Conclusion
44In the circumstances the following order should be made, that the decision of his Honour Judge Haesler made on 23 April 2012 allowing the appeal of the first defendant against an order made on 25 January 2012 disqualifying her from driving for a period of 12 months be quashed.
45MACFARLAN JA: I agree with Bathurst CJ.
46EMMETT JA: This proceeding is concerned with the effect of an order made by the District Court under s 20(2)(b) of the Crimes (Appeal and Review) Act 2001 (the Appeal Act). That provision authorises the District Court, in determining an appeal from a sentence imposed by the Local Court, to vary the sentence imposed by the Local Court.
47At the relevant time, s 9(2) of the Road Transport (Safety and Traffic Management) Act 1999 (the Safety Act) provided that a person must not, while there is present in his or her breath or blood the low range prescribed concentration of alcohol, drive a motor vehicle. On 17 June 2011, the first respondent, Ms Ambre Porret, was apprehended driving a motor vehicle while there was present in her breath the low range prescribed concentration of alcohol. Ms Porret was charged with an offence under s 9(2) of the Safety Act. On 20 July 2011, she pleaded guilty before Manly Local Court to that charge. She was fined and disqualified from driving for three months from 20 July 2011.
48Under s 11 of the Appeal Act, any person who has been convicted or sentenced by the Local Court may appeal to the District Court against the conviction or sentence (or both). On 17 October 2011, Ms Porret lodged an appeal under s 11 against the sentence imposed on 20 July 2011. Section 20(2)(b) of the Appeal Act, read with s 3(3)(a), provides that the District Court may determine an appeal against sentence by varying the severity of the sentence. Under s 3(3A), the power to vary a sentence includes the power to make an order under s 10 of the Crimes (Sentencing Procedure) Act 1999 (the Sentencing Act). Section 10 of the Sentencing Act relevantly provides that, without proceeding to a conviction, a court that finds a person guilty of an offence may make an order directing that the relevant charge be dismissed. Section 3(3A) of the Appeal Act provides, relevantly, that, for the purpose of making an order under s 10, the District Court may set aside a conviction made by the Local Court without setting aside the finding of guilt on which the conviction was based.
49On 10 November 2011, Blanch J, in the District Court, granted leave to Ms Porret to appeal out of time from the conviction and sentence imposed by the Local Court on 20 July 2011. His Honour ordered that the orders of the Local Court be quashed and that the charge against Ms Porret under s 9(2)(a) of the Safety Act be dismissed under s 10 of the Sentencing Act.
50Section 25A(1)(a) of the Road Transport (Driver Licensing) Act 1998 (the Licensing Act) provides, relevantly, that a person who is disqualified by or under any Act from holding or obtaining a driver licence must not drive a motor vehicle on a road during the period of disqualification. On 20 September 2011, Ms Porret was apprehended driving a motor vehicle. She was charged with an offence under s 25A(1)(a) of the Licensing Act. She was summoned to appear at North Sydney Local Court on 11 October 2011. On that day, Ms Porret did not appear. She was convicted upon her failure to appear, and was fined $1,000 and disqualified from driving for 12 months.
51An application for annulment of the conviction of 11 October 2011 was filed on 19 October 2011. Leave to withdraw the application was granted and the application was dismissed on 2 November 2011. A second application for annulment lodged on 30 November 2011 was refused on 11 January 2012. A third application for annulment was lodged at the Downing Centre on 12 January 2012. The application was received at the North Sydney Court House, the location of the listing, on 16 January 2012. The application was granted on 25 January 2012 and the conviction and sentence of 11 October 2011 were annulled. On that day, Ms Porret then pleaded guilty to the offence. A conviction was recorded and she was fined $750 and disqualified from driving for 12 months.
52However, on 1 February 2012, Ms Porret lodged an appeal to the District Court against the severity of the sentence imposed on 25 January 2012. On 23 April 2012, Haesler DCJ, in the District Court, granted Ms Porret leave to proceed with the appeal as a conviction appeal. His Honour considered that the effect of the order made by Blanch J on 10 November 2011 was that the conviction of 20 July 2011 had been avoided ab initio. Accordingly, his Honour held that, as at 20 September 2011, Ms Porret was not disqualified from driving. His Honour concluded, therefore, that an element of the offence charged under s 25A of the Licensing Act had not been made out. His Honour therefore ordered that the conviction and orders made on 25 January 2012 be set aside.
53That conclusion ignores the clear language of s 25A of the Licensing Act. There can be no doubt that, as at 20 September 2011, Ms Porret was disqualified from holding a driver licence by reason of the order made on 20 July 2011. There was nothing erroneous or invalid in that order. The fact that the conviction was subsequently set aside, on 10 November 2011, is not to the point. That setting aside may have some consequences in futuro, so far as the conviction is concerned. However, it does not alter the fact that, as at 20 September 2011, Ms Porret was disqualified from holding a licence and, contrary to s 25A(1)(a) of the Licensing Act, she drove a motor vehicle on a road.
54I have had the advantage of reading in draft form the reasons of the Chief Justice for concluding that Haesler DCJ erred in upholding the appeal on 23 April 2012. I agree, for the reasons given by the Chief Justice, that Haesler DCJ erred in setting aside the disqualification conviction. However, I wish to add some remarks on the question of jurisdictional error and relief.
55By its summons, the plaintiff, Roads and Maritime Services, seeks:
an order in the nature of certiorari or, alternatively, a declaration setting aside or declaring invalid the decision of Haesler DCJ made on 23 April 2012;
a declaration that on 20 September 2011, Ms Porret was disqualified from driving as a consequence of her conviction by the Local Court on 20 July 2011; and
an order in the nature of mandamus remitting the matter to the District Court for determination according to law.
56The prayers for relief in the summons exhibit a degree of misconception on the part of their author. An order in the nature of certiorari would do no more than remove the proceedings in the District Court into the Supreme Court. That is a preliminary step necessary before the Supreme Court could deal with the proceedings in the District Court by, for example, quashing any orders made by the District Court. However, s 176 of the District Court Act 1973 provides that no adjudication on appeal of the District Court is to be removed by any order into the Supreme Court. In the light of that prohibition, therefore, the summons claimed declarations as indicated above. However, without an order removing the District Court proceedings into the Supreme Court, it would not be open to the Supreme Court to set aside the decision of Haesler DCJ or to declare it invalid. Further, a declaration that, on 20 September 2011, Ms Porret was disqualified from driving would have no utility as between Ms Porret and Roads and Maritime Services, since the order made by Haesler DCJ would continue in force. Finally, an order of mandamus would not involve remitting the matter to the District Court. The matter could be remitted to the District Court only if it had been removed into the Supreme Court in the first place. An order for mandamus would direct the District Court, after such remitter - assuming there could be a remitter - to determine the matter according to law.
57Nevertheless, s 176 of the District Court Act 1973 would not and could not exclude the jurisdiction of the Supreme Court to grant relief in the nature of prohibition, certiorari or mandamus directed to the District Court for the purposes of enforcing the limits or the statutory authority of the District Court. In particular, section 176 would not exclude certiorari for jurisdictional error. A privative provision in State legislation that purports to strip the Supreme Court of its authority to confine an inferior court within the limit of its jurisdiction by granting relief on the ground of jurisdictional error would be beyond the powers of the State legislature because it would remove a defining characteristic of the Supreme Court of the State (Kirk v Industrial Court of NSW (2010) 239 CLR 531 at [55]).
58The question is whether the error of Haesler DCJ can be characterised as jurisdictional error within the meaning of those principles. An inferior court falls into jurisdictional error if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist (Craig v South Australia (1995) 184 CLR 163 at 177). Jurisdictional error is at its most obvious where the inferior court purports to act wholly or partly outside the general area of its jurisdiction in the sense of entertaining a matter or making a decision or order of a kind that wholly or partly lies outside the theoretical limits of its functions and powers. Instances of an inferior court acting beyond jurisdiction by entertaining a matter outside the limits of its functions or powers include the absence of a jurisdictional fact; disregard of a matter that the relevant statute requires to be taken into account as a condition of jurisdiction; and misconstruction of the relevant statute, thereby misconceiving the nature of the function that the inferior court is performing or the extent of its powers in the circumstances of the particular case (Craig at 178-9; Kirk at 573-4).
59The applicant contended that every time the District Court misconstrues a statute in reaching a conclusion, or commits an error of law on the face of the record, a jurisdictional error is committed. That contention must be rejected. Errors of law committed by inferior courts will generally not amount to a misconception of the nature of their function, in the sense of the third example noted above, because the ordinary jurisdiction of such courts encompasses the authority to decide questions of law as well as of fact (see Craig at 180). Before an error can be characterised as jurisdictional error, it must be demonstrated that the error falls into one of the established, though by no means rigid, 'categories' of jurisdictional error, so as to make certiorari available as a remedy.
60Haesler DCJ misconstrued the effect of s 20 in its use by Blanch J. In the present case, Haesler DCJ proceeded on the mistaken assumption that a ground existed for his exercise of the power under s 20. An implied pre-requisite for the exercise of jurisdiction under s 20 is that some ground exists to justify the varying or setting aside of a sentence or the dismissal of the appeal. On that basis, Haesler DCJ mistakenly assumed the existence of a jurisdictional fact insofar as he concluded that a ground existed for the exercise of power under s 20, being that the Local Court had wrongly convicted Ms Porret on 25 January 2012. That conclusion depended on a misinterpretation of the power conferred by s 20 as exercised by Blanch J. Consequently, the purported exercise of power under s 20 by Haesler DCJ involved an excess of power because the pre-requisite for the exercise of power was the existence of a jurisdictional fact that did not exist.
61The misconstruction of s 20 by Haesler DCJ caused his Honour to misconceive the extent of his powers in the circumstances of this case. Whether such a misconstruction is classified as jurisdictional or non-jurisdictional error is often not easy to determine (see R v Dunphy; Ex parte Maynes (1978) 139 CLR 482; R v Gray; Ex parte Marsh (1985) 157 CLR 351 at 371; Public Service Association (SA) v Federated Clerks Union (1991) 173 CLR 132). The question is whether the provision misconstrued is one that describes or limits the jurisdiction of the decision-maker (see R v Gray; Ex parte Marsh (1985) 157 CLR 351 at 373, 376-77). The legislature, in enacting s 20 of the Appeal Act, conferred on the District Court a jurisdiction that implicitly has certain limits. Although the power conferred by that section is discretionary, it cannot be exercised on no basis whatsoever. There must be some ground that justifies the exercise of the power, such as that a conviction was wrongly ordered or a sentence was excessively long. In the present case, as described above, there was, in fact, contrary to Haesler DCJ's conclusion, no ground justifying the exercise of the power conferred by s 20.
62It follows that, notwithstanding the provisions of s 176 of the District Court Act 1973, it would be open to this Court to make an order in the nature of certiorari for the District Court proceedings to be removed to the Supreme Court and for the orders of Haesler DCJ to be quashed. There would be no utility in remitting the proceedings to the District Court for further determination according to law.