Janet Mary Mcarthur v Antonio D'Ambrioso Sca [1990] ACTSC 47; (1990) 101 FLR 338 (28 November 1990)

SUPREME COURT OF THE ACT

JANET MARY MCARTHUR v. ANTONIO D'AMBRIOSO
S.C.A. No. 257 of 1990
Magistrate
[1990] ACTSC 47; (1990) 101 FLR 338

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Miles C.J.(1)

CATCHWORDS

Magistrate - jurisdiction - applications to set aside ex parte convictions under s.13A of Taxation Administration Act 1953 made outside the time limited by that section - no jurisdiction in Magistrates Court to make orders to set aside convictions.

Magistrate - appeal to Supreme Court by way of order to review - whether quashing order to set aside conviction operates as a reversal of an acquittal.

Myers v. Claudianos (unreported, Supreme Court of the ACT, 30 March 1990)

HEARING

CANBERRA
28:11:1990

Counsel for the Appellant: Mr Robertson

Solicitors for the Appellant: Director of Public Prosecutions

Counsel for the Respondent: Mr D. Rofe, QC with Mr B. Hull

Solicitors for the Respondent: Alan Nelson

ORDER

In CC87/24751 the Magistrate's orders of 27 June 1990 be quashed, the conviction of 27 July 1988 be confirmed, but the penalty imposed of $3,000 and the order for costs of $20 also imposed on that date be quashed and in lieu thereof a penalty of $500 be imposed with no order as to costs in those proceedings, two months to pay.

In CC88/16532 the Magistrate's order of 27 January 1990 be quashed, the conviction of 19 January 1989 be confirmed but the penalty of $3,000 and the order for costs of $50 both imposed on that date be quashed and in lieu thereof a penalty of $500 be imposed with no order as to costs in those proceedings, two months to pay.

In CC89/15245 the Magistrate's order of 27 January 1990 be quashed, the application for the respondent to be dealt with for breach of recognizance entered into on 28 January 1988 be brought into this Court and be dismissed.

In accordance with s.159F(2) of the Magistrate's Court Act 1930, the appellant pay the respondent's costs of this application.

DECISION

These are appeals by the informant by way of application for order to review decisions of Magistrate Nicholl made in the Canberra Magistrates Court on 27 June 1990 as follows:
1. CC87/24751 - setting aside a conviction recorded on 27

July 1988 for a contravention of s.8C of the Taxation
Administration Act 1953 (Clth) (the Act).
2. CC88/16532 - setting aside a conviction recorded on 19
January 1989 for breach of s.8H of the Act.
3. CC89/15245 - dismissing an application that the
respondent be dealt with for breach of recognizance entered into
on 29 January 1988 to be of good behaviour for two years. The
breach alleged was the offence for which the respondent was
convicted in CC88/16532 on 19 January 1989.

2. In setting aside the two convictions the Magistrate purported to exercise power under s.13A of the Act. It is not necessary to set up the whole of the provisions of that section, however sub-s.13A(1) provides as follows:
"13A(1). Where a defendant has been served with a notice under s.11 in relation to a conviction or order of a court, the defendant may -

(a) where a fine was imposed by the court -
before the expiration of -
(i) the period allowed by the court for payment of the fine; or
(ii) a period of 21 days after the date of service of the notice,
whichever is the longer;
(b) ....."

3. Both applications were commenced on 18 January 1990. In respect of the conviction on 27 July 1988 the Magistrate imposed a fine of $3,000 with costs of $20 and granted one month to pay. In respect of the conviction recorded on 19 January 1989 the Magistrate imposed a fine of $3,000 and granted five months to pay. It is undisputed that the applications under s.13A were commenced outside the time limited by that section.

4. As both applications were made outside the time limited under s.13A of the Act and the Magistrate had no jurisdiction to make orders under that section setting aside the convictions. No other purported basis of jurisdiction was or could be relied upon. The Magistrate simply had no power to set aside the convictions at all. It follows that this Court has power under s.219F(1)(b) of the Magistrates Court Act 1930 to quash or vary the Magistrate's orders. Whilst s.219F(1A) confers a dicretionary power on the Court, the power ought be exercised if the decision under attack has been made without jurisdiction. The present case is not the equivalent of setting aside an acquittal: see Myers v. Claudianos, an unreported decision of my own handed down on 30 March 1990. The respondent in the present case was duly convicted on both occasions and it is the setting aside of those convictions which was made without authority.

5. Counsel for the appellant, the Director of Public Prosecutions, has properly conceded that had the respondent appealed against the convictions in the manner and within the time prescribed by law, he may well have had an arguable chance of success in both appeals. In those circumstances counsel for the appellant does not press for fines in either case of more than $500 and does not seek to have the respondent dealt with for the breach of recognizance. In the unusual circumstances of the case, I order as follows:
1. In CC87/24751 the Magistrate's orders of 27 June 1990 are

quashed, the conviction of 27 July 1988 is confirmed, but the
penalty imposed of $3,000 and the order for costs of $20 also
imposed on that date are quashed and in lieu thereof a penalty of
$500 is imposed with no order as to costs in those proceedings,
two months to pay.

2. In CC88/16532 the Magistrate's order of 27 January 1990 is

quashed, the conviction of 19 January 1989 is confirmed but the
penalty of $3,000 and the order for costs of $50 both imposed on
that date are quashed and in lieu thereof a penalty of $500 is
imposed with no order as to costs in those proceedings, two
months to pay.

3. In CC89/15245 the Magistrate's order of 27 January 1990 is

quashed, the application for the respondent to be dealt with for
breach of recognizance entered into on 28 January 1988 is brought
into this Court and is dismissed.

6. In accordance with s.159F(2) of the Magistrate's Court Act 1930, I order the appellant to pay the respondent's costs of this application.