Commissioner of Police, NSW Police Force v Claydon

Supreme Court of NSW|2023-08-14|Before: Campbell J, Mr J, As French J

Background facts

From his own observations made on 1 July 2023 at about 8:30 pm, Senior Constable R Donaldson suspected that the driver of a certain utility vehicle was engaging in street racing with another vehicle. After the conduct of further investigations, the police officer spoke to Mr Claydon on 5 July 2023. After stating his belief that Mr Claydon had engaged in street racing on 1 July 2023, the police officer purported to give Mr Claydon an immediate licence suspension notice under s 224(1) RTA. Street racing is contrary to the provision of s 115 RTA and is an offence punishable by the imposition of a fine equivalent to 30 penalty units for a first offence and imprisonment for 9 months in the case of a second or subsequent offence. It is an offence mentioned in s 224(1)(b).
From the affidavit of Christopher Frommer, a principal solicitor employed in the office of the Crown Solicitor, it is apparent that the immediate licence suspension notice given to Mr Claydon (Affidavit 9 August 2023, Annexure A) did not specify any offence charged. The approved form used by the police officer left the section for recording the title of the offence, the Law Part Code and the future Court Attendance Notice number blank. Only the date of the alleged offence was recorded. Likewise, that part of the form for completion of details of an issued penalty notice and related matters had been struck out by the officer.
It is also clear from Mr Frommer's affidavit (Annexure F) that the future Court Attendance Notice by which Mr Claydon was charged with the s 115 offence was not printed, and I infer not served, before 10:20 am on 6 July 2023, although it may have been "created by" the police officer 23 hours earlier.

Grounds for review

In her summons filed on 27 July 2023, the Commissioner of Police did not raise a question of the validity of the immediate licence suspension notice. Rather the grounds impugn the learned magistrate's decision to vary the suspension as his Honour did. The Commissioner's complaint was that, by dint of s 268(3) RTA, the Local Court when exercising the power to vary a decision "may exercise only such powers as the decision-maker could have exercised [under RTA]" when making the decision appealed from. And under s 224, there is no power to suspend a licence partially for some purposes only but not for others (see also s 225 RTA).
However, when Mr Wherrett prepared his written submissions on 8 August 2023, a further ground had been identified. The power to issue an immediate licence suspension notice is enlivened only where a person has been charged with a particular offence. And Mr Claydon had not been charged with any offence when he was given the notice (plaintiff's submissions, p 2 [15]). I permitted the additional ground to be raised without requiring the filing of an amended summons, given that the parties were consenting to the dispositive orders: rr 36.1 and 36.1A Uniform Civil Procedure Rules 2005 (NSW)

Invalid suspension notice

It is quite clear that the immediate licence suspension notice issued by Senior Constable Donaldson was invalid on its face and should have been wholly set aside under s 268(2)(a) RTA, notwithstanding s 268(5) and (6) limiting the Local Court's powers when determining an appeal against a decision to give the appellant an immediate licence suspension notice, to which I will return. I should say, s 268(6) RTA requires the Local Court to hear such an appeal before the charge that occasioned the suspension has been heard and determined or withdrawn. Probably the learned magistrate, unbeknownst to his Honour, heard and determined the appeal before the charge had been laid in the circumstances I have set out above. This is not certain.
It is necessary to return to the provisions of s 224, but I will not set out the provision in full: When immediate licence suspension notice may be issued by police officer (cf Gen Act, ss 205(1)-(2), (4) and (7) and 206(1)-(2B), (4) and (5)) (1) A police officer may give a driver a suspension notice (an immediate licence suspension notice) in any of the following circumstances - … (b) if the driver is charged by the police officer or another police officer with an offence against section 110(4) or (5), 112(1), 115 or 116(2) or clause 16(1)(b), 17(1)(a1) or (2) or 18(1)(a), (b) or (e) of Schedule 3 …. (2) An immediate licence suspension notice may be given to a driver at any time within 48 hours of - (a) the driver being issued with a penalty notice for the offence concerned, or (b) the driver being charged with the offence concerned. (3) An immediate licence suspension notice for the purposes of this section is a notice in a form approved by Transport for NSW that informs that driver of the following - (a) the relevant suspension information for the driver concerned that is referred to in subsection (4), (b) the driver's right of appeal under Part 7.8. (4) The relevant suspension information for an immediate licence suspension notice for a driver is as follows - (a) if the driver holds a driver licence issued in this jurisdiction and is charged with an offence referred to in subsection (1)(a), (a1), (b), (c) or (d) - a statement to the effect that any driver licence held by the driver is suspended from a date specified in the notice, or (if the notice so specifies) immediately on receipt of the notice, until the charge is heard and determined by a court (or until the charge is withdrawn), … (6) For the purposes of this section - (a) a person is charged with an offence when particulars of the offence are notified in writing to the person by a police officer, and (b) a charge is withdrawn when the person charged is notified in writing of that fact by a police officer or when it is withdrawn before the court, and (c) a charge is determined by a court when the offence is proved or the court attendance notice is dismissed, and (d) a decision is made not to take or continue proceedings against a person when the person is notified in writing of that fact by a police officer or the proceedings are discharged by the court, and (e) a decision is made not to enforce a penalty notice in relation to a person when the person is notified in writing of that fact by - (i) a police officer, or (ii) an appropriate officer for the penalty notice within the meaning of Part 3 of the Fines Act 1996, or (iii) the Commissioner of Fines Administration.
Section 224(6) RTA defines the occasion of charging by reference to the time "when particulars of the offence are notified in writing to the person by a police officer". That could have been done by fully completing the approved form of the immediate licence suspension notice before it was given to Mr Claydon, even if it was still necessary to issue a future Court Attendance Notice. But this was not done. The issue of the immediate licence suspension notice on 5 July 2023 by Senior Constable Donaldson did not conform to law. It was beyond power because Mr Claydon had not then been charged with any offence to which s 224 applied.
I appreciate that Senior Constable Donaldson is not a party to the proceedings before me and it is the decision of the Local Court which is in question. However, where a primary decision has been appealed from a decision-maker to a court competent to hear the appeal, as the Local Court is under s 268 RTA, it is the decision on appeal which is amenable to judicial review rather than the first instance decision: Wishart v Fraser (1941) 64 CLR 470; [1941] HCA 8 at 483. One could not set aside the decision of Senior Constable Dixon and at the same time allow the decision of Magistrate Prowse effectively confirming, but varying, it to stand for the reasons explained in Wishart v Fraser.
Section 268(5)(a) RTA prevents a Local Court from varying or setting aside an immediate licence suspension notice "unless it is satisfied that there are exceptional circumstances justifying a lifting or variation of the suspension". The consideration that the notice was given to Mr Claydon before he had been charged, in the sense of being notified of the particulars of the offence in writing, so that the power was invalidly exercised admits of no other conclusion than there are exceptional circumstances justifying a lifting of the suspension.
I am satisfied that the order of his Honour Magistrate Prowse dismissing Mr Claydon's appeal was vitiated by material error of law on the face of the record and as a matter of law only one particular determination should have been made in the Local Court. I made the orders required to give effect to the only determination open by quashing the decision and setting aside the immediate licence suspension.

Power to vary

The aforegoing is probably sufficient to justify the consent orders made. Strictly, it may be unnecessary to consider whether Magistrate Prowse had the power, assuming the immediate licence suspension notice to have been validly given, to vary it in the way that he did. However, I accept from the evidence in Mr Frommer's affidavit and from the annexures to it that there are significant practical difficulties with the type of partial suspension that the learned magistrate imposed. Those difficulties include the consideration that Transport for New South Wales ("TfNSW"), the government authority responsible, inter alia, for maintaining the NSW driver licence register under s 27 RTA has no system for recording "partially suspended" licences.
NSW Police have also indicated that there are practical difficulties associated with attempting to enforce compliance with a partial licence suspension. It is notable that after the order was made, Mr Claydon attended Service NSW to obtain a licence endorsed with the court order only to be told "in New South Wales there is no such thing as a work restriction licence and to go back to the courthouse to talk to staff and be told what [he does] from now". An official from TfNSW sought a copy of the order made in the appeal. An officer from the registry of the Local Court at Tamworth informed Mr Claydon that the matter is seen as an undertaking and he is required to drive "as per the terms of [his] result".
None of these practical infelicities, of course have any bearing upon the legal conformity of his Honour's order with RTA. However, they do provide a reason for considering the matter.
Moreover, Mr Wherrett has provided detailed written submissions on behalf of the Commissioner as to why a partial suspension is not an option available to the Local Court in disposing of an appeal under s 268 RTA. He also referred me to Jardin v Metcash Ltd [2011] NSWCA 409; (2011) 214 IR 448. That matter was an appeal by way of rehearing. However, the Court's approach is instructive. Having noted the Court of Appeal's power to stay an appeal because later events showed that the questions involved had become moot between the parties: at [31]; Campbell JA said that the Court has a discretion to permit the appeal to proceed if a practical point would be served by doing so. The discretion may be enlivened if the decision in the appeal is likely to affect other cases: at [32]. I think the same principle may apply in the Court's original, supervisory jurisdiction and it is appropriate to express my view about the matter. However, I think it unnecessary to make any comment upon the matters advanced by Mr Wherrett (plaintiff's written submissions [16]-[19]) as to the nature of the Court's jurisdiction in judicial review matters. They are not in question before me.
The power of the Local Court to dispose of an appeal from a decision of a police officer to give a person an immediate licence suspension notice (s 266(1)(b) RTA) commenced under s 267 RTA are to be found in s 268 RTA, which I will set out in full: "Determination of appeals against appealable decisions (cf Gen Act, s 242(4) and (5); Gen Reg, cll 14(1) and (2), 16(1) and (2), 18(4), 20(1) and (4), 22(2), 23(1)-(3), 25(4), 28(3)-(4), 29A(3)-(4), 29B(3)-(4) and 140(6)) (1) The Local Court is to hear and determine an appeal made to the Court under this Part. (2) Subject to subsections (3)-(6), the Local Court may determine an appeal under this Part - (a) by setting aside the decision, or (b) by varying the decision, or (c) by dismissing the appeal, or (d) by making such other order as seems just to the Court in the circumstances. (3) In varying a decision in an appeal under this Part, the Local Court may exercise only such powers as the decision-maker could have exercised under the road transport legislation when making that decision. (4) If the decision that is appealed against was based on an offence committed (or alleged to have been committed) by the appellant under the road transport legislation or any other law, the appeal against the decision does not permit review of - (a) the guilt or innocence of the appellant for the offence, or (b) the imposition of a penalty or the level of a penalty imposed on the appellant for the offence. Note - The effect of this provision is that, for example, in an appeal against a suspension or cancellation action taken under section 40 against the holder of a provisional driver licence because of demerit points, the Local Court cannot revisit the issue of an offence in relation to which the demerit points were incurred or the imposition of a penalty in relation to such an offence. In any such case, the Local Court may exercise only the powers that Transport for NSW could exercise under section 40 (see subsection (3)). (5) In determining an appeal against a decision to give the appellant an immediate licence suspension notice, the Local Court - (a) is not to vary or set aside the decision unless it is satisfied that there are exceptional circumstances justifying a lifting or variation of the suspension, and (b) is not, for the purposes of any such appeal, to take into account the circumstances of the offence with which the person making the application is charged, unless the statutory rules provide to the contrary. (6) An appeal against a decision to give the appellant an immediate licence suspension notice must be made before the charge that occasioned the suspension has been heard and determined by a court or withdrawn."
Although s 268(2)(b) confers an express power to vary the decision, and s 268(2)(d), a general discretionary power, these provisions should not be understood as operating at large. In particular s 268(2)(d) should be understood as conferring a limited power to make necessary ancillary orders to finalise an appeal. Section 268(2)(b) must be read together with s 268(3) which limits the power of the Local Court to vary a decision under appeal to the exercise of such powers as the decision-maker could have exercised when making the original decision appealed from. I am conscious that specifically in relation to an appeal for an immediate licence suspension notice, s 268(5) refers to a limitation on the Court's power "to vary or set aside" (my emphasis), but that provision should not be taken as expressly conferring a power to "vary" beyond that conferred generally by ss 268(2)(b) and 268(3), read together.
The main purpose of s 268(5) is to add the necessity for a finding of exceptional circumstances before "a lifting or variation of the suspension". The reference to the power to vary in the subsection should be understood as a power "to vary" where it otherwise exists. Otherwise, s 268(3) would be reduced to mere surplusage, a conclusion to which the Court is not entitled to come: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at 381-382 (McHugh, Gummow, Kirby and Hayne JJ). The question must boil down to, therefore, whether Senior Constable Donaldson had power to issue an immediate licence suspension notice partially suspending Mr Claydon's licence only for some purposes.
Section 224 RTA confers a power to give a driver a suspension notice. There is no express power in the section to impose conditions to which the suspension is subject, or to give a notice partially suspending a driver licence. Section 224(4) prescribes relevant suspension information which must be contained in the notice given to the driver. By s 224(4)(a), which is applicable in the circumstances, the notice is to contain "a statement to the effect that any driver licence held by the driver is suspended" (my emphasis). The use of the present tense without further qualification suggests, as Mr Wherrett submits, a binary outcome. The licence is either suspended or it is not. The officer is to give particulars of the immediate licence suspension notice to TfNSW "immediately after the notice is give": s 224(5).
Section 225 RTA deals with the legal effect of the immediate licence suspension notice. When a notice is given "any driver licence held by the driver" in New South Wales "is suspended in accordance with the terms of the Notice". The driver "must surrender the person's driver licence in compliance with the notice". In the present case the notice required surrender by handing it to the officer. A digital driver licence must be removed from the personal electronic device on which it is capable of being displayed as soon as practicable after the holder is required to surrender the licence: s 61D(1) RTA.
The legal requirement to surrender the licence is inconsistent with an obligation to drive for limited purposes. It is an offence for a person to refuse to produce their driver licence to an authorised officer who requires production of licence in accordance with s 175(1) RTA. Rule 300-5 Road Rules 2014 (NSW) obliges a driver not to drive, "unless the driver is carrying his or her driver licence".
Perhaps critically under s 54(3) RTA, it is an offence for a person whose driver licence is suspended otherwise than under s 66 Fines Act 1996 (NSW) to drive on a road a motor vehicle of the class to which the suspended driver licence relates, or even to make an application for a driver licence during the period of suspension if he or she provides false particulars or fails to mention the suspension.
For what it is worth, the notice itself specifies, "your NSW driver licence … is suspended on and from 5 July 2023 until the charge as shown above is heard and determined." As I have said, no charge was "shown above". It does seem under s 224(4) RTA that the officer has a discretion to specify the date from which the suspension operates and while this cannot be determinative there is no provision on the approved form to specify general terms or conditions of the suspension.
Although there is no decision of this Court directly in point, the result for which the Commissioner contends is consistent with the approach adopted by Black J in Transport for NSW v Clayton [2021] NSWSC 16. Mr Clayton was the holder of an interstate licence. His authority to drive in New South Wales was withdrawn by TfNSW for a period of three months commencing on 15 October 2020 under regulation 96 Road Transport (Driver Licencing) Regulation 2017 (NSW). An appeal to the Local Court at Inverell from TfNSW's decision was dismissed, but, as here, a condition permitting Mr Claydon to drive for work purposes was imposed. By reference to s 268(3) RTA, Black J held that the Local Court's power on appeal was limited "to exercising only such power as TfNSW as decision-maker could have exercised" under the relevant legislation when making the decision (at [9]). His Honour held that the power actually exercised by TfNSW under regulation 96 did not empower the primary decision-maker to withdraw the authority for an interstate liceceholder to drive in New South Wales subject to the condition that the magistrate imposed (at [9]-[11]); see also Wilson v Roads & Traffic Authority [2002] NSWSC 645 (at [19]-[20], Hidden J under previous legislation, now repealed).
For these reasons had it been necessary to address this point, I would have made the same orders given that the error was one on the face of the Local Court's record due to the form of order made which was in substance a variation unauthorised law.
I also accept Mr Wherrett's argument by reference to the reasoning of Basten JA in Department of Ageing, Disability and Home Care v Lambert (2009) 74 NSWLR 523; [2009] NSWCA 102 at [80] that s 270 RTA is a "relatively weak privative provision" not precluding an order in the nature certiorari for even non-jurisdictional error of law apparent on the face of the record. For clarity the error is also plainly jurisdictional. While it is unnecessary for me to say, so too is the error originally made by Senior Constable Donaldson in giving Mr Claydon the invalid suspension notice.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 August 2023

Road Transport (Driver Licencing) Regulation 2017(NSW)

Road Transport Act 2013(NSW)ss 27, 54, 61D, 115, 175, 224, 225, 267, 268, 270

Consent orders and administrative law matters

While judicial review matters are civil proceedings and dispositive orders may be made by consent, as they are public law matters, generally reasons, as brief as the circumstances of the case will permit, should be given. As French J (as the Chief Justice then was), explained in Kovalev v Minister for Immigration and Multicultural Affairs (1999) 100 FCR 323; [1999] FCA 557 (at [12]-[13]): "In the case of an error of law attributed to a decision-maker or tribunal there is a particular public interest which requires the Court's specification of the error and its satisfaction that error occurred. It is also a substantial discourtesy for a court to overturn the decision of an official decision-maker and a fortiori that of a statutory tribunal without consideration of the error that leads to the decision being overturned or communication of the terms of that error to the decision-maker or tribunal." This principle applies equally when the decision-maker is a lower court.
With respect, the same point was made by Beech-Jones J (as the Chief Judge then was) in Mackey v CIC Allianz Australia Insurance Ltd [2015] NSWSC 505 (at [3]). His Honour said that even where the active contradictor consents, it is necessary for the Court to be satisfied that there was error, and to identify the error which vitiated the administrative decision under review. His Honour pointed out: "As a matter of administration, one reason why that course may be considered desirable is that, upon remittal, the relevant public body will have some guidance as to what they need to do in deciding the matter 'according to law'." Although in this case, I have been persuaded that I am empowered by s 69(3) Supreme Court Act 1970 (NSW) to determine the matter, to my mind, the principle remains apposite.

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