Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Roads and Maritime Services v Porret [2014] NSWCA 30
• Hearing dates: 15 July 2013
• Decision date: 28 February 2014
• Before: Bathurst CJ at [1]; Macfarlan JA at [45]; Emmett JA at [46]

Decision

That the decision of his Honour Judge Haesler made on 23 April 2012 allowing the appeal of the first defendant against an order made on 25 January 2012 disqualifying her from driving for a period of 12 months be quashed.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: JUDGMENTS AND ORDERS - effect of judgment - setting aside conviction and imposing order under Crimes (Sentencing Procedure Act 1999 (NSW), s10- Crimes (Appeal and Review) Act 2001 (NSW), s20; APPEAL - powers of the NSWCA - jurisdictional error - discretionary orders
• Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW), ss 3(3), 3(3A), 11, 17 and 20; Crimes (Sentencing Procedure) Act 1999 (NSW), s 10; District Court Act 1973 (NSW), s 176; Justices Act 1902 (Cth), s 125; Road Transport (General) Act 2005 (NSW), ss 188 and 202; Road Transport (Driver Licensing) Act 1998 (NSW), s 25A; Road Transport (Safety and Traffic Management) Act 1999 (NSW), s 9(2)
• Cases Cited: Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564; Battenberg v Union Club [2005] NSWSC 242; (2005) 215 ALR 696; Commissioner for Railways (NSW) v Cavanough [1935] HCA 45; (1935) 53 CLR 220; Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163; Director of Public Prosecutions v Burns [2010] NSWCA 265; (2010) 207 A Crim R 362; Director of Public Prosecutions v Toulmin [2013] VSCA 145; Director of Public Prosecutions v TY (No 2) [2009] VSCA 226; (2009) 24 VR 705; Hancock v Prison Commissioners [1960] 1 QB 117; Kirk v Industrial Court (NSW) [2010] HCA 1; (2010) 239 CLR 531; Lynch v Hargrave (1971) VR 99; Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597; New South Wales v Kable [2013] HCA 26; (2013) 87 ALJR 737; Posner v Collector for Inter-State Destitute Persons (Vict) [1946] HCA 50; (1946) 74 CLR 461; Public Service Association (SA) v Federated Clerks Union [1991] HCA 33; (1991) 173 CLR 132; R v Dunphy; Ex parte Maynes [1978] HCA 19; (1978) 139 CLR 482; R v Gray; Ex parte Marsh [1985] HCA 67; (1985) 157 CLR 351; Road and Traffic Authority (NSW) v Papadopoulos [2010] NSWSC 33; (2010) 77 NSWLR 189; Roads and Traffic Authority v Higginson [2011] NSWCA 151; Union Club v Battenberg [2006] NSWCA 72; (2006) 66 NSWLR 1
• Texts Cited: Nil
• Category: Principal judgment
• Parties: Roads and Maritime Services (Plaintiff); Ambre Porret (First defendant); Director of Public Prosecutions (Second defendant); District Court of New South Wales (Third defendant)
• Representation: Counsel: M Robinson SC / A Poljak (Plaintiff); P McEwen SC / S Nash (Amicus Curiae); Solicitors: General Counsel, Roads and Maritime Services (Plaintiff); Glenn Coyne Coyne Legal (First defendant); General Counsel, Director of Public Prosecutions (NSW) (Second defendant); General Counsel, District Court of New South Wales (Third defendant)
• File Number(s): 2012/261488
• Publication restriction: Nil

Decision under appeal

• Jurisdiction: 9101
• Citation: Nil
• Date of Decision: 2012-04-23 00:00:00
• Before: Haesler DCJ
• File Number(s): 2011/318388

Judgment

1 BATHURST CJ: In these proceedings, commenced by summons filed on 22 August 2012, the Roads and Maritime Services (the plaintiff) sought an order in the nature of certiorari or, alternatively, a declaration setting aside or declaring invalid a decision of his Honour Judge Haesler (the primary judge) in the District Court made on 23 April 2012. In his decision the primary judge had upheld an appeal by the first defendant, Ambre Porret (Ms Porret) against an order disqualifying her from driving made pursuant to s 188 of the Road Transport (General) Act 2005 (NSW) (the Road Transport Act).

Facts and statutory background

2 On 20 July 2011 Ms Porret was convicted of driving whilst there was present in her bloodstream a low range prescribed concentration of alcohol contrary to s 9(2) of the Road Transport (Safety and Traffic Management) Act 1999 (NSW) (the PCA offence). The relevant reading was .053 grammes of alcohol.

3 Ms Porret pleaded guilty to the charge and was convicted and fined (the PCA sentence). The disqualification period of six months provided for in s 188 of the Road Transport Act was reduced to three months by the learned magistrate in the exercise of her power under s 188(2)(a) of that Act.

4 On 20 September 2011 Ms Porret was detected by police driving whilst disqualified contrary to s 25A of the Road Transport (Driver Licensing) Act 1998 (NSW) (the disqualification offence). That section, so far as is relevant, provides as follows:

"(1) A person who is disqualified by or under any Act from holding or obtaining a driver licence must not:

(a) drive a motor vehicle on a road or road related area during the period of disqualification".

5 The matter came before the Local Court on 11 October 2011. Ms Porret did not appear. She was convicted in her absence, fined and disqualified from driving for 12 months.

6 On 17 October 2011 Ms Porret appealed against the severity of her sentence for the PCA offence. The appeal was brought pursuant to s 11 of the Crimes (Appeal and Review) Act 2001 (NSW) (the Appeal Act). That section relevantly provides as follows:

"11(1) Any person who has been convicted or sentenced by the Local Court may appeal to the District Court against the conviction or sentence (or both)."

7 Section 17 of the Appeal Act provides for the appeal to be by way of rehearing the evidence given in the original Local Court proceedings although fresh evidence may be given in the appeal proceedings.

8 Section 20(2) of the Appeal Act sets out the power of the District Court in dealing with an appeal against sentence. That subsection, so far as is relevant, provides as follows:

"20(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."

9 The expression "varying the sentence" is defined in s 3(3) of the Appeal Act. Subsections 3(3) and (3A) of that Act are in the following terms:

"3(3) In this Act, a reference to varying a sentence includes:

(a) a reference to varying the severity of the sentence, and

(b) a reference to setting aside the sentence and imposing some other sentence of a more or less severe nature.

(3A) Without limiting subsection (3), a power conferred on an appeal court under this Act to vary a sentence includes the power to make an order under section 10 of the Crimes (Sentencing Procedure) Act 1999 and, for that purpose, to set aside a conviction made by the original Local Court (without setting aside the finding of guilt on which the conviction is based) to enable the order to be made."

10 On 10 November 2011 Ms Porret's appeal against the severity of the PCA sentence was heard. The appeal was allowed. The Chief Judge of the District Court made orders quashing the conviction and the orders of the magistrate. His Honour found the offence proved but without recording a conviction, dismissed the charge under s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

11 Ms Porret made three applications to annul her conviction for the disqualification offence. The first was withdrawn and the second was refused. The third application was made on 12 January 2012. It was heard on 25 January 2012. The application was granted and the conviction and sentence annulled. Thereafter Ms Porret entered a plea of guilty to the offence. She was convicted, fined and disqualified from driving for 12 months. As that period of disqualification dated from the date of conviction, the period for which Ms Porret was disqualified was effectively extended.

12 On 1 February 2012 Ms Porret lodged an application against her sentence for the disqualification offence. On 7 March 2012 the Director of Public Prosecutions gave notice that it would take over the appeal.

13 On 23 April 2012 the appeal was heard. The primary judge granted leave for the appeal to proceed as a conviction appeal. His Honour set aside the conviction and sentence of the Local Court with respect to the disqualification offence. These proceedings are brought in respect of those orders.

The reasoning of the primary judge

14 The primary judge took the view that the effect of the orders of the Chief Judge of the District Court was to set aside the PCA offence ab initio and thus Ms Porret never was disqualified from driving. As a consequence he set aside the conviction for the disqualification offence.

15 In reaching this conclusion the primary judge considered that he was bound by the decision of this Court in Director of Public Prosecutions v Burns [2010] NSWCA 265; (2010) 207 A Crim R 362 (Burns). In that case Beazley JA (as her Honour then was) with whom Campbell JA agreed, made the following remarks (at [42]-[43]):

"[42] A question arose during the course of the appeal as to how an appeal under s 11 should be fully and finally resolved where the District Court determines that the conviction be set aside. Under s 20, an order may be made setting aside the conviction or dismissing the appeal. The setting aside of a conviction is not equivalent to dismissing a charge or to finding a person not guilty, although on a successful appeal under s 11 that would be the intention behind setting aside the conviction. This was explained in Commissioner for Railways (NSW) v Cavanough [1935] HCA 45; (1935) 53 CLR 220 at 225 in the majority judgment of Rich, Dixon, Evatt and McTiernan JJ as follows:

'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 190 at 199; 175 ER 516 at 520]).

If the conviction were alleged in a pleading, it would be a good answer that there was no such record (Dr Drury's Case [(1610) 8 Co. Rep. 139a at 142b; 77 ER 688 at 691]). It is "utterly defeated and annulled" (Lord Sanchar's Case [(1613) 9 Co. Rep. 117a at 119b; 77 ER 902 at 906]) ... "upon the reversal of a judgment against any person convicted of any offence, the judgment, execution and all former proceedings become thereby absolutely null and void ... and [he] shall stand in every respect as if he had never been charged with the offence in respect of which judgment was pronounced against him" (Archbold's Criminal Pleading, Evidence and Practice (21st ed, 1893) at 226, 227.'

[43] Starke J, in a separate judgment, stated, at 227, that the setting aside of the conviction on the appeal had the effect of abrogating and obliterating the conviction. This is consistent with the first of the passages in the plurality judgment set out above, but does not go so far as the statement: the person 'shall stand in every respect as if he had never been charged'. However, as I would understand this statement, it is a reflection of the principle of double jeopardy which would enable the accused person to raise a plea in bar."

16 Applying this dictum the primary judge concluded that Ms Porret effectively had never been disqualified from driving. One of the critical elements of the disqualification offence was therefore not made out.

The standing of the plaintiff

17 Neither the Director of Public Prosecutions, the District Court nor Ms Porret filed submissions or appeared at the hearing of the proceedings. In Roads and Traffic Authority v Higginson [2011] NSWCA 151 the Court held (at [27], [71] and [85]-[86]) that in somewhat similar circumstances the plaintiff, as the government authority responsible for the issue of driving licences, had a direct interest in the matter sufficient to give standing to obtain orders in the nature of certiorari. For the reasons given by the Court in that case the plaintiff in my opinion had standing to bring the proceedings.

18 Because of what was said to be the general importance of the proceedings and the absence of a contradictor, the Court directed that the plaintiff arrange for an Amicus Curiae to appear to present such arguments as may be available to support the conclusion of the primary judge. This was done and counsel retained for that purpose made very helpful written and oral submissions.

The submissions on the appeal

19 The plaintiff put its case in two ways. First it submitted that a decision allowing an appeal is only taken to avoid the original orders ab initio or render it a nullity for all purposes in circumstances where a serious vitiating factor was established. It submitted that Burns and the decision of the High Court in Commissioner for Railways (NSW) v Cavanough [1935] HCA 45; (1935) 53 CLR 220 (Cavanough) were either irrelevant or distinguishable. It submitted that unlike the provisions of s 125(1) of the Justices Act 1902 (NSW) considered by the High Court in the latter case, there was no power in s 20 of the Appeal Act to "quash" the conviction and in those circumstances that decision had no application. It submitted that Burns while citing Cavanough was not dealing with the matter in question in these proceedings.

20 In that context senior counsel for the plaintiff submitted that for Cavanough to have any application it would have to be shown that the magistrate who imposed the sentence for the PCA offence committed jurisdictional error which had been set aside on appeal. He submitted that the approach which he advocated was consistent with what was said by the High Court in New South Wales v Kable [2013] HCA 26; (2013) 87 ALJR 737 (Kable).

21 Alternatively the plaintiff submitted that the power exercised by the Chief Judge of the District Court in making an order under s 10 of the Crimes (Sentencing) Procedure Act was the power to vary a sentence contained in s 20(2)(b) of the Appeal Act and that this was the combined effect of the provisions of ss 3(3) and 3(3A) of the Appeal Act.

22 The plaintiff contended that such a variation would only operate prospectively. It submitted that this was consistent with the conclusion reached in Hancock v Prison Commissioners [1960] 1 QB 117 which he submitted was followed by James J in Roads and Traffic Authority (NSW) v Papadopoulos [2010] NSWSC 33; (2010) 77 NSWLR 189 (Papadopoulos) and by the Court of Appeal in Victoria in Director of Public Prosecutions v TY (No 2) [2009] VSCA 226; (2009) 24 VR 705 (TY (No 2)).

23 The plaintiff accepted that having regard to the privative provision in s 176 of the District Court Act 1973 (NSW), it was necessary for it to establish that the error in question was jurisdictional error. Senior counsel for the plaintiff submitted that the primary judge upheld the appeal by misconstruing ss 3(3) and 3(3A) of the Appeal Act and misapplying Cavanough and Burns. He submitted that that involved the primary judge misconceiving his power which amounted to jurisdictional error. He submitted that any error misconstruing a statute or an error of law on the face of the record amounted to jurisdictional error.

24 In their written submissions counsel who appeared as Amicus Curiae relied, in addition to Cavanough and Burns, on what was said by Campbell J in Battenberg v Union Club [2005] NSWSC 242; (2005) 215 ALR 696 (at [41]) to the effect that the setting aside of a conviction involved it being held retrospectively of no effect. It should be noted that his Honour's decision was reversed by the Court of Appeal in Union Club v Battenberg [2006] NSWCA 72; (2006) 66 NSWLR 1, although the portion of the reasoning relied on by the Amicus Curiae in this case was not the subject of criticism.

25 Counsel who appeared as Amicus Curiae also relied on the decision of the Victorian Supreme Court in Lynch v Hargrave (1971) VR 99. In those proceedings the respondent was convicted, in his absence, of driving with a prescribed concentration of alcohol in his bloodstream. He was not aware of that fact until he was arrested and charged with driving whilst disqualified. He applied for a rehearing and upon application had the initial conviction set aside. However, at the rehearing he was again fined and disqualified.

26 The charge that he was driving whilst disqualified was dismissed on the basis that the setting aside of the earlier conviction removed the disqualification ab initio. This conclusion was upheld on appeal.

27 In their written submissions counsel for the Amicus Curiae said Papadopoulos could be distinguished. One basis for distinguishing Papadopoulos was that the section in question, s 202 of the Road Transport Act, empowered a court, in determining whether to vary a disqualification period, to take account of circumstances which occurred after the date of the order which envisaged a legislative intent that any variation under that provision would operate only prospectively. They submitted that the decision in Kable was only directed to superior not inferior courts.

Consideration

The effect of the conviction of the PCA offence being set aside

28 I am of the opinion that the primary judge erred in concluding that the effect of the order of the Chief Judge of the District Court was to avoid the conviction and sentence for the PCA offence for all purposes such that Ms Porret was never disqualified from driving.

29 In my opinion Cavanough does not compel that conclusion. The passage from the judgment in Cavanough set out in Burns which I have cited above omits that portion of the second paragraph immediately after the reference to Lord Sanchar's case. That portion of the paragraph is in the following terms:

"Acts done according to the exigency of a judicial order afterwards reversed are protected: they are 'acts done in the execution of justice, which are compulsive'. And proceedings which, although based upon a judgment, are brought to completion before its reversal are not avoided."

(References omitted).

30 Whilst it may be argued that the disqualification conviction and consequent penalty was not an executed act as it was subject to appeal, this does demonstrate that even on the authority of Cavanough a judgment set aside was not void ab initio for all purposes.

31 Burns is not contrary to this proposition. The issue on which Cavanough was cited was how an appeal under s 11 of the Appeal Act (dealing with appeals from the Local Court or the District Court) should be finally resolved. The question raised in these proceedings was not considered by the Court in Cavanough.

32 It may be that if the PCA conviction and sentence involved jurisdictional error, it could be said that there was no prior conviction which would have justified the disqualification conviction. In Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 at [152] Hayne J cited with approval the following dictum of Dixon J in Posner v Collector for Inter-State Destitute Persons (Vict) [1946] HCA 33; (1946) 74 CLR 461 at 483:

"'[W]hen a party is entitled as of right upon a proper proceeding to have an order set aside or quashed, he may safely ignore it, at all events, for most purposes. It is, accordingly, natural to speak of it as a nullity whether it is void or voidable, and, indeed, it appears almost customary to do so...

When there has been a failure of the due process of law at the making of an order, to describe it as void is not unnatural. But what has been said will show that, except when upon its face an order is bad or unlawful, it is only as a result of the construction placed upon a statute that the order can be considered so entirely and absolutely devoid of legal effect for every purpose as to be described accurately as a nullity.'"

(Emphasis in original).

There was no suggestion of jurisdictional error in the imposition of the conviction and penalty for the PCA offence. The effect of the conviction being set aside must depend on the construction of ss 20, 3(3) and 3(3A) of the Appeal Act.

33 In my opinion the exercise of a power to set aside or vary a sentence under s 20 would operate prospectively. This would extend to cases where the variation included the exercise of the power under s 10 of the Crimes Sentencing Procedure Act to set aside the conviction. In the case of a sentence appeal under s 20 there is no challenge to the conviction much less an assertion of jurisdictional error and it would be anomalous if the exercise of the power would render the effect of the sentence up to the time of the appeal a nullity. Further, it is quite inconsistent with the concept of varying a sentence which as a matter of language would generally only operate prospectively.

34 This reasoning is consistent with that of the English Court of Appeal in Hancock v Prison Commissioners [1960] 1 QB 117. In reasoning, described by the Court of Appeal of Victoria as compelling (in TY (No 2) at [26]-[27]), Winn J made the following remarks at 125-6:

"...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.

I feel that that must be the right way of construing the section, for otherwise, at least as a matter of theory, the successful appellant against the length of sentence would be a person who had been unlawfully imprisoned as from the date of his conviction and removal to gaol until the time when the Court of Criminal Appeal so pronounced; and all measures of restraint exercised on him (not merely by retaining him in gaol but in other ways) in that interim period would be, at least in theory, tortious wrongs committed against him, were it not that the true intent of such an order and the true meanings of the words in subsection (3) of section 4 of the Criminal Appeal Act, 1907, which enables such an order to be made, is that the Court of Criminal Appeal quashes for the future the original sentence, and substitutes for the future the new sentence which the Court of Criminal Appeal considers the proper sentence, albeit that that sentence itself takes its extent from the original date of the first sentence; that is to say, it is a term of so many years calculated from a starting date which is the same date as the starting date of the sentence which has been, in the sense which I have indicated, quashed."

See also Director of Public Prosecutions v Toulmin [2013] VSCA 145 at [66]-[68].

35 The conclusion I have reached is also consistent with what was said by Gageler J in Kable at [55]-[56].

36 It follows in my opinion that the primary judge erred in setting aside the disqualification conviction.

Was there jurisdictional error

37 Because of the provisions of s 176 of the District Court Act for the primary judge's decision to be set aside, it was necessary for the plaintiff to establish that the order made by the primary judge constituted jurisdictional error.

38 Both the plaintiff and the Amicus Curiae contended that any error, in determining the effect of the conviction of the PCA offence being set aside, would be jurisdictional. However it is by no means clear that this is the case. It does not seem to me that the primary judge mistakenly asserted or denied the existence of his jurisdiction: Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 (Craig) at 177. The primary judge had power to hear the appeal. He erred in his conclusion because he reached the wrong conclusion on the effect of the setting aside of the PCA conviction.

39 The plaintiff argued that that conclusion involved a misconstruction of ss 3 and 20 of the Appeal Act and thus a misconception of the extent of his powers: Craig at 177-178; Kirk v Industrial Court (NSW) [2010] HCA 1; (2010) 239 CLR 531 (Kirk) at [72].

40 With some hesitation I have concluded that this submission was correct. What led the primary judge to set aside the conviction ab initio was a misunderstanding of s 20 of the Appeal Act. He had no power to set aside the conviction ab initio because the effect of ss 20, 3(3) and s 3(3A) of the Appeal Act was that the setting aside of the conviction would only operate prospectively. His decision thereby constituted jurisdictional error: cf Kirk at [75].

Discretion

41 The question which arises is whether any order should be made. The period of disqualification the subject of the appeal has expired and neither Ms Porret nor the Director of Public Prosecutions appears to have any further interest in the proceedings.

42 Senior counsel for the plaintiff suggested that rather than quash the decision and remit it to the primary judge, a declaration as to the correct position could be made. Although this may be appropriate in certain circumstances (see, for example, Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 at 581-582, 595-596) it does not seem to me that in the present case such a declaration would be of any utility.

43 In all the circumstances it seems to me to be appropriate to quash the decision of the primary judge but to make no further orders.

Conclusion

44 In the circumstances the following order should be made, that the decision of his Honour Judge Haesler made on 23 April 2012 allowing the appeal of the first defendant against an order made on 25 January 2012 disqualifying her from driving for a period of 12 months be quashed.

45 MACFARLAN JA: I agree with Bathurst CJ.

46 EMMETT JA: This proceeding is concerned with the effect of an order made by the District Court under s 20(2)(b) of the Crimes (Appeal and Review) Act 2001 (the Appeal Act). That provision authorises the District Court, in determining an appeal from a sentence imposed by the Local Court, to vary the sentence imposed by the Local Court.

47 At the relevant time, s 9(2) of the Road Transport (Safety and Traffic Management) Act 1999 (the Safety Act) provided that a person must not, while there is present in his or her breath or blood the low range prescribed concentration of alcohol, drive a motor vehicle. On 17 June 2011, the first respondent, Ms Ambre Porret, was apprehended driving a motor vehicle while there was present in her breath the low range prescribed concentration of alcohol. Ms Porret was charged with an offence under s 9(2) of the Safety Act. On 20 July 2011, she pleaded guilty before Manly Local Court to that charge. She was fined and disqualified from driving for three months from 20 July 2011.

48 Under s 11 of the Appeal Act, any person who has been convicted or sentenced by the Local Court may appeal to the District Court against the conviction or sentence (or both). On 17 October 2011, Ms Porret lodged an appeal under s 11 against the sentence imposed on 20 July 2011. Section 20(2)(b) of the Appeal Act, read with s 3(3)(a), provides that the District Court may determine an appeal against sentence by varying the severity of the sentence. Under s 3(3A), the power to vary a sentence includes the power to make an order under s 10 of the Crimes (Sentencing Procedure) Act 1999 (the Sentencing Act). Section 10 of the Sentencing Act relevantly provides that, without proceeding to a conviction, a court that finds a person guilty of an offence may make an order directing that the relevant charge be dismissed. Section 3(3A) of the Appeal Act provides, relevantly, that, for the purpose of making an order under s 10, the District Court may set aside a conviction made by the Local Court without setting aside the finding of guilt on which the conviction was based.

49 On 10 November 2011, Blanch J, in the District Court, granted leave to Ms Porret to appeal out of time from the conviction and sentence imposed by the Local Court on 20 July 2011. His Honour ordered that the orders of the Local Court be quashed and that the charge against Ms Porret under s 9(2)(a) of the Safety Act be dismissed under s 10 of the Sentencing Act.

50 Section 25A(1)(a) of the Road Transport (Driver Licensing) Act 1998 (the Licensing Act) provides, relevantly, that a person who is disqualified by or under any Act from holding or obtaining a driver licence must not drive a motor vehicle on a road during the period of disqualification. On 20 September 2011, Ms Porret was apprehended driving a motor vehicle. She was charged with an offence under s 25A(1)(a) of the Licensing Act. She was summoned to appear at North Sydney Local Court on 11 October 2011. On that day, Ms Porret did not appear. She was convicted upon her failure to appear, and was fined $1,000 and disqualified from driving for 12 months.

51 An application for annulment of the conviction of 11 October 2011 was filed on 19 October 2011. Leave to withdraw the application was granted and the application was dismissed on 2 November 2011. A second application for annulment lodged on 30 November 2011 was refused on 11 January 2012. A third application for annulment was lodged at the Downing Centre on 12 January 2012. The application was received at the North Sydney Court House, the location of the listing, on 16 January 2012. The application was granted on 25 January 2012 and the conviction and sentence of 11 October 2011 were annulled. On that day, Ms Porret then pleaded guilty to the offence. A conviction was recorded and she was fined $750 and disqualified from driving for 12 months.

52 However, on 1 February 2012, Ms Porret lodged an appeal to the District Court against the severity of the sentence imposed on 25 January 2012. On 23 April 2012, Haesler DCJ, in the District Court, granted Ms Porret leave to proceed with the appeal as a conviction appeal. His Honour considered that the effect of the order made by Blanch J on 10 November 2011 was that the conviction of 20 July 2011 had been avoided ab initio. Accordingly, his Honour held that, as at 20 September 2011, Ms Porret was not disqualified from driving. His Honour concluded, therefore, that an element of the offence charged under s 25A of the Licensing Act had not been made out. His Honour therefore ordered that the conviction and orders made on 25 January 2012 be set aside.

53 That conclusion ignores the clear language of s 25A of the Licensing Act. There can be no doubt that, as at 20 September 2011, Ms Porret was disqualified from holding a driver licence by reason of the order made on 20 July 2011. There was nothing erroneous or invalid in that order. The fact that the conviction was subsequently set aside, on 10 November 2011, is not to the point. That setting aside may have some consequences in futuro, so far as the conviction is concerned. However, it does not alter the fact that, as at 20 September 2011, Ms Porret was disqualified from holding a licence and, contrary to s 25A(1)(a) of the Licensing Act, she drove a motor vehicle on a road.

54 I have had the advantage of reading in draft form the reasons of the Chief Justice for concluding that Haesler DCJ erred in upholding the appeal on 23 April 2012. I agree, for the reasons given by the Chief Justice, that Haesler DCJ erred in setting aside the disqualification conviction. However, I wish to add some remarks on the question of jurisdictional error and relief.

55 By its summons, the plaintiff, Roads and Maritime Services, seeks:

an order in the nature of certiorari or, alternatively, a declaration setting aside or declaring invalid the decision of Haesler DCJ made on 23 April 2012;

a declaration that on 20 September 2011, Ms Porret was disqualified from driving as a consequence of her conviction by the Local Court on 20 July 2011; and

an order in the nature of mandamus remitting the matter to the District Court for determination according to law.

56 The prayers for relief in the summons exhibit a degree of misconception on the part of their author. An order in the nature of certiorari would do no more than remove the proceedings in the District Court into the Supreme Court. That is a preliminary step necessary before the Supreme Court could deal with the proceedings in the District Court by, for example, quashing any orders made by the District Court. However, s 176 of the District Court Act 1973 provides that no adjudication on appeal of the District Court is to be removed by any order into the Supreme Court. In the light of that prohibition, therefore, the summons claimed declarations as indicated above. However, without an order removing the District Court proceedings into the Supreme Court, it would not be open to the Supreme Court to set aside the decision of Haesler DCJ or to declare it invalid. Further, a declaration that, on 20 September 2011, Ms Porret was disqualified from driving would have no utility as between Ms Porret and Roads and Maritime Services, since the order made by Haesler DCJ would continue in force. Finally, an order of mandamus would not involve remitting the matter to the District Court. The matter could be remitted to the District Court only if it had been removed into the Supreme Court in the first place. An order for mandamus would direct the District Court, after such remitter - assuming there could be a remitter - to determine the matter according to law.

57 Nevertheless, s 176 of the District Court Act 1973 would not and could not exclude the jurisdiction of the Supreme Court to grant relief in the nature of prohibition, certiorari or mandamus directed to the District Court for the purposes of enforcing the limits or the statutory authority of the District Court. In particular, section 176 would not exclude certiorari for jurisdictional error. A privative provision in State legislation that purports to strip the Supreme Court of its authority to confine an inferior court within the limit of its jurisdiction by granting relief on the ground of jurisdictional error would be beyond the powers of the State legislature because it would remove a defining characteristic of the Supreme Court of the State (Kirk v Industrial Court of NSW (2010) 239 CLR 531 at [55]).

58 The question is whether the error of Haesler DCJ can be characterised as jurisdictional error within the meaning of those principles. An inferior court falls into jurisdictional error if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist (Craig v South Australia (1995) 184 CLR 163 at 177). Jurisdictional error is at its most obvious where the inferior court purports to act wholly or partly outside the general area of its jurisdiction in the sense of entertaining a matter or making a decision or order of a kind that wholly or partly lies outside the theoretical limits of its functions and powers. Instances of an inferior court acting beyond jurisdiction by entertaining a matter outside the limits of its functions or powers include the absence of a jurisdictional fact; disregard of a matter that the relevant statute requires to be taken into account as a condition of jurisdiction; and misconstruction of the relevant statute, thereby misconceiving the nature of the function that the inferior court is performing or the extent of its powers in the circumstances of the particular case (Craig at 178-9; Kirk at 573-4).

59 The applicant contended that every time the District Court misconstrues a statute in reaching a conclusion, or commits an error of law on the face of the record, a jurisdictional error is committed. That contention must be rejected. Errors of law committed by inferior courts will generally not amount to a misconception of the nature of their function, in the sense of the third example noted above, because the ordinary jurisdiction of such courts encompasses the authority to decide questions of law as well as of fact (see Craig at 180). Before an error can be characterised as jurisdictional error, it must be demonstrated that the error falls into one of the established, though by no means rigid, 'categories' of jurisdictional error, so as to make certiorari available as a remedy.

60 Haesler DCJ misconstrued the effect of s 20 in its use by Blanch J. In the present case, Haesler DCJ proceeded on the mistaken assumption that a ground existed for his exercise of the power under s 20. An implied pre-requisite for the exercise of jurisdiction under s 20 is that some ground exists to justify the varying or setting aside of a sentence or the dismissal of the appeal. On that basis, Haesler DCJ mistakenly assumed the existence of a jurisdictional fact insofar as he concluded that a ground existed for the exercise of power under s 20, being that the Local Court had wrongly convicted Ms Porret on 25 January 2012. That conclusion depended on a misinterpretation of the power conferred by s 20 as exercised by Blanch J. Consequently, the purported exercise of power under s 20 by Haesler DCJ involved an excess of power because the pre-requisite for the exercise of power was the existence of a jurisdictional fact that did not exist.

61 The misconstruction of s 20 by Haesler DCJ caused his Honour to misconceive the extent of his powers in the circumstances of this case. Whether such a misconstruction is classified as jurisdictional or non-jurisdictional error is often not easy to determine (see R v Dunphy; Ex parte Maynes (1978) 139 CLR 482; R v Gray; Ex parte Marsh (1985) 157 CLR 351 at 371; Public Service Association (SA) v Federated Clerks Union (1991) 173 CLR 132). The question is whether the provision misconstrued is one that describes or limits the jurisdiction of the decision-maker (see R v Gray; Ex parte Marsh (1985) 157 CLR 351 at 373, 376-77). The legislature, in enacting s 20 of the Appeal Act, conferred on the District Court a jurisdiction that implicitly has certain limits. Although the power conferred by that section is discretionary, it cannot be exercised on no basis whatsoever. There must be some ground that justifies the exercise of the power, such as that a conviction was wrongly ordered or a sentence was excessively long. In the present case, as described above, there was, in fact, contrary to Haesler DCJ's conclusion, no ground justifying the exercise of the power conferred by s 20.

62 It follows that, notwithstanding the provisions of s 176 of the District Court Act 1973, it would be open to this Court to make an order in the nature of certiorari for the District Court proceedings to be removed to the Supreme Court and for the orders of Haesler DCJ to be quashed. There would be no utility in remitting the proceedings to the District Court for further determination according to law.

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Amendments

26 November 2014 - Change Justices Act 1902 (Cth) to Justices Act 1902 (NSW)
Amended paragraphs: [19]

26 November 2014 - Amended Kable reference to '87 ALJR 737'
Amended paragraphs: [20]

22 December 2014 - amended "s 3(a)" to "s 3(3)(a)"
Amended paragraphs: 48

22 December 2014 - amended "30 November 2011" to "10 November 2011"
Amended paragraphs: 52

22 December 2014 - changed "Safety Act" to "Licensing Act"
Amended paragraphs: 50

Decision last updated: 22 December 2014