for declaratory relief was barred by the relevant limitation period.[18]
[11](Unreported, Supreme Court of Western Australia Full Court, Malcolm CJ, Rowland and Franklyn JJ, 1 March 1996).
[12]Ibid 33 (Malcolm CJ), 2 (Franklyn J agreeing).
[13]Ibid 35 (Malcolm CJ), 17 (Rowland J), 2 (Franklyn J agreeing), each quoting Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234, 245 (Wilson J). See also Chan Yee Kin v Minister for Immigration, Local Government and Ethnic Affairs [1989] FCA 511 [23] (Northrop J); Read v Brown (1889) 22 QBD 128, 131 (Lord Esher MR).
[14]Judamia v Western Australia (Unreported, Supreme Court of Western Australia Full Court, Malcolm CJ, Rowland and Franklyn JJ, 1 March 1996) 35 (Malcolm CJ), 2 (Franklyn J agreeing).
[15](Unreported, Supreme Court of Western Australia, Ng M, 31 May 1996).
[16]Ibid 11.
[17]Limitation Act 1935 (WA) s 3.
[18]Coolgardie Gold NL v Minister for Mines (Unreported, Supreme Court of Western Australia, Ng M, 31 May 1996) 12–3.
The primary question is whether the plaintiff’s claim for declaratory relief is an action ‘founded on tort’. If this question is answered in the affirmative, the claim for declaratory relief is statute-barred. A declaration may be sought alone and need not be consequential relief for tortious conduct. The Supreme Court Act 1986 (Vic) s 36 provides, ‘[a] proceeding is not open to objection on the ground that a merely declaratory judgment is sought, and the Court may make binding declarations of right without granting consequential relief.’[19] Therefore, on one view, the claim for declaratory relief is not founded on tort but on statute. However, an action is comprised of the facts giving rise to a right to sue. Whether the plaintiff’s claim for declaratory relief is founded on tort is a factual question.
[19]See also Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 23.05.
In Chan Yee Kin v Minister for Immigration, Local Government and Ethnic Affairs,[20] the applicant challenged the validity of warrants authorising his detention under the Migration Act 1958 (Cth).The applicant sought damages and declarations that the warrants and his detention were unlawful. The respondent contended that the claims were statute-barred by s 5(1A) of the Limitation of Actions Act, as all but five days of the detention occurred more than six years prior to the application. Northrop J held that the causes of action on which the proceedings were founded were the torts of false imprisonment, trespass to the person and assault, which were alleged in the statement of claim.[21] Northrop J referred to the statutory power to issue declarations whether or not consequential relief is or could be claimed, and stated that the ‘power should not be exercised when the substantive claim is barred by the Limitation Act.’[22] Northrop J held that the claims for declarations that each of the warrants was void and that the detention amounted to unlawful imprisonment were statute-barred, except for the five-day period within time.[23]
[20][1989] FCA 511.
[21]Ibid.
[22]Ibid [28] (Northrop J).
[23]Ibid [29], [50] (Northrop J).
This approach is also taken in England. If the ‘basis’ of declaratory relief is a claim in tort or contract, the entitlement to declaratory relief is considered to accrue at the same time as the entitlement to monetary relief and the same statutory bar applies.[24] In The Declaratory Judgment,[25] Lord Woolf and Jeremy Woolf discussed the case of P&O Nedlloyd BV v Arab Metals Co:[26]
In P&O Nedlloyd BV v Arab Metals Co the claimants were carriers and commenced proceedings for breach of contract for wrongly rejecting the delivery of radioactive containers. They sought to amend their claims. The defendants objected to the amendments on the basis that the new claims were statute barred. Coleman J considered that the new claims for declarations and specific performance were statute barred, since they were founded on contract and were therefore subject to a six-year limitation period. He considered that the claim for declarations were no less a cause of action than a claim for damages. Disapproving of the earlier decision in National Bank of Commerce v National Westminster Bank Plc he considered that the claims for declarations were founded on contract and therefore subject to s 5 of the Limitation Act 1980. He considered that s 36 of the Limitation Act 1980 did not disapply this period because a claim for a declaration was a claim for a statutory, rather than equitable, relief.[27]
[24]Woodeson v Credit Suisse (UK) Ltd [2018] EWCA Civ 1103 (CA) [21]–[24] (Longmore LJ, Leggatt LJ agreeing); P&O Nedlloyd BV v Arab Metals Co [2005] 1 WLR 3733, [20]; Sixteenth Ocean GmbH & Co KG v Société Générale [2018] EWHC 1731 (Comm) [87]; National Bank of Commerce v National Westminster Bank [1990] 2 Lloyds Rep 514 (Webster J); Andrew McGee, Limitation Periods (Sweet & Maxwell, 8th ed, 2018) 40 [3.005].
[25]Lord Woolf and Jeremy Woolf, The Declaratory Judgment (Sweet and Maxwell, 4th ed, 2011).
[26][2005] 1 WLR 3733.
[27]Lord Woolf and Woolf, above n 25, 226 [4-240] (citations omitted).
Discussing the position in Western Australia under the repealed Limitation Act 1935 (WA), the Hon Justice Eric Heenan stated extra-curially:
[I]n an action in which a declaration was sought as ancillary to some other form of relief, any limitation period constituting a defence to the principal relief could be expected, again subject to qualifications, to constitute a basis for discretionary refusal of the declaratory relief.
This principle, whether direct or by analogy, can be readily enough applied where a declaration is sought in aid of, or in substitution for, the vindication of the legal, or equitable, or statutory right. This is because such a right, if it exists, must be regarded as having accrued at some particular point and, from that time, any delay can be reckoned in a manner which would allow the direct or analogous limitation period to be applied. However, this is not the case when a declaration is being sought in vindication of some interest which is neither legal, equitable nor statutory … or, even more, to challenge some legislative or administrative act of some public body or authority. In these latter cases, if the decision or conduct or legislation is ultra vires or void, there does not seem to be any reason why its validity should improve merely because of the passage of time.[28]
[28]Justice EM Heenan, ‘History of Declaratory Relief – A Distinct Remedy Beyond Equitable Affiliations’ in Kanaga Dharmananda and Anthony Papamatheos (eds), Perspectives on Declaratory Relief (Federation Press, 2009) 51, 80–1.
In reference to the wide definition of ‘action’ under the Limitation Act 2005 (WA), Justice Heenan stated:
Although I am not aware of the point yet having been raised or decided in Western Australia, it does appear that this definition is wide enough to capture any form of proceedings seeking a declaration. However, as the limitation periods fixed by the new Act are specified in terms of years elapsing after the accrual of the cause of action, this only brings us back to the previous question of when a “cause of action” for a declaration first accrues. In the case of continuing invalidity, ultra vires activity, or pursuit of policy based on irrelevant considerations, it may well be the case that the unlawful or unauthorised conduct is of a continuing form and may be challenged at any point when the interests of a challenger are sufficient.[29]
[29]Ibid 81–2.
In his statement of claim, the plaintiff seeks declarations that the seizure of his vehicle on 28 January 2010 was unlawful and invalid, and that his arrest on 27 August 2010 was unlawful and invalid. The plaintiff’s claims that the seizure of his vehicle and his subsequent arrest were unlawful are based, at least in part, upon his contention that the conduct constituted the torts of trespass to goods, false imprisonment and battery. The declarations are sought alongside claims for damages for false imprisonment, battery and trespass to goods. These declarations are actions founded on tort and barred by the Limitation of Actions Act s 5(1)(a).
Is the plaintiff entitled to declaratory relief in respect of the claims not barred?
The inherent power to grant declaratory relief is discretionary and must be directed to the determination of a legal controversy.[30] The plaintiff had an entitlement to seek judicial review of the Court Order.[31] That he did not do so is relevant to the exercise of the discretion. The impugned provisions no longer operate as law, having been repealed by the Fines Reform Act 2014 (Vic).
[30]Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, 581–2 (Mason CJ, Dawson, Toohey and Gaudron JJ).
[31]Supreme Court (General Civil Procedure) Rules 2015 (Vic) Order 56.
In relation to the plaintiff’s arrest on 17 September 2010 and imprisonment from 19 November 2010 to 20 November 2011, however, the plaintiff has a real interest in whether his arrest and imprisonment was unlawful and invalid. A declaration would produce foreseeable consequences for the parties in that, if it were declared that there was no proper basis for the plaintiff’s arrest and imprisonment, the plaintiff may be entitled to damages for false imprisonment and battery. However, for the reasons set out below, the plaintiff’s claims in tort have been rejected. As such, the issue of declaratory relief does not arise.
Does s 4 of the Free Access to Courts Act 1400, 2 Hen 4, c 1 impose a statutory duty upon the second and/or third defendants?
The second question for determination is whether s 4 of the Free Access to Courts Act 1400, 2 Hen 4, c 1 imposes a statutory duty upon the second and/or third defendants. I have determined that it does not, so it is unnecessary to answer the sub-questions in relation to that duty, which were contingent on an affirmative answer.
The Free Access to Courts Act 1400, 2 Hen 4, c 1 is an Imperial enactment that has not applied in Victoria since at least 1922. The Imperial Acts Application Act 1922 (Vic) made a general repeal of all Imperial enactments not contained within its schedules. The Free Access to Courts Act 1400, 2 Hen 4, c 1 was not contained within its schedules and was thereby repealed. It therefore cannot impose a statutory duty upon the second and third defendants.
Although not falling within the scope of the second question, Mr Waddington sought to place reliance upon the common law right of citizens to unimpeded access to the courts.[32] This right, however, is not absolute.[33] While the legislature is presumed not to interfere with such rights and freedoms, it is within its powers to restrict and qualify such rights by clear statutory language.[34] The plaintiff contends that his right to access the courts was impeded on 17 September 2010 when he was arrested pursuant to warrants issued under the Infringements Act on his way to a hearing at the Moorabbin Justice Centre. The plaintiff was brought before the Court that day and released on bail. The question as to whether his right was infringed is a factual question.[35] The right to unimpeded access to the courts does not confer on individuals an absolute right to unfettered access to the courts at any time and at any place. On 17 September 2010, the plaintiff was lawfully arrested in respect of 31 infringements warrants.
Are those sections of the Infringements Act which authorised or permitted the conduct of the second and third defendants invalid by reason of inconsistency with the Imperial Acts Application Act 1980 (Vic)?
[32]Coco v The Queen (1993) 179 CLR 427, 436 (Mason CJ, Brennan, Gaudron and McHugh JJ), quoting Raymond v Honey [1983] 1 AC 1, 14 (Lord Bridge of Harwich); Rich v Groningen (1997) 95 A Crim R 272, 287 (Gillard J); Staats v United States of America (1992) 66 ALJR 793, 793 (Deane J).
[33]Rich v Groningen (1997) 95 A Crim R 272, 287 (Gillard J); Staats v United States of America (1992) 66 ALJR 793, 793 (Deane J).
[34]South Australia v Totani (2010) 242 CLR 1, 28–9 [31] (French CJ); Kruger v Commonwealth (1997) 190 CLR 1, 72–3 (Dawson J).
[35]Rich v Groningen (1997) 95 A Crim R 272, 288 (Gillard J).
The Bill of Rights Act 1688[36] has continued application in Victoria by virtue of s 3 and the Schedule of the Imperial Acts Application Act 1980 (Vic). In Living Word Outreach Inc v Deputy Sheriff of Victoria, McMillan J rejected a similar challenge to the validity of the Infringements Act to that advanced in the present proceeding.[37] The appellant had issued a summons in the Magistrates’ Court for a stay of 47 infringements warrants against it, return of its vehicle, vacation of the ‘void judgments’ against it and damages. The summons was dismissed. The appellant had contended that the Infringements Act was ‘somehow void, unenforceable or invalid by reason of its conflicting with the Bill of Rights 1688, as transcribed in the Imperial Acts Application Act 1980.’[38]
[36]1 Wm & M sess 2, c 2.
[37][2014] VSC 454 [50]–[51] (‘Living Word Outreach Inc’).
[38]Ibid [17].
McMillan J held that the provisions of the Imperial Acts Application Act are not capable of invalidating provisions in other statutes:
Considering the interpretation of the Imperial Acts Application Act 1980, French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ said that ‘[t]he preferable view is that these provisions in the Victorian statute at best serve only to reinforce what are settled constitutional principles’.[39] In Antunovic v Dawson, Bell J considered the relevance of the Bill of Rights 1688 in a contemporary context.[40] His Honour said:
The rights and liberties in the Bill of Rights restricted the powers of the sovereign, specified and confirmed the responsibilities of Parliament and declared certain fundamental freedoms of the people. The focus of these rights and liberties is mainly on the relationship between the sovereign, the Parliament and the people, rather than on the rights of the people as such. The rights are mainly civil and political in character …[41]
It follows from what was said in the above cases that the provisions of the Imperial Acts Application Act 1980 are not to be understood as being capable of striking down provisions in other statutes. Rather, the principles there enshrined lay the groundwork of the constitutional framework and find expression in more specific principles.[42]
As such, McMillan J held that the Magistrate had not erred in rejecting the argument that the Infringements Act was invalid.[43]
[39]Port of Portland Pty Ltd v State of Victoria (2010) 242 CLR 348, 359 (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ).
[40](2010) 30 VR 355.
[41]Ibid 367 (Bell J) (citations omitted).
[42]Living Word Outreach Inc [2014] VSC 454 [49]–[50].
[43]Ibid [51].
I agree with McMillan J. The impugned provisions of the Infringements Act are not invalid on the basis of inconsistency with the Imperial Acts Application Act.
Did the impugned provisions impose functions upon the Magistrates’ Court which are repugnant to or incompatible with the institutional integrity of that Court?
The plaintiff contends that the impugned provisions of the Infringements Act as at 17 September 2010 and 19 November 2010 are incompatible with the institutional integrity of the Court and therefore invalid for a number of reasons:
· denial of procedural fairness;
· a lack of independence and impartiality in fact or appearance, and the conversion of the Magistrates’ Court into a ‘rubber stamp’ for prosecutorial agencies; and/or
· non-adherence to the open court principle and no requirement to provide reasons.
The plaintiff’s contention that the impugned provisions of the Infringements Act are invalid is based upon the ‘Kable principle’, that:
because the Constitution establishes an integrated court system, and contemplates the exercise of federal jurisdiction by State Supreme Courts, State legislation which purports to confer upon such a court a power or function which substantially impairs the court’s institutional integrity, and which is therefore incompatible with that court’s role as a repository of federal jurisdiction, is constitutionally invalid.[44]
[44]Attorney-General (NT) v Emmerson (2014) 253 CLR 393, 424 [40] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ), citing Kable v DPP (NSW) (1996) 189 CLR 51, 101–3 (Gaudron J), 114–6 (McHugh J), 143 (Gummow J).
The impugned provisions of the Infringements Act are not invalid on the basis that they impose functions upon the Magistrates’ Court which are repugnant to or incompatible with the institutional integrity of that Court. As such, the Court Order and infringement warrants are not invalid. However, before setting out my reasons for this conclusion, it is necessary to address a threshold argument advanced by the second and third defendants. This argument was to the effect that:
(a) the functions exercised by the Magistrates’ Court pursuant to the impugned provisions were administrative functions; and
(b) the Kable principle has no application to the exercise of administrative functions.
Application of the Kable principle to the ‘administrative functions’ of the Court
The second and third defendants contend that the Kable principle only relates to functions or powers conferred on judicial officers and ‘has no applicability to the appropriateness of administrative functions relating to the payment of infringements being carried out by administrative officers of the Magistrates’ Court.’[45] I do not accept this submission.
[45]Second and Third Defendants’ Submissions in Reply, 13 August 2018 [6]–[7].
Assuming in the second and third defendants’ favour that the making of an enforcement order and issuing of an infringement warrant are administrative functions carried out by administrative officers, a hearing before a magistrate under s 160 of the Infringements Act is properly characterised as a judicial function. In Victoria Police Toll Enforcement v Taha; Victoria v Brookes, Tate JA stated:
[A] body entrusted with the power to make an order for imprisonment by reason of a failure to pay a penalty for an infringement offence consequent upon the offender’s arrest has many of the hallmarks of judicial power, even if the proceeding is summary in nature and the process leading up to it is largely administrative.[46]
[46]Victoria Police Toll Enforcement v Taha; Victoria v Brookes (2013) 49 VR 1, 79 [241] (Tate JA).
I do not accept that the Kable principle does not apply to the remaining impugned provisions, under which an order of the infringements registrar has authority as an order of the Court.
The High Court has characterised the making of sequestration orders, orders for costs and consent orders as an exercise of judicial power.[47] Likewise, the making of declarations, which were registered with the Federal Court and then deemed to have effect as an order of the court, was characterised as an exercise of judicial power.[48] In Commonwealth v Hospital Contribution Fund of Australia,[49] the High Court recognised that the power to make orders of the court may validly be delegated to registrars or masters of the Court, overruling previous authority. Gibbs CJ stated in relation to the master of the Supreme Court:
He was the officer of the court by whom the jurisdiction and powers of the court in the matter in question were normally exercised, and an order made by him, if not set aside or varied by the court, would take effect as an order of the court. Although he was not a member of the court he was, in my respectful opinion, part of the organization through which the powers and jurisdiction of the court were exercised in matters of State jurisdiction, and through which they were to be exercised in matters of federal jurisdiction also, once the court was invested with federal jurisdiction.[50]
[47]See, eg, R v Davison (1954) 90 CLR 353; Kotsis v Kotsis (1970) 122 CLR 69; Knight v Knight (1971) 122 CLR 114; Harris v Caladine (1991) 172 CLR 84.
[48]Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245.
[49](1982) 150 CLR 49.
[50]Commonwealth v Hospital Contribution Fund of Australia (1982) 150 CLR 49, 59 (Gibbs CJ, Stephen J agreeing).
In Brandy v Human Rights and Equal Opportunity Commission,[51] legislation required the Human Rights and Equal Opportunity Commission to lodge a determination with the Federal Court, which the Registrar was required to register and which then became binding and enforceable as an order of the Federal Court. The provisions were held to be invalid because, by giving the declaration of the Commission effect as an order of the Federal Court, the provisions purported to confer federal judicial power on the Commission.[52]
[51](1995) 183 CLR 245.
[52]Ibid 264 (Mason CJ, Brennan and Toohey JJ), 271 (Deane, Dawson, Gaudron and McHugh JJ).
The authorities referred to above support the conclusion that there is no bright line between judicial and administrative officers of the Magistrates’ Court and their functions. The definition of ‘Court’ in s 3(1) of the Infringements Act provides that ‘Court’ means the Magistrates’ Court. Section 4(2) of the Magistrates’ Court Act 1989 (Vic) provides that the Court consists of the magistrates, judicial registrars and registrars. The definition does not make the distinction between administrative and judicial functions contended for by the second and third defendants.
The applicability of the Kable principle to all of the impugned provisions is reinforced by the availability of enforcement action following an enforcement order. Further, the making of enforcement orders is an inseparable part of the process leading up to the matter being heard by the Court under s 160 of the Infringements Act. The validity of the impugned provisions ought not to be considered as if they operated in isolation.
Procedural fairness
I turn now to consider the three bases upon which the plaintiff contends that the impugned provisions are invalid. First, he contends that the impugned provisions do not allow for the application of procedural fairness.
The application of procedural fairness was described by French CJ and Kiefel J in Wainohu v New South Wales as a defining characteristic of a court.[53] The notion of procedural fairness is directed to the fairness of the hearing, and to the ‘flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case.’[54] The requirements of procedural fairness are ‘neither standardized nor immutable’[55] but vary according to the circumstances of the particular case.[56] The purpose sought to be advanced by the statute is a relevant factor when considering whether there is fairness to the individual.[57]
[53](2011) 243 CLR 181, 208 [44].
[54]Kioa v West (1985) 159 CLR 550, 585 (Mason J) (citations omitted).
[55]Public Service Board (NSW) v Osmond (1986) 159 CLR 656, 676 (Deane J).
[56]Heatley v Tasmanian Racing and Gaming Commission (1977) 137 CLR 487, 514 (Aickin J); Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1, 16 [48] (McHugh and Gummow JJ).
[57]Kioa v West (1985) 159 CLR 550, 585 (Mason J) (citations omitted).
In Living Word Outreach Inc,[58] the appellant had also mounted a challenge to the validity of the Infringements Act on the basis that the scheme under the Infringements Act failed to provide due process and procedural fairness. In dismissing the appeal, McMillan J noted the opportunities to refer matters to the Magistrates’ Court at various stages,[59] and stated:
The appellant chose not to avail itself of the opportunity provided under the Act, which remained open until enforcement orders were made, to refer the matter of the underlying infringement claims to the Magistrates’ Court. The appellant did not seek revocation of the enforcement orders, which would have allowed it another opportunity to refer the matter to the Magistrates’ Court. Finally, the appellant made no application for cancellation of the notices on the basis that it was unaware that infringement notices had been served.
The seizure of the appellant’s vehicle was in strict accordance with the law established under the Act. That Act provides a just and orderly process for dealing with infringements and their enforcement. It is replete with mechanisms for review.[60]
[58][2014] VSC 454.
[59]Ibid [53], quoting Tsolacis v McKinnon [2012] VSC 627 [115] (Cavanough J).
[60]Living Word Outreach Inc [2014] VSC 454 [54]–[55] (emphasis added).
The same considerations apply to the present case. The plaintiff could have applied to the enforcement agency for internal review of the decision to issue the infringement notice before the details of the offence were lodged with the infringements registrar.[61] He could have elected to have the matter heard and determined by the Magistrates’ Court at any time before enforcement orders were made.[62] Prior to the seizure of his vehicle, the plaintiff could have applied for revocation of the enforcement orders,[63] and, had revocation been denied, applied to have the application for revocation heard by the Court.[64] He did not avail himself of those opportunities and they were extinguished.
[61]Infringements Act 2006 (Vic) s 22.
[62]Ibid s 16(1)(a).
[63]Ibid ss 65(1)–(2), 68.
[64]Ibid s 68.
Had the matter been referred to the Magistrates’ Court, there is nothing in the Infringements Act that limits the manner in which the Court may hear the matter or which would prevent a person from being afforded procedural fairness in that hearing. I reject the plaintiff’s contention that the impugned provisions of the Infringements Act do not allow for procedural fairness.
Independence and impartiality of the court in fact and appearance
The plaintiff contends that the Infringements Act ‘effectively converts the Magistrates’ Court into little more than a “rubber stamp” for the prosecutorial policies of enforcement agencies’, and that the scheme under the Infringements Act has ‘no reality or appearance of the court’s independence and its impartiality’. He submits that the Infringements Act ‘implements a regime which appears to be a bizarre amalgam of criminal, civil, and administrative law which fails to afford many of the protections available to parties in proceedings of those natures’.
It is unnecessary to express a concluded view as to whether the scheme under the Infringements Act is best characterised as ‘administrative’, or as an amalgam of criminal, civil and administrative law, because this is not determinative of invalidity.[65] In contrast to federal judicial power, there is no strict separation of powers whereby the judicial power of the state is separated from its legislative and executive powers.[66] The question is whether the function conferred on the Magistrates’ Court by the impugned provisions is incompatible with its status as a repository of federal judicial power.
[65]Momcilovic v The Queen (2011) 245 CLR 1, 66 [92] (French CJ); Mellifont v Attorney-General (Qld) (1991) 173 CLR 289, 300 (Mason CJ, Deane, Dawson, Gaudron and McHugh JJ); Fardon v Attorney-General (Qld) (2004) 223 CLR 575, 656 [219] (Callinan and Heydon JJ).
[66]Kable v DPP (NSW) (1996) 189 CLR 51, 66–7 (Brennan CJ), 77–9 (Dawson J), 92–4 (Toohey J), 103–4 (Gaudron J), 109 (McHugh J), 143 (Gummow J).
In Fardon v Attorney-General (Qld),[67] Callinan and Heydon JJ stated:
So long as the State court, in applying legislation, is not called upon to act and decide, effectively as the alter ego of the legislature or the executive, so long as it is to undertake a genuine adjudicative process and so long as its integrity and independence as a court are not compromised, then the legislation in question will not infringe Ch III of the Constitution.[68]
[67](2004) 223 CLR 575.
[68]Ibid 656 [219] (Callinan and Heydon JJ).
Section 80(1) of the Infringements Act provides that an infringements registrar ‘must’ issue an infringement warrant against a person to whom an enforcement order is sent if the person for more than 28 days defaults in the payment of the outstanding amount of the fine, or defaults in the payment of a payment under a payment order. The second and third defendants submitted that the outcome of an infringement warrant is that a person is brought before the Court. However, that is not the only outcome of an infringement warrant. If the amount specified in the infringement warrant is not paid, the offender’s residence and business property may be broken into, entered and searched, and their personal property may be seized and sold. If insufficient personal property is found, ‘any place’ where the offender is ‘suspected to be’ may be broken into, entered and searched.[69]
[69]Infringements Act 2006 (Vic) s 82.
On the other hand, seven days’ notice of the infringement warrant must be given before its execution and that notice must inform the offender that they may apply to have the enforcement order revoked.[70] The impugned provisions do not compel a particular outcome of the hearing for revocation of an enforcement order, and a genuine adjudicative process is therefore available.
[70]Ibid s 88(3)(b)(ii).
Before an offender may be imprisoned, they must be brought before the Court under s 160 of the Infringements Act. A hearing pursuant to s 160 is not adversarial but ‘in the nature of an administrative or investigative inquiry’.[71] There is no prosecutor, only an infringements registrar who places ‘basic information before the Magistrate about the non-payment of fines and the maximum term for which the infringement offender can be imprisoned.’[72]
[71]Victoria Police Toll Enforcement v Taha; Victoria v Brookes (2013) 49 VR 1, 11 [22] (Nettle JA).
[72]Ibid.
Section 160(1) provides that the Court may order that the offender be imprisoned for a period of one day in respect of each penalty unit equivalent to the outstanding amount under the infringement warrant. This does not compel a conclusion but confers a discretion. Victoria Police Toll Enforcement v Taha; Victoria v Brookes concerned appeals against two successful judicial review applications in which the imprisonment orders in respect of two persons with unpaid fines had been quashed. Mr Taha was intellectually disabled and, when he appeared before the Magistrates’ Court, the Magistrate and the duty lawyer were both unaware of his disability. Ms Brookes’ suffered from mental illness and, in the absence of written material, the Magistrate did not consider her special circumstances. In each case, the Magistrate had ordered that the fines be paid in instalments and, in default of payment, that they be imprisoned.
The Victorian Court of Appeal held that s 160 must be given a unified reading, so that the exercise of the discretion to imprison is informed by the criteria in ss 160(2)–(3).[73] Section 160 imposes a duty on the Court to inquire, the content of which varies according to the particular circumstances of the case.[74] In circumstances where the Court must inquire and inform itself, it cannot be said that the Court is acting and deciding as the alter ego of the executive, or that the process of determining the appropriate penalty is not a genuine adjudicative process.
[73]Ibid 10 [18] (Nettle JA), 48 [147] (Tate JA), 82–3 [257] (Osborn JA agreeing).
[74]Ibid 55 [167]–[168] (Tate JA), 83 [258]–[259] (Osborn JA agreeing).
In Victoria Police Toll Enforcement v Taha; Victoria v Brookes, Tate JA stated:
It is plain from a reading of the Act, and the second reading speech, that the Act rejected the automatic imprisonment of infringement offenders and reflected the policy of imprisonment as the last resort. That is, the system intended to be established by the Act was of “avoiding people being imprisoned for infringement fine defaults” unless imprisonment was the final course of action and was ordered by a Magistrate after a hearing in open court in circumstances where the vulnerable, including the mentally ill, had been protected. The Act achieved this in three ways; first, by providing a system of internal review that could result in the withdrawal of unlawful or mistaken infringement notices, or notices issued where there were special or exceptional circumstances; secondly, by providing a range of alternative sanctions, including individual payment plans and community work orders; and thirdly, by ensuring that, when those alternative sanctions had not been taken up or had been exhausted, imprisonment could still be avoided for those offenders with a mental or intellectual impairment, or were otherwise in “special circumstances”, or where imprisonment would be excessive, disproportionate and unduly harsh. The specific powers in relation to offenders with a mental or intellectual impairment were thus logically an extension of the policy framework underpinning the whole of the Act, namely, that imprisonment should not be the automatic sanction for those who defaulted on penalty infringements but that appropriate measures should be available to suit the circumstances of individual offenders.
In particular, the requirement for a hearing in open court was intended as a means of eschewing the automated process associated with the PERIN system, and ensuring that in its place there would be a determination by a judicial officer of whether imprisonment should be ordered, or whether one of the other powers available to the court, including the discharge of the fine, should be exercised by reason of special or exceptional circumstances relating to the offender, including the suffering of a mental illness or intellectual disability.[75]
[75]Ibid 35 [96]–[97] (Tate JA).
By reason of the potential for review and determination of the matter by a Court, there is provision for independent and impartial decision-making. The impugned provisions are not incompatible with the institutional integrity of the Court.
The open court principle and the provision of reasons
The plaintiff contends that the impugned provisions are invalid because the scheme under the Infringements Act ‘[d]oes not adhere – as a general rule or otherwise – to the open court principle’ and ‘[d]oes not allow for the court generally – if ever – to give reasons for its decisions.’
The provision of reasons for decisions is ‘also an expression of the open court principle, which is an essential incident of the judicial function’.[76] As such, I will deal with the above contentions of the plaintiff together.
[76]Wainohu v New South Wales (2011) 243 CLR 181, 215 [58] (French CJ and Kiefel J).
The plaintiff relied on Wainohu v New South Wales for the proposition that the defining characteristics of a court include ‘adherence, as a general rule, to the open court principle’ and that the court ‘generally gives reasons for its decisions.’[77] In that case, French CJ and Kiefel J also noted that the duty to give reasons is not an ‘inflexible rule of universal application’,[78] and stated:
The duty does not apply to every interlocutory decision, however minor. Its content – that is, the content and detail of the reasons to be provided – will vary according to the nature of the jurisdiction which the court is exercising and the particular matter the subject of the decision.[79]
[77]Ibid 208–9 [44] (French CJ and Kiefel J).
[78]Ibid 213 [54] (French CJ and Kiefel J), quoting Public Service Board (NSW) v Osmond (1986) 159 CLR 656, 666–7 (Gibbs CJ).
[79]Wainohu v New South Wales (2011) 243 CLR 181, 215 [56] (French CJ and Kiefel J).
Importantly, the impugned provisions in Wainohu v New South Wales expressly provided that an eligible judge was not required to provide any grounds or reasons for the declaration given or decision made. The Infringements Act does not contain a corresponding provision.
Enforcement orders arise when an offender has committed a lodgeable infringement offence, which are usually strict liability offences, as is the case for driving an unregistered vehicle in a toll zone.[80] Before lodging details with the registrar for an enforcement order, the enforcement agency must be satisfied that the infringement penalty is not less than the prescribed minimum amount, a penalty reminder notice has been served and the period specified has passed, full payment has not been received and, in specified cases, that the offender was the person responsible.[81] These are unlikely to be disputed factual matters requiring the provision of reasons. If these are raised, the matter may be referred to the Court, or the offender may seek revocation of the enforcement orders prior to any seizure of property. There is nothing in the Infringements Act to exempt or prevent the Court from providing reasons for its decisions where the offender avails themselves of the various mechanisms for review.
[80]Melbourne City Link Act 1995 (Vic) s 73.
[81]Infringements Act 2006 (Vic) s 54.
In relation to the decision made by the Court under s 160, the Infringements Act requires that there be a hearing in open court before an offender may be imprisoned.[82] The hearing occurs because enforcement orders were made and the offender defaulted in paying the amount or instalments of a payment plan for 28 days, and an infringement warrant was served. The particular matter the subject of the decision is the appropriate penalty, which is confined to the penalties specified in s 160 of the Infringements Act. The Court is under a duty to inquire but, where nothing arises, the matters for consideration may be comparatively simple. In those circumstances, the content of the reasons to be provided by the Court is likely to be limited in scope. I do not accept the plaintiff’s contention that the impugned provisions are invalid by reason of non-adherence to the open court principle.
[82]Victoria Police Toll Enforcement v Taha; Victoria v Brookes (2013) 49 VR 1, 35 [97] (Tate JA).
Conclusion in respect of the separate questions for determination
The four questions for determination are to be answered as follows:
Question 1: Yes.
Question 2: No.
Question 2.1: Not necessary to answer.
Question 2.2: Not necessary to answer.
Question 2.3: Not necessary to answer.
Question 3.1: No.
Question 3.2: No.
Question 3.3: No.
Question 4: No.
The first and fourth defendants’ summons
Removing the fourth defendant
Section 74 of the Victoria Police Act 2013 (Vic) provides that the State is liable for a police tort, except if the State establishes serious and wilful misconduct. A police tort is a tort committed by a police officer in the performance or purported performance of the police officer’s duties. The Victoria Police Act came into operation on 1 July 2014, before the plaintiff had filed his writ. The plaintiff alleges that the fourth defendant falsely imprisoned him and committed battery on him by arresting and handcuffing him in the purported performance of their duties. The first defendant does not allege that the police officers alleged to have falsely imprisoned the plaintiff and committed battery upon him engaged in serious and wilful misconduct. The State of Victoria and not Victoria Police is potentially liable for the conduct. I accept the first and fourth defendants’ submission that the writ and statement of claim should be amended pursuant to r 1.15 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) to remove the fourth defendant, Victoria Police. It is therefore unnecessary to consider whether the fourth defendant is a legal entity capable of being sued.
Summary judgment
A court may give summary judgment in a civil proceeding if satisfied that a claim has no real prospect of success.[83] A court may nevertheless order that a civil proceeding proceed to trial if satisfied that, although there is no real prospect of success, the proceeding should not be disposed of summarily because it is not in the interests of justice to do so or the dispute is of such a nature that only a full hearing on the merits is appropriate.[84] A claim has a real prospect of success if it has a ‘“real” as opposed to a “fanciful” chance of success.’[85] The power to order summary judgment ‘is to be exercised with caution and should not be exercised unless it is clear that there is no real question to be tried’.[86]
[83]Civil Procedure Act 2010 (Vic) s 63.
[84]Ibid s 64.
[85]Note Printing Australia Ltd v Leckenby (2015) 50 VR 44, 71 [80] (Tate JA), quoting Kennedy v Shire of Campaspe [2015] VSCA 47 [12] (Whelan and Ferguson JJA).
[86]Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (2013) 42 VR 27, 40 [35] (Warren CJ and Nettle JA).
The plaintiff’s claims for trespass to goods, and the false imprisonment and battery claims arising from conduct on 28 January 2010 and 27 August 2010 at paragraphs 5 to 8 of the Statement of Claim, and the declarations in paragraphs D and E of the prayer for relief are statute-barred. Accordingly, it is not necessary to address the application for summary judgment in respect of those claims.
The claim at paragraphs 9 to 11 of the Statement of Claim alleging breach of statutory duty is resolved against the plaintiff by reason of the negative answer to question two. The claim at paragraphs 12 to 13 of the Statement of Claim that the plaintiff was falsely imprisoned is resolved against the plaintiff by reason of the negative answer to questions three and four.
The answers to the four questions for separate determination deprive the first defendant’s summary judgment application of any utility. The appropriate course is to dismiss the summons without adjudication on the merits.
I shall provide the parties with an opportunity to make submissions as to the appropriate form of orders to give effect to this judgment.
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