The effect of "quashing" pursuant to s 202 of the Road Transport (General) Act 2005 a declaration of a person as being an habitual traffic offender .
36 I have already referred to parts of the Local Court magistrate's judgment of 31 August 2009 in which her Honour held that the effect of the order made on 1 April 2009 that the habitual traffic offender declaration be quashed was that the declaration was made null and void and set aside, "as though it had never been".
37 The competing submissions of the parties on the appeal were the submission on behalf of the RTA that the word "quash" in s 202 meant annul prospectively, from the time of the making of the order quashing the declaration, and the submission on behalf of Mr Papadopoulos that the word "quash" meant render null and void ab initio, that is from the time of the declaration purportedly coming into existence, as was held by the magistrate.
38 It is not surprising that the magistrate formed the conclusion she did about the interpretation of the word "quash". The word "quash", both in ordinary language and in legal contexts, frequently has the meaning which her Honour held that the word should be given where it appears in s 202 of the General Act 2005. Before the magistrate Mr Papadopoulos' legal representative referred to the definitions of "quash" in the Macquarie Dictionary as being "to make void, annul or set aside".
39 The magistrate had before her the letter from the RTA of 8 April 2009 in which the RTA had said that it had received legal advice that as a result of the quashing order the period of disqualification resulting from the declaration had become a nullity and in which the RTA cited the decision of the High Court in Commissioner for Railways NSW v Cavanough as supporting that advice. It is correct that the decision and passages in the joint judgment in Cavanough might be capable of lending some support to the opinion expressed in the letter of 8 April 2009.
40 I have, nevertheless, reached the conclusion that, for the reasons advanced by counsel for the RTA in his submissions, the word "quash" in s 202 of the General Act 2005 should be interpreted as meaning annul prospectively and not annul ab initio.
41 Both before the magistrate and on this appeal counsel for the RTA referred to definitions of the word "quash" in the Shorter Oxford English Dictionary. These definitions include "annul, make null or void but also include "put an end to"". Accordingly, the word "quash" can in ordinary language mean "put an end to".
42 There are undoubtedly many instances of courts interpreting the word "quash" in legislation as meaning to render null and void ab initio. An example is Commissioner for Railways NSW v Cavanough, the case referred to in the RTA's letter of 8 April 2009 and in the magistrate's judgment of 31 August 2009.
43 In Commissioner for Railways NSW v Cavanough the respondent Cavanough was an employee of the Commissioner. Cavanough was convicted of a criminal offence but the conviction was set aside on appeal. Cavanough then sued the Commissioner for unpaid salary between the date of his conviction, when he was suspended, and the date of the setting aside of the conviction, when he was reinstated. In defending the claim for salary the Commissioner relied on a section of the Government Railways Act which provided that an officer convicted of a felony should be deemed to have vacated his office. It was held by the High Court that upon the setting aside of the conviction the conviction was avoided ab initio. Consequently, Cavanough could not be deemed to have vacated his office and he was entitled to the salary he was claiming.
44 In their joint judgment Rich, Dixon, Evatt and McTiernan JJ said at 225:-
"The scope and effect of an appeal must in the end be governed by the terms of the enactment creating it. But the power given to the Quarter Sessions includes authority to quash and set aside convictions. These are familiar expressions, and describe a jurisdiction exercisable at common law by Courts of error. The effect of the reversal of a conviction by proceedings in error has long been settled, and the same effect is produced by quashing it, or setting it aside upon a statutory appeal. The conviction is avoided ab initio . "The judgment reversed is the same as no "judgment" - per Coleridge, J, R v Drury, (1849) 3 Car. & K. at p 199, 175 ER 517 at p 520."
45 A case to which I referred the parties at the hearing of the appeal was the English decision of Winn J in Hancock v Prison Commissioners [1960] 1 QB 117.
46 The decision in Hancock involved s 4(3) of the English Criminal Appeal Act 1907, which was in broadly similar terms to s 6(3) of the New South Wales Criminal Appeal Act and corresponding provisions in the criminal appeal legislation of the other States. Section 4(3) of the English Act provided:-
"On an appeal against sentence the Court of Criminal Appeal shall, if they think that a different sentence should have been passed, quash the sentence passed at the trial and pass such other sentence warranted in law by the verdict…in substitution therefor as they think should have been passed."
47 Hancock had been sentenced to a term of imprisonment for ten years. During the first years of his imprisonment he suffered losses of remissions from his sentence. He subsequently successfully appealed against sentence, the Court of Criminal Appeal quashing the original sentence and imposing a lesser sentence of imprisonment for seven years. The question arose whether the losses of remissions in respect of the quashed sentence continued to subsist in respect of the substituted sentence. Winn J held that the word "quash" in s 4(3) of the Criminal Appeal Act did not mean to make null and void ab initio but only for the future from the moment when the Court of Criminal Appeal decided to quash the original sentence and substitute a different sentence.
48 In his judgment Winn J said at p 125:-
"(Counsel for Hancock) has submitted to me cogently (and one recognises that it is an argument which calls for careful consideration and has considerable weight) that the word "quash" in that order (of the Court of Criminal Appeal) means that the 10-year sentence was thereby rendered null and void, and wholly set aside as though it had never been. There would be persuasive force in that argument, and I would feel very well disposed to accept it, had I not found in the very wording of section 4(3) of the Act the provision that, wherever the Court of Criminal Appeal does find itself of the opinion that a sentence passed has been too severe, it "shall...quash" that sentence and "pass such other sentence ... as they" (the court) "think ought to have been passed in substitution therefor." When one finds those words in the section and considers the context in which they are used, and the subject-matter to which those words must be applied, one is inevitably driven to the conclusion that the word "quash" is not there used in the sense in which the Shorter Oxford English Dictionary tells me that it often is used, namely, "to annul," "make null or void," but is used in the less drastic meaning that the former sentence is by the order of the court rendered null and void at the moment when the Court of Criminal Appeal decides to substitute for it a different sentence, so as to make that earlier sentence null and void and of no effect for the future from that point of time onwards, but not so as to render it null and void ab initio , namely, as from the date when it was passed."
49 Hancock v Prison Commissioners would not appear to have been referred to in any New South Wales case. However, it was referred to with approval by the Victorian Court of Appeal in the recent decision of Director of Public Prosecutions v TY [2009] VSCA 226 at [25] and [26] per curiam.
50 The decision in Hancock v Prison Commissioners shows that the word "quash" in a legal context does not necessarily mean to make null and void ab initio and can simply mean to make null and void for the future. What interpretation should be given to the word in particular legislation depends on the terms of the legislation, the context in which the word "quash" is used and the subject matter to which the word must be applied.
51 Counsel for the RTA submitted that in the present case the terms of the legislation in which the word "quash" was used, the context in which the word was used and the subject matter to which the legislation was to be applied showed that the word "quash" should be interpreted as meaning annul for the future and not annul ab initio. In my opinion, these submissions should be accepted.
52 The context in which the word "quash" is used in the present case is different from a context in which the word is frequently used and in which the word has usually been interpreted as meaning annul ab initio.
53 The context to which I am referring is where there has been a decision by a primary decision-maker and what is quashed is the decision by the primary decision-maker, on the grounds that the decision was erroneous in some way at the time it was made. Examples include the quashing of a criminal conviction or the quashing of an administrative decision on grounds such as denial of procedural fairness or jurisdictional error.
54 In the present case, on the other hand, there was no decision by a primary decision-maker and hence no erroneous decision by a primary decision-maker. The declaration of Mr Papadopoulos as an habitual traffic offender arose by the operation of s 28 of the General Act 1999 from the convictions he had incurred, without any decision by a judicial officer, and the disqualification of Mr Papadopoulos arose by the operation of s 30 of the General Act 1999 on the habitual traffic offender declaration, without any decision by a judicial officer.
55 Section 202 of the General Act 2005 provides that the declaration of a person as an habitual traffic offender may be quashed "(at the time of the conviction or at a later time) if it determines that the disqualification imposed by the declaration is a disproportionate and unjust consequence having regard to the total driving record of the person and the special circumstances of the case".
56 Accordingly, a declaration may be quashed at a later time than the time of the conviction giving rise to the declaration. A court considering an application for a quashing order at a later time has to determine whether the disqualification imposed by the declaration is disproportionate and unjust having regard to the applicant's total driving record and the special circumstances of the case. It is clear, in my opinion, that the total driving record and the circumstances of the case are not limited to the driving record and the circumstances of the case as at the time of the conviction giving rise to the declaration but include the driving record and the circumstances of the case down to the time of the hearing of the application for a quashing order.
57 It could be the case that the disqualification imposed by a declaration was not disproportionate and unjust having regard to the driving record and the circumstances as they existed at the time of the conviction giving rise to the declaration but is disproportionate and unjust having regard to any driving record and circumstances which have occurred since the time of the conviction giving rise to the declaration. In such a case it would not be appropriate that the disqualification should be annulled ab initio but the disqualification could appropriately be annulled for the future.
58 Section 202 of the General Act 2005 was amended by the Road Transport Legislation Amendment (Miscellaneous Provisions) Act 2009 No 104 (Sch 1(13)) so as to insert after s 202(3):-
"(4) For the avoidance of doubt, the quashing of a declaration under this section:
(a) operates to set aside the disqualification imposed by the declaration on and from the day on which the court makes the order that quashes the declaration, and
(b) if the disqualification period has already commenced when the declaration is quashed-does not operate to invalidate or otherwise affect the operation of the disqualification in its application to the habitual traffic offender at any time before the day on which the declaration is quashed."