John Rondo v State of New South Wales

• 5 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

JUDGMENT 1 HIS HONOUR: In these proceedings, the plaintiff, John Rondo, seeks a declaration that the making of enforcement orders numbered 236425167, 236253221 and 237681161 by the defendant are unlawful, and/or ultra vires.

2 The defendant has applied, by Notice of Motion filed on 25 March, for the summons to be struck out or dismissed on the grounds that it is oppressive, vexatious and an embarrassment.

3 Briefly, the facts of the matter, as they appear from the rather scanty affidavits that have been filed on both sides, are that on 25 May 2003 the plaintiff was stopped by police officers on Mitchell Parade, Mollymook whilst driving vehicle regd no YHH548. After being spoken to by police, the plaintiff left the vehicle and later returned to it. He subsequently drove the vehicle back to Sydney on the same day.

4 Approximately two or three weeks later, he says he located infringement tickets numbered M7484566, M7484575 and M748484, "stuffed down the side of the driver's seat of the vehicle". He goes on to say that at no stage was he personally served with these infringement notices, nor did he receive them in the mail. He did not pay the amounts specified in the infringement notices, but subsequently, the State Debt Recovery Office issued enforcement orders with the numbers indicated in the summons.

5 The plaintiff unsuccessfully made representations to the State Debt Recovery Office by letter dated 24 November 2003, on the grounds that he had not been properly served with the infringement notices and was advised by that office that enforcement action would not be taken until eight weeks from 6 February 2004.

6 An interesting feature that does appear from the evidence filed on behalf of the defendant, is that in relation to infringement notice M7484566, relating to the "burn-out" offence, he initially wrote to the Police Department on 22 July 2003 seeking review on the grounds that he had endeavoured to have the tyres replaced the previous day, but the tyre centre did not have the correct size tyres for the vehicle, and that was why the worn tyres were left on the vehicle, and only a wheel alignment was conducted, ready for the fitting of new tyres. He attached a copy of the receipt for the wheel alignment.

7 That application for review was rejected by letter from the Infringement Processing Bureau dated 22 October 2003. It was following that, that the plaintiff first complained by letter dated 24 November 2003 that he had never been properly served with the original notice, and he drew attention to the provisions of s 16 of the Road Transport (General) Act 1999.

8 On the same day he wrote a further letter relating to the enforcement orders which had issued in respect of the other two infringement notices taking the same point. A preliminary question may, therefore, arise as to whether, by writing the letter of 22 July 2003, he waived any defects in service of the infringement notice, M7484566 and, by inference, also waived any defects in service of the other infringement notices which were left with it in the vehicle at the same time and in the same place. This aspect has not been argued, and I say no more about it.

9 The defendant's claim that the summons is frivolous, vexatious and an abuse of process, is based on the proposition that there is a specific and ample remedy available to the plaintiff to pursue the issues he wishes to raise under the provisions of the Fines Act 1996. When I asked for any authority as to whether the availability of another remedy constituted an abuse of process, Counsel was unable to point to any.

10 All the cases noted in the Supreme Court Practice of an analogous nature appear to be cases where proceedings were already pending in another court; and there are no such proceedings pending in another court in relation to this matter. However, I drew attention to the fact that the plaintiff seeks declaratory relief pursuant to s 75 of the Supreme Court Act 1970 and declaratory relief is discretionary, and I adjourned the matter until after lunch so the parties could seek some authority in that regard.

11 Counsel for the defendant has drawn my attention to s 10(2) of the Administrative Decisions Judicial Review Act 1977 (Cth), but that is a statutory provision and is not directly in point.

12 There are a number of well known authorities on the discretionary nature of declaratory relief, including Forster v Jododex Australia Pty Limited (1972) 127 CLR 421 and Johnco Nominees Pty Limited v Albury-Wodonga (NSW) Corporation [1977] 1 NSWLR 43; but those cases do not deal specifically with how the discretion should be exercised in a case such as the present.

13 I have, however, by my own researches, found two recent cases which do have some significant bearing on this issue. The first one is Erceg v District Court of New South Wales [2003] NSWCA 379, where the Court of Appeal, by majority in the exercise of its discretion, refused declaratory relief in respect of the correct interpretation of a sentence which had been passed in the District Court, because there was an alternative remedy either by way of appeal or a re-opening pursuant to s 43 of the Crimes (Sentencing Procedure) Act 1999.

14 In particular, McColl JA at paras [156] to [159] pointed out that, although the Court has power to grant declaratory relief even in relation to criminal proceedings, it is reluctant to do so because of the danger of fragmenting the proceedings, and delaying the efficiency of the criminal process; and reference was made to Sankey v Whitlam (1978) 142 CLR 1, Shapowloff v Dunn [1973] 2 NSWLR 468; and Cain v Glass (No 2) (1985) 3 NSWLR 230.

15 Similarly, in Currabubula v State Bank of New South Wales [2000] NSWSC 232, Einstein J refused declaratory relief in respect of a costs assessment because there was a special procedure available for the determination of the question sought to be raised. In my view, the same considerations apply here.

16 The procedure in respect of the enforcement of penalty notices is summarised in s 19 of the Fines Act 1996 and I will not go through all the details now. Briefly an application may be made for annulment of penalty notice enforcement orders: s 48, and that the State Debt Recovery Office may annul such order: s 49.

17 If it does not, the applicant may lodge an application with the Registry of the Local Court to have the original determination for annulment determined by the Local Court which has the same power as the State Debt Recovery Office, which may make any decision about an application that the State Debt Recovery Office may have made: s 50; and, if the fine enforcement order is annulled by the Local Court, the Local Court at the hearing shall determine the matter, that is the original charge, as if no penalty notice enforcement order had been previously made: s 51.

18 The effect of the provisions is that if the plaintiff was not properly served, and has not waived any defects in service, he may apply to have the penalty notice order annulled. If it is not annulled, he still pays the fine or has it referred to the Local Court for hearing. If it is annulled, the original charges are to be determined by the Local Court. It seems to me that there is no injustice in this process.

19 The real issue at stake is whether the original offences were committed, not whether the penalty notice was properly served, although it is true, and properly so, that if it was not served properly, the police cannot enforce the original penalty notice as such. For these reasons, I am satisfied this is a suitable case for denying the declaratory relief sought on discretionary grounds.

20 The question then arises whether the denial of relief on discretionary grounds is an appropriate case for striking out the summons. In many cases it would not be, and would be more appropriately left to a final hearing. But, for the reasons I have given, I am satisfied that this is a clear case and the relief sought by the defendant in the Notice of Motion should be granted.

21 I therefore order that the plaintiff's Summons be dismissed with costs.

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