2. Judgment and orders of Nettlefold J dated 14 April 1987 set aside.

3. Orders made in the Court of Petty Sessions dated 28 October 1986 restored.

1 For the reasons for judgment published by Cosgrove J I agree that the appeal should be allowed. I only wish to add the following observations.

2 The power conferred upon magistrates by s76A to amend or alter at any time what would otherwise be regarded as final and effective orders is a special statutory power, the nature and scope of which is to be determined by reference to the terms of s76A and not by reference to limitations which may exist upon the exercise of the discretion to extend the time limited for the exercise of the quite distinct power of appellate review.

3 The primary issue before the magistrate was whether for the purposes of s76A of the Justices Act 1959 he had imposed penalties which were contrary to law. Because the regulations were ultra vires the penalties which he had imposed were not authorised by any law and were thus plainly contrary to law. The time when the invalidity of the regulations was discovered by the magistrate is not relevant to the determination of the issue of whether the penalties were authorised by law.

4 The learned judge held that what the magistrate did was "to re-open a transaction past and closed and to set at nought valid convictions and orders". But s.76A clearly contemplates that a magistrate has the power to amend or alter orders that would otherwise be regarded as past and closed and the magistrate's orders were valid only in the limited sense that as the validity of the regulations was not challenged in the original hearing they were presumed to be intra vires and the penalties thus appeared to be authorised by law. But in the subsequent proceedings the validity of the regulations was challenged and the magistrate properly held that the penalties were contrary to law and was thus empowered by s76A to amend his orders.

5 On 31 July 1986, his Worship Mr R B Chen, magistrate, heard a complaint by the respondent against the appellant. The complaint alleged that the appellant had committed 9 breaches of Sea Fisheries Regulations, 5 of which related to abalone and 4 to crayfish. The hearing was ex parte. The Sea Fisheries Regulations were tendered. Each charge was found to be proved, and on each the appellant was convicted, and fined $40 - a total of $360. In addition, special penalties totalling $26,450 in respect of the abalone offences and $120 in respect of the crayfish offences were imposed.

6 On 23 September 1986 the Full Court held, in Munday v Cole (Tas 5686) that reg44(5A) which purported to require the imposition of the special penalties in respect of abalone was ultra vires and therefore invalid.

7 On 15 October 1986, an application was filed in the Court of Petty Sessions seeking the vacation pursuant to s76A(1)(a) of the Justices Act 1959 of all the special penalties on the ground that they "were not in conformity with the law".

8 On 28 October 1986, Mr. Chen made an order vacating "as much of my sentencing as is necessary to delete any provision with respect to special penalties". The reasoning of his Worship is not entirely clear from the transcript, but it does appear that he did not conceive the judgment in Munday v Cole (supra) to be declaratory in form or intent, but rather had regard to the reasons expressed by the members of the Full Court. I deduce this partly from the fact that his Worship held that the special penalties which he had imposed in respect of crayfish were void. Those penalties were prescribed by reg44(4A) and were not the subject of any decision in Munday v Cole (supra) which dealt only with abalone and reg44(5A).

9 On 5 November 1986, the Director of Public Prosecutions lodged a Notice to Review the learned magistrate's order of 28 October 1986. The motion came on for hearing before Nettlefold J. on 27 February 1987. On 14 April 1987 his Honour granted the motion and quashed the order. This appeal seeks to reverse that decision and have the order vacating the special penalties re-instated.

10 The central question involved in the appeal is the nature and limit of the power granted to magistrates by s76A of the Justices Act. It is therefore necessary to set it out in full as it was on 30 October, 1986.

"76A - (1) Where the justices who convict a defendant

(a) impose a penalty that is contrary to the law;

(b) fail to impose a penalty that is in conformity with the law; or

(c) make an order that is based on, or contains, an error of fact,

they may, of their own motion or on the application of a party to the complaint, and after giving the parties an opportunity of being heard, amend the order made on the complaint and impose a penalty in accordance with the law or alter the order to conform with the facts, as the case may require.

(2) In this section, 'penalty' includes a forfeiture, disqualification, and loss or suspension of a licence or privilege.

(3) Nothing in this section affects the operation of Part XI."

1">11 The section has since been amended so as to limit the time within which such an order can be made. That is not relevant to these proceedings, which are concerned only with the power exercisable by the learned magistrate on the 30 October, 1986.

12 The contention of the appellant is attractively simple. It is that the imposition of the special penalties was contrary to law, because the regulations were void and incapable of authorising a judicial act. The order imposing the special penalties was therefore unauthorised, and "contrary to the law". The magistrate had an unqualified duty to amend the order so as to remove from it that which had no foundation in the law.

13 The contention of the respondent was two-fold. The first part is best expressed by the following paragraph from the judgment of Nettlefold J:

"At the date the learned magistrate made the orders imposing the special penalties the regulation underpinning those orders was in law presumed to be intra vires in the absence of rebuttal of that presumption and it could not be rebutted except by a party to legal proceedings in a court of competent jurisdiction who has locus standi to challenge the validity of the regulation. Until effectively challenged the regulation remained a true source of liability 'as effective for its ostensible purpose as the most impeccable of orders' (in this case regulations). (Hoffmann-La Roche & Co. A.G. & Ors. v. Secretary of State for Trade and Industry [1975] A.C. 295 at 366-7, citing Smith v. East Elloe Rural District Council [1956] UKHL 2; [1956] A.C. 736, 769-770). Further, the presumption in favour of this regulation was strengthened by the decision in Cole v. Dick & Parker, Neasey J., 7779".

14 Secondly, the respondent contends that in so far as the learned magistrate had power to set aside the special penalties it was a discretionary power, that he had failed to recognize the existence of a discretion and so had misdirected himself, and failed to exercise his judicial duty.

15 It can be said at once that Cole v Munday (supra) was not a retrospective declaratory judgment. The reasoning of the judges of that Court could have been called in question by the respondent. However, it was not, and I see no reason to doubt the correctness of the decision. The appellant does not contend that the decision has any force of its own. His submission is that the case revealed the illegality of the regulation. The regulation was void because it was unauthorised by Parliament. It always was void, and would (subject to retrospective legislation) still today be void if Munday v Cole (supra) had never been decided. When, therefore, the magistrate considered the matter on 28 October 1986, he saw that the regulation was void, and that therefore the imposition of the special penalties was unauthorised in law. It was no excess of his jurisdiction to reach such a conclusion. He did the only thing he could do. He amended his order to delete those penalties. He had no discretion to do otherwise.

16 The respondent's first submission appears to be founded on the proposition that there was nothing erroneous or irregular in the magistrate's order imposing the special penalties. On the materials before him, no challenge having been made to the validity of the regulations, his order was correct. In the absence of challenge he was entitled to presume that the regulations were valid. Aliter if they were challenged (see Brudenell v Nestle Co (Aus) Ltd [1971] VicRp 27; [1971] VR 225 at 233). In my opinion, this foundation is sound. The order was a valid order which would provide a firm authority for the collection of the fines. But it was not thereby rendered immune. It was still subject to whatever challenges the law could provide. It could be set aside on appeal on the ground that the regulations were ultra vires and void. In some cases of this kind, and perhaps in this case, other avenues of correction, such as the prerogative writs, would be available. It is true that, if no avenue for correction of the magistrate's order was available, the collection of the fines could not be successfully opposed because the law would not permit anyone to go behind the order of the court. But the fact that in such a proceeding the question of the validity of the regulations could not be debated does not give the regulation itself any validity. Further, the absence of challenge at trial to the validity of the regulation, while entitling the magistrate to make his order, had no effect on the regulation itself, and of course the validity of the regulation was challenged by the application of the 15 October 1986. The question for his Worship then was not whether the regulation should be presumed to be valid, but whether it was. In my view he rightly decided that it was not. If it was invalid when made it remained invalid and it would follow that penalties imposed in reliance upon it were unauthorised and "contrary to the law". It is that fact which invoked the magistrate's jurisdiction to amend the order and that would remain a fact even if all avenues of correction by ordinary appellate processes were closed.

17 The submission of the respondent, as I understand it, then seeks to attach to s76A the policy applied by the courts when determining applications for an extension of the time limited for lodging an appeal, when such an application is based upon an allegation that the original tribunal adopted and applied a conception of the law which had subsequently, in another case, been held to be wrong. That is very close to the factual situation in this case. The policy was described by the New South Wales Court of Criminal Appeal in Reg v Unger [1977] 2 NSWR 990 at 995F as "an unwillingness to permit the re-opening of past decisions". It is a judge-made policy suggested to be, along with the doctrine of merger "founded deeply in the fabric of the philosophy of the common law". Its effect is to circumscribe narrowly a recognized discretion to grant an extension of time.

18 Whilst it is understandable that courts should follow such a policy in exercising a discretion to grant an unusual liberty to an applicant, I see no reason why this Court should impute to Parliament an intention so to bind a magistrate. The words of the section provide no warrant for such an imputation. To my eyes and ears, the words convey an intention to give to a magistrate an opportunity to correct his errors summarily so as to relieve the parties from the necessity of going through the appeal process. (That also accords with my admittedly faint memory of the mischief which the section was designed to correct). And, although the word "may" is used, the section as a whole suggests that a magistrate would be failing in his duty if he refrained from making such a correction. This construction is re-enforced by the 1986 amendment which left the body of the section intact but limited the time within which a corrective order might be made. If his Worship had a discretion, it would be a discretion to refuse to correct error. Such a discretion might exist, e.g. where rights of third parties were involved, but it would be very limited and nothing was put to him which might activate it.

19 Should the section be construed so as to imply a limitation of time, eg up to the expiry of the time limited for appeal? Again there is no statutory warrant for so doing. Further, there would be considerable difficulty in determining when the prospect of appeal had vanished. Whilst the section remained silent as to time, it would be wrong, in my view, to impose a temporal limitation.

20 I turn to consider some of the authorities to which the Court was referred. In Smith v East Elloe Rural District Council [1956] UKHL 2; [1956] AC 736, the House of Lords held that the fact that a compulsory purchase order was made in bad faith could not found an action against the Council because of the statutory provisions that "a compulsory purchase order...shall not...be questioned in any legal proceedings whatsoever". The House consisted of 5 Law Lords, 2 of whom (Lord Reid and Lord Somervell of Harrow) dissented. This was the case in which Lord Radcliffe made the celebrated remarks, repeated by Lord Diplock in Hoffmann-La Roche & Co AG & Ors v Secretary of State for Trade and Industry [1975] AC 295 that "an order ... bears no brand of invalidity upon its forehead.." and until quashed "it will remain as effective for its ostensible purpose as the most impeccable of orders." With the greatest of respect to their Lordships, these comments smack more of rhetoric than of precision. They mean no more than that there is a presumption that the order is valid.

21 In Anisminic Ltd v Foreign Compensation Commission & Anor [1968] UKHL 6; [1969] 2 AC 147, the House of Lords held, in relation to a similar provision, that it would not protect a determination based on a misconstruction of the relevant order. Lord Reid (now in the majority) described the decision in Smith v East Elloe (supra) as less than satisfactory and not binding. In the result, his opinion was, and the Court held, that the determination under challenge was made on a ground which the Commission had no right to take into account, and the appellants were entitled to a declaration that the determination was a nullity. In re Racal Communications Ltd [1980] UKHL 5; [1981] AC 374, the House held that the power to review decisions of administrative tribunals was different from appeals from a superior court of record and therefore a statutory prohibition against appeals was good. It offered no ground for distinguishing the decision in Anisminic.

22 The doctrine of the presumption of regularity or validity was discussed in Hoffmann-La Roche v Secretary of Trade (supra). Nettlefold J relied heavily on the decision in that case, and particularly on certain passages in the speech of Lord Diplock at p366. But really all that case decided which is relevant to this appeal is that a regulation is not to be regarded as invalid (i.e. is presumed to be valid) until it has been successfully challenged by a person having locus standi to do so. It did not decide that an invalid regulation had a temporary validity.

23 The application in that case was for an injunction restraining the appellants from failure to comply with a regulation. The appellants sought from the Crown an undertaking to pay damages. The Crown does not normally give such undertakings. The appellants opposed the application and sought the undertaking on the ground that the regulation was ultra vires. It was held that the Crown was entitled to the interim injunction and was not obliged to give the undertaking on the ground that the regulation should be regarded as valid until a Court otherwise held. But Lord Diplock said at p367:

"Prima facie the Crown is entitled as of right to an interim injunction to enforce obedience to it. To displace this right or to fetter it by the imposition of conditions it is for the defendant to show a strong prima facie case that the statutory instrument is ultra vires."

Each of the Law Lords expressed a similar opinion. Again, what is described is no more than a presumption of regularity.

24 None of these cases is authority for the proposition that, even though Munday v Cole (supra) was correctly decided, nevertheless the imposition of the penalties by the learned magistrate was other than "contrary to the law". There never was any law which supported the penalties. Professor Wade in the course of a lengthy article (83 LQR 499 at 512) speaking of unauthorised subordinate legislation which he described as "void" said:

"It is fallacious to suppose that an act can be effective in law only if it has always had some element of validity from the beginning. However destitute of legitimacy at its birth, it is legitimated when the law refuses to assist anyone who wants to bastardise it. What cannot be disputed has to be accepted".

25 Legitimation in this sense equals "irremediable". It does not confer ex post facto matrimony on the parents. In this case, s76A gave the learned magistrate the opportunity to act upon the illegitimacy of the legislation.

26 The case of Victorian Stevedoring & General Contracting Co Pty Ltd and Meakes v Dignan [1931] HCA 34; (1931) 46 CLR 73 concerned a regulation validly made and effective from the date of its making which was subsequently disallowed by the Senate. The appellants were charged and convicted whilst the regulation was still in force, ie before its disallowance. They appealed to the High Court. It was held that the disallowance was equivalent to repeal; that therefore from that date the regulation was to be treated as if it never existed (see Surtees & Anor v Ellison, 9 B & C [750]; [1829] EngR 594; 109 ER 278) except for transactions "past and closed"; that therefore after disallowance no one could be convicted for a breach committed whilst the regulation was in force; but a person convicted whilst the regulation was valid could not succeed in an appeal because the right of appeal entitled the appellants to no more than "a reconsideration of the question whether at the time of their conviction, they were actually under the liability to which they were adjudged". As the regulation was valid at the time of their conviction, the transaction was "past and closed" and the appeals failed. All that the expression "past and closed" means in this context is that the order of the court being correct in law, the judgment is unassailable. It might also apply to a case where there is no legal pathway for re-examining the decision of the court. But here s76A provides the pathway and the first order was not correct in law.

27 Reference was made to Mason & Anor v the State of New South Wales [1959] HCA 5; (1959) 102 CLR 108. This was an action against the State for the recovery of permit fees imposed on carriers under a New South Wales Statute. In Hughes & Vale Pty Ltd v The State of New South Wales [1953] HCA 14; (1953) 87 CLR 49, the High Court held, following the "Transport Cases" that the legislation requiring payment of the fees was valid and not contrary to s.92 of the Constitution. The Privy Council held that it did infringe on s92. The action to recover the fees succeeded and the legislation was held to be void so far as it affected inter-state trade. This is but another case where subordinate legislation was held to be void ab initio, despite a temporary presumption of and indeed judgment in favour of its regularity.

28 The Fisheries Amendment Act 1986 is irrelevant. There was no significant debate at the Bar Table as to the validity of reg44(4A); but, as at present advised, I see no reason to doubt the magistrate's conclusion that it was ultra vires.

29 The Western Australian cases which were cited are interpretations of a Western Australian Statute and have no persuasive authority.

30 I would answer as follows the questions I posed earlier:-

The nature of the power is corrective, it enables magistrates to set aside or amend penalties which have no adequate legal foundation. Apart from the general jurisdiction of the Court of Petty Sessions and the possible existence of a limited discretion there are no limits on the power. I would allow the appeal and restore the amending orders of the magistrate.

31 I have read the reasons for judgment of Cosgrove J and agree with them. I also agree with Nettlefold J's analysis of the effect of the orders of conviction and for payment of special penalties. Once made, the liability to pay those penalties derives its authority from the order of the court (Dignan's case [1931] HCA 34; (1931) 46 CLR 73) and not from the regulations, which, in the original proceedings were presumed, and thus shown, to be intra vires. As Nettlefold J said at p4 of his reasons for judgment, "At the time the penalties were imposed they were imposed without any challenge to the court's power to do so and in accordance with a regulation which in the circumstances (I would substitute, 'in those proceedings') was correctly presumed to be valid."

32 The regulation "bears no brand of invalidity upon its forehead" per Lord Radcliffe; Smith v. East Elloe Rural District Council & Ors [1956] UKHL 2; [1956] AC 736 at p769. The order remains inviolable until challenged in a court of competent jurisdiction by a party who has locus standi; see Nettlefold J at p4; F Hoffmann-La Roche & Co AG & Ors v Secretary of State for Trade and Industry [1975] AC 295 at pp 366 - 7; Smith v East Elloe Rural District Council (supra).

33 However, in my respectful view, the application by Nettlefold J of the principle expressed by Lord Diplock in F Hoffmann-La Roche's case at pp365 - 367 did not provide an answer to the question in issue which was whether the provisions of s76A of the Justices Act 1959 made the Court of Petty Sessions a court of competent jurisdiction and gave the appellant locus standi to challenge the validity of the order imposing special penalties. The question is one of statutory interpretation, expressed by Lord Radcliffe in Smith's case (supra) at p770 in the words, "has Parliament allowed the necessary proceedings to be taken?" Did s76A authorise the proceedings taken at the suit of the appellant to challenge the finding, impliedly made upon the initial hearing, that the regulations were intra vires?

34 For the reasons expressed by Cosgrove J the regulations were never valid as there was no statutory authority to make them. They were not law, the finding that they were was erroneous and consequently the imposition of special penalties was "contrary to the law". Accordingly, the order of the learned magistrate vacating the order insofar as it purported to impose special penalties was a proper exercise of the statutory jurisdiction conferred upon him by s76A of the Justices Act.

Reported in [[1] 988] Tas R 92.