RTA v Hayek & Anor [2004] NSWSC 575 | Case summary

(ii) If he did have the requisite power, did his discretion miscarry? 7 Whilst there is no transcript of the reasons that prompted the magistrate to make the orders made, the court record indicates that the decision was: "Under s 57 Local Courts Act order of suspension stayed until further order on condition 1) appellant strictly complies at all times with the requirements of rules for Authorised Inspection Stations (the Orange Book) 2) that in the event of any breach, the matter be restored to the list on seven days notice to the court and the defendant." 8 The plaintiff has submitted in this Court that s 57 of the Local Courts Act did not confer the necessary power. Mr Bartley conceded this to be so on the first day of the hearing before me, but he withdrew that concession on the second day and submitted that s 57 did confer the required power. Alternatively, he submitted the Local Court had incidental power to do what it did. Mr Lynch, for the plaintiff, contended to the contrary. 9 It is necessary to consider the relevant regulations and the Local Courts Act. 10 The first defendant's appeal to the Local Court was instituted pursuant to Sch 2, Pt 1, cl 3 to the Road Transport (General) Regulations 1999: "(1) Any person aggrieved by a decision of the Authority under the Road Transport (Vehicle Registration) Regulation 1998 to refuse to issue an examiner's authority or a proprietor's authority or to suspend or cancel such an authority, being a decision notified to the person under clause 69 of the Road Transport (Vehicle Registration) Regulation 1998 , may appeal against the decision to a Local Court constituted by a Magistrate sitting alone by lodging a notice of appeal with the clerk of any such Court: (a) except as provided by paragraph (b) - not later than 21 days after being so notified, or (b) in the case of a suspension or cancellation of an authority to which clause 69 (3) of the Road Transport (Vehicle Registration) Regulation 1998 applies - before the date on which the cancellation or suspension would, but for the appeal, take effect…" 11 Clause 4 reads: "(1) A Local Court is to hear and determine an appeal made to it under clause 3 and may confirm (with or without variation) or disallow the decision appealed against, or make such other order in the circumstances as to the Court seems just. (2) For the purposes of varying a decision of the Authority under subclause (1), the Court may exercise only such powers as the Authority could have exercised under the Road Transport (Vehicle Registration) Regulation 1998 when making that decision. (3) The decision of a Local Court in respect of an appeal made under clause 3 is final and is binding on the appellant and on the Authority." 12 Clause 7 provides for a stay of a decision pending appeal where that decision relates to the suspension, variation or cancellation of a driver's licence. 13 Part 3 of the Road Transport (Vehicle Registration) Regulation concerns inspections of vehicles by examiners authorised under cl 63. Clause 64 provides for such inspections to be conducted in premises and employing equipment considered by the Authority to be suitable for the purpose. 14 Clause 65 empowers the Authority to issue rules governing inspection and testing of registrable vehicles. 15 Provision for the suspension and cancellation of the authority to inspect and test registrable vehicles is found in cl 67: "(1) Subject to this clause and clause 68, the Authority may suspend or cancel an examiner's authority or a proprietor's authority if: (a) the holder has failed to comply with a condition to which the authority is subject, or (b) the Authority is, for any reason, of the opinion that the holder is not a fit and proper person to continue to hold the authority. (1A) Without limiting subclause (1) (b): (a) the Authority may form the opinion that the holder of an examiner's authority is not a fit and proper person to continue to hold the authority if it is satisfied that any person involved in the conduct of inspections and tests of registrable vehicles pursuant to the authority is not of suitable character, and (b) the Authority may form the opinion that the holder of a proprietor's authority is not a fit and proper person to continue to hold the authority if it is satisfied that any person involved in the use of an authorised inspection station pursuant to the authority is not of suitable character. (2) The Authority cannot suspend or cancel an examiner's authority or a proprietor's authority unless: (a) the Authority by notice in writing requests the person concerned to show cause why the authority should not be suspended or cancelled on the grounds specified in the notice, and (b) that person replies to the notice or fails to reply within 21 days from the date the notice was issued. (3) Subclause (2) does not apply to the suspension of an examiner's authority or a proprietor's authority if the Authority has reason to suspect that the holder of the authority wilfully failed to comply with any rule referred to in clause 65 and is likely to commit further breaches of those rules…" 16 Clause 68 reads: "(1) The Authority is to appoint a committee of review to which the Authority may refer for consideration and report to the Authority any case where consideration is being given to the refusal, suspension or cancellation of an examiner's authority or a proprietor's authority. (2) The committee of review is to include: (a) a representative of the Authority, who is to be the chairperson of the committee, and (b) representatives of such organisations associated with trading in or servicing of registrable vehicles as the Authority considers appropriate. (3) The committee of review may determine its own procedure for dealing with cases referred to it by the Authority for consideration and report. (4) The committee of review must take into consideration any reply to a notice referred to in clause 67 (2) that is received by the Authority before the Authority refers the matter to which the notice relates to the committee. (5) The committee of review is to report to the Authority on any matter referred to it for consideration and must state in the report any recommendation that it wishes to make. (6) If members of the committee of review do not agree on the nature of a recommendation to be so stated, the committee must record the disagreement in its report and may state in the report more than one recommendation. (7) In determining any matter referred to in clause 67, the Authority is to have regard to the report of the committee of review but is not bound to follow any recommendation contained in the report." 17 Clause 69 provides: "(1) If an application for the issue of an examiner's authority or a proprietor's authority is refused, or if an examiner's authority or proprietor's authority is suspended or cancelled, the Authority must notify the applicant or holder of the authority in writing of the refusal, suspension or cancellation and of the grounds for it. (2) (Repealed) (3) Subject to subclauses (4) and (6), the decision of the Authority to suspend or cancel an authority has effect on and from the date that is 21 days after the date on which the holder is notified. (4) Despite subclause (3), if the Authority has reason to suspect that the holder of an authority has wilfully failed to comply with any rule in force under clause 65 and is likely to commit further breaches of those rules, the decision of the Authority to suspend or cancel the authority may be expressed, in the instrument by which the holder is notified of the decision, to be effective on and from the date on which the holder is notified, and the decision has effect accordingly. (5) The date on which a holder is notified under this clause is: (a) if the notice is sent by mail - the date when the notice would be delivered in the ordinary course of post, or (b) if the notice is delivered to the holder personally - the date when it is so delivered. (6) Subject to subclause (4), if the holder of an authority appeals under Division 2 of Part 1 of Schedule 2 to the Road Transport (General) Regulation 1999 against a decision in respect of the suspension or cancellation of an authority, the decision has effect: (a) only if the court hearing the appeal confirms the decision or the appeal is withdrawn, and (b) subject to any variation of the decision made by that court, and (c) on the date on which that court confirms the decision, or on such later date (if any) as that court orders, or, if the appeal is withdrawn, on the date on which it is withdrawn. (7) If the decision to suspend or cancel an authority has effect, the holder must immediately deliver to the Authority any forms issued by the Authority in connection with the authority together with the authority itself." 18 It is to be observed that cl 69(6) has features similar to cl 7 referred tp earlier. It is further to be observed that the decision to suspend in the present case was expressed to be effective from the date of notification and that the plaintiff asserted in the notice given "reason to suspect that the breaches were wilful", and that there existed the likelihood of "further breaches of those rules" (that is, rules in force under cl 65). Hence cl 69(4) operated and the lodging of the appeal by the first defendant did not enliven the operation of cl 69(6). 19 Turning to the Local Courts Act, s 57 confers a power to stay proceedings. The section provides: "(1) A Local Court may order, on such terms as it thinks fit, that any application proceedings be stayed at any stage of the proceedings. (2) The power to stay proceedings includes power to order a stay of an enforcement of an order. (3) A Magistrate who is satisfied that because of urgent circumstances it is not practicable for the power conferred by this section to be exercised by the court on which they are conferred may exercise that power." 20 "Application proceedings" are defined in s 4 as meaning "proceedings that may be dealt with under Part 6". 21 Part 6 commences with s 35: "(1) If a Local Court is given power under any Act or other law to determine any matter or to make an order or impose a penalty, the matter is to be dealt with by a Local Court in accordance with this Part…" 22 Mr Bartley submitted that the application filed by the first defendant called upon the Local Court to exercise power conferred by cl 3 of the Road Transport (General) Regulation and that the proceedings before the Local Court were "application proceedings" for the purposes of s 57. That may be so, but the stay that was ordered was not a stay of those proceedings; rather, it was a stay concerning the suspension imposed by the plaintiff prior to the commencement of those proceedings. Section 57 did not empower the Local Court to stay the suspension pending the hearing of the appeal, and I respectfully agree with the conclusion reached by Smart AJ to the same effect. 23 Mr Bartley was unable to point to any other provision of the Local Courts Act conferring the power to make the order the subject of this appeal, and I can find none. 24 This leaves for consideration the possibility of an incidental power. The Local Court is a statutory court, but not all its powers are expressed. The need to order its business necessarily involves the making of orders that may not find an underlying statutory expression. 25 Earlier I referred to cl 69(6). That provides for consequences of the institution of an appeal, but sub-cl (6) does not apply where, as in the present case, cl 69(4) is enlivened. 26 The provisions of cl 69(4) and (6) are not determinative of the question now being considered but they are of some significance, and I shall return to them presently. 27 I referred earlier to cl 4 of the Road Transport (General) Regulation expressing the Local Court's jurisdiction on an appeal. In his judgment, when granting leave to the plaintiff, Smart AJ expressed the tentative view that the Local Court had power to grant a stay. In a passage that encapsulates much of what Mr Bartley has argued on this appeal, Smart AJ said: "23 Clause 4 of the RT(G)R 1999 confers a wide jurisdiction upon the Local Court. Once an appeal has been instituted it is to hear and determine an appeal and may confirm (with or without variation) or disallow the decision appealed against or make such other order in the circumstances as to the court seems just. 24 A number of situations could arise. An appeal may be part heard and in its closing stages with the evidence concluded or nearly concluded. The Local Court may correctly think at that stage that there is quite a strong likelihood that the appeal will be allowed but for a variety of good reasons the appeal cannot be concluded promptly and that there will be a delay of six to eight weeks before the hearing can be concluded and a decision given. Assuming that the appellant's livelihood and business will be substantially affected, the interests of justice may require some interim relief such as a stay. Other examples could be given. 25 In a case such as the present the public interest in maintaining a high quality inspection system of vehicles including compliance with the rules, is of paramount importance and questions of livelihood take second place. 26 In my provisional opinion, given the wide jurisdiction conferred by cl 4, once an appeal is regularly instituted and listed for hearing in the Local Court, that court has the power, after balancing all relevant considerations, to grant interim relief in the form of a stay pending the hearing and decision to ensure that the appeal is not rendered futile because, for example, of the destruction or substantial diminution of the appellant's business in the meantime. As earlier mentioned, this will be subject to the paramount importance of the public interest. It is a regrettable fact that court lists are often so busy that it is frequently not possible for a court to hear a matter as promptly as it would wish. It is one thing for statutory or regulatory provisions to provide, in effect, that there will be an automatic stay or no automatic stay. It is quite another thing to say that once an appeal has been instituted the court cannot, in the course of disposing of the matter, grant any interim relief and manage the matters as it considers just." 28 In expressing the above views, his Honour did not, of course, have the benefit, as I have now done, of hearing extensive argument on the issue as to whether an incidental power existed. 29 In Grassby v The Queen (1989) 168 CLR 1 it was determined that a magistrate had no discretionary power to order a stay of committal proceedings as an abuse of process. Section 41(6) of the Justices Act left no room for the implication of such a power. In the course of his judgment Dawson J expressed (at pp 15-17) statements of principle with which the other members of the court agreed and which assume particular relevance here: "The fact that a magistrate sits as a court and is under a duty to act fairly does not, however, carry with it any inherent power. Indeed, in my view, the nature of a magistrate's court is such that it has no powers which might properly be described as inherent even when it is exercising judicial functions… … a magistrates court is an inferior court with a limited jurisdiction which does not involve any general responsibility for the administration of justice beyond the confines of its constitution. It is unable to draw upon the well of undefined powers which is available to the Supreme Court. However, notwithstanding that its powers may be defined, every court undoubtedly possesses jurisdiction arising by implication upon the principle that a grant of power carries with it everything necessary for its exercise ( ubi aliquid conceditur, conceditur et id sine quo res ipsa esse non potest ). Those implied powers may in many instances serve a function similar to that served by the inherent powers exercised by a superior court but they are derived from a different source and are limited in their extent… It would be unprofitable to attempt to generalise in speaking of the powers which an inferior court must possess by way of necessary implication. Recognition of the existence of such powers will be called for whenever they are required for the effective exercise of a jurisdiction which is expressly conferred but will be confined to so much as can be 'derived by implication from statutory provisions conferring particular jurisdiction'. There is in my view no reason why, where appropriate, they may not extend to ordering a stay of proceedings: cf R v Hush ; Ex parte Devanny (1932) 48 CLR 487 at 515." 30 The notion that a grant of power to a Local Court carries with it what is necessary for its exercise was again considered by the High Court, this time in considering the civil jurisdiction of the District Court, in Pelechowski v The Registrar, Court of Appeal (1999) 198 CLR 435. In this case it was determined (by majority) that an order by a District Court judge that judgment debtors be restrained "until further order or payment of the verdict" from selling or otherwise dealing with their interest in a property was not an injunction "in an action" for the purposes of s 46 of the District Court Act, and was not within power. In their majority judgment (in paras 50-51) Gaudron, Gummow and Callinan JJ referred to the judgment of Dawson J in Grassby and the meaning to be given to the expression "necessary": "Dawson J concluded that recognition of the existence of the powers which an inferior court must possess by way of necessary implication will be called for: 'whenever they are required for the effective exercise of a jurisdiction which is expressly conferred but will be confined to so much as can be "derived by implication from statutory provisions conferring particular jurisdiction".' The term 'necessary' in such a setting as this is to be understood in the sense given it by Pollock CB in Attorney-General v Walker , namely, as identifying a power to make orders which are reasonably required or legally ancillary to the accomplishment of the specific remedies for enforcement provided in Div 4 of Pt 3 of the District Court Act. In this setting, the term 'necessary' does not have the meaning of 'essential'; rather it is to be 'subjected to the touchstone of reasonableness'." 31 I do not propose to refer to all the other authorities to which I was taken in the course of submissions. A consideration of all the relevant authorities, and in particular Grassby and Pelechowski, leads me to conclude that a Local Court is empowered to do only what is defined expressly by statute and what is reasonably necessary to give effect to those express statutory powers. 32 The concept of powers existing by necessary implication is not analogous to a concept of powers considered desirable as a useful adjunct to power expressly conferred by statute. Hence, for instance, in Director of Public Prosecutions v Boykin (unreported, Wood J, 21 June 1994) it was determined that a magistrate had no power to make an order that the Director of Public Prosecutions pay the costs in relation to summary proceedings that were stayed. Wood J did not perceive a power to award costs to be a necessary adjunct to a power to stay. His Honour said (at p 4): "The question which then follows is whether by virtue of the doctrine of necessity, such a power should be regarded as an essential adjunct to the stay power. The latter power can be seen, at least as highly desirable, so as to protect citizens from abuse of process and from being prosecuted in a way that involves unfairness or oppression. While a power to order costs might provide further protection, and help to relieve hardship in a case where a stay is granted, I do not perceive it to be an 'essential' or 'really necessary' incident of the exercise of the Court's jurisdiction." 33 It may be regarded as desirable that the Local Court should be empowered to grant a stay of a suspension order effected under cl 67 until the court has the opportunity of determining an appeal under cl 4, since an appellant would otherwise presumably suffer financial hardship pending the hearing of the appeal. Evidence placed before this Court, but not before the Local Court, certainly establishes the financial hardship the first defendant experienced following his suspension prior to the intervention of the Local Court in his favour. However, the hardship of the authority holder is not the paramount consideration under the scheme of the relevant regulations. 34 The regulations are not concerned with weighing only the interests of authority holders; plainly, they are also concerned with considerations of public safety. This concern is reflected in cl 67(3) and in cl 69(4). Where the Authority has reason to suspect the holder of an authority has wilfully failed to comply with any rule set under cl 65, and further breaches are likely, suspension is to be effective upon notification, and the lodging of an appeal is not of itself to effect that suspension. There must be a determination of the appeal under cl 4, and public safety considerations dictate that such determination should follow a full hearing. 35 Notwithstanding Mr Bartley's able argument and those matters identified by Smart AJ in the passage from his Honour's judgment I have set out above, I have concluded upon reflection on the relevant regulations and Pt 6 of the Local Courts Act that the power to hear an appeal under cl 4 is not attended by an incidental power to make stay orders such as were made in this case. A power to make such orders is not reasonably necessary as an incident of the power conferred by cl 4. 36 Accordingly, I uphold the plaintiff's submission that the Local Court had no power to stay the suspensions on 28 May 2004. The appeal must succeed. 37 Even if it be assumed, contrary to the conclusion I have reached, that the Local Court did enjoy the incidental power for which Mr Bartley here contends, the proper exercise of that power would have called for the consideration of evidence bearing upon the exercise of the court's discretion. Due consideration of public safety considerations made this essential. 38 It is common ground that the defendants gave no evidence before the court on 28 May last, and that the stay was opposed, not only because of an absence of power to order it, but also because of an absence of evidence upon which a discretionary exercise could be undertaken. The breaches alleged in the notifications of suspension were serious. The notification addressed to the first defendant alleged that he "(a) issued inspection reports without inspecting vehicles and without undertaking brake tests; (b) attached brake test printouts to inspection reports which had been obtained by a manipulation of the decelerometer without attaching the device to vehicles and undertaking a driving test; (c) permitted persons who were not authorised examiners to inspect vehicles." 39 Similar allegations were contained in the second notice which was addressed to both defendants. 40 Any discretionary exercise (if power existed to undertake it) required that significant weight be attached to the factor of public safety and the importance of protecting road users from the presence on the roads of defective vehicles. Absent any agreed statement of relevant facts, it does not seem to me that the learned magistrate was equipped with material upon which a due exercise of discretion could have been undertaken, and this could not be overcome by conditions such as were imposed concerning the stay. For these reasons, assuming there was a discretion to order a stay, I would conclude that the exercise of that discretion miscarried. 41 For the above reasons, the appeal succeeds.

RTA v Hayek & Anor

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