RTA v KRISHNA

Local Court of NSW|2008-08-20

PARTIES: Roads and Traffic Authority Hari KRISHNA

CATCHWORDS: Appeal decision to suspend/cancel proprietor's authority

Road Transport (General) Act 2005 LEGISLATION CITED: Road Transport (Vehicle Registration) Regulation 2007 Acts Interpretation Act 1987 (NSW) Income Tax Assesment Act 1936 (Cth)

Deputy Commissioner of Taxation v Meredith [2007] NSWCA 354 RTA v Castrodes & Anor [2003] NSWCA 990 Kyogle Shire Council v Mulli Mulli [2005] NSWCA 4 CASES CITED: Hewitt v Leicester Corporation [1969] 1 WLR 855 Regina v County of London Quarter Sessions Appeals Committee. Ex parte Rossi [1956] 1 QB 682 Nicholson v Tapp [1972] 1 WLR 1044 Prospect County Council v Lethorn and Another [1980] 2 NSWLR 464 at p 469

The defendant is the operator of an inspection station for motor vehicles.

The defendant purchased a motor mechanic/garage business in 1997. He was made an authorised examiner by the roads and transport authority on for June 1994, and subsequently received his inspection station certification. These licences were granted in respect of two roles: an examiner, in relation to the physical examination of motor vehicles, and as proprietor, requiring him to comply with RTA requirements in relation to maintaining proper equipment and ensuring that the relevant rules were up to date.

An audit of his activities in April 2008 involved an inspection of 10 vehicles of which two came adversely to the attention of the roads and transport authority.

As a result of the inspection of the two vehicles, 2 Show Cause Notices were issued to the defendant on 20 August 2008, in relation to why his authority as an authorised examiner in connection with the authorised inspection station Quick Stop Automotive, and that the authority issued to the defendant to operate an authorised inspection station, should not be respectively suspended or cancelled on the grounds identified in those letters - see respectively exhibits 2 and 3.

The show cause notices respectively related to the licences held in his personal capacity and the licence held in relation to the operation of the station. The notice in respect of the authority as an authorised examiner was sent by the roads and transport authority to the defendant's home address, at 5 Kingfisher Ave, Hinchinbrook New South Wales. The notice in respect of the defendant's authority to operate an authorised inspection station was sent to the business address of the garage, Quick Stop Automotive, at unit 7A/9 Lyn Parade, Preston, NSW.

It was not in contest in the present matter that be respondent received those notices.

After receipt of the 2 notices to show cause, the defendant on 26 August 2008 sent a long letter to the Roads and Transport Authority responding to these notices.

In November 2008, the defendant received a notice at his home address suspending his licence to inspect the vehicles in his personal capacity from 9 December 2008 for 3 months.

It appears that the relevant committee at the roads and transport authority also determined that licence in respect of the authorised station be suspended for a period of 3 months. That notice of suspension was posted by the authority to the defendants work address. The defendant asserted he did not receive this notice.

Regulation 13 allows an appeal to the local court within 21 days of a notice of suspension: "(1) Any person aggrieved by a decision of the authority under the road transport (vehicle registration) bracket regulation 2007 to refuse to issue an examiner's authority or a proprietors authority or to suspend or cancel such an authority, being a decision notified to the person under clause 64 of that regulation, may appeal against the decision to Local Court by lodging a notice of appeal with the registrar of any such court no later than 20 days after being so notified.

(2) A notice of appeal under this clause is to specify the grounds of the appeal.

(3) The registrar of the local court must give notice of the time and place of the hearing of any appeal under this clause to the authority and to the appellant, and in the notice to the authority it is to inform the authority of the grounds of the appeal.

(4) The time of the hearing of an appeal under this clause must not be earlier than 21 days after the date on which the notice under sub clause (3) is given to the authority.

(5) The hearing of an appeal under this clause may proceed despite any omission or error in the notice under sub clause(3), or the failure to give any such notice, if the court is satisfied the appellant and the authority had knowledge of the time and place of the hearing and were not prejudiced by any such omission or error or by the failure to give any such notice.

(6) A report furnished under clause 63 of the road transport (vehicle registration) rehabilitation 2007 to the authority, and certified by the authority to been so furnished, is to be received in proceedings before a Local Court in respect of an appeal under this clause as evidence of the contents of the report.

A certificate issued in accordance with section 230 of the Road Transport (General) Act, 2005, enclosed a copy of a letter dated 11 November 2008 to the defendant at quick stop automotive, unit 7A/9 Lyn parade, Preston, New South Wales, certifying that the said letter was posted to the address on that letter at 2:30 p.m. on 11 November 2008 by Kathleen Cook, program administrator employed by the Roads and Transport authority at the Glen Innes New South Wales post office.

The appeal in relation to the personal inspection suspension was duly lodged and the return date of that appeal was 9 January 2009. On that day, the parties appear before Magistrate Burdette. The solicitor appearing for the Roads and Transport Authority queried why only one appeal had been lodged, and Mr Maddox, appearing for Mr Krishna, indicated that he was only aware of the suspension in relation to which the appeal had been lodged.

The defendant asserted that the first time he became aware that a notice of suspension had been issued in respect of the authorised inspection station. The defendant asserted that he was not aware that such a suspension had been issued in respect of his proprietors authority. The solicitor for the authority produced a letter dated 11 November 2008 which suspended the operation of the authorised inspection station for three months from 9 December 2008.

The matter was adjourned to allow the Roads and Transport Authority to produce evidence in relation to the way in which the letter suspending the operation of the authorised inspection station was posted.

The issue in dispute in relation to the instant application was whether or not the operation of clause 64 (4) of the Road Transport (Vehicle Registration) Regulation 2007 provides conclusive provision in relation to the question of when the defendant is notified, or whether or not it contends that evidence may be led of non receipt to rebut the date upon which notification has effect. The significance of this question is found in regulation 13 of the Road Transport (General) Regulation 2005, extracted above: providing that any person aggrieved by a decision to, in this case, suspend or any authority, may appeal against that decision to the Local Court no longer than 21 days after being so notified. The Road Transport (General) Regulation does not appear to make any provision for any appeal to be brought outside the 21 day period.

It is clear that the 21 day period contained in the letter annexed to the section 230 certificate has expired.

s. 64 (Vehicle Registration) Regulation 2007 provides

64 Notification of decisions by Authority (1) if an application for the issue of an examiner's authority or a proprietors authority is refused, or if an examiner's authority or proprietors authority is suspended or cancelled by the authority, 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) the decision of the authority to suspend or cancel an authority has effect: (a) on and from the date that is 21 days after the date on which the holder of the authorities notified, or (b) if the holder appeals to a court or applies to a tribunal for a review under the regulations made under the road transport (general) act 2005 against the decision: (i) only if the court or tribunal confirms the decision of the appeal the application is withdrawn, and (ii) subject to any variation of the decision made by that court or tribunal, and (iii) on the date on which that court or tribunal confirms the decision, or on such later date (if any) as that court or tribunal orders, all, if the appeal or application is withdrawn, on the date on which it is withdrawn.

NOTE clause 13 of the road transport (general) regulation 2005 provides for appeals to a Local Court in relation to a decision of the authority to refuse to issue an examiner's authority or a proprietors authority or to suspend or cancel such an authority.

(3) Despite sub clause (2), if the authority has reason to suspect that the holder of an authority has wilfully failed to comply with any rule in force under this subsection 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.

(4) The date on which a holder is notified under this clause is: (a) if the notice is sent by mail-at the date when the notice would be delivered in the ordinary course of post, all (b) if the notice is delivered to the holder personally-the date when it was so delivered. (5) If the decision of the authority 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.

The court was taken to a number of authorities by the parties in submissions. They were Deputy Commissioner of Taxation v Meredith [2007] NSWCA 354; RTA v Castrodes & Anor [2003] NSWCA 990; and Kyogle Shire Council v Mulli Mulli [2005] NSWCA 4. Some caution must be exercised in considering these authorities as giving rise to binding precedent: for as Basten JA held in Deputy Commissioner of Taxation v Meredith (supra) at page 169: "each provision must be viewed in its own terms and statutory context".

The Acts Interpretation Act 1987 (NSW) relevantly provides: Application of Act s. 5 (2) This Act applies to an Act or instrument except in so far as the contrary intention appears in this Act or in the Act or instrument concerned. Service by post 76 Service by post (1) If an Act or instrument authorises or requires any document to be served by post (whether the word "serve", "give" or "send" or any other word is used), service of the document: (a) may be effected by properly addressing, prepaying and posting a letter containing the document, and (b) in Australia or in an external Territory-is, unless evidence sufficient to raise doubt is adduced to the contrary, taken to have been effected on the fourth working day after the letter was posted, and (c) in another place-is, unless evidence sufficient to raise doubt is adduced to the contrary, taken to have been effected at the time when the letter would have been delivered in the ordinary course of post. (2) In this section: "working day" means a day that is not: (a) a Saturday or Sunday, or (b) a public holiday or a bank holiday in the place to which the letter was addressed. 3 Definitions (1) In this Act: "instrument" means an instrument (including a statutory rule or an environmental planning instrument) made under an Act, and includes an instrument made under any such instrument. (2) In this Act: (a) a reference to a function includes a reference to a power, authority and duty, and (b) a reference to the exercise of a function includes, in relation to a duty, a reference to the performance of the duty.
The Road Transport (Vehicle Registration) Regulation 2007 is an instrument under the Interpretation Act. The Interpretation Act accordingly will apply except in so far as the contrary intention appears in the instrument concerned.

It is the courts view that a "contrary intention" cannot appear when Reg 64(4) provides that the date on which a holder is notified is, if the notice is sent by mail, the date when the notice would be delivered in the ordinary course of post.

"Ordinary course of post" is not defined in cls 3 or 4 of the Regulation, nor in the Dictionary to the Regulation (Schedule 99).

The ascertainment of the date at which the holder will be notified, accordingly, must be determined by reference to the meaning of "the ordinary course of post" - and as that expression is not defined in the regulation, the provisions of the Interpretation Act must apply in order for the date of service to be identified - that is to ascertain the meaning of "delivery in the ordinary course by post".

It follows that s. 76 Interpretation Act must apply in determining the date at which a holder is notified under the clause. As s. 76 Interpretation Act applies, the date at which the holder is notified will be determined in accordance with that section - that is, unless evidence sufficient to raise doubt is adduced to the contrary, it will be taken to have been effected on the fourth working day after the letter was posted.

The matter before this court is distinguishable from Kyogle Shire Council v Mulli Mulli (supra). The statutory provision before the court in Kyogle Shore Council provided s. 710 Service of notice on persons © posting by prepaid letter to the last known place of residence. The court held in that case that so long as the letter meets the statutory requirement - that is, that it was posted t the last known address - the act of posting constitutes service and, once posted, the act of service is complete. So much was clear from the terms of the Act and no other legislative provision was contemplated to determine either the means of service or the date on which notice was statutorily provided.

Kyogle is distinguishable from the present case. Samuels JA in McClelland v Amail Industries Pty Limited [1983] 1 NSWLR 615 (cited in Kyogle Shire Council), relevantly held: "Unless the provisions which authorise service by post itself includes a stipulation as to when service by that means shall be regarded as having been effected … in order to determine when service occurs, it is necessary to turn to the Interpretation Act."

In other words, there is a distinction to be drawn between service - the means by which an endeavour to draw a document to the proposed recipient will be made - and the time at which the recipient is deemed to have become aware of it.

In the case before the court, the time at which Mr Krishna is deemed to have become aware of the Notice is when it was received in the ordinary course of post, and the determination of when that occurs can only be made by reference to s. 76 Interperation Act.

Accordingly, Reg 64(4) Road Transport (Vehicle Registration) Regulation cannot define the date at which the holder becomes notified without the assistance of the Interpretation Act. For this reason, it cannot be said that there can be found any intention under the Regulation to exclude the operation of the Interpretation Act.

This conclusion differed from that which the court of appeal came to in relation to the specific statutory provisions before the court Kyogle Shire Council (supra). The court of appeal there found that s. 76 Interpretation Act did not apply because the statutory regime under consideration in s. 710 ACT was found to have a "contrary intention" within the definition of s. 5(2) Interpretation Act. The mechanism for service was clearly defined within the legislation, and was effected when the letter was posted. The means of service and the time of service were one and the same.

Once, however, it is found that the Regulation or instrument in question does not exclude the Interpretation Act, and s. 76 applies, the court must determine what the qualification "unless evidence sufficient to raise doubt is adduced to the contrary" in s. 76 Interpretation Act means. At hearing, the trial judge in Kyogle Shire Council (supra) held that the evidence that could be led in relation to this was confined to non-receipt of the letter. This issue was not determined on appeal in Kyogle Shire Council: and Tobias JA (with whom Brownie AJA agreed) held that the failure by the court of appeal to consider this issue should not necessarily be interpreted as indicating the court of appeal agreed with the trial judge's approach to this issue.

The Regulation before the court in this matter is also materially distinguishable from the statutory provision under question in Meredith. That provision was s. 222 AOF Income Tax Assesment Act 1936 ( Cth).

s. 222AOF How Notice may be given (1) if it appears from ASIC documents that a person is, or has been with the last 7 days, a director of a company, the Commissioner may give to the person a notice under s. 222AOE by leaving it at, or sending it by post to, an address that appears from such documents to be, or to have been within the last 7 days, the persons place of residence or business."

Basten JA (with whom Ipp JA agreed) addressed the threshold question of whether s. 222AOF reveals a contrary intention to that which may be derived from the Commonwealth Acts Interpretation Act. His Honour held at page 165: "The phrase "contrary intention" in the Acts Interpretation Act may readily be seen to give way to a particular provision in another Act, and especially one dealing with a specific subject matter.

The court found that a contrary intention was found demonstrated to exclude the operation of the Clth interpretation Act. In Nercessian, the court accepted the Commissioners argument that s. 222AOF provided a self-contained means of satisfying the precondition to recovery in s. 222AOE and was not itself subject to the operation of s. 29 Commonwealth Acts interpretation Act.

The court accordingly concludes that s. 64 (Vehicle Registration) Regulation 2007 is not a Code and that s. 76(1)(b) Interpretation Act applies to it.

As s. 76(1)(b) applies to determine or define the time at which service by post pursuant to Reg 64(4) (Vehicle Registration) Regulation 2007 is taken to have been effected in relation to the suspension notice issued to Mr Krishna to operate an authorised inspection station, it is necessary to determine whether this has been displaced by evidence sufficient to raise doubt … adduced to the contrary."

As indicated, this matter was not addressed by the Court of Appeal in Kyogle Shire Council: the approach of Codoroy J in the Land and Environment Court, was that the evidence relevant to tis question was confined to adducing evidence with respect to the letters receipt by the addressee.

s. 76 provides a different formulation of the "doubt" in ss (b) and (c) of s. 76(1): ss (b) appears to restrict evidence to doubt as to the actual receipt by the addressee of the relevant document and the doubt in sub-paragrpah (c) appears to relate to doubt as to delivery of the document.

In this respect, Cowdroy J held at first instance: "No indication is provided by the Interpretation Act to suggest that the nature of the "doubt" , and the Parliamentary debates leading to the inclusion of s 76(1)(b) in the Interpretation Act do not assist. In these circumstances, the Court must draw the inference that the qualification to the presumption could be utilised in instances in which the posted rate notice was never received. This was precisely the circumstances considered by Denning MR in Hewitt v Leicester Corporation [1969] 1 WLR 855. In that case a statutory presumption was raised by the Interpretation Act 1889 (UK) which deemed service to be effected when the letter would have been delivered in the ordinary course of the post. The letter was returned and marked "gone away". Denning MR held that service in such circumstances had not been effected. At p 858 Denning MR said:-

We are not bound to "deem" a notice to be served at a particular time when we know that in fact it was not served at all.

The words in s 76(1)(b) of the Interpretation Act "unless evidence sufficient to raise doubt is adduced to the contrary" is intended to apply to circumstances such as those prevailing before Denning MR. See also Regina v County of London Quarter Sessions Appeals Committee. Ex parte Rossi [1956] 1 QB 682 which confirmed that proof of non-receipt of a document in the ordinary course of post nullified the presumption. For a decision of similar consequence, see Nicholson v Tapp [1972] 1 WLR 1044. See also Prospect County Council v Lethorn and Another [1980] 2 NSWLR 464 at p 469."

Accordingly, and consistent with the approach taken in Kyogle Shire Council not displaced on appeal, evidence may be received in respect of doubt concerning the receipt of the notice of suspension of the operators licence.

That evidence was that Mr Krishna: - had a locked mail box at business - last 12 years - lost one or 2 letters - small mail box, in which larger letters protruded - may have had some letters go missing but not able to identify them. - Nothing had alerted him to the existence of the notice of appeal in relation to the suspension notice. - He would never have appealed one matter without appealing the other as that would have rendered the effect of the first appeal valueless as he would not have been able to operate his business during the 3 month period f the suspension.

Mr Krishans evidence was challenged on a number of bases by the prosecution: it was suggested that he had a long history of dealing with the RTA, and that on his evidence there was no real evidence of any difficulties with receipt of mail, and that Mr Krishna had not conducted himself reasonably in not enquiring into why he had not received any response in relation to the station operators suspension when he received a response to the personal inspection authority.

The test is whether there is sufficient evidence to raise doubt to the contrary: sufficient doubt to rebut the presumption that the notice of suspension was received 4 days after it was posted. The court finds that this standard is met as

Mr Krishna also asserted that he clearly would not have appealed 1 suspension without appealing the other had he known of the 2nd suspension notice's existence: as he would be precluded from operating his business during the period of the suspension and accordingly rendering effectively moot the question of the appeal.

The Road transport vehicle registration Regulation cl. 64(4) does not operate as a code.

There is no contrary intention found excluding the operation of the Interpretation Act (s. 5).

The service of the suspension notice of the authorised inspection station authority was served 4 working days after the date on which it was posted, unless evidence sufficient to raise doubt as to the receipt of the letter is adduced.

The court is satisfied that the evidence adduced by Mr Krishna raises the required doubt.

Notice has not been provided under the Regulation.

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.

Acts Interpretation Act 1987(NSW)

Income Tax Assesment Act 1936(Cth)

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