Roads and Traffic Authority of NSW v Higginson

Court of Appeal (NSW)|2011-05-31|Before: Giles JA, Basten JA, Young JA

Gouriet v Union of Post Office Workers [1978] AC 435 Haley v Commissioner of Corrective Services [1975] 1 NSWLR 118 Hindmarsh v Allogia [1977] 2 NSWLR 599 Maksimovic v Walsh [1983] 2 NSWLR 656 Mayor of London v Cox (1867) LR 2 HL 239 McLeod v McNab [1891] AC 471 Munnich v Godstone RDC [1966] 1 WLR 427 P & C Cantarella Pty Ltd v Egg Marketing Board (NSW) [1973] 2 NSWLR 366 Peek v New South Wales Egg Corporation (1986) 6 NSWLR 1 Project Blue Sky Inc v Australian Broadcasting Authority [1988] HCA 28; 194 CLR 355 Re Judiciary and Navigation Acts [1921] HCA 20; 29 CLR 257 Re McBain; ex parte Australian Catholic Bishops Conference [2002] HCA 16; 209 CLR 372 Re Vector Capital Ltd (1997) 23 ACSR 182 Solution 6 Holdings Ltd v Industrial Relations Commission (NSW) [2004] NSWCA 200; 60 NSWLR 558 Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd [2000] HCA 11; 200 CLR 591 Williams v Weston-Super-Mare UDC (1909) 74 JP 52 Wishart v Fraser [1941] HCA 8; 64 CLR 470 Category: Principal judgment Parties: Roads and Traffic Authority of New South Wales (Applicant) Michael William Higginson (First Respondent) Director of Public Prosecutions (Second Respondent) District Court of New South Wales (Third Respondent) Representation: Counsel: M A Robinson (Applicant) G J Bellew SC (First Respondent) Solicitors: I V Knight, Crown Solicitor (Applicant) Cleary Finlay Solicitors (First Respondent) Second Respondent - submitting appearance Third Respondent - submitting appearance File Number(s): CA 2011/132805 Decision under appeal Jurisdiction: 9101 Before: Ellis DCJ File Number(s): DC 67638/10

Judgment 1GILES JA : The circumstances of this application are described in the reasons of Basten JA, which I have had the advantage of reading in draft. The orders proposed by his Honour were made on 7 June 2011. 2I do not unnecessarily repeat what may be found in the reasons of Basten JA, and what follows should be read with them. I first address the substantive question of the District Court's jurisdiction in relation to a period of disqualification. 3Sections 187-189 of the Road Transport (General) Act 2005 are concerned with disqualification from holding a driver licence. There may be an order disqualifying a person from holding a driver licence for a period specified by the court, or automatic disqualification for a period prescribed by statute subject to disqualification by order for a shorter or longer period, but with a minimum period which can be specified in the order. 4Disqualification operates to cancel, permanently, any driver licence held by the person at the time of his or her disqualification, and the driver licence must be surrendered. Subject to ss 190-197 allowing for participation in an interlock programme, the person cannot obtain another driver licence during the period of disqualification. 5Section 71 of the Crimes (Appeal and Review) Act 2001 confines the District Court on appeal to sentences which could have been imposed by the Local Court. It provides - "(1) An appeal court may not vary a sentence so that the sentence as varied could not have been imposed by the Local Court. (2) An appeal court may not make an order or impose a sentence that could not have been made or imposed by the Local Court. (3) Any sentence varied or imposed by an appeal court, and any order made by an appeal court under this Act, has the same effect and may be enforced in the same manner as if it were made by the Local Court." 6It is therefore pertinent to begin with the sentencing in the Local Court. 7On 8 June 2010 the first respondent was convicted for the offence of negligent driving occasioning grievous bodily harm ( Road Transport (Safety and Traffic Management) Act 1999, s 42(1)(b)). 8The conviction enlivened s 188(2)(d) of the Road Transport (General) Act - "(d) Where the conviction is for any other offence: (i) the person is automatically disqualified for a period of 3 years from holding a licence, or (ii) if the court that convicts the person thinks fit to order a shorter period (but not shorter than 12 months) or longer period of disqualification - the person is disqualified from holding a driver licence for such period as may be specified in the order." 9The first respondent was ordered to perform 100 hours of community service and, as recorded on the Court Attendance Notice, "Disq 12 mths, TDF 8.6.10". The learned Magistrate thought fit to order a shorter period than the period of 3 years, and ordered that the first respondent be disqualified from holding a driver licence for 12 months. His Honour ordered that the disqualification was to date from 8 June 2010, the date of the order. 10The Magistrate did not state an end date for the period of disqualification. It was not necessary that his Honour state an end date, since apart from any other matter it would be the product of the period of 12 months. Nor could he state an end date, since the running of the period of the disqualification might be interrupted by a stay pending an appeal, whereby the product of the period of 12 months would not be 12 calendar months after 8 June 2010. This, of course, was not known as at 8 June 2010. 11Section 189(6) makes plain that the product of the period of 12 months, where there has been a stay pending an appeal, is not simply 12 calendar months from the date of the order or, if another date can be ordered (which need not be considered), the date stated in the order. It refers to "the length of a period of disqualification", which is calculated; and in calculating it, the period of the stay is not to be taken into account. 12It may be noted that s 189(6) speaks of a "stay of execution", a phrase not apt to interruption of the running of a period of disqualification. The language comes from s 63 of the Crimes (Appeal and Review) Act . It refers in s 63(2) to staying the execution of a sentence and staying the operation of (amongst other things) a disqualification. From its use in s 189(6), it is clear enough that the phrase includes a stay of the operation of a disqualification. It must also include a stay of the operation of a disqualification where it is also used in s 68(2), to which I later refer. 13I return to the sentencing in the Local Court. The Magistrate specified the period (s 188(2)(d)(ii)). The period started to run from the date of the order. But the end date could be affected by other statutory provisions, relevantly s 189(6). His Honour could not state an end date inconsistent with that which would come from the operation of s 189(6), and had he purported to do so he would have exceeded his jurisdiction. 14The first respondent appealed against sentence, but not against conviction. The appeal was by way of a rehearing of the evidence given in the Local Court, although fresh evidence could be given: Crimes (Appeal and Review) Act, s 17. The District Court could determine the appeal by setting aside the sentence; by varying the sentence; or by dismissing the appeal: s 20(2). 15The appeal against sentence was in substance only against the order that the first respondent perform 100 hours community service. In relation to disqualification from holding a driver licence, he had achieved the best result available. 16Ellis DCJ concluded his reasons - "The appeal is dismissed. The conviction is confirmed. I quash the order for community service and in lieu place him on a Section 9 bond to be of good behaviour for a period of twelve months. I confirm the minimum disqualification of twelve months. I note that the licence was handed in and therefore the suspension is to date from 8 June 2010 and to expire on 7 June 2011. I confirm court costs in the amount of seventy six dollars." 17There are some difficulties with this. There was no appeal against conviction, and no occasion to confirm the conviction even if it was otherwise appropriate (see Crimes (Appeal and Review) Act , s 20(1), which relevantly speaks of dismissal of the appeal). The appeal against sentence was not dismissed, because the order for community service was quashed and was replaced by a bond. Confirming the minimum disqualification of 12 months may have been part of varying the sentence, regarding the sentence as encompassing both the order that the first respondent perform 100 hours community service and the order of disqualification: his Honour may have meant that the Magistrate's sentence was not varied in relation to the period of disqualification, but the language of confirmation was inappropriate. 18The presently relevant difficulty lies in the words "the suspension is to date from 8 June 2010 and to expire on 7 June 2011". Was this a statement of his Honour's understanding of the Magistrate's order, as an order which remained operative because it had not been varied? Was it a statement of his Honour's understanding of the result of his decision, but not part of his orders? Or was it an order by the District Court which replaced the Magistrate's order? 19The better view, in my opinion, is that the judge made an order, so that the operative order became an order of the District Court that the first respondent be disqualified from holding a driver licence for a period of 12 months with a start date of 8 June 2010 and an end date of 7 June 2011. That is consistent with his Honour's disposal of an appeal by way of rehearing on the evidence given in the Local Court. The words appear as part of what were plainly enough intended to be a collection of orders disposing of the appeal. They were preceded by noting that the first respondent's driver licence had been handed in and "therefore" the suspension (meaning the disqualification) had the stated start and end dates; this indicates a conclusion from the handing in of the driver licence, an event after the Magistrate's order. 20It was accepted on this application that it was open to his Honour to order that the period of disqualification start on a date prior to the date of his order (see Crimes (Appeal and Review) Act , s 68(1)). Backdating the start date would be appropriate if, as would usually be the case unless the notice of appeal was given on the day of the order in the Local Court, some of the period of disqualification had run before the operation of the disqualification was stayed. In the s 43 reopening application attention was focused upon stating a start date, which at least now can be seen to have been the incorrect question. The correct question is whether an end date could be stated which overrode that produced by the period of 12 months and relevant statutory provisions. 21Unless some other statutory provision permitted it, by force of s 71 of the Crimes (Appeal and Review) Act his Honour could not state an end date inconsistent with a period of 12 months disqualification, any more than the Magistrate could have done so. Section 189(6) reinforces that position by its reference to a stay of execution, which would come about upon an appeal to the District Court. Had the order of the Local Court remained the operative order, the end date would have been 18 July 2011 as a function of the 12 month period (s 188(2)(d)) and the exclusion from calculation of the period for which the stay was in force (s 189(6)). The position was the same for an order made on appeal. 22The suggested other statutory provision was s 68(2) of the Crimes (Appeal and Review) Act. If it has the effect for which the first respondent contends, it qualifies s 71. It also enables the District Court on appeal to make an order at odds with the importance ascribed to disqualification for a minimum period evident from s 189(6), which might be thought unlikely. 23However, s 68(2) is compatible with s 71, and does not enable the District Court on appeal to make an order which the Magistrate could not make. Section 68 addresses the start date (including a recommencement date) of a sentence. The start date can precede any period of a stay of execution, as will commonly be appropriate because the stay of execution will not have commenced until some time after the imposition of the sentence appealed against. The section says nothing of the end date, which in relation to disqualification remains the product of the period of disqualification and other statutory provisions. Section 68(2) does not enable an order overriding the length of a period of disqualification calculated as required by s 189(6). 24In stating the end date of 7 June 2011 as part of the orders, the District Court exceeded its jurisdiction. That is not to say that a judge cannot or should not inform a disqualified person of an end date. In the present case, 7 June was an incorrect end date. The correct date, on the information before the Court was 18 July 2011. 25The question then is the relief to be granted. 26Assuming, without deciding, that the applicant has standing to claim declaratory relief alone, it would not be appropriate to make the declaration it claimed. The declaration was that the judge's decision was "unlawful in that it wrongly specified an expiration date of 7 June 2011". Such a declaration should not be made while leaving the judge's order in place. 27For the reasons given by Basten JA, the applicant can seek relief in the nature of certiorari. The appropriate relief in the circumstances is to quash that part of the judge's order which he did not have jurisdiction to make, found in the words "and to expire on 7 June 2011". Despite the applicant's delay, in the circumstances relief should not be declined on discretionary grounds. I would not, however, replace the offending words with the words "and to expire on 18 July 2011", since the judge could not state an end date by way of an order. 28The applicant accepted that it should pay the first respondent's costs, and for the reasons given by Basten JA it would have been appropriate to order that it pay his costs. The second and third respondents submitted save as to costs. It is unfortunate that the second respondent, the Director of Public Prosecutions did not appear to provide assistance to the Court; nor, it may be said, did its representative assist Ellis DCJ in relation to the period of disqualification when his Honour heard the appeal. 29For these reasons, I agreed and agree with the orders made on 7 June 2011. 30BASTEN JA : On 8 June 2010, the respondent, Mr Michael Higginson, was convicted (on a plea of guilty) in the Local Court at Gosford of negligent driving causing grievous bodily harm. As a result of that conviction, he was subject to automatic disqualification from holding a driver licence for a period of three years. The court could, however, impose a shorter period of disqualification, but not less than 12 months. Such a period was imposed. 31The respondent appealed against his sentence, as a result of which an automatic stay came into operation eight days after the commencement of the period of disqualification. The stay ended with the order of the District Court made on 26 July 2010, confirming the period of disqualification. The relevant part of the orders made, as set out in the reasons, was as follows: "I confirm the minimum disqualification of 12 months. I note that the licence was handed in and therefore the suspension is to date from 8 June 2010 and to expire on 7 June 2011." 32Because the period of disqualification confirmed by the District Court was said to "date from 8 June 2010 and to expire on 7 June 2011", which period contained 40 days during which the disqualification order did not operate, it was arguable that the effective period of disqualification was less than the minimum mandated by statute. 33There being no appeal from a judgment of the District Court on appeal from the Local Court, the present proceedings are brought by way of judicial review, pursuant to s 69 of the Supreme Court Act 1970 (NSW). Further, because there is a privative clause in the District Court Act , it is necessary for an applicant to establish jurisdictional error on the part of the District Court. The error asserted is the imposition of a period of disqualification, which is less than the minimum period specified by the Road Transport (General) Act 2005 (NSW), s 188(2)(d)(ii). 34The present application is brought by the Roads and Traffic Authority (NSW) ("the RTA"), which was not a party to the proceedings in the Local Court, nor in the District Court. It did, however, invite the District Court (unsuccessfully) to reopen its order, so as to correct the period of disqualification, pursuant to s 43 of the Crimes (Sentencing Procedure) Act 1999 (NSW). In those circumstances, this Court raised in the course of the hearing the question of the standing of the RTA to bring the present application. Although the respondent had not initially objected to the competency of the proceedings, counsel for both parties agreed it was an issue which needed to be addressed. 35The disqualification period specified in the order in the order of the District Court was due to expire on 7 June 2011. There was delay in seeking relief from this Court, which was only partly explained by the attempt of the RTA to have the matter re-opened in the District Court. 36The judgment of the District Court referred to the respondent "handing in" his driver licence. It is not clear that any legal consequence followed from that fact, as the order for disqualification operated to cancel, permanently, the driver licence which he then held: Road Transport (General) Act , s 189(1). Although the disqualification was later stayed, it may be inferred that he did not obtain a further licence during the period of 40 days whilst the appeal was pending and he was therefore not able to drive during that period.

Minimum term of disqualification 37Because, for reasons explained below, the RTA is entitled to relief, if its case is made good, it is convenient to commence by considering the substantive argument as to the error committed by the District Court. 38Section 188(2)(d) reads as follows: "(2) Disqualification if no previous major offence If, at the time of the conviction of the convicted person or during the period of 5 years before the conviction ..., the convicted person is not or has not been convicted of any other major offence (whether of the same or a different kind): ... (d) where the conviction is for any other offence: (i) the person is automatically disqualified for a period of 3 years from holding a driver licence, or (ii) if the court that convicts the person thinks fit to order a shorter period (but not shorter than 12 months) or longer period of disqualification - the person is disqualified from holding a driver licence for such period as may be specified in the order." 39The first thing which flows from this provision is that the section is concerned with a "period of disqualification"; it is not concerned with whether the person holds a licence or not, nor whether he or she drives a motor vehicle. The fact that the respondent "handed in", or surrendered, his licence is not relevant to the legal analysis. 40If, prior to the determination of the appeal, the respondent had been subject to disqualification as a result of the conviction, that would no doubt have been a relevant factor to take into account in determining the appropriate period of disqualification. Nevertheless, that period could not be reduced below 12 months. 41The second point is that s 188(2)(d) envisages two different forms of penalty: first, an automatic disqualification effected by the section for a period of 3 years and, alternatively, a period of disqualification following from a court order, for a different period, but one not less than 12 months. The statutory period does not operate where there is a court order. 42The next question concerns the effect of the lodging of an appeal on either the court order or the automatic disqualification. That question arises under the Crimes (Appeal and Review) Act 2001 (NSW) ("the Appeal and Review Act "), s 63, which provides, relevantly for present purposes: " 63 Stay of execution of sentence pending determination of appeal (1) This section applies to: (a) any sentence, and (b) any penalty, ... disqualification ... of a licence or privilege that arises under an Act as a consequence of a conviction, in respect of which an appeal ... is made under this Act. (2) The execution of any such sentence, and the operation of any such penalty, ... disqualification ... of a licence or privilege, is stayed: (a) ... when notice of appeal is duly lodged ... ... (3) Subject to any order of the appeal court, a stay of execution continues in force until the appeal is finally determined." 43Upon determination of an appeal, the powers of the court are identified by s 68: " 68 Court may confirm or vary conviction or sentence with effect from earlier day (1) An appeal court may order that a conviction or sentence confirmed or varied by it on appeal, or any part of it: (a) is to take effect (as confirmed or varied) on and from a day specified in the order, or (b) in the case of a sentence that has been served in part, is to recommence (as confirmed or varied) on and from a day specified in the order, being the day on which the order is made or an earlier day. (1A) An appeal court may, for the purposes of making an order under subsection (1) in relation to a sentence that consists of, or includes, a disqualification from holding a driver licence ..., take into account: ... (b) any other periods after committing the offence to which the sentence relates during which the defendant held, or did not hold, a driver licence that would have permitted the defendant to drive a motor vehicle. (2) The order has effect despite any stay of execution that has been in force in respect of the sentence appealed against." 44Section 63(2) differentiates between the execution of a sentence and the operation of a penalty or disqualification; on one view s 68(2) only applies to the first limb and thus does not address disqualification at all. However, the distinction is not reflected in other provisions and could give rise to anomalous results. More importantly, the effect of the stay of a disqualification is addressed expressly in s 189(6) of the Road Transport (General) Act , which states: " 189 Effect of disqualification ... (6) Any period for which a stay of execution is in force under section 63 of the Crimes (Local Courts Appeal and Review) Act 2001 is not to be taken into account when calculating the length of a period of disqualification under this Division." 45The Appeal and Review Act replaced the Justices Act 1902 (NSW); the predecessor to s 68 in the Justices Act, immediately prior to its repeal, was s 133P. Section 133P did not contain an equivalent to sub-s 68(1A). Rather, s 127 of the Justices Act was in the following terms: " 127 Stay of execution of conviction, order or sentence pending appeal (1) The execution of a sentence imposed as a consequence of a conviction ... is stayed when a notice of appeal is given in accordance with this Division. (2) Subsection (1) does not apply to an appellant who is in custody when the appeal is made unless and until the appellant enters into a bail undertaking ... or bail is dispensed with. (3) The stay of execution continues until the appeal is finally determined .... (4) Despite subsection (1), any period during which the stay is in force is not to be taken into account when calculating the length of a period of disqualification from holding a driver licence resulting from a conviction under the road transport legislation within the meaning of the Road Transport (General) Act 1999 ." 46Section 127(4) is similar in its effect to s 189(6) in the Road Transport General Act 2005 . That provision was introduced into the Road Transport (General) Act 1999 , by the Act which repealed the Justices Act : Justices Legislation Repeal and Amendment Act 2001 (NSW), Sch 2.180, item [1]. Accordingly, there has, at all relevant times been a statutory provision to this effect. 47So far as the parties were able to assist the Court, it does not appear that s 68(2) of the Appeal and Review Act has been the subject of judicial consideration. It pre-dated the treatment of licence disqualification as part of the sentence imposed on a criminal conviction. Its intended earlier operation is obscure. Arguably it would be engaged in circumstances where a person has been sentenced to a period of imprisonment and taken into custody for a period, before being released on bail after lodging a notice of appeal. If the appeal court confirmed the sentence, it would need to take into account the period of past custody referrable to the offence. One common course is to backdate the sentence for a period equal to the period spent in custody prior to the appeal. The effect of such backdating might result in the custody commencing while the stay was in place and the offender was at large. Subsection 68(2) would permit that course to be taken, despite its apparent inconsistency with the operation of the stay. 48Subsection (1A) was introduced by the Courts Legislation Amendment Act 2003 (NSW), which commenced on 1 January 2004. Section 68(1A) merely permits the appellate judge to take into account, in confirming or varying, or specifying the commencement date of, a sentence any period during which the licence was suspended as a result of police action or in respect of which the offender held, or did not hold, a driver licence. To say that the Court may take such matters into account is not to say that it may disregard other mandatory requirements in respect of sentencing. Accordingly, the appeal court cannot impose a licence disqualification having a period shorter than 12 months, in the case of the present offence, without disregarding the limitation imposed by the Road Transport (General) Act , s 188(2)(d)(ii). Nor, as will appear, did his Honour intend that result. 49That approach gives effect to the mandate of s 189(6) and is consistent with general principle. First, it is important to construe provisions in statutes of the same legislature so as to avoid, rather than create, conflict: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [70] and other authorities referred to in Leeming, M, Resolving Conflicts of Laws (Federation Press, 2011) at pp 8-10 and 46-50. Secondly, such a construction gives effect to an unambiguous and specific provision in the Road Transport (General) Act in preference to the broader (and uncertain) operation of s 68(2). Thirdly, there has been a provision equivalent to s 189(6) in place whilst disqualification formed part of the sentence and it does not diminish the operation of s 68(2) as originally enacted. Fourthly, the provisions relating to licence disqualification are later in time than s 68(2) and, in a case of irreconcilable conflict, the later must prevail: Leeming, at pp 72-73. This last principle does not involve any element of implied repeal: it merely means that the existing provision will not apply in respect of circumstances covered by the new provision. 50By confirming the period of disqualification from the date on which it was already fixed to commence, and by identifying the date on which it was to end, the effect of the order was to reduce the period of disqualification by the 40 days during which it did not operate, by force of the stay under s 63. The period of disqualification resulting from the order of the District Court was, accordingly, not one permitted by law. To impose such a penalty constituted jurisdictional error.

Standing, discretion and relief 51The error which has been identified was jurisdictional, in the sense that the order made exceeded the power of the District Court to interfere with the statutory period of disqualification. Further, if it be relevant, the error was "manifest" in the terms of the order. In that context, it is necessary to return to the question as to the standing of the RTA to seek relief of an appropriate kind to correct the error. Standing and relief must be considered together, the existence of the one being dependent upon the nature of the other. Further, the nature of any interest the applicant may have in the proceedings, may be relevant to the extent that the appropriate relief is discretionary. 52Before turning to the relevant authorities, it is appropriate to note the various conflicting considerations which arise in this case. First, the application seeks this Court's intervention in criminal proceedings. Secondly, the applicant is a stranger to those proceedings in the sense that it was not a party to them. Not only was it not the prosecutor, but there was no relevant sense in which the prosecution was brought on its behalf. Thirdly, the practical effect of the proposed intervention would be to increase the penalty imposed on the defendant. Fourthly, the result is not one which the prosecutor seeks to promote. Each of these factors might be thought to militate against the intervention of this Court. 53There are, on the other hand, countervailing considerations. First, a court of limited jurisdiction, has made an order beyond power, which neither party seeks to correct. Secondly, the error is manifest in the terms of the order. Thirdly, until the issue is resolved, there may be doubt as to the legal power and obligation of the applicant in respect of a request for a further driver licence to be issued to the respondent. Fourthly, although the matter could be brought to a head if a request were made and refused, it would not be practically possible to provide curial relief within the disputed period. The question would then become moot. 54There is one further matter which needs to be identified, namely the role taken by the Director of Public Prosecutions, who was the prosecutor in the District Court. In the light of the conclusion reached above, the Director might be criticised as the public officer responsible for permitting the invalid order, not only to be made, but to stand on the record uncorrected. Even if he considered that the order was valid and appropriate, as a party to these proceedings and, whether as a courtesy to the Court, or in order to fulfil his important public functions with respect to the administration of criminal justice in this State, he might have been expected to indicate to the Court what position he in fact took and offered assistance to the Court in resolving what has proved to be a contentious issues. (Had he co-operated with the RTA in seeking the relief now under consideration, as he apparently did on a re-opening application, the issue of standing would not have arisen.) 55It is necessary then to turn to the legal authorities which may bear upon the standing of the RTA. The difficulty in answering such a question definitively arises from the varying, and not entirely consistent approaches (in terms of principle) to be discerned from judgments involving different areas of public and quasi-public concern and at different times: see generally, Aronson, Dyer and Groves, Judicial Review of Administrative Action (4 th ed, Law Book Co, 2009), Ch 11. The traditional position accorded primacy, if not exclusivity, to the right of the Attorney-General to represent the public interest: see Gouriet v Union of Post Office Workers [1978] AC 435 at 481 (Lord Wilberforce). However, such a view placed in the hands of the Attorney-General acting not according to known rules of law but according to an unreviewable discretion, the decision as to "whether there is to be curial enforcement of the requirement that statutory bodies observe the law": Bateman's Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Ltd [1998] HCA 49; 194 CLR 247 at [34] (Gaudron, Gummow and Kirby JJ). Further, in the present case the RTA is a governmental authority having responsibility for issuing driver licences to those entitled. The concept of "special interest" applied to private individuals and associations seeking to enforce the law has no ready application to departments of government, but if it did it would probably be satisfied in the present case. 56The fact that the proceedings in question were criminal raises a separate issue. In Cheatley v The Queen [1972] HCA 63; 127 CLR 291, the High Court considered an appeal from the Supreme Court of the Northern Territory exercising its supervisory jurisdiction in respect of a magistrate's order. The underlying proceedings involved the conviction and sentencing of the master of a foreign boat found in a declared fishing zone and being used for fishing, without the requisite Australian licence. The magistrate exercised a statutory power to order the forfeiture of the boat and its equipment. The question was whether the order fell within the magistrate's power, in circumstances where the boat was not wholly nor partly owned by the master. An order for certiorari was sought on the application of the owner of the boat, who was not a party to the criminal proceedings. The Court held that "certiorari to quash" was the appropriate remedy if in truth the magistrate had no jurisdiction to order forfeiture and that the applicant was a proper party to seek such relief: at 299 (Barwick CJ), 302 (Menzies J) and at 311 (Mason J); see also at 308 (Walsh J, although dissenting as to the outcome). 57The circumstances of the RTA are not, of course, analogous to those of the applicant in Cheatley . That applicant was seeking to assert its property interest in the vessel subject to forfeiture; the RTA is merely the government authority which will need, it may be assumed, to exercise its power to issue a driver licence on termination of the order of disqualification. Its position is not dissimilar to the authority in control of a prison to which a convicted person is committed by warrant to serve his or her sentence. It is not unknown for the sentence to be expressed in terms which are internally inconsistent, or at least unclear, as to the precise period of commitment. In one case, the sentences were described as "unintelligible" because of internal inconsistency: Erceg v District Court of New South Wales [2003] NSWCA 379; 143 A Crim R 455 at [24] (Sheller JA, dissenting as to the outcome, but adopted at [181] by Palmer J); and see at [134], [141] and [163] (McColl JA). 58It is inappropriate for the executive authorities to resolve such uncertainty by administrative action; the proper course is for the prosecutor either to appeal, or to bring the matter back before the sentencing court for correction of the formal record: Erceg at [176] (McColl JA). What is clear from all three judgments in Erceg is that, where there is doubt as to the proper effect of an order made in criminal proceedings, it is imperative that one of the parties to the proceedings take steps to have the matter clarified by a court. The broad scope provided for such a course by s 43 of the Sentencing Procedure Act should be availed of in any case of doubt. 59Where the parties do not take such a course, it will usually be open to the Attorney-General, as the repository of power to invoke the supervisory jurisdiction of this Court in the public interest, to take such steps. In circumstances where there are specific statutory authorities having responsibility for the administration of particular laws, the court will accept such an authority as a body entitled to enforce a relevant provision: see Peek v New South Wales Egg Corporation (1986) 6 NSWLR 1, especially at 5 (Kirby P) and 9 (Glass JA, with whom Samuels JA agreed). A similar approach was adopted by Young J (as his Honour then was) in Corporate Affairs Commission (NSW) v Transphere Pty Ltd (1988) 15 NSWLR 596 at 609. 60There is a functional difference between the intervention by a statutory authority to prohibit a party contravening a provision of the statute which it administers and the present case, where the statutory authority seeks to have the court correct an order made in a lower court in contravention of a statute which it administers. Nevertheless, for it to take that course is consistent with the principle that, where there is a error in respect of jurisdiction, manifest on the face of the order of an inferior court, it would be wrong to say that this Court has no power to intervene because the parties have not sought its intervention. There may be discretionary reasons why, in a particular case, it would not intervene, but that is a separate matter. 61As explained by Gummow J in Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd [2000] HCA 11; 200 CLR 591 at [99] there was, at the time of federation, "no single theory as to what always would be required to render competent the institution of proceedings by a particular party". His Honour continued: "In particular, there was no general rule which prescribed the adequacy in any given case of the connection between the instituting party and the subject-matter for determination in that case. Further, in matters of what now would be called public law there was no single criterion as to the need for, or the content of, a standing requirement." 62The real question raised by this case is the appropriate form of the relief, if any, which should be accorded at the suit of the RTA. In considering that question, the course of the argument, admittedly undertaken at short notice at the prompting of the Court, proceeded on an assumption (at least implicit if not express) that the form of relief necessary to effect the purpose underlying the proceedings would be to set aside the order of the District Court, in whole or in part. That was, correctly, characterised as relief in the nature of certiorari. For that reason, the debate as to standing in turn focused on the law with respect to standing of a person seeking a writ of certiorari. To the extent that the common law rules are restrictive in that regard (which may be doubted), a question would arise as to whether such restrictions operate with respect to relief available under s 69 of the Supreme Court Act . No doubt it is correct to say that any person who had standing under the general law to seek certiorari, has standing under s 69: Maksimovic v Walsh [1983] 2 NSWLR 656 at 658-659 (Clarke J); it does not follow that a person who did not have standing to seek such a writ would not have standing to seek relief under the statutory provision. 63Curiously, the effects of s 69 have received little consideration. Soon after the enactment of the Supreme Court Act , in Dickinson v Perrignon [1973] 1 NSWLR 72 at 79, Moffatt JA remarked that the "substantive law, but not the procedures relating to mandamus, are preserved by" s 69, Reynolds JA agreeing. Street CJ in Eq stated at 83: "Where appropriate, as in a case such as the present, the substantive law underlying the grant of prerogative writs would have relevance to the exercise of jurisdiction under ss 75 and 65. But the Court is relieved from the burden of evaluating a significant part of the technical and procedural considerations that have arisen to encumber rather than to enable the exercise of the court's supervisory powers."

Reopening application 64Before turning to the available relief, reference should be made to the application made under s 43 of the Sentencing Procedure Act, which provides: " 43 Court may reopen proceedings to correct sentencing errors (1) This section applies to criminal proceedings (including proceedings on appeal) in which a court has: (a) imposed a penalty that is contrary to law, or (b) failed to impose a penalty that is required to be imposed by law, and so applies whether or not a person has been convicted of an offence in those proceedings. (2) The court may reopen the proceedings (either on its own initiative or on the application of a party to the proceedings) and, after giving the parties an opportunity to be heard: (a) may impose a penalty that is in accordance with the law, and (b) if necessary, may amend any relevant conviction or order. ... (6) In this section: impose a penalty includes: ... (e) make an order or direction with respect to ... disqualification ... of a licence or privilege." 65By letter dated 30 August 2010, addressed to the Registrar of the District Court at Gosford, an officer of the RTA outlined the problem which had been identified with the period of disqualification. The letter continued: "Accordingly, to remedy this situation and align the disqualification to the statutory required period of time, the RTA requests the Court, as the applicant, to arrange to have this matter reopened under section 43 of the Crimes (Sentencing Procedure) Act for the purpose of having the error corrected?" 66The matter was apparently relisted before the District Court (Judge Ellis) on 16 December 2010. In giving judgment rejecting the application, his Honour opened by saying that he did not think the RTA had standing to have the matter "relisted for sentence correction", but that the application was in fact made by the Director, "prosecuting on behalf of the RTA". Whatever procedure had been adopted, his Honour undoubtedly proceeded to consider whether he had erred. 67There is no transcript in evidence before this Court of what occurred on 16 December 2010. Whether his Honour was addressed by counsel, and whether he had the District Court file before him, or merely the letter from the RTA, is not known. It is, however, clear from his judgment that his Honour took the issue to be whether he had power to backdate the disqualification order to 8 June 2010. He asserted he had power to backdate the disqualification, "but not power to reduce the length of the disqualification": Judgment, p 2. Unfortunately, in purporting to set out the order made in the District Court on 26 July 2010, the letter from the RTA had, identified the element in dispute as "disqualified for 1 yr from 8 June 2010". It then went on to point out the effect of the stay. What it did not state, as has been explained above, is that such a period would not, as the District Court had stated, end on 7 June 2011. Nor did it point out that the specific error in the earlier order was to identify the termination date. Indeed the letter reproduced the order in an unexceptionable form. 68The s 43 application miscarried. His Honour, for reasons which need not be explored further, failed to identify the error he had made in his earlier order. The order made on 16 December 2010, as recorded in the District Court file, was as follows: "I find there is no error in the sentence pursuant to section 43. Appeal refused. Original order confirmed. RTA to be advised and referred to s 68 of the Crimes Appeal and Review Act ." 69On one view, if it be appropriate to send the matter back for reconsideration of the re-opening application, there is no need to set aside the order made on 16 December 2010, there being no apparent constraint on the number of applications that may be made under s 43. On that approach, an order in the nature of mandamus would suffice.

Conclusions 70Relief can be achieved by one of two courses. The most direct route is for this Court to set aside so much of the order made on 26 July 2010 as specified the termination of the disqualification, by deleting the words "to expire on 7 June 2011". The alternative course is to direct that the District Court reconsider the application under s 43 and make the appropriate correction to its own order. It would be possible, thought not essential, to set aside the order refusing the earlier reopening application. The difficulty with adopting the latter course is that it would require an extra procedural step and one to be taken by the Director of Public Prosecutions who, although he is a party to these proceedings, would no doubt need to be given the opportunity to be heard before a mandatory order was made in those terms. The direct course is the preferable course in the circumstances, given the limited time available. 71To take that course requires this Court to be satisfied that the RTA has standing to obtain the orders in question. That conclusion should be accepted. Although a stranger to the proceedings, the RTA has a direct interest in this aspect of the orders made in the District Court. It is a government authority pursing the matter in the public interest, namely to determine the proper administration of legislation under which it has exclusive authority to issue a driver licence. Further, the desirability of ensuring that the Court order is corrected, rather than leaving the uncertainty to be resolved by administrative action, requires that relief not be refused on a discretionary basis. 72There remains a question as to the costs of the proceedings in this Court. Although the RTA has been successful in obtaining the relief it sought, it should bear the costs of the proceedings, for three reasons. First, had it squarely presented to the District Court, in its letter seeking to reopen the order, the precise aspect of the order which made it erroneous, the present proceedings would not have been necessary. Secondly, there has been significant delay in bringing these proceedings, for which no justification has been given. Thirdly, the matter is presented to this Court as one of public importance and of on-going significance in respect of orders for disqualification made or confirmed on appeal in the District Court. The RTA concededly had a wider interest in the outcome of these proceedings than the correction of the particular order. 73Given the desirability of the matter being resolved before the disqualification order terminated according to its terms, on 7 June 2011 the Court made the following orders: (1) In respect of the orders made by Ellis DCJ in the District Court at Gosford on 26 July 2010, set aside so much of the disqualification order as specified the date of termination of the disqualification, namely the words "to 7 June 2011". (2) Otherwise dismiss the summons. (3) Order the applicant to pay the first respondent's costs of the summons in this Court. 74YOUNG JA: I have read in draft the reasons of Giles JA and of Basten JA. I agree with the majority of what their Honours have written and their conclusions. I thus joined in the orders the Court pronounced on 7 June. 75Although, on the face of it, the matter is a minor one, the case is really a test case and deserves deep consideration by each judge. Because of the gross delay in bringing the application and the fact that the respondent's driver licence suspension may, on one view have expired on 7 June 2011, it was necessary to consider the decision and make formal orders on that day. However, the importance of the issues meant that due time needed to be taken to express the Court's reasons. 76The facts, the ultimate issue and most of the relevant legislation are set out in the reasons of the other judges and I will not repeat them. 77The core issues in the case were really two viz: (1) on the true analysis of what Ellis DCJ said, was his Honour imposing a sentence that included disqualification from holding a licence? and (2) If the first issue is resolved in the affirmative, what was the effect of what he did? 78However, the case also raises a number of other important issues concerning procedure in the District Court when considering appeals from the Local Court. It also raises questions as to standing when a non-party seeks to challenge in this Court a decision of the District Court in a criminal matter. 79I should note that the parties seemed to be rather reluctant to enter into argument on many of these procedural issues. Whilst I always hesitate before dealing with issues which have not been thoroughly argued, these issues have to be addressed for the court to give a true answer to the principal issues in the case. I have, however, dealt with them summarily where the answer is fairly obvious. 80I believe that it is useful to consider the problem under the following heads:

A. Preliminary questions

Does the RTA have standing to seek certiorari?
Does the RTA have standing to seek a declaration?
May the Court make a declaration that conflicts with a current order of an inferior court?
Does the rule forbidding the Court from giving advisory opinions in suits for declaratory relief apply here?
Is the form of the declaration sought appropriate?
Is it open to this court to make an order for mandamus or pursuant to s 65 of the Supreme Court Act 1970 to bring about a just result in this case?
What, if anything, is the effect of delay in approaching this Court for relief?
What, if anything, is the effect of the failure of the DPP's representative before the District Court to draw the judge's attention to the alleged error he was making?

B. What did the District Court do in this case and what should it have done?

What order did Ellis DCJ actually make?
Which court was it that was "the court that convicts" within the meaning of s 188(2)(d)(ii) of the Road Transport (General) Act 2005 in the instant case ?
If there is no appeal against conviction, but only against sentence, does s 188(2)(d)(ii) of the aforesaid Act apply to the District Court on appeal?
If B3 is answered "Yes", is the District Court Judge required to direct his or her mind to the question of whether he or she "thinks fit" to reduce the automatic disqualification period?
If the District Court Judge alters the Local Court's order by deleting a Community Service Order, but otherwise confirming a licence suspension, does the judge vary one entire sentence or does he or she vary the sentence in part, but leave the Local Court's sentence otherwise intact?
What is the effect of a District Court judge on appeal saying that he or she "confirms" the magistrate's order for disqualification?
What, if anything, is the significance of s 71 of the Crimes (Appeal and Review) Act 2001?
If the District Court judge confirms the disqualification but then records that he or she " notes" that the disqualification is from day X to day Y, is the note part of the sentence?
In the scenario noted in B8, the Clerk of the Court promulgates the order as including that the suspension is from day X to day Y, does that affect the answer to B8?
If the District Court judge is later asked to correct his or her order under s 43 of the Crimes (Sentencing Procedure) Act 1999, but declines to do so, can what he or she decided on that application be used to construe the original order?

C. Licensing Matters

What relevant effect does s 189(1) of the Road Transport (General) Act 2005 have on the disqualification of a licence holder?
Do ss 63(2) and 63(3) of the Crimes (Appeal and Review) Act 2001 apply to a licence disqualification?
If C2 is answered "Yes", what is the "execution" involved?

D. The "Merits" of the appeal

Can s 189(6) of the Road Transport (General) Act 2005 be read without conflict with s 68 of the Crimes (Appeal and Review) Act 2001?
If the answer to D1 is "No", which provision prevails?
What, if anything, is the effect of s 14(2) of the Road Transport (General) Act 2005 ?
On the assumption that the period of suspension noted by the District Court judge formed part of his order, can the RTA ignore the nominated period without being in contempt of the District Court?

E. Consequential Issues

Is this a case where the Court should, as a matter of discretion, refuse relief?
What orders, if any, should be made? 81It is first necessary to set out some of the statutory provisions which I need to consider which did not appear in the other judgments. 82Sections 14(2) and 189(1) of the Road Transport (General) Act 2005 are as follows: " 14 General relationship with other laws ... (2) This Act generally prevails over other legislation in cases of inconsistency However (subject to subsection(3)): (a) an Act that forms part of the road transport legislation prevails over any other Act or statutory rule to the extent of any inconsistency, and (b) a statutory rule that forms part of the road transport legislation prevails over any other Act or statutory rule to the extent of any inconsistency in respect of driver licensing, vehicle registration or traffic on roads (or other related matters). 189 Effect of disqualification ... (1) If, as a consequence of being convicted of an offence by a court, a person is disqualified under the road transport legislation (whether or not by an order of the court) from holding a driver licence, the disqualification operates to cancel, permanently, any driver licence held by the person at the time of his or her disqualification." 83Section 20(2) of the Crimes (Appeal and Review) Act 2001 is as follows: " 20 Determination of Appeals ... (2) The District Court may determine an appeal against sentence: (a) by setting aside the sentence, or (b) by varying the sentence, or (c) by dismissing the appeal." 84I now turn to the specific issues noted earlier. 85A1. The answer to this question is fairly straightforward. The Court may treat any interested person as having standing to apply for certiorari. However, the more tenuous the interest, the greater the possibility that the Court may decline relief on discretionary grounds: see Re McBain; ex parte Australian Catholic Bishops Conference [2002] HCA 16; 209 CLR 372. 86A2. The authorities support the proposition that, generally, the regulatory authority over an industry has sufficient standing to seek a declaration; see eg Corporate Affairs Commission of NSW v Transphere Pty Ltd (1988) 15 NSWLR 596 at 610. 87A3. Generally speaking, courts do not, as a matter of discretion, make a declaration which conflicts with the determination of an inferior court, particularly in criminal matters. A key example is Williams v Weston-Super-Mare UDC (1909) 74 JP 52. 88The undesirability of permitting such a scenario was noted by Dixon J in Wishart v Fraser [1941] HCA 8; 64 CLR 470 at 482. 89I should note that there have been occasions where such a declaration has been granted. The most significant case is Munnich v Godstone RDC [1966] 1 WLR 427. In that case, Mocatta J made a declaration of invalidity of a notice, non-compliance with which had three times been held to be a criminal offence. The Court of Appeal reversed the decision on the facts but Lord Denning MR said that it was a proper exercise of the declaratory jurisdiction. 90There is no utility in granting a declaration as to the sentence of a District Court as such a declaration cannot affect the binding effect of the sentence as pronounced: see Clark v Memolo 174 F (2d) 978 (1949). Of course, it is a different matter if there is some doubt as to the applicability of legislation providing for remission of sentences on the original sentence; see eg Haley v Commissioner of Corrective Services [1975] 1 NSWLR 118. 91In Clark at 980-1, Watkins, District Judge, giving the reasons for judgment of the US Court of Appeal, District of Columbia Circuit, said: "The only sentence known to the law is the sentence appearing on the records of the court. Should the record be inaccurate it may be corrected by appropriate motion... .Until the order...is vacated, or amended, it is the only matter of record which may serve as a basis for computation of parole... . The action for declaratory judgment is not suitable and does not lie ... in such cases as a substitute for a motion to vacate or to correct the sentence in the court where it was imposed... . Unless so restricted there would be no end to that kind of litigation." 92I consider the above discussion tells against this Court making a declaration in the instant case. 93A4. It is a golden rule that, whilst the Court can give declarations of right in proper cases, it is not permitted to give advisory opinions particularly to public authorities: see Re Judiciary and Navigation Acts [1921] HCA 20; 29 CLR 257. 94The differences between an advisory opinion and a declaratory order are that, with the declaratory action, there is: (a) adversary litigation; (b) an actual controversy; (c) a point submitted by a person aggrieved; and (d) a binding decision raising a matter res judicata between the parties. These matters are not all present with an advisory opinion. 95Thus, the Court cannot make an order construing the relevant legislation just because the RTA would find it very useful to have the Court's view on the matter. 96However, there is sufficient conflict between the parties in the present case for me to consider that this application is not just for an advisory opinion. 97A5. It is trite law that a person seeking a declaration must specifically set out the form of the declaration being sought: Biss v Smallburgh RDC [1965] Ch 335, 361. The applicant did not do that in the present case. When the Court asked for this to be done, we were told that the applicant wished us to make a "Declaration that the decision of the District Court dated 26 July 2010 was unlawful in that it wrongly specified an expiration date of 7 June 2011 which failed to have regard to section 189(6) of the Road Transport (General) Act 2005 (NSW)". 98The Court could not make a declaration in that form. Apart from anything else, the decision of the District Court was not "unlawful", at worst it was merely partially invalid. The declaration would need to deal with the ultimate question, that is, what the order should have specified or perhaps, when the respondent's disqualification expired, not with a step along the way being the status of the allegedly irregular order. 99As I am of the view that no declaration should be made, I will not tarry as to the proper form of any declaratory order. 100A6. I believe that this question does not arise. It may have been appropriate for the respondent to have filed a cross claim seeking mandamus or an order under s 65 of the Supreme Court Act 1970 that the RTA was bound to issue him with a driver licence on 8 June 2011, but he did not do so. 101A7. Delay goes to the discretion of the court to grant relief in the nature of a prerogative order: see Mayor of London v Cox (1867) LR 2 HL 239, 283; Ex parte Malouf; Re Gee (1943) 43 SR (NSW) 195, 201-2. 102The more modern approach to the grant of certiorari is that it issues almost as of right in non-constitutional cases, Solution 6 Holdings Ltd v Industrial Relations Commission (NSW) [2004] NSWCA 200; 60 NSWLR 558, 591, so that delay may not be now as significant as it once was, particularly where it has caused little prejudice. 103However, the delay has caused great inconvenience to the Court. Although the case was expedited, the Court has been left in a position where it has had to produce a complex judgment dealing with many issues in a ridiculously short period of time. This is a result of two periods of gross delay by the RTA, the first in approaching the District Court for review and the second, the four months between the refusal of the District Court of that application and the filing of the summons in this Court in late April. 104When taxed with this, counsel for the RTA merely said that the Court should not take account of delay as the respondent had not complained. There was no apology to the Court as one might have expected. 105A8. The interests of the State were represented by the DPP before Ellis DCJ. The transcript shows that that representative gave no assistance whatever to the judge on the matter of sentence insofar as it involved disqualification from holding a licence. Whilst it is appreciated that a Crown Prosecutor may have a number of briefs on appeals day dealing with a multitude of crimes, the Court still expects him or her to be able to call the judge's attention to limitations on the power to sentence. Had the Crown Prosecutor done so, the present problem would not have arisen. It is to be hoped in the future, the judge will be given this necessary assistance. 106B1. I understand that the District Court Judge makes the formal record of the order by personally, or by his or her clerk, inscribing the order on the backsheet of the court file. 107That backsheet was not in evidence. Instead, we have the transcript before the judge which records him saying: "The appeal is dismissed. The conviction is confirmed. I quash the order for community service and in lieu place him on a Section 9 bond to be of good behaviour for a period of twelve months. I confirm the minimum disqualification of twelve months. I note that the licence was handed in and therefore the suspension is to date from 8 June 2010 and to expire on 7 June 2011. I confirm court costs in the amount of seventy-six dollars." 108The Court Registry recorded the order in the letter sent to the RTA as follows: "Appeal dismissed. Conviction confirmed. I quash the Community Service Order. I confirm the disqualification period of 12 months to date from 08/06/10 and to expire on 07/06/11. I note the licence has already been handed in. I confirm the Court Costs of $76.00. Order to the appellant to enter into a s9 bond for a period of 12 months." 109In my view, in the absence of the formal record, this Court should act on the transcript of the order. 110However, this gives rise to a number of oddities. First, the appeal is dismissed despite the deletion of the Community Service order. Secondly, the judge confirms the conviction, even though the matter before him was only an appeal on sentence. Thirdly, he uses the word "confirm" with respect to the disqualification period. I will deal with these oddities in succeeding paragraphs. 111It is indeed odd that his Honour said "the conviction is confirmed". There was no appeal against the conviction by the magistrate. It would seem that these words are mere surplusage, or, it may be that they were uttered because of a view that any appeal to the District Court requires the judge to reimpose the conviction and sentence. 112B2. It will be remembered that s188(2)(d) of the Road Transport (General) Act 2005 provides that there is an automatic three year driver disqualification on conviction of the offence with which the defendant was charged. However, if the court that convicts the person thinks fit a shorter period, not less than 12 months, may apply. 113Two questions arise from the words in italics, viz: (a) which is "the court that convicts" when there is a sentence appeal brought from that court? (see B3); and (b) do the words "thinks fit" involve some actual discrete consideration as to whether there should be a lesser disqualification period? (see B4). 114B3. As to (a), although the literal meaning of "the court that convicts" is the court which imposes the conviction at first instance, it seems to me that reading the relevant provisions as a whole and giving particular regard to ss 63, 68 and 71 of the Crimes (Appeal and Review) Act 2001 , the expression must be read as including the appeal court on an all grounds appeal and also includes the court that deals with an appeal on sentence only following that conviction. 115B4. As to (b) the words "thinks fit" do indicate that the relevant court must consider the matter itself. However, as no party raised this matter, I should proceed no further than merely recording my preliminary view. 116B5. The Crimes (Appeal and Review) Act 2001 appears to me to proceed on the basis that a convicted person receives one entire sentence which may consist of a number of components. 117Under s 20(2) of the Crimes (Appeal and Review) Act 2001 a District Court judge may take one of three courses with respect to a magistrate's sentence viz: (a) set aside the sentence; (b) vary the sentence; or (c) dismiss the appeal. [Note the definite article before "sentence"]. 118In this case, Ellis DCJ did both (b) and (c). However, (c) can and should be disregarded as mere surplusage. 119B6. The question here really is whether the District Court judge pronounces the sentence as varied or merely varies part of the sentence and permits the magistrate's sentence to remain. If this latter view is correct then the order for disqualification made on 8 June 2010 by the magistrate stands and what the District Court judge said is surplusage. 120Confirming the magistrate's sentence is not one of the listed powers in s 20(2) of the Crimes (Appeal and Review) Act 2001 . The practice of using the word "confirm" stems from earlier legislation (see Justices Act 1902 s 125). It might be noted, however, that the word still appears in s 68 of the Crimes (Appeal and Review) Act 2001, presumably as a hangover from the past. 121"Confirm" is a word with a number of meanings. Its usual meaning in law is to "revive" or "give life to"; see eg McLeod v McNab [1891] AC 471, 476, or "approve", Re Vector Capital Ltd (1997) 23 ACSR 182 . 122In the days when the relevant statute actually empowered the judge to "confirm" a conviction, it was held that this operated so that the conviction was that of the District Court Judge: Wishart v Fraser [1941] HCA 8; 64 CLR 470, 491 per Williams J. As Davidson J said in Ex Parte Falstein; Re Maher (1948) 49 SR (NSW) 133, 152, that where in the appeal court, "the conviction is affirmed or quashed, there is nothing to prohibit as the order of the Quarter Sessions replaces the magistrate's conviction". See also Hindmarsh v Allogia [1977] 2 NSWLR 599, 602. 123The only reason that one might hesitate to apply this learning to a sentence only appeal is that the matter of conviction is not before the District Court. In some circumstances, it might be, such as where the District Court judge considers that the offence is sufficiently trivial or the good character of the defendant so outstanding that there should be no conviction. 124Again, it would be strange if the powers of the District Court judge on sentence appeals were different from all grounds appeals. 125Accordingly, although the position is not as clear as it should be, it seems to me that the District Court judge, when confirming or otherwise affirming what the magistrate did, was showing that it was his court that was making the order and he was not merely acknowledging that the magistrate's order remained in force. 126B7. Section 71 of the Crimes (Appeal and Review) Act 2001 does not go the whole way of making the District Court stand in the shoes of the Local Court. However, it clearly shows an intention that the District Court is exercising only the same powers as the Local Court. Thus, for most purposes, one must treat an order made by the District Court as if it were made in the lower court. 127B8. The answer to this matter is that if the word "notes" and what follows was not part of the variation of sentence then the disqualification would be for one year from the date from which the judge confirmed it to operate. If, on the other hand, the relevant material was part of the sentence then, as appears from Basten JA's reasons, it was partly invalid. My view is that when a judge adds a note like the present, he or she must realize that the substance of it will be read by the average person as being part of the sentence. The Court Clerk so read it and I believe, correctly. 128If a judge wishes to make a non-binding informative aside to assist a defendant he or she should do so in a more colloquial way. 129B9. What the clerk did cannot affect the order. However, in the light of the above, the matter is of no moment. 130B10. Section 43 of the Crimes (Sentencing Procedure) Act 1999 permits the District Court, inter alia, to correct its error. The RTA attempted to put this section into play, although it was not a party. The proper analysis is that either it requested the court to look at the matter on its own initiative or else on behalf of the DPP. 131In the light of this Court's determination on the merits, the District Court should have corrected the matter. 132When one looks at the reasons for judgment of the correction hearing, it is a little difficult to see how the present point was clearly argued before the District Court judge. 133Ordinarily, if a judge's order is to be construed, the case is heard by another judge as what has to be construed is what the judge said, not what he or she intended: Australian Energy Ltd v Lennard Oil NL (No 2) [1988] 2 Qd R 230 (noted 72 ALJ 117). The District Court judge under s 43 is not so limited and may make the record accord with what he or she meant to do. 134However, I do not consider that one can use what the judge said on the s 43 hearing to construe the order which he or she originally made. 135C1. The Road Transport (General) Act 2005, confusingly, uses a variety of words to describe what happens when a licence is suspended or a driver disqualified. Section 189(1) of the Act makes it clear that the effect is that "the disqualification operates to cancel, permanently , any driver licence held" by the person. Thus, the effect of the "stay" is actually to make the relevant person eligible to apply for a fresh licence. There is no automatic revival of the original licence. 136C2. Section 63(2) of the Crimes (Appeal and Review) Act 2001 draws a distinction between the "execution of any such sentence, and the operation of any such penalty". ("Such penalty" includes disqualification from holding a driver licence). These terms are used to make it clear "disqualification" from holding a licence is included in the category of what is "stayed" when an appeal is lodged. 137It is noteworthy that the distinction between "execution"' of a sentence of fine or imprisonment, etc and the operation of a disqualification does not appear elsewhere in the legislation, either in the remainder of s 63 or in s 68. 138C3. On the basis of what I said in C2, this is not controversial. The stay of execution in this case was the non-operation of the disqualification period. 139D1. It should be noted that in 1998, s 133P of the Justices Act 1902 contained both what now appears as s 189(6) of the Road Transport (General) Act 2005 and s 68(2) of the Crimes (Appeal and Review) Act 2001. It is difficult to argue that the two conflict when, originally, they were part of the same enactment. 140A fortiori , the former s 133P(4) commenced with the words, "Despite subsections (1) and (2)", those subsections being identical with what is now ss 68(1) and (2) of the Crimes (Appeal and Review) Act 2001. 141I agree generally with what Basten JA has written on this issue. I also agree with the alternative way Giles JA has considered it. As can be seen above, I reached the same view with some slightly different thoughts. Thus, whichever way one considers the issue, the RTA should succeed. 142D2. Does not arise as the sections can be read without conflict. 143D3. Does not arise. It is difficult to see how this provision can override later legislation. Its only effect would be that, if there were a conflict, one would give precedence to the traffic law: see Leeming , Resolving Conflict of Laws (Federation Press, 2011) at p 55 . 144D4. It is questionable as to whether any contempt of court is involved. However, generally speaking, the courts and the public expect public authorities to observe the decisions of courts and there is a public interest in this occurring: see P & C Cantarella Pty Ltd v Egg Marketing Board (NSW) [1973] 2 NSWLR 366. 145E1. There do not appear to be any discretionary factors other than those already mentioned which would justify this Court in refusing relief. This matter should be answered, "No". 146E2. I concur with the orders which were delivered on 7 June 2011.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 June 2011

Road Transport (General) Act 2005(NSW)

Justices Act 1902(NSW)

Justices Legislation Repeal and Amendment Act 2001(NSW)

Courts Legislation Amendment Act 2003(NSW)

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