NORMAN -v- CURRAN [2018] WASC 155 (25 May 2018)

[D]rove a motor vehicle, namely a Mitsubishi Magna, registered number 1AGC516, on a road, namely Reid Highway, whilst not being a person authorised by Part 2 of the Road Traffic (Authorisation to Drive) Act 2008 and whose authority to drive was at the time suspended contrary to s49(1)(a) of the Road Traffic Act.

1. Mr Curran pleaded not guilty to this charge and therefore proceeded to a hearing in the Magistrates Court.

1. On 9 January 2017, Mr Curran appeared before his Honour in the Magistrates Court for his trial. Mr Curran represented himself while the prosecution was represented by the police prosecutor.
2. At the commencement of the hearing Mr Curran informed the magistrate that there was no dispute that he was the driver of motor vehicle.[2] Whilst no formal admission was made pursuant to s 32 of the Evidence Act 1906 (WA) it is clear that the trial proceeded on the basis that Mr Curran was the driver.
3. The prosecution called evidence from two witnesses being Ms Liau,[3] a Customer Service Officer with the Department of Transport, and Constable Norman,[4] a police officer with the Western Australian Police Force.
4. I will provide an outline of the salient aspects of the testimony of the two witnesses. Ms Liau gave evidence that she was employed by the Department and that for the last six years she has undertaken the role as a Customer Service Officer at the Mirrabooka branch of the Department.[5] On 17 December 2015, Mr Curran attended the Mirrabooka branch seeking to renew his drivers licence. Mr Curran presented his expired drivers licence as identification to Ms Liau.[6] At that time, Ms Liau accessed Mr Curran's drivers licence record on the Department database which confirmed that an excessive demerit point notice had been issued.
5. Ms Liau gave evidence that she printed off copies of the Notice and then gave a copy of the Notice to Mr Curran asking him to sign the document. Mr Curran then expressed his disagreement with the Notice.[7] Ms Liau stated that she advised Mr Curran that if he had any questions regarding the Notice then it was necessary that the questions be directed to the WA Police. Mr Curran declined and 'just kind of looked blankly and then picked up the client copy of the form and walked out of the Mirrabooka branch'.[8] The prosecution produced the business records of the Department that supports the testimony of Ms Liau.[9]
6. In crossexamination, Mr Curran put a line of questions to Ms Liau directed to proving that he did not touch the Notice. Ms Liau rejected that proposition, giving testimony that Mr Curran held a copy whilst reading the Notice and then walked out with the document.[10] The line of questions asked by Mr Curran in crossexamination were premised on the basis that he was the person who attended at the Mirrabooka Branch on 17 December 2015 and that he was informed that he had lost his licence to excessive demerit point loss and that the document was presented to him. It appears that the only dispute was whether he touched the Notice.
7. Constable Norman gave evidence that on 9 March 2016 he conducted a random vehicle registration check of a motor vehicle being driven on Reid Highway. As a consequence, Constable Norman pulled over the vehicle and requested that the driver, Mr Curran, produce his drivers licence.[11] After conducting a licence check Constable Norman informed Mr Curran that his drivers licence was 'demerit point suspended'.[12] Constable Norman's evidence was that Mr Curran replied that he was unaware of the suspension. The next day, Constable Norman served Mr Curran with a notice requiring that he surrender his motor vehicle in seven days.[13]
8. It was not necessary for Mr Curran to give evidence for the reason that the magistrate found that there was no case to answer at the close of the prosecution case. Accordingly, his Honour dismissed the charge at the conclusion of the prosecution case. His Honour stated that the prosecution must 'prove that he is not authorised to drive and to do that you have to prove, in my view, that he has been properly served with the notice either by the CEO or by someone delegated in writing to do so on the CEO's behalf.'[14] The magistrate referred to s 8 of Road Traffic (Administration) Act 2008 (WA) in support of his finding that the CEO must delegate his function to give Notices to drivers.[15]
9. The magistrate considered whether Ms Liau was able to exercise the function of giving the Notice to Mr Curran and held that:[16]

[J]ust because she is an employee doesn't mean that she's a person who is authorised to serve such a notice on behalf of the CEO. She may well be but in my view it's something which has to be proved. And it's easily proved because persons - all a person would have to do is come to court and produce their written authorisation. That's an authorisation or a delegation which must be in writing and it seems to me that that particular lady - Suzy Liau - unless she proves - or unless it's proved that she is a person to who the CEO has delegated a particular power and the delegation must be in writing - unless that's proved then she is not a person that can serve on behalf of the CEO.

1. Accordingly, the magistrate found that Mr Curran had no case to answer 'on the basis that service had not been proved to be proper service under the Act.'[17]

1. The ground of appeal is in the following terms:
   1. The learned Magistrate erred in law and fact by dismissing the charge for failure to prove service of an excessive demerit point notice (Notice) on the Accused.

Particulars

(a) The learned Magistrate erred in law by failing to properly construe sections 49 and 59 of the Road Traffic (Authorisation to Drive) Act 2008 (WA) and section 8(8) of the Road Traffic (Administration) Act 2008 (WA) by failing to hold that service of the Notice could be effected in accordance with those provisions by an agent or officer of the Chief Executive Officer, Department of Transport (CEO); and

(b) The learned Magistrate erred in law and in fact by finding that Ms Suzy Liau, Customer Services Officer of the Department of Transport, could only serve the Notice if she was delegated that power by the CEO in writing.

1. This is an appeal under pt 2 of the Criminal Appeals Act 2004 (WA), which requires leave to appeal.
2. An appeal hearing is not a retrial of the issues that were before the primary court. The appellant must demonstrate that the primary court fell into error in a manner specified in a ground of appeal. The grounds of appeal on which appeals may be brought include that the court of summary jurisdiction made an error of law or fact or both, acted without or in excess of jurisdiction, or that there has been a miscarriage of justice.[18] On appeal, the court has the power to make a variety of orders, including to dismiss or allow the appeal, and to set aside or vary the decision of the court below.[19]
3. The court must not grant leave to appeal unless a ground has a reasonable prospect of success.[20] A reasonable prospect of success means that the ground has a real, rational and logical prospect of succeeding and is more than arguable.[21]
4. An issue raised by the appellant was whether the principles of law now being relied upon by the appellant at the hearing of this appeal had been raised before his Honour. The appellant relies upon principles of law regarding the validity of the service of the Notice that were not raised by the police prosecutor. The prosecution at the hearing contended that the service was valid as the Notice was given to Mr Curran by an officer of the Department who acted on behalf of the CEO.[22] The appellant contends that the issue was raised at the hearing but that the legal basis for the lawfulness of the service of the Notice now differs on appeal. I agree with the appellant's contention. The issue at the hearing before his Honour was whether the Departmental officer had the power to serve the Notice. The police prosecutor did not rely upon the legal principles now raised by the appellant. That he did not do so is most understandable. I consider that the issue concerning the lawfulness of the service of the Notice by the Departmental Officer was before the magistrate and that it is the issue to be determined on appeal.

1. Part 4 of the Road Traffic (Authorisation to Drive) Act 2008 (WA) provides the statutory framework for the enforcement of demerit point offences in (WA). Section 41 of the Road Traffic (Authorisation to Drive) Act 2008 provides that the regulations may prescribe an offence under a road law as a demerit point offence in WA and specify the number of demerit points applying to the offence. The consequence of incurring excessive demerit points is stated by s 49 of the Road Traffic (Authorisation to Drive) Act 2008 which relevantly provides:
   1. Excessive demerit points notice

(1) If the number of current demerit points recorded against a person in the demerit points register reaches at least 12, the CEO is to give the person, in accordance with section 59, an excessive demerit points notice stating -

(a) the day on which that number of current demerit points was reached; and

(b) the number of current demerit points reached on that day; and

(c) the period of disqualification fixed under subsection (2); and

(d) the day on which the period of disqualification will commence if the person cannot, or for any other reason does not, make a section 51 election.

(2) The period of disqualification to be stated in the notice is -

(a) for less than 16 points, 3 months;

(b) for at least 16 but less than 20 points, 4 months;

(c) for at least 20 points, 5 months,

and the day on which the period is stated to commence is to be the 28th day after the notice is given or a later day.

1. Therefore, the disqualification period imposed due to excessive demerit points only commences on the 28th day after the notice is given or at a later date. Section 59 of Road Traffic (Authorisation to Drive) Act (WA) provides that an excessive demerit point notice is given in accordance with the section if it is given to the person to whom it is addressed either personally or by any other way prescribed in the regulations that ensures that it is received by that person and results in a written record of that person having received the notice.
2. Regulation 69 of the Road Traffic (Authorisation to Drive) Regulations 2014 provides that the Notice may be given to a person by a form of mail that involves the person taking personal delivery of the Notice and acknowledging in writing having taken delivery of it. The appellant does not rely upon reg 69.
3. Section 4 of the Road Traffic (Administration) Act 2008 (WA) provides that CEO 'means the chief executive officer of the department of the Public Service principally assisting in the administration of this Act'.
4. The delegation of a CEO's functions is provided by section 8 of the Road Traffic (Administration) Act 2008 (WA), which is in the following terms:
   1. Delegation of CEO's functions

(1) The CEO may delegate to a person any power or duty of the CEO under another provision of a road law.

(2) The delegation must be in writing signed by the CEO.

(3) If a person is not employed in the department of the Public Service principally assisting in the administration of this Act, a power or duty can only be delegated to the person under this section if the person has been approved by the Minister for the purposes of this section.

(4) An approval under subsection (3) may be given in respect of -

(a) a specified person or persons of a specified class; or

(b) the holder or holders for the time being of a specified office or class of office.

(5) Despite subsection (3), the CEO may delegate to the Commissioner of Main Roads the power to give specific or standing instructions requiring the moving of vehicles for the purposes of the Road Traffic (Vehicles) Act 2012 section 64(1)(b) or 65(1)(b).

(6) A person to whom a power or duty is delegated under this section cannot delegate that power or duty.

(7) A person exercising or performing a power or duty that has been delegated to the person under this section, is to be taken to do so in accordance with the terms of the delegation unless the contrary is shown.

(8) Nothing in this section limits the ability of the CEO to perform a function through an officer or agent.

1. The words 'road law' in s 8(1) is defined as including the Road Traffic (Authorisation to Drive) Act 2008 (WA).[23]

1. The question to be determined on this appeal is whether it is necessary for the CEO to personally serve a person with the Notice under s 49 of Road Traffic (Authorisation to Drive) Act 2008 (WA) or formally delegate that function in writing under s 8 of the Road Traffic (Administration) Act 2008 (WA).
2. The appellant relies upon the Carltona principle which was first elucidated in Carltona Ltd v Commissioner of Works.[24] The Carltona principle permits an agent to act in the name of the principal's name and to exercise the relevant principal's powers or functions. The Carltona principle is referred to as the implied power to delegate or acting through the agency of others (alter ego principle).[25] The principle applies to Ministers of the Crown but also to officeholders within the public service structure of the State. The Carltona principle was considered by Mason J in Minister for Aboriginal Affairs v PekoWallsend Ltd:[26]

The cases in which the principle has been applied are cases in which the nature, scope and purpose of the function vested in the repository made it unlikely that Parliament intended that it was to be exercised by the repository personally because administrative necessity indicated that it was impractical for him to act otherwise than through his officers or officers responsible for him.

1. It is necessary to construe the provisions of the statute to determine whether Parliament intended that a particular duty, function or power must be exercised personally by the statutory officer holder or through an officer or agent. The Carltona principle is an interpretative principle which may not have application if, by express words or by implication, the Parliament intended that the officer must personally exercise the duty, function or power. [27]
2. The presence of a power to delegate raises a presumption that the Carltona principle is not applicable.[28] That Parliament has granted the power of delegation to the Minister or officer is indicative of Parliament's intention that the Minister or officer must personally carry out the duty, function or power unless a formal delegation is given to another person.[29] However, this presumption may be displaced by other provisions of the respective Act. That is, the existence of a power of delegation does not preclude an officer acting through its officers and employees.[30]
3. In the present case, s 8(8) of the Road Traffic (Administration) Act 2008 (WA) expressly provides that 'nothing in this section limits the ability of the CEO to perform a function through an officer or agent.' That subsection therefore negates any presumption that might otherwise arise by virtue of s 8(1), which permits the CEO to delegate any power or duty of the CEO under another provision of a road law.
4. In determining whether there is an implied power to delegate, consideration should be given to the nature, scope and objects of the empowering statute, the character of the particular power which is contended may be delegated, the exigencies of the occasions upon which it is exercised and any other relevant considerations.[31] I consider that the proper construction of s 49 and s 59 of the Road Traffic (Authorisation to Drive) Act 2008 (WA) does not require the CEO to personally serve the person or to grant a formal written delegation to an officer. I reach this conclusion based upon a number of factors.
5. First, the exercise of the function under s 59(2) of the Road Traffic (Authorisation to Drive) Act 2008 (WA) is not a central part of the legislative scheme. The Road Traffic (Authorisation to Drive) Act 2008 (WA) establishes the statutory framework that regulates the authorisation of persons to drive motor vehicles. Whilst the enforcement provisions are important to the legislative framework they are not central. This is not a case where the centrality of the exercise of the power, duty or function means that the application of the Carltona principle is negated. In comparison in Peko Wallsend[32] the centrality of the legislative scheme was primarily the granting of licences pursuant to s 11 of the Aboriginal Land Rights (Northern Territory) Act 1976.
6. Secondly, the service of the Notice does not involve any discretion. Section 49(1) of the Road Traffic (Authorisation to Drive) Act 2008 (WA) directs that the CEO 'is to give' the Notice to the person who has accumulated the excessive demerit points. The words 'is to give' imposes an obligation to serve the Notice. The direction necessarily excludes any discretion. In the present case Ms Liau was not required (nor permitted) to exercise any discretion. As a matter of law, Mr Curran had accumulated in excess of 12 demerit points. Accordingly, Ms Liau gave the Notice to Mr Curran as she was required to do as a Departmental officer. Ms Liau's exercise of the function did not involve forming an opinion or exercising a discretion.[33] It was merely an administrative action. Accordingly, an officer undertaking a customer service role in a suburban branch of the Department is an appropriate person to exercise the CEO's function of service.
7. Thirdly, the consequences of giving the Notice to the person is the commencement of the licence disqualification period, the length of which is fixed by the statute. The officer who gives the Notice exercises no discretion as to the consequences of that service. The consequence is merely the disqualification. This may be compared to the exercise of a power, function or duty that adversely affects a person's right.[34] This is not a case where Mr Curran has a right that is being adversely affected by the exercise of a discretion by Ms Liau. To the contrary, Mr Curran exceeded the number of demerit points permissible and the Parliament has determined the consequence.
8. Fourthly, the frequency with which the function is exercised strongly supports an interpretation that the function of giving the notice is not one that must be exercised by the CEO.[35] The appellant did not seek to rely upon any evidence to show the number of convictions for traffic offences and the number of disqualifications from driving as a consequence of demerit point suspension. I am able to take judicial notice of the vast number of persons who hold a drivers licence, the vast number of motor vehicles on the roads in Western Australia, the extent of the convictions for driving offences and consequently, the number of Notices that must be given each year to drivers. The administrative necessity of the task of giving the Notices to drivers who have incurred excessive demerit points means that it is impractical for the CEO to act otherwise than through his or her officers. It is not necessary that the CEO formally give a delegation to every customer officer (or other officer or agent). That is not what Parliament intended. Parliament could not have intended that the CEO must personally serve or formally delegate the function of service given the multitude of instances when its exercise would be required.

1. Accordingly, the magistrate erred in law by finding that only the CEO personally, or an officer delegated with that function in writing, may serve the Notice. On a proper construction of s 49 and s 59 of the Road Traffic (Authorisation to Drive) Act 1974 (WA), read with s 8 of the Road Traffic (Administration) Act 2008 (WA), an officer of the Department or an agent of the CEO may serve a Notice on behalf of the CEO without a formal written delegation from the CEO. Therefore, leave to appeal is granted and the appeal is allowed. The matter must be remitted to the Magistrates Court for the charge to be determined by another magistrate according to law.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Prosecution Notice Charge Number PE 14906/2016.

[18] Criminal Appeals Act 2004 (WA), s 8(1).

[19] Criminal Appeals Act 2004 (WA), s 14.

[20] Criminal Appeals Act 2004 (WA), s 9(2).

[21] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473, 487 [56].

[23] Road Traffic (Administration) Act 2008 (WA), s 4; Road Traffic (Authorisation to Drive) Act (WA), s 3(2); Road Traffic Act 1974 (WA), s 5.

[24] Carltona Ltd v Commissioner of Works [1943] 2 ALL ER 560 [563].

[25] Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, 37 38 (Mason J).

[26] Minister for Aboriginal Affairs v Peko-Wallsend Ltd, 38.

[27] Re Patterson; Ex parte Taylor (2001) 207 CLR 391.

[28] O'Reilly v Commissioners of State Bank of Victoria [1983] HCA 47; (1982) 153 CLR 1, 31 32.

[29] Minister for Aboriginal Affairs v Peko Wallsend Ltd, 37 38.

[30] O'Reilly v Commissioners of the State Bank of Victoria, 12 (Gibbs CJ), 18 (Mason J), 31 32 (Wilson J); Minister for Aboriginal Affairs v Peko-Wallsend Ltd, 37 38 (Mason J); Salia Property v Commissioner of Highways (2012) 112 SASR 384, 390 391 [27] [31].

[31] Minister for Aboriginal Affairs v Peko Wallsend, 38; Tickner v Chapman [1995] FCAFC 1726; (1995) 57 FCR 451; Rail Signalling Services Pty Ltd v Victorian Rail Track [2012] VSC 452 [89] [90].

[32] Minister for Aboriginal Affairs v Peko-Wallsend Ltd, 37 38 (Mason J).

[33] O'Reilly v Commissioner of the State Bank of Victoria, 18 (Mason J); New South Wales Aboriginal Land Council v Minister Administering Crown Lands Act (Nelson Bay Claim) [2014] NSWCA 377; (2014) 88 NSWLR 125 [44], [86] and [90] (Basten JA, Beazley P and Preston CJ of LEC agreeing).

[34] LS v Director General of Family and Community Services (1989) 18 NSWLR 481, 490 491 (Young J); Re Plutonic Operations Ltd; Sipa Resources Ltd and The Minister for Mines; Ex parte Roberts [1999] WASCA 133.

[35] Director of Consumer Affairs Victoria v The Good Guys Discount Warehouses (Australia) Pty Ltd [2016] FCA 22 [105] (Moshinky J); New South Wales Land and Housing Corporation v Navazi [2013] NSWCA 431, [68].