Plaintiff v 1ST Defendant 2nd Defendant

(3) The giving, in accordance with the regulations, of a notice of appeal under sub-section (1)(c) stays the suspension of the licence or learner permit until -

(b) if the appeal is discontinued, the date on which notice in writing of discontinuance is given in accordance with the regulations to both the Magistrates' Court and the Corporation.

(4) On an appeal under sub-section (1) the court must -

(a) re-determine the matter of the refusal, suspension, cancellation or variation; and

(b) hear any relevant evidence tendered by the appellant or the Corporation; and

(c) without limiting its discretion, take into consideration anything that the Corporation ought to have considered.

(5) If the court is satisfied that the refusal, suspension, cancellation or variation -

(a) results from a driving disqualification of the appellant in another State or Territory of the Commonwealth; or

(b) was required by the regulations or section 25 -

the court must confirm the decision of the Corporation.

(6) On an appeal under sub-section (1)(c) the court may -

(a) in allowing the appeal, give to the Corporation any directions it thinks proper for the amendment of the Demerits Register; or

(b) in dismissing the appeal, order that the suspension take effect from a date specified in the order.

(7) Every decision of the Magistrates' Court on an appeal under this section is final and conclusive and must be given effect to by the Corporation."

20 The first thing to note about s.26 is that it provides for appeals in a wide variety of circumstances, not just in respect of suspensions of licences under the demerit points system. The appeal process which is provided for extends to the refusal of an application for a licence and any suspension, cancellation or variation of a licence by VicRoads which is required or permitted under s.24. The decisions which can be the subject of appeal under s.26(1) include both mandatory decisions required by s.24(1) and discretionary decisions required by s.24(2) and (3). This includes, for example, a discretionary suspension due to a medical condition under s.24(3).

21 It is next necessary to note that the right of appeal granted by s.26(1) is expressly subject to sub-s.(2). The issue in this proceeding is the extent of the limitation provided for in sub-s.(2)(b). Sub-section (2)(a) is not relevant.

22 There is some authority on the scope of the right of appeal under s.26(1)(c) of the Act. In Roads Corporation v. The Magistrates Court of Victoria; Parsons and Holloway[1] Smith, J. considered two appeals under s.26(1)(c). Each appeal concerned the identity of the person against whom VicRoads was required to record demerit points. In other words, the extent of the limitation in s.26(2)(a) of the Act. In the course of his reasons for judgment, Smith, J. accepted that s.26(2)(a) was directed at the realities of the situation and allowed an inquiry, on appeal, as to who was in fact driving the relevant vehicle at the time of the alleged offence. His Honour pointed to the practicalities and risk of error and stated, at [24]:

"One might expect the Parliament to seek to introduce a safety net for those who find out for the first time that they have received demerit points when their licences are about to be, or have been, suspended. Driving licences, while a privilege, can be critical to people's livelihoods. Suspension of a licence can have catastrophic consequences for licence holders. It will also, in my view, be surprising if an appeal procedure to the Magistrates' Court should have been set up to deal only with clerical errors when those responsible for the drafting of the legislation would have been well aware that the system carried with it the risk of serious injustice where the owner was not in fact the driver who infringed."[2]

23 Smith, J. also briefly considered the scope of the limitation on appeals in s.26(2)(b). His Honour accepted that the normal meaning of the term "miscalculation" is to "calculate wrongly", or "wrong or faulty calculation".[3] This dictum, based on dictionary meanings of the word "miscalculation", was relied upon by VicRoads as establishing that s.26(2)(b) limits appeals under s.26(1)(c) to cases of mistaken arithmetic. I accept that Smith, J. was of this view, but he certainly did not decide the issue as it was not before him. It is this very issue that I must decide in this proceeding.

24 On behalf of VicRoads, it was argued that the magistrate exceeded her jurisdiction by entertaining and deciding the appeal by Sears on the ground that the 0.05 notice was "invalid". Mr Cavanough, Q.C., who appeared with Ms Hubble, for VicRoads, argued, in summary, that:

(1) The Magistrates' Court is a statutory court of limited jurisdiction.

(2) For the purposes of the present case, its jurisdiction was exhaustively stated in s.26 of the Act as it stood at the relevant time.

(3) As the appeal was pursuant to s.26(1)(c), it was limited by s.26(2).

(4) Section 26(2) of the Act had a narrow operation and, insofar as relevant to this case, was limited to "miscalculation" or arithmetical errors only.

(5) The magistrate was not authorised to entertain, let alone decide, the appeal on the ground that the 0.05 infringement notice was "invalid". This was beyond her jurisdiction.[4]

(6) Section 26(4) did not have the effect of broadening the scope of an appeal under s.26(1)(c), as limited by s.26(2). The broad nature of s.26(4) was explained by the fact that it had a lot of work to do, or acted "distributively", in relation to all appeals under s.26(1).

25 On behalf of Sear, Mr Haag and Mr Strahan argued that:

(1) The 0.05 infringement notice was misleading because it gave Sear the clear impression that, if he paid the $300 fine specified therein, that would be the end of the matter and his driver's licence would not be affected.

(2) Section 26(4) informed the construction which ought to be placed upon s.26(2) and, in particular, 26(2)(b). It was submitted that s.26(4) had the effect that the Magistrates' Court, on the hearing of an appeal, was required and entitled to inquire into the validity of every aspect of the process leading to the incurring of the relevant demerit points, except for an enquiry into the merits of the alleged offence or offences stated in the relevant infringement notices. This included, so it was argued, whether or not a notice was in fact issued and, if so, whether it was a valid or invalid notice.

Alleged misleading nature of the 0.05 infringement notice

26 As I have said, the magistrate found, and it was accepted before me, that the 0.05 infringement notice contained all of the prescribed particulars required by the regulations. However, there is one aspect of the prescribed particulars which bears upon the allegation that the 0.05 infringement notice was misleading. Regulation 603(1)(g)(ii) prescribes that a traffic infringement notice relating to an alleged drink-driving infringement must state that, unless a notice of objection is received at the address specified in the notice within 28 days after service of the notice, the notice will take effect as a conviction and will result in cancellation or suspension of the licence or permit of the person on whom it is served. This requirement was a reflection of the position as it stood before the insertion of s.25(2A) and (2B) into the Act by the Road Safety (Further Amendment) Act 2001. It does not take any account of the limited option arising from the service of an option notice under s.25(3).

27 In fact, the form of the 0.05 infringement notice reflected the legislative regime prior to the commencement of s.25(2A) and (2B) of the Act.[5] In the first place, under the heading "DEMERIT POINTS (DRIVER'S LICENCES)" on the reverse side of the form, it is stated that:

"Some traffic offences have both a monetary penalty and a Demerit Points penalty. Accruing 12 Demerit Points within any 3 year period may affect your right to drive. VIC ROADS can advise you of the number of Demerit Points that you have on your licence."

There then follows a table setting out a broad range of driving offences and the relevant demerit points applicable to each offence. There is no reference in the table to the offence of driving with a blood alcohol concentration of above 0.05 grams per 100 millilitres of blood but below 0.07 grams per 100 millilitres, or to the fact that, under the new legislative regime, such an offence attracted 10 demerit points.

28 Secondly, also on the reverse of the form, under the heading "DRIVER LICENCE LOSS INFRINGEMENTS" it is stated:

"Unless you lodge a Notice of Objection to Civic Compliance Victoria in time, the infringement will take effect as a conviction and the suspension or cancellation of your right to drive will apply 28 days after the date of this notice."

This part of the form would appear to relate to the box on the front page of the form headed "ADDITIONAL PENALTY FOR A DRIVER'S LICENCE LOSS INFRINGEMENT EFFECTIVE 28 DAYS AFTER THE DATE OF THIS NOTICE". In the box bearing this bold heading, there is provision for the police officer completing the notice to indicate whether a driver's licence will be suspended or cancelled after the 28 day period and, if so, to insert the number of months for which the driver will be disqualified from driving.

29 Counsel for Sear submitted that the failure of the form of infringement notice to catch-up with the changes to the legislation, combined with other statements on the 0.05 infringement notice, rendered it misleading so that it deprived Sear of the ability to make a fully informed decision as to whether to lodge a Notice of Objection to the 0.05 infringement notice within the 28 day period. In summary, the following aspects of the 0.05 infringement notice were relied upon to render it misleading:

(1) The omission of the 0.05 infringement notice to refer to the fact that, under the legislation as amended, there was a 10 demerit point penalty for driving with a blood alcohol concentration of between 0.05 and 0.07. This, it was said, amounted to a representation that no demerit points would be incurred for the offence identified in the 0.05 infringement notice.

(2) The fact that, on the front page of the notice, the police officer completing it placed a dash in the period of disqualification box and gave no indication that Sear's driver's licence would be either suspended or cancelled effective 28 days after the date of the notice. It was submitted, in effect, that, the combination of (1) and (2) meant that the reference to "DRIVER LICENCE LOSS INFRINGEMENTS" on the reverse page was represented to Sear as having no application to the offence alleged against him.

(3) Under the heading "IF YOU PAY ON TIME" on the reverse page of the notice, it was stated that:

"For all persons except Licensees Nominees and Directors under the Liquor Control Act, the matter is finished. It will not go to court."

This, it was submitted, amounted to a representation that, if the fine stated in the notice was paid on time, the matter would go no further and there would be no further consequences for Sear arising out of the alleged offence.

(4) Also on the reverse side of the notice, under the heading "EFFECT ON DRIVER'S LICENCES" it is stated that:

"If this infringement notice is for exceeding the prescribed concentration of alcohol and the blood alcohol reading is 0.100 per cent or less, a different decision may be made by a Court."

It was submitted that this bolstered the impression created by the statement referred to in (3) above that the offence alleged in the notice would carry no further consequences unless it was considered by a court following a notice of objection.

30 There is some force in the submission that the form of the 0.05 infringement notice was, in the circumstances of the case, misleading, for one or more of the reasons submitted on behalf of Sear.

31 Whether or not the 0.05 infringement notice was misleading is not, however, to the point. In my opinion, once an infringement notice includes all of the prescribed particulars under the regulations, it is a valid notice. If it is misleading in a material way, then the recipient of such a notice can elect to object to it and take his or her chances in court. This may or may not lead to a conviction and, if it does, may or may not lead to a different penalty being imposed to that stated in the relevant infringement notice. However, unless the charge resulting from an objection to an infringement notice which complies with the regulations is dismissed, the infringement notice remains, in my view, an infringement notice for the purposes of the statutory regime under consideration. It follows that VicRoads will be obliged to record the applicable demerit points against the driver referred to in the notice and otherwise follow the mandatory provisions of the Act.

32 On behalf of Sear, it was argued that the effect of s.26(4) was to override the express words of s.26(2), so that the Magistrates' Court, on appeal, was not limited to an inquiry as to whether there was a relevant infringement notice containing the prescribed particulars, and an examination of the calculation of the applicable demerit points, but could also inquire into whether the notice complied with the statutory purpose underlying the applicable legislative regime.

33 In this regard, reliance was placed upon Director of Public Prosecutions v. Korybutiak[6] in which Chernov, J.A., speaking for the Court of Appeal, said in respect of infringement notices:

"It seems that the legislation now under consideration seeks to strike a balance between the need to streamline the procedure for disposing of infringement notices without resort to the courts, on the one hand, and, on the other, the need to preserve the right of the alleged offender to have the matter determined by the courts. Thus, the legislation prescribes a range of penalties that are to apply to specified infringements committed in particular contexts and places on the alleged offender the onus of electing, within a limited period, to contest in court the police allegations as to the infringement. It is in that context that the legislation has prescribed what information must be provided to the alleged offender in the notice of infringement in order to enable him or her to make an informed decision whether to make the election to go to court."[7]

34 Mr Haag submitted that, if an infringement notice was misleading in any respect, or did not contain all of the information upon which a recipient might require to make an informed decision, that it would be an "invalid" notice which would not constitute a traffic infringement notice for purposes of the Act.

35 In my view, the submissions on behalf of VicRoads are to be preferred. The legislature has expressly limited, in a very narrow way, the grounds of appeal available to a driver whose driver's licence is suspended under s.25(3B)(a). Parliament has done so in plain and unambiguous language.

36 Where identity of the driver in question is in issue, that issue may be explored in full on appeal. In this respect, I agree with the decision of Smith, J. in Parsons and Holloway, as discussed above.

37 Where the identity of the driver is not in issue, as in this case, then the scope of the appeal under s.26(1)(c) is limited to "miscalculation" in the assessment of the relevant number of demerit points attributable to the appellant. The choice of the term "miscalculation", in my view, limits the scope of appeal to, and provides a "safety net" in respect of, errors made in the calculation of demerit points attributable to the appellant whose licence has been suspended.

38 Demerit points arise from the service of an infringement notice or, if objection is taken, a conviction following a charge. Once demerit points are incurred, it is necessary that the raw information be collated by VicRoads in its Demerits Register required to be maintained by s.25(1) of the Act. In maintaining that register, VicRoads must rely upon information which it receives from others, in particular Civic Compliance Victoria which, in turn, must rely upon the Victoria Police and others responsible for the issue of infringement notices.

39 There are many opportunities for errors to be made. No doubt the register is maintained by computer, thus increasing the scope for error in the course of processing data on the computer system. Infringement notices consist of standard forms on which are completed, in handwriting, the essential details enabling the calculation of demerit points and the allocation of those points to the driver in question. There is much scope for error as to matters such as the date of the alleged offence and the particulars of the offence. For example, an error in the date of the offence could mean the difference between demerit points being incurred within a relevant three year period or outside of it. A mistake as to the alleged speed could result in a higher number of demerit points being allocated than was appropriate.

40 In my view, it is against this kind of error that Parliament intended to provide a safety net by providing for appeals in respect of any "miscalculation". It would be straining the language of s.26(2)(b) to an impermissible extent to interpret it as permitting an inquiry as to whether an infringement notice which was served on the correct driver, and which contained all of the prescribed particulars, was nevertheless "invalid". One asks, where would the line of "invalidity" be drawn? By the use of language limiting the appeal to the ground of "miscalculation", Parliament could not have intended an inquiry such as that contended for on behalf of Sear.

41 As to the submission on behalf of Sear that the broad terms of s.26(4) are inconsistent with giving s.26(2)(b) its ordinary meaning, I accept the submission on behalf of VicRoads that s.26(4) must be read subject to s.26(2). The right of appeal under s.26(1)(c) is expressly made subject to s.26(2). Accordingly, s.26(4) only applies to an appeal under s.26(1)(c) to the extent that it is consistent with the limitations placed on that appeal by s.26(2). Thus, where there is no issue as to the identity of the driver, and the appeal grounds are limited by s.24(2)(b):

(1) the re-determination spoken of in s.26(4)(a) is a re-determination in the sense of a re-calculation if any error in calculation can be shown;

(2) the evidence which is admissible on appeal under s.26(4)(b) is limited to evidence which is relevant to the question of calculation, and not otherwise;

(3) s.26(4)(c) has no work to do, because there is no discretion involved in the decision of VicRoads to suspend a driver licence in accordance with either s.25(3B)(a) or (3D)(a).

42 In my opinion, the above reasoning applies irrespective of whether the 0.05 infringement notice in this case was misleading as contended for on behalf of Sear. Furthermore, although it is not necessary for me to decide it, it is my view that an appeal under s.26(1)(c) could not be based upon an allegation that the relevant infringement notice did not contain all of the prescribed particulars as required by the regulations made under s.88(1) of the Act. In my opinion, the recipient of a defective notice has the remedy of objecting to the notice and taking his or her chances in court when a charge is laid. To hold otherwise would leave open the distinct possibility that, with the effluxion of time involved with appeals, an alleged offender could escape all liability due to the statutory time limit of 12 months for prosecution for summary offences provided for by s.26(4) of the Magistrates' Court Act 1989[8].

43 It was submitted on behalf of Sear that the relief which VicRoads is seeking in this proceeding is discretionary. I accept that this is so. It was then submitted that I should refuse the relief sought by VicRoads in the exercise of my discretion because the evidence before the magistrate, which was accepted, was that Sear was in fact misled by the 0.05 infringement notice and elected not to serve a notice of objection based on the belief that there would be no effect on his driver's licence if he paid the fine of $300 stated on the notice.

44 It seems that there is a factual basis for this submission. The magistrate did find that, at the time he paid the fine of $300, Sear believed that his choice was between paying that fine and going to court and risking a higher penalty than the fine.[9]

45 However, that is not an end of the relevant factual history. Albeit after a delay of some seven months, Sear received an option notice under s.25(3) of the Act. Whatever may have been the position before that time, Sear then knew that he had incurred 13 demerit points and that, unless he extended the demerit point period for 12 months, his driving licence would be suspended for three months. He also knew that, if he re-offended within the extended 12 month period, he would lose his licence for a period of six months. On receipt of this notice, Sear elected to extend the demerit point period. He did so in full knowledge of the consequences for his licence if he re-offended within that extended 12 month period. He did re-offend and was issued with a further infringement notice. This time, he objected. The charge was heard and a conviction for speeding resulted. A further three demerit points were incurred. As a result, VicRoads was obliged under s.25(3B) of the Act to suspend the driver's licence of Sear for a period of six months. This is what has occurred.

46 In light of the conduct of Sear after the receipt of the option notice, I do not believe that it is appropriate for me to refuse relief to VicRoads in the exercise of my discretion. I am also mindful in reaching this view that this case involves a drink-driving offence. The seriousness of the offence of drink-driving, and the opprobrium attaching to such conduct by parliament and the community generally, are notorious. Although some very limited latitude has been introduced by the amendments to the statutory scheme discussed in this judgment, Parliament ought not to be taken to have intended to thereby provide further grounds for technical arguments to escape the penalties which Parliament intended for such offences.

47 The Magistrates' Court exceeded its jurisdiction in entertaining the arguments put on behalf of Mr Sear and determining his appeal under s.26(1)(c) of the Act on those grounds. There is an error of law on the face of the record, constituted by the oral reasons of the magistrate to allow the appeal by Sear on those grounds.[10] Accordingly, I propose to order that:

1. The decision of the first defendant made on 21 May 2004, whereby the first defendant allowed the appeal of the second defendant under s.26 of the Road Safety Act 1986 ("the Act") against the decision of the plaintiff to suspend the second defendant's driver licence and to direct the plaintiff to remove from its Demerits Register 10 demerit points which it had recorded against the second defendant pursuant to s.25 of the Act in respect of Traffic Infringement Notice 0308725045 dated 21 February 2002 and to require the plaintiff to pay the second defendant's costs, be set aside.
2. The matter be referred back to the Magistrates' Court of Victoria for re-hearing and determination according to law.
   1. There be no order as to costs.[11]