Kuek v Wellens [2000] VSC 326

Supreme Court of Victoria|2000-08-18|Before: Gillard J

JUDICIAL REVIEW - relief sought in form of certiorari - what constitutes record - evidence does not - no error of law on the face of the record - declaratory relief also sought - principles - no error of law demonstrated - no basis for a declaration.

I have before me a summons in a proceeding instituted by originating motion seeking judicial review pursuant to Order 56 of the Rules of Court of a decision of His Honour Judge Neesham of the County Court of Victoria.

The plaintiff, Gabriel Kuek ("Mr Kuek"), is a barrister and solicitor practising in this State.

The first defendant, Electra Wellens ("Senior Constable"), is a senior constable of police. The second defendant, the County Court of Victoria, is joined as required by Rule 56.01(3) representing His Honour Judge Neesham whose decision is subject to the review.

There was no appearance by the second defendant in accordance with the usual practice, having informed the Court that it would not participate in the proceeding and would abide the result.

On 30 November 1997 the senior constable laid a charge against Mr Kuek. The charge alleged -

"The defendant at Parkville on 6 January 1997 being the driver of a vehicle on a highway to wit Elliot Avenue and in a speed zone, between Mcarthur Road and Flemington Road did exceed the speed indicated by numerals on the restriction sign at the beginning of the zone, being 60 (highest speed 81 kph)."

The charge came on for hearing at the Melbourne Magistrates' Court on 3 June 1999. Mr Kuek was convicted and fined $180, and ordered to pay costs totalling $133.

The County Court appeal was heard on 10 April 2000 by His Honour Judge Neesham. The senior constable, the informant, was represented by counsel as was Mr Kuek. Evidence was given by and on behalf of the informant and Mr Kuek gave evidence.

The learned judge found that the charge was proven and he dismissed the appeal.

There is no right of appeal from a decision of a County Court judge hearing an appeal from a Magistrates' Court except a limited right of appeal where the penalty is increased on appeal to imprisonment (see Magistrates' Court Act 1989, s.91).

Accordingly, the only avenue open to Mr Kuek to challenge the decision is by way of common law judicial review.

The common law jurisdiction of this court to review decisions of inferior courts is subject to the procedure set out in Order 56 of the Rules of Court.

The jurisdiction of the court to review decisions of inferior courts and tribunals is limited.

The jurisdiction is supervisory and does not entitle this court to canvass matters that it would on an appeal. In a judicial review the court is exercising its common law jurisdiction. The jurisdiction is different to an appeal.

The judicial review procedure is concerned with the legality of what was done by the court or Tribunal, and is not concerned with the merits of the decision under review. This is to be contrasted with an appeal, where the question usually is whether the decision is right or wrong, whereas the question on a judicial review is whether the decision is in accordance with the law.

Order 56 is concerned with procedure. It abolishes the remedies in the nature of the old prerogative writs but nevertheless preserves the jurisdiction of the court to make prerogative writ-type orders. It is clear that the Rules do not affect the common law jurisdiction of the court, and it is equally clear that this court has jurisdiction to make an order in the form similar to the old prerogative writ of certiorari, namely, quashing the decision under review.

The scope of the jurisdiction was recently discussed by the High Court in Craig v South Australia [1995] HCA 58; (1994) 184 CLR 163 at 175-76. In a joint judgment the court said:

"Where available, certiorari is a process by which a superior court, in the exercise of original jurisdiction, supervises the acts of an inferior court or tribunal. It is not an appellate procedure enabling either a general review of the order or decision of the inferior court or tribunal, or a substitution of the order or decision which the superior court thinks should have been made. Where the writ runs, it merely enables the quashing of an impugned order or decision upon one or more of a number of distinct established grounds: most importantly, jurisdictional error, failure to observe some applicable requirement of procedural fairness, or fraud, and error of law on the face of the record. Where the writ is sought on the ground of jurisdictional error, breach of procedural fairness or fraud, the superior court entertaining an application for certiorari can, subject to applicable procedural and evidentiary rules, take account of any relevant material placed before it. In contrast, where relief is sought on the ground of error of law on the face of the record, the superior court is restricted to 'the record' of the inferior court or tribunal and the writ will enable the quashing of the impugned order or decision only on the ground that it is affected by some error of law which is disclosed by that record." (Emphasis added).

Sometimes there is controversy about what constitutes the record. The Rules do require, as did the common law, the production of the record. Here there is a formal order of the County Court dismissing Mr Kuek's appeal. There is no difficulty in determining what the order is, which is the subject of the review.

I refer to what the High Court said in Craig's case_,_ and emphasise that the jurisdiction is not appellate, nor does it enable this court to substitute for the decision made, a decision which this court thinks should have been made.

Rule 56.01(4) of the Rules of Court obliges the plaintiff to state the grounds upon which the relief is sought. The originating motion sets out the grounds relied on by Mr Kuek.

A. There is error on the face of the record in as much as - (1) The learned judge stated in his reasons for convicting the plaintiff that he accepted "the police evidence in this matter" but acceptance of that evidence could not, as a matter of law, establish the offence charged. (2) There was no admissible evidence before the court of the speed at which the plaintiff was driving at the time of the alleged offence. (3) The learned judge admitted into evidence a certificate purportedly tendered under s.83 of the Road Safety Act 1986 which certificate did not comply with the requirements of the said section. B. There is error on the face of the record in that the learned judge without amending the charge, convicted the plaintiff of an offence the particulars of which differed from the particulars set out in the charge." (Emphases added).

It can be seen from the grounds that the allegations made by Mr Kuek are that there are errors on the face of the record. The errors if established, must be of law.

A record which was adduced in evidence in the present matter is form No. 135 under the County Court Appeals Rules which is headed - "NOTICE TO CERTAIN OFFICIALS OF A COUNTY COURT'S APPEAL DECISION".

It is signed by the Associate to His Honour Judge Neesham.

"Appeal is dismissed. Fine in the sum of $180. Pay statutory costs in the sum of $33. Pay costs in the sum of $100."

It is dated 10 April 2000. Clearly that is a record of the court. It does not contain any error of law on the face of the record, nor was counsel for Mr Kuek able to point to any error.

Mr Kuek relies on his affidavit in support of the motion which sets out a summary of the evidence before His Honour Judge Neesham and a statement of his oral reasons.

The Senior Constable through her solicitor, requested the notes of the Judge and these notes have been provided and a typewritten version prepared.

It is submitted by Mr John McArdle QC who appears for the Senior Constable that the only record of the court which can be reviewed is in fact the Form 135 notice of the decision and it is not open to Mr Kuek on this judicial review to rely upon his own affidavit, the affidavit of the Senior Constable or the learned judge's notes.

The question of what constitutes the record in a judicial review of an inferior court's decision was discussed by the High Court in Craig's case, supra, at pp.180 et seq. Craig's case concerned criminal charges.

After considering the authorities the court stated the following -

"The determination of the precise documents which constitute 'the record' of the inferior court for the purposes of a particular application for certiorari is ultimately a matter for the court hearing the application. The effect of the foregoing is that 'ordinarily, in the absence of statutory prescription, the record will comprise no more than the documentation which initiates the proceedings and thereby grounds the jurisdiction of the tribunal, the pleadings (if any) and the adjudication.' (Hockey v Yelland [1984] HCA 72; (1984) 157 CLR 124 at 143.) Where the inferior court or tribunal has prepared a formal record, the court hearing the application may amend it by discarding material which should not have been included. Where the inferior court or tribunal has not prepared a formal record or the formal record prepared is incomplete, the court hearing the application can, if the material placed before it is adequate for the purpose, construct or complete the record." (Emphasis added).

It is clear from what the High Court said that the record in an application for the old prerogative writ of certiorari is indeed limited and is ordinarily limited to "documents initiating and defining the matter in the inferior court and the impugned order or determination." - ibid at p.180.

It is noted that the High Court used the word "ordinarily" and it must be accepted that the High Court has not laid down an inflexible rule as to what constitutes the record, but nevertheless it is clear from the judgment that in the usual case the record will be confined to the documents stated by it. This observation is reinforced by what the court said at p.175-6 quoted above.

It is also noted that what constitutes the record is ultimately a matter for the court hearing the review. Hence there may be compelling reasons founded on justice to expand the record in an appropriate case.

But the history of the common law jurisdiction amply supports the High Court's restriction of documents constituting the record.

Where the relief sought is on the ground of error of law on the face of the record, the supervisory court is restricted to the record of the inferior court and then the jurisdiction of the court is to be exercised "only on the ground that it is affected by some error of law which is disclosed by that record".

This limited record is to be contrasted with what the court said at pp.175-76 quoted above, where an attack is made upon grounds of jurisdictional error, failure to observe procedural fairness or fraud. In those circumstances the court may go wider in respect to the material which can be considered.

But here the originating motion makes it clear that the complaints of Mr Kuek are that there are errors of law on the face of the record.

The general rule concerning the record is subject to any statutory prescription and where the actual record incorporates some other material which thereby becomes part of the record.

In Craig's case the High Court referred with approval to what Gibbs CJ said in Public Service Board (NSW) v Osmand (1986) 159 CLR 656 at p.667 when his Honour said:

"The rule, well established at common law, ... that reasons do not form part of the record, for the purposes of certiorari, unless the tribunal chooses to incorporate them." See supra at p.181.

But the High Court in Craig's case sounded a note of caution with respect to incorporation when the court said at p.182:

"As so accepted, however, it should not be understood as having the effect that a merely introductory or incidental reference to the reasons for decision produces the consequence that the whole or part of the reasons somehow become part of both the formal order and 'the record' of the particular court. ... The qualification should be understood as referring only to so much of the reasons or transcript of proceedings as is referred to in the formal order in a way which brings about its incorporation as an integral part of that order and 'the record'."

By way of example their Honours observed at p.182:

"Thus, for an example, an introductory remark such as the phrase 'for the reasons given' or the word 'accordingly' will not, of itself, have the effect of incorporating the whole or any part of the reasons for decision in either the formal order or 'the record'."

Further as a general proposition, the evidence, whether it be in the form of notes taken by a judge or a transcript of evidence or an affidavit purporting to summarise the evidence, does not form part of the record of the court. See R v Nat Bell Liquors Ltd (1922) 2 AC 128 at pp.151-6 and 159-161.

"It seems clear that mere evidence is not part of the record unless the tribunal chooses to make it so" - Administrative Law, 6th Edition by Sir William Wade at p.313.

The tribunal would make it so if it was incorporated in what clearly was the record.

What constitutes the record was recently considered by the Court of Appeal in Thompson v His Honour Judge Byrne (1998) 2 VR 274 at 280. Charles JA who delivered the judgment of the court referred to Craig's case and noted that there is a statutory provision in this State which could have the effect of widening the ambit of the record.

"In Hansford v Judge Neesham (unreported, 31 August 1994) affirmed at [1995] VICSC 58; (1995) 2 VR 233 J.D. Phillips J held at 12-14 that the effect of s.10 of the Administrative Law Act 1978 was that the record, for the purposes of certiorari, included any statement by an inferior court, whether made orally or in writing, of its reasons for decision."

The point was not considered in the judgments on the appeal in Hansford's case.

"On the view taken in Hansford, when a court is considering what is the record for the purpose of establishing error, there is in Victoria statutory provision to the contrary of the general rule, the effect of which is that any statement of reasons by an inferior court becomes part of the record; and the consequence may indeed be that the availability of certiorari is substantially increased, arguably giving the writ a more general appellate operation that Parliament may have intended."

His Honour went on to say that it was unnecessary for the Court of Appeal to consider whether s.10 of the Act had that consequence.

Section 10 prescribes that "any statement by a ... inferior court whether made orally or in writing ... of its reasons for a decision shall be taken to form part of the decision and accordingly to be incorporated in the record."

Other judges in this court have followed the reasoning of J.D. Phillips JA in Hansford. See Flynn v DPP (1998) 1 VR 322 and Munro v Brack, (unreported decision of Beach J delivered 5 June 2000).

Whilst I note the reservation of the Court of Appeal, the learned judges did not cast any doubt upon what J.D. Phillips JA decided and I think for present purposes I should follow his decision. Indeed, the terms of s.10 of that Act lead to that conclusion.

I am prepared to find that the record in the present matter is constituted by the original charge, the reasons for judgment deposed to in the affidavit of Mr Kuek sworn 6 June and the formal notice of the appeal decision. Mr Kuek asked for particulars of the charge which were refused and hence the request and refusal do not form part of the record.

According to the affidavit of Mr Kuek the reasons were expressed as follows -

"I accept the police evidence in this matter. I prefer it to that of the appellant's. I am satisfied beyond a reasonable doubt that the case is made out. I have a strong suspicion the appellant was shown the radar device. He misread it. Having done so, he became understandably indignant. He returned to complain about what he believed to be an error. The police then agreed to give him the benefit of his doubt and reduced the reading to 81 kilometres per hour. That was sufficient. But the appellant being persuaded of error, wrote asking for the penalty notice to be withdrawn. His letter does not suggest anywhere that he was travelling at less than 60 kilometres per hour. The appellant's wish had become fact such that the appellant is now of the opinion that he was not speeding. Appeal dismissed."

The answering affidavit does not dispute this account.

Mr Perkins of counsel for Mr Kuek put a submission that the reasons of the learned judge were insufficient and inadequate and the court ought either to require his Honour to enlarge on the reasons or quash the decision because of the failure to state adequate reasons. It will be necessary to return to this submission later.

Mr Perkins also submitted that the judge's notes of the evidence form part of the record of the court and hence must be considered in determining whether there is an error of law on the face of the record.

The submissions are contrary to the general rule stated above.

As I have already stated the solicitor acting for the Senior Constable requested the judge's notes of evidence and these were provided with a typewritten version. Mr Perkins submitted that the notes of evidence which were forwarded to the court should be made available to the parties.

I was satisfied that the notes were the notes of His Honour Judge Neesham and I indicated that I did not require the notes or the typewritten version to be the subject of any affidavit. See, however, obligation imposed by Rule 56.01(5). In the interests of justice I made the documents available to counsel but with the firm indication that I had not concluded they formed part of the record.

The submissions of Mr Perkins can be summarised as follows -

(i) that the learned County Court judge was under a duty to make a proper record of the evidence by taking adequate notes;

(ii) that in accordance with that duty his Honour did take notes of evidence and accordingly they form part of the record;

(iii) alternatively, his Honour incorporated his notes of the evidence in his reasons which form part of the record.

The obligation on a judge to make adequate notes of the evidence may arise by reason of a statutory obligation or because in the circumstances the only means by which an appellate court can have a proper record, is for the judge to take notes. There are dicta in the cases which support the proposition that a judge is under a duty to take notes of the evidence if there is a right of appeal from his decision.

In ex parte Reid; re Lynch (1943) 43 SR (NSW) 207 Jordan CJ after referring to English authorities went on to say this at p 213 -

"It is quite clear from the foregoing that it has always been regarded especially essential, in the interests of the proper administration of justice, that written notes should be taken by or on behalf of magistrates of the evidence given before them upon the summary trial of persons charged with statutory offences. Persons tried summarily are deprived of the protection of trial by jury of their peers."

In the later case of Carlson v King (1947) 64 WN (NSW) 69 at p 66, the learned Chief Justice said -

"It has long been established that it is the duty of a Court at first instance, from which an appeal lies to a higher Court, to make, or cause to be made, a note of everything necessary to enable the case to be laid properly and sufficiently before the appellant Court if there should be an appeal. This includes not only the evidence, and the decision arrived at, but also the reasons for arriving at the decision. The duty in incumbent, not only upon Magistrates . . and District Courts, but also on this Court from which an appeal lies to the High Court and the Privy Council." (Emphasis added).

The Full Court in Cook v Blackburn [1989] VicRp 4; (1989) VR 35 stated the same principle namely that there is a duty upon a Judge of any Court from which an appeal lies to adequately record the evidence before him.

Sometimes statute requires the recording of evidence or the taking of a note of evidence by the presiding judicial officer. There is no suggestion in the present matter that there was any statutory obligation on His Honour Judge Neesham to record or make notes of the evidence.

The rationale for the principle stated in the above mentioned cases is, that if a litigant has a right to appeal and if the only record before the Appeal Court is the Judge's notes then the failure to keep proper and adequate notes will effectively deny a party his right of appeal.

Mr Kuek has no right of appeal from the decision made by his Honour Judge Neesham. There is no statutory provision which required Judge Neesham to make notes of the evidence.

In my opinion absent a statutory requirement and a right of appeal, a Judge is under no obligation to make any notes of the evidence given at the hearing let alone make a full note. If a record is required for some other reason there may be an obligation.

Mr Perkins did not refer me to any authority which established that a County Court Judge was required to prepare an adequate note of the evidence where the only possible avenue open to the unsuccessful litigant was by way of judicial review.

But in any event His Honour did in fact take notes and although there were some faint suggestion by Mr Perkins that they were not adequate and that the Court should consider referring them back for amplification, the point was not pressed and in my opinion had no substance.

This Court is not dealing with an appeal. It is dealing with an application for an order on a judicial review. The learned judge was not obliged to make a note of the evidence. He did so. The submission is that the evidence forms part of the record for the purposes of judicial review seeking an order in the nature of certiorari.

None of the cases go that far and further the statement of general principle by the High Court in Craig's case is against any such conclusion. Mr Perkins was unable to refer to any compelling reason based on justice why the ordinary rules should not be followed namely that the record is confined to the documents initiating the proceeding, any documents defining the matter in the inferior court, the determination and in this case the reasons for the determination.

In my opinion the learned Judge's notes of the evidence do not form part of the record in this proceeding.

Mr Perkins also submitted that the learned Judge incorporated the evidence given at the appeal by reason of the statement in his reasons -

His Honour added - "I prefer it to that of the appellants." In my opinion those statements do not incorporate the evidence into the reasons and make the evidence part of the record. Both statements were introductory to the actual finding which followed them, namely, "I am satisfied beyond a reasonable doubt that the case is made out."

The references by His Honour to the evidence must be understood in context. A charge was laid which had to be proven beyond reasonable doubt. The two parties adduced contradictory evidence. What the learned judge found was that he preferred the evidence of the informant and hence was satisfied beyond reasonable doubt that the charge was proven. The references to the evidence did not incorporate it. I refer to Craig's case, supra, at p.183. Confined as he is to the information, notice of appeal, the notice of decision of the appeal and the reasons deposed to in the affidavit of Mr Kuek, the latter assumes a heavy burden of establishing that there was an error of law on the face of the record.

The allegations are that there are errors on the face of the record. This means that Mr Kuek must establish by reference to the record that the court has made an error of law.

"It is essential that the error should appear 'on the face of the record'." - Administrative Law, by Sir William Wade 6th ed. p.311. Craig's case, supra, at p.176.

The first ground relied upon by Mr Kuek asserts that the judge was wrong in finding the charge proved, and stating that he accepted the police evidence in the matter because the evidence could not as a matter of law establish the offence charged.

The record which the court is entitled to look at does record that the judge did state that he accepted the police evidence but there is no other basis on the record to suggest that the evidence of the police in the proceeding was insufficient to establish the charge. There is no error of law made out on the record. This ground fails.

The second ground is that the error on the face of the record was that there was no admissible evidence before the court as to the speed at which the plaintiff was driving at the time of the alleged offence. Again, looking at the record there is no error in respect to this. The record of the judge's reasons contain the following -

"I am satisfied beyond a reasonable doubt that the case is made out."

By looking at the other part of the record to which the court is entitled, namely, the charge, then it is clear that his Honour has found that Mr Kuek exceeded the speed limit. This ground fails.

The third ground is that the learned judge was wrong admitting into evidence a certificate tendered under s.83 of the Road Safety Act 1986 and that this was an error on the face of the record. There is no reference to this issue in the record which the court can consider and accordingly the ground is not made out.

The final ground is that there was an error on the face of the record in that the judge without amending the charge convicted the plaintiff of an offence the particulars of which differed from the particulars set out in the charge.

The charge alleged a speed of 81 kph. The charge formed part of the record. Looking at the reasons the learned judge explained how 81 kph was determined. That on the face of the record was sufficient to establish the charge. The judge so found. No error has been demonstrated and this ground fails.

Even if the Court was permitted to look at the judge's notes of the evidence there is nothing in the notes which support any of the grounds put forward by Mr Kuek.

I interpolate to note that Mr Perkins submitted that the only record of the evidence which could form part of the record was the judge's notes.

The summary of evidence in the Judge's notes reveals that the informant gave evidence supported by another member of the Force and that Mr Kuek gave evidence. Whether or not Mr Kuek at the relevant time exceeded the speed limit was a question of fact and in the end the learned judge accepted the evidence of the informant. The evidence established the offence.

The evidence of the speed was proven by the reading of a laser speed device operated by the Senior Constable.

The certificate concerning testing and sealing of the device pursuant to s.83 of the Road Safety Act 1986 was tendered in evidence without objection.

In support of the third ground it was submitted that the certificate did not comply with the section and in submissions the alleged faults were stated to be that the certificate was dated one week after the offence, that it stated it had been "duly and properly sealed in accordance with the Regulations", and it did not comply with s.79 of the Acct in that it did not state it was "sealed" in the prescribed manner. With respect to the first complaint the certificate noted the device was tested on 20 November 1996 prior to the date of the offence. The fact of certification is different to the testing and the sealing. The second complaint does not make sense. Section 83 permits the certificate to certify in those terms.

With respect to the third complaint the certificate does state it has been sealed in accordance with the regulations which is the prescribed manner. The final ground has no substance for the reasons already stated. Even if the court could consider the judge's notes of the evidence as part of the record Mr Kuek has not established any error on the face of the record.

Finally Mr Perkins submitted that if the evidence was not incorporated into the reasons the reasons were inadequate and accordingly the conviction should be quashed by reason of that inadequacy. He referred to the well known cases of Sun Alliance Insurance Ltd v Massoud [1989] VicRp 2; (1989) VR 8; Soulemezis v Dudley Holdings Pty Ltd (1987) 10 NSW LR 247, at 278 - 9 and R v Arnold [1998] VSCA 34; (1999) 1 VR 179, at 182.

The short answer to this submission is that none of the grounds stated in the originating motion make a complaint about the adequacy of the reasons.

In my opinion however, the reasons were adequate and clearly conveyed to all those in Court familiar with the issues what was the basis for the decision. Mr Kuek would be in no doubt at all as to the reason why he failed namely that the learned Judge accepted the evidence of the police as to speed and did not accept his evidence.

After the Court had reserved Mr Perkins forwarded to the Court further written submissions in support of the motion. The Court was not apprised of the intention of Mr Perkins to forward written submissions and leave was not given to him to file them.

The practice of forwarding unsolicited written submissions after the hearing is disapproved by both the High Court, see Carr v Finance Corporation of Australia Ltd (No. 1) [1981] HCA 20; (1981) 147 CLR 246, at 258 and the Court of Appeal, see Stockdale v Alesios [1999] VSCA 128; (1999) 3 VR 169.

Speaking for myself as a Trial Judge, provided counsel proposing to forward written submissions informs the other side and provides a copy, that the further written submissions are delivered expeditiously and finally and most importantly are of substance then I would not deter the practice at the Trial level. But I emphasise that the proper place for submissions is the hearing.

Mr McArdle QC responded to the further submissions.

In paragraph 1 of the originating motion Mr Kuek claimed -

"1. A declaration that the conviction and sentencing orders made against the plaintiff by the County Court of Victoria on 10 April 2000 in case number K03056210 are null and void."

The further written submissions address this claim for relief.

Order 56 deals with the practice and procedure which must be followed in an application for judicial review and does not alter the common law.

Mr Kuek's originating motion, summons and affidavit in support does not refer to Order 56 or judicial review but the contents of his originating motion and the relief sought lead to the conclusion that he was seeking to invoke the jurisdiction of the court by way of judicial review.

Order 56 does not refer to the making of a declaration. In this regard compare Order 53 Rule 1 of the English Rules which specifically authorises the court to grant a declaration. See also Rule 98 of the South Australian Supreme Court Rules considered in Corporation of the City of Enfield v Development Assessment Commission (2000) ALJR 490 at 493.

This court has power to grant a declaration in appropriate circumstances. Section 36 of the Supreme Court Act 1986 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."

In Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564, the High Court was concerned with an appeal in an application for prerogative writ type orders.

At p.581, Mason CJ, Dawson, Toohey and Gaudron JJ said -

"It is now accepted that superior courts have inherent power to grant declaratory relief. It is a discretionary power which 'it is neither possible nor desirable to fetter ... by laying down rules as to the manner of its exercise.' However it is confined by considerations which mark out the boundaries of judicial power."

Although Order 56 does not specifically refer to the grant of declaration, in my opinion the court does have jurisdiction to grant a declaration in a proceeding which has in fact been brought in accordance with Order 56.

The courts have in the past made declarations in judicial review proceedings and as an alternative or in substitution for a prerogative writ. See Forster v Jodedex Aust. Pty Ltd [1972] HCA 61; (1972) 127 CLR 421 at 438, Sankey v Whitlam (1978) 142 CLR 1 at 25, Chief Constable of the North Wales Police v Evans [1982] UKHL 10; (1982) 1 WLR 1155, and Ainsworth v Criminal Justice Commission, supra.

The advantage of seeking declaratory relief is that some of the principles, practice and procedure concerning prerogative writs are overly technical, sometimes restrictive and sometimes result in an injustice and these matters do not stand in the way of a plaintiff seeking declaratory relief.

The advantages were highlighted by Gibbs J in Forster v Jodedex Aust. Pty Ltd, supra at p.438 when His Honour said -

"If it be assumed, contrary to the decided cases, that Jodedex could have obtained prohibition if the warden had wrongly granted the appellant's application, the existence of the alternative remedy would not require the court to refuse to make the declaration. In the first place, a declaration would be a more satisfactory remedy than prohibition, being quicker, simpler and attended by less doubts. Even if this were not so, it seems to me, on principle, that a plaintiff should not necessarily be refused one form of relief because another is available in the same court."

In Sankey v Whitlam, supra, His Honour said at p.25 -

"The power to make declaratory orders has proved to be a valuable addition to the armory of the law. The procedure involved is simple and free from technicality; properly used in an appropriate case the use of the power enables the salient issue to be determined with the least possible delay and expense. But the procedure is open to abuse, particularly in criminal cases, and if wrongly used can cause the very evils it is designed to avoid."

Mr Kuek by seeking a declaration gains an advantage over seeking an order in the form of certiorari because he is not confined to the record of the court. He is able to refer to any relevant evidence adduced by affidavit material in support of his motion. Hence he can refer to the evidence which was heard by the learned County Court judge on the appeal and which is reproduced in his affidavit.

But a declaration is a form of relief and by its very nature may achieve very little by way of practical effect.

A declaration is precisely that, namely, a declaration which states the legal position. It does not change the legal position although in an appropriate case it could be supplemented by some other remedy.

A declaration does not require anything to be done and as a general proposition a failure to give effect to it does not amount to a contempt of court.

In Webster v Southwark L.B.C. (1983) QB 698 Forbes J at p.705 after referring to an order that was made in a declaratory form went on to say this -

"That, of course, is a declaratory order, one which declares the rights of the parties to the action, but carries with it no notice of any penal sanction."

His Lordship held in that case that the failure to comply with its terms did not amount to an contempt of court.

The practical consequences that flow from the making of a declaration will vary from case to case but the general rule is that a declaration cannot be enforced. Hence in some cases the making of a declaration could have no effect. The court will not make an order that is futile and hence in those circumstances a declaration would be refused. But despite the fact that a declaration is unenforceable courts do make declarations confident that responsible citizens, bodies, corporations, governments and others will abide by it and not do anything contrary to it.

In Boulting v Association of Cinema etc (1963) 2 QB 606 at 629, Lord Denning MR after stating that the court could grant a declaration that certain rules were unlawful went on to say this -

"But a declaration I would grant, in the confident expectation that, once the law is declared, the union, or at any rate, their officers, would not seek to do anything contrary to it."

See also Eastham v Newcastle United Football Club Ltd (1964) Ch 413 at 450.

Although a declaratory judgment or order is not coercive nevertheless the court may in a suitable case grant some other order to support the declaration. However, the granting of some additional remedy would depend upon the particular circumstances.

It was earlier thought that a court could not grant a declaratory judgment in cases where it was alleged that there was an error of law or fact by a decision maker because to merely declare that the decision was within jurisdiction although mistaken effected nothing, whereas an order in the form of certiorari quashed and positively removed the decision under attack. See Punton v Ministry of Pensions and National Insurance (1964) 1 WLR 226 at 236-237.

However, later cases which were concerned with non-jurisdictional errors of law have attracted declaratory relief. I refer to Ainsworth v Criminal Justice Commission, supra and Chief Constable of North Wales Police v Evans, supra.

A declaration is a form of relief and hence Mr Kuek has to establish his entitlement to relief in that form. This brings me to the jurisdiction Mr Kuek is invoking to establish his right.

It is the common law jurisdiction available to a superior court to supervise the decision making process of decision makers whether they be individuals, tribunals or courts, the creature of statute. But the jurisdiction is limited as I have described earlier in these reasons.

If the court is acting within jurisdiction then the grounds of attack are indeed limited. This court is not concerned with the correctness of the decision of the learned County Court judge but is only concerned with the decision making process. Importantly, the jurisdiction is not appellate.

"Judicial review is concerned, not with the decision, but with the decision making process. Unless that restriction on the power of the court is observed, the court will in my view, under the guise of preventing the abuse of power, be itself guilty of usurping power."

Per Lord Brightman in Chief Constable of North Wales Police v Evans, supra at p.1173.

In R v The District Court; ex parte White [1966] HCA 69; (1966) 116 CLR 644 at 655 Windeyer J said -

"We do not sit in this court to weigh the evidence and decide whether or not the applicant should be exempt from military service. That question has been committed by parliament to a magistrate, with an appeal to a court of review constituted by a District Court or Supreme Court judge. The court of review has given its decision. Parliament has said that its decision is 'final and conclusive'. It is not for us to say whether it was right or wrong. Nevertheless the applicant seeks to bring the case before us, alleging an error of law which it is claimed entitles him to an order either for certiorari or prohibition. ... I am not disposed to a narrow view of the scope of either certiorari or prohibition or of the power of this court to use these writs and also mandamus to ensure that administrative tribunals exercising functions under Commonwealth law proceed according to law and keep within the law. But we must not use these writs to give an appeal on the facts." (Emphasis added).

Those words are apposite to the present case. Mr Kuek had a right of appeal to a County Court judge from the adverse decision made by the Magistrates' Court. Parliament has entrusted his appeal to a County Court judge. He has no right of appeal thereafter. It follows he must establish that the learned County Court judge made an error in the decision making process.

This court is not concerned to examine whether he in fact made the right decision, whether he misapplied some principle of law but is concerned to ensure that he acted within jurisdiction and that in performing his decision making process he complied with the law.

The limited nature of the jurisdiction was stated by the High Court in Craig's case, supra at pp.176 et seq where the court drew a distinction between tribunals and inferior courts. After giving examples of jurisdictional error the court said at pp.179-180 -

"In contrast, the ordinary jurisdiction of a court of law encompasses authority to decide questions of law, as well as questions of fact, involved in matters which it has jurisdiction to determine. The identification of relevant issues, the formulation of relevant questions and the determination of what is and what is not relevant evidence are all routine steps in the discharge of that ordinary jurisdiction. Demonstrable mistake in the identification of such issues or the formulation of such questions will commonly involve error of law which may, if an appeal is available and is pursued, be corrected by an appellate court and, depending on the circumstances, found an order setting aside the order or decision of the inferior court. Such a mistake on the part of an inferior court entrusted with authority to identify, formulate and determine such issues and questions will not, however, ordinarily constitute jurisdictional error. Similarly a failure by an inferior court to take into account some matter which it was, as a matter of law, required to take into account in determining a question within jurisdiction or reliance by such a court upon some irrelevant matter upon which it was, as a matter of law, not entitled to rely in determining such a question will not ordinarily involve jurisdictional error." (Emphasis added).

It is noted that the court was guarded in stating the principles as general propositions. The observations by the court are indeed compelling in an application such as the present. The rationale for the supervisory jurisdiction is that inferior courts must in exercising their decision making process act within jurisdiction and in accordance with the law and principles of procedural fairness.

Finally, the relief by way of declaration is a discretionary remedy and a court will not grant a declaration unless it is satisfied of a number of matters. The principles were discussed by the High Court in Ainsworth v Criminal Justice Commission, supra, at p.582 where Mason CJ, Dawson, Toohey and Gaudron JJ said -

"Hence, declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions. The person seeking relief must have 'a real interest' and relief will not be granted if the question 'is purely hypothetical', if relief is 'claimed in relation to circumstances that have not occurred and might never happen' or if 'the court's declaration will produce no foreseeable consequences for the parties'."

A court will not grant a declaration which will not produce any foreseeable consequences for the parties - see Gardner v Dairy Industry Authority (1977) 52 ALJR 180 at p.188 and 189. In the present case there is much force in the submission that no foreseeable consequences could flow from a declaration made in the terms sought by Mr Kuek.

The fact is that the appeal has been heard and determined and orders made. A declaration that the orders made by the learned County Court judge were null and void can have no foreseeable consequences to the parties because the orders and the penalty remain. If Mr Kuek has in fact paid the fine and costs then no beneficial consequence could flow from such a declaration. The record remains.

However, having said that it is clear from recent authority that what constitutes a foreseeable consequence may be of limited value. The facts of the Chief Constable of North Wales Police v Evans and Ainsworth v Criminal Justice Commission amply support that proposition. In the latter case the High Court was prepared to declare that a body, in reporting adversely to the interests of the appellants, failed to observe the requirements of procedural fairness and a declaration in this limited form was of benefit to them.

"That report has already had practical consequences for the appellants' reputations. For all that is known, those consequences may extend well into the future. It is appropriate that a declaration be made in terms indicating that the appellants were denied natural justice. That may redress some of the harm done." (Emphasis added).

No submission was made on behalf of Mr Kuek as to what beneficial effect a declaration in the form he sought would have upon his position, reputation or standing.

I now turn to the complaints made by Mr Kuek.

He does not suggest and indeed in my opinion could not submit that the learned County Court judge was not acting within jurisdiction when he heard and determined the appeal. There is no suggestion he was denied procedural fairness.

The gravamen of his complaint is that the offence was one of exceeding the speed limit, the proof of excessive speed was given by the Senior Constable who operated a speed detection device and there was no proof the device had been tested and sealed. Mr Perkins on behalf of Mr Kuek submitted in this court that the provisions of the Road Safety Act 1986 which were concerned with the use of the speed detection device had not been fulfilled. A further argument was put that the evidence given by the Senior Constable was that the device recorded 85 kilometres per hour whereas the traffic infringement notice alleged 81 kilometres per hour and the charge asserted 81 kilometres per hour and hence the Judge should not have found the charge proven.

The issues as to whether or not Mr Kuek exceeded the speed limit were considered and determined by the learned County Court judge adversely to Mr Kuek.

What Mr Kuek seeks to do in this court, under the guise of invoking the common law supervisory jurisdiction of this court, is to attack the findings of fact. That he is not entitled to do in this proceeding.

In my opinion Mr Kuek has failed to establish that the learned County Court judge made any error of law in the decision making process.

With respect to the allegation that the certificate tendered pursuant to s.83 of the Road Safety Act 1986 did not comply with the requirements of that section, the certificate was tendered in evidence without any objection being made by counsel on behalf of Mr Kuek. There is no suggestion in the affidavit material that counsel at any stage made a submission that the certificate did not comply with the section. Accordingly, the judge was entitled to accept the certificate as admissible and relevant evidence. It cannot be said that he made any error in doing so. The device established the speed. The charge was proven.

But even if it was open to Mr Kuek at this late stage to attack the findings based on the certificate, in my opinion the criticisms made of the certificate have no merit.

It is first suggested that the certificate is dated 13 January 1997 which is a week after the offence was committed and hence could not be valid. That does not affect the validity of the certificate. That is the date that the certificate was signed but the certificate on its face establishes compliance with all the statutory requirements prior to the commission of the offence.

It was further submitted that the requirements of the section were not complied with because the certificate stated that the device "has been duly and properly sealed in accordance with the regulations" and it is said that the certificate did not state that it had been sealed in the prescribed manner. In my opinion these criticisms have no merit whatsoever. The fact was that the certificate did state that it had been duly and properly sealed in accordance with the regulations which in my opinion is the same as stating it was sealed in the prescribed manner.

With respect to the contents of the certificate s.83 requires a certificate in the prescribed form "to the effect" that any device has been tested and sealed.

The certificate tendered in evidence was to that effect and complied with the terms of the section.

The other complaint was that the speed device recorded 85 kph where as the infringement notice and the summons alleged 81 kph. For reasons which I have already stated this complaint has no substance at all. The offence is committed by exceeding the speed limit which was 60 kph and whether it is 85 or 81 kph, the offence has been committed and the variance in the speed can have no practical effect on the outcome of the proceeding. The reason why, was adverted to in the evidence and the reasons.

It follows that in my opinion no error has been demonstrated in the decision making process and clearly the judge was acting within jurisdiction in accordance with the law and the principles of natural justice.

It follows that Mr Kuek is not entitled to a declaration and the originating motion should be dismissed with costs.

(1987) 10 NSW LR 247

At a glance

Court

Decision date

Before

Source

Judgment (179 paragraphs)

Parties

Cases Cited (15)