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Supreme Court of the ACT Decisions |
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COURT
IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
HIGGINS J
CATCHWORDS
Appeal - appeal against decision of the Magistrates Court to refuse an application for a declaration pursuant to s180H of the Motor Traffic Act 1936 (ACT) (MTA) - declaration that the applicant, whose driver's licence has been suspended, is not liable in respect of the traffic infringement - whether leave is required to appeal from a decision of the Magistrates Court made pursuant to an application under s180H MTA.
Practice and procedure - jurisdiction of the Magistrates Court to entertain an application pursuant to s180H MTA - difference between s180H and s180G MTA - proposition that an allegation of prohibited conduct be proved according to law before a person is subject to a penalty.
Traffic law - Traffic Infringement Notice - right to challenge allegation of commission of infringement - speeding offence alleged - failure to challenge in time - whether legislation permits both challenge and lifting of licence suspension after payment - both remedies available.
Motor Traffic Act 1936 (ACT), ss144, 180, 217D
Magistrates Court Act 1930 (ACT), ss23, 208, 216, 219B
Magistrates Court (Civil Jurisdiction) Act 1982 (ACT), ss22, 387, 388
Interpretation Act 1967 (ACT), s8A
The Great Charter (Magna Carta), Articles 20, 29
Imperial Acts Application Act 1986 (ACT), Sch3.Parts 2, 3, 6, 10, 11, 19
The Constitution, s122
The Australian Capital Territory (Self Government) Act 1988, ss22, 34, 28
Australian Courts Act 1828 (UK), s24
Re Flavel [1916] SALR 47
Dean v Attorney General (QLD) [1971] Qd R 391
Australian Overseas Telecommunications Corporation Ltd v Commissioner for Land Tax (1922) 114 ALR 262 (Qd CA)
Khoury v GIO (NSW) [1984] HCA 55; (1984) 54 ALR, 639
HEARING
CANBERRA, 7 April 1997 (hearing), 18 June 1997 (decision)
18:6:1997
The Appellant appeared in person.
Counsel for the First Respondent: Ms P Mathie
Instructing solicitors: Australian Government Solicitor's Office (ACT)
ORDER
THE COURT ORDERS THAT:
1. The appeal be upheld. 2. The order refusing the application be set aside.
DECISION
HIGGINS J
This matter commenced with the issue of a Traffic Infringement Notice No. 1101189 (TIN) to the applicant/appellant on 28 March 1996.
Section 180A of the Motor Traffic Act 1936 (ACT) (MTA) authorises the issue of such notices where a police officer has reason to believe that a person has committed 'a prescribed offence'. The TIN itself was not tendered on the hearing. However, the appellant was desirous of contesting his liability in respect of it. It was not disputed that it alleged that the appellant had been travelling at 81kph in a 60kph zone. However, the appellant contended that applicable signage indicated it was an 80kph zone. It seems likely, if the appellant is to be accepted, that a sign intended to indicate 60kph had been removed by some unauthorized person or persons, whether accidentally or otherwise.
Section 180A(3)(a)(iii) to (v) provides that a TIN should state, that, inter alia,
(iii) if the infringer wishes to dispute liability for the alleged traffic infringement he or she must give the chief police officer notice in writing to that effect within 28 days after the date of the notice; (iv) if liability is disputed, the matter may be referred to the Court [ie Magistrates Court] for determination; and (v) if liability is disputed and the Court finds against the infringer, he or she may be convicted and ordered to pay such penalty and costs, and be subject to such further orders, as the Court determines;
Further sub-sections,
- give the chief police officer power "at any time" to withdraw a TIN "by notice in writing served on the alleged infringer" (s180A(4)); - prohibit the issue of an information for an offence arising out of the same circumstances unless "within 28 days after the date of the notice", the "alleged infringer" is served with a notice under s180A(4) and a notice that it is proposed to lay such an information (s180A(4A)); - provide that if the prescribed penalty is paid before the period allowed for payment (up to a further 56 days if so permitted by the chief police officer), then the TIN is discharged and no further proceedings may be taken (s180A(6)). Plainly, if the alleged infringer desires to avoid being charged with a traffic offence, he or she has a real interest in paying the prescribed penalty before the chief police officer can serve a notice withdrawing the TIN in order to allow an information to be laid pursuant to s180A(4A). - provide that if the notice is subsequently withdrawn, the prescribed penalty, if already paid, is to be refunded (s180A(6)).
A person who has paid the penalty in respect of a prescribed offence incurs, pursuant to s180NB(1)(b), "the prescribed number of demerit points". Incurring a sufficient number of such points leads to suspension or cancellation of a licence to drive a motor vehicle.
The appellant failed to deliver in time the notice referred to in s180A(3)(iii). Nor did he pay the prescribed penalty.
Section 180B(1) becomes relevant. It provides that where the penalty is unpaid and no notice has been lodged "under" sub-s180D(1),
... the person is liable to pay to the Registrar, within 14 days after the date of service by the Registrar of a notice in accordance with this section, or within such further time (not exceeding 28 days) as the Registrar, whether before or after the expiration of that period, allows, the sum of the penalty for the traffic infringement and the administrative charge.
That notice, inter alia, is to notify the person, per 3(c) that, if the sum payable is not paid as so required,
...the Registrar will, on a date specified in the notice, suspend - (i) the infringer's driving licence; (ii) the registration of the motor vehicle in respect of which the alleged traffic infringement occurred; (iii) the infringer's right to drive in the Territory; or (iv) the right to drive in the Territory the motor vehicle in respect of which the alleged traffic infringement occurred; as the case requires.
Section 180C provides that if the notice issued pursuant to s180B is complied with (or if the notice referred to in s180A has been complied with) or if the notice is withdrawn,
(a) any liability of a person in respect of the alleged traffic infringement shall be deemed to be discharged; and (b) no further proceedings shall be taken in respect of the infringement.
Section 180D provides for the right of an alleged infringer to lodge the notice of dispute referred to in s180A. As foreshadowed in s180A, it is to be "lodged with the chief police officer within 28 days".
Section 180E allows a further 60 days following delivery of that notice for the chief police officer to lay an information in respect of the alleged traffic infringement. Section 180E(2) allows a person who has given valid notice of dispute under s180D, even after an information is laid but before the hearing of it, to pay the penalty and costs prescribed. The chief police officer is then obliged to discontinue the proceedings in respect of that information. In fact in this case, the Registrar took action by issuing a notice under s180B on 26 April 1996.
Then, on 13 May 1996, the penalty and administrative charge being unpaid, the Registrar acted pursuant to s180F1(d) of the MTA activating by notice a power to suspend the appellant's licence.
.
Subsection 180F(3) provides,
The Registrar shall not effect a suspension under subsection (1) unless, at least 10 days before the suspension takes effect, he or she notifies the person concerned, in writing of the date on which the suspension is to take effect.
The notice of 13 May 1996 advised the appellant that suspension of his licence would take effect on and from 3 June 1996.
The appellant, nevertheless, remained desirous of challenging the original allegation of speeding. However, he had no desire to lose the benefit of his driver's licence whilst he did so.
Section 180G seemed to him to provide a possible resolution of that difficulty. It states,
The Registrar shall cancel a suspension effected under subsection 180F(1) upon the payment of all amounts payable under section 180B or 180E (as the case requires) by the person or in respect of the motor vehicle concerned.
At the same time, he wished to utilize the provisions of s180H, to challenge the original allegation. That section provides, relevantly,
(1) A person - (a) whose licence to drive in the Territory ..., has been suspended under this Part ... may apply to the Court for a declaration that he or she is not liable in respect of the traffic infringement. (2) For the purposes of subsection (1), the onus of proving that a traffic infringement occurred is on the chief police officer. (3) The Court may, on sufficient cause being shown, make or refuse to make the declaration sought. (4) Where - (a) the Court makes the declaration sought under subsection (1); ... the Registrar shall, subject to subsection (5), by notice in writing served on the applicant, cancel the relevant suspension.
Subsection (5) is not relevant to the appellant. Subsection (6) makes such a cancellation of the suspension order retrospective "for all purposes".
This was the dilemma faced by the appellant. He could continue to drive from 3 June 1996 until an application under s180H could be heard and determined without making a payment of the penalty and administrative charge due pursuant to s180B. If that application was decided favorably to the appellant then he would, retrospectively, be deemed innocent of any charge otherwise open of driving whilst his licence was suspended. Further, as he would, as a result, neither have been convicted of a prescribed offence nor have paid a penalty "in respect of a prescribed offence in respect of which he or she has not been convicted", s180NB(1) would not apply to him. Thus, he would not have incurred any demerit points.
On the other hand, if the Court declined to make the declaration sought, it would remain open to the appellant to pay the sum due under s180B, thus activating s180G. The suspension of licence would thus be cancelled but only from the date of payment. That course would leave the appellant liable to be prosecuted if he had driven a vehicle whilst his licence had been suspended. The demerit points would remain active.
On 3 June 1996, therefore, the appellant did two things. He applied to the Magistrates Court for a declaration, pursuant to s180H of the MTA, that he was not liable to pay the sums demanded in the s180B notice dispatched by the first respondent on 13 May 1996. He also paid that sum, being $169.00, to the first respondent.
It followed from that payment that the suspension of the appellant's licence was cancelled pursuant to s180G on and from 3 June 1996, although the prescribed number of demerit points remained applicable.
On 11 May 1996, the application under s180H came before Magistrate Burns. There was an appearance for the first respondent but not the second. The first respondent was represented by Ms Mathie of the ACT Government Solicitor's Office. She indicated that the second respondent would appear only if proof of the alleged infringement became necessary. The second respondent would then appear and be represented by the Director of Public Prosecutions (DPP). Ms Mathie submitted that his Worship had no jurisdiction to entertain the application. That submission was based on the proposition that the appellant, having paid the penalty demanded, had already achieved a cancellation of his licence suspension retrospectively. That was, of course, an erroneous submission. His Worship, in my respectful opinion correctly, noted that retrospectivity was provided for only under s180H(6) and (7) and was limited to cases where the suspension was cancelled under s180H(4). Cancellation under s180G was not retrospective.
Ms Mathie then submitted that although the appellant was a person whose licence to drive had been suspended as referred to in s180H(1)(a), that subsection was not intended to include as possible applicants a person who had already paid the penalties referred to in s180A or s180B.
Reliance was also placed upon s180C(1). Ms Mathie submitted that provision indicated there was no remaining issue to be decided.
Again, his Worship's response to those submissions seems to me to have been correct. The latter provision, as his Worship noted, was merely intended to prevent double jeopardy.
The next submission was that there was no provision in s180H for the refund of any penalty previously paid. Thus, it was contended, a person who had already paid the prescribed penalty was not covered by s180H. It is true that there is no express provision to that effect. However, if a declaration is made pursuant to s180H(1), the debt previously created by force of s180B(1) is necessarily discharged if s180H(6) and (7) are to be given full force and effect. That accords with the view his Worship took.
Without then calling on the appellant, his Worship expressed himself satisfied that the Court had jurisdiction to hear the appellant's application.
The matter was adjourned to 30 August 1996 to enable the substantive question as to whether a traffic infringement had occurred to be litigated.
On 30 August 1996 the matter was listed before Special Magistrate Dainer. Why it was not returned to Magistrate Burns, being part-heard before him, was not explained. Mr Madden of the DPP's office appeared for the second respondent. The first respondent did not appear.
Upon noticing that the appellant had paid the prescribed sum on 3 June 1996, with the effect that the appellant's licence had ceased to be suspended, his Worship, not unreasonably, questioned the appellant's standing to complain of the suspension imposed on that day.
No reference was made either by his Worship or Mr Madden to the fact that, correctly or not, Magistrate Burns had already ruled that the Magistrates Court had jurisdiction, notwithstanding payment of the penalty, to entertain the application on its merits. By this stage the appellant might be forgiven for feeling somewhat confused. His confusion was no doubt deepened when Mr Madden expressed the view, contrary to what the appellant believed to be the effect of the legislation, that payment of the penalty had quashed the demerit points also "by virtue of ss180H and 180G".
It is not clear whether his Worship accepted or not Mr Madden's opinion in relation to the demerit points. If he had done so it would have been a glaring error of law.
His Worship, without indicating whether he accepted or rejected that view of ss180G and 180H or whether he regarded that matter as relevant, ruled that he did not have jurisdiction to entertain the application. His only stated reason was that the appellant's licence being "no longer suspended", he lacked the power to entertain the application.
The application was refused accordingly. The formal order his Worship had made, as expressed on the Bench Sheet, was "app. refused (at time of making application under s180H (MTA), apps licence suspension had been cancelled (s180G), therefore no grounds for application)."
On 19 September 1996, the appellant lodged a notice of this appeal, seeking to set aside the decision of Special Magistrate Dainer. No objection is taken to the form or sufficiency of the notice of appeal itself. It was lodged on 19 September 1996. That was within 21 days after the decision. However, it was lodged as if of right. The respondents submit leave was required, though the grant of leave was not opposed.
Section 180M (MTA) provides that,
An application under section 180H shall be made pursuant to subsection 20(2) of the Magistrates Court (Civil Jurisdiction) Act 1982 [MC (CJ) Act].
The powers of the Magistrates Court on an application being made under s22 are, per s22(8), "to make such orders and give such directions as it thinks just". Those powers are certainly wide enough to have required any payment made by the appellant to be refunded or any record of demerit points deleted.
However, the right of appeal from a decision of the Magistrates Court made pursuant to s22(8) MC (CJ) Act is more limited than for other matters coming before that Court.
The MC (CJ) Act confers jurisdiction upon this court to entertain appeals from decisions made pursuant to that Act, including decisions made pursuant to s22. Section 387 provides,
(1) Subject to subsection (2), an appeal shall not be brought unless the Supreme Court gives leave to appeal.
Subsection (2) grants an appeal as of right only if the 'property or...civil right amounts to or is of the value of $2000.00 or more .
Section 388 provides,
Leave to appeal shall not be given in pursuance of subsection 387(1) unless application for that leave is made within 21 days after the date on which the judgment or order from which leave to appeal is sought to took effect or within such further time as the Supreme Court allows.
Thus, an appeal from a decision made upon an application brought under s22 MC (CJ) Act requires leave under s387(1).
It is clear that the appellant did not advert to the need for leave. The appellant is now out of time to apply, as of right, to seek such leave. I have power to extend time to seek leave to appeal nunc pro tunc. The appellant is self-represented. He had sought to assert his right of appeal within the time which was limited to seek leave. The respondents assert no prejudice and have no objection to leave now being given to appeal.
It is, therefore, appropriate formally to extend time for making application for leave to appeal and to treat the notice of appeal as including such an application. I will proceed accordingly and now consider the question of jurisdiction as to which Magistrate Burns and Special Magistrate Dainer are clearly in conflict.
The suspension of the appellant's driver's licence took effect on 3 June 1996 pursuant to the notice dated 13 May 1996. That notice attracted the rule of interpretation expressed in s8A of the Interpretation Act 1967 (ACT), that is,
Where an Act, or any instrument (including regulations, rules or by-laws) made, granted or issued under an Act, is expressed to come into operation on a particular day (whether the expression "come into operation" or "commence" is used), it shall come into operation immediately on the expiration of the last preceding day.
That section merely adopts and applies the rule at common law that the law does not take account of fractions of days, see Re Flavel [1916] SALR 47. That rule is based on the manifest inconvenience of having to choose the precise time during the day on which an Act or instrument would take effect. It removes the need to choose between ignoring the nominated day entirely or counting the whole of it. To ignore the day would, as a matter of common sense, give the notice an effect less than it purports to convey. The interpretive rule is one of convenience and is now beyond question, even apart from its statutory support, see also Dean v Attorney-General (Qld) [1971] Qd R 391 and Australian Overseas Telecommunications Corporation Ltd v Commissioner for Land Tax (1922) 114 ALR 262 (Qd CA).
It follows that, at whatever time of the day the appellant filed his application for a declaration under s180H at the Magistrates Court, there was a period of time during which his driving licence was suspended. Payment made pursuant to s180G would not result in any retrospective absolution for any offence of driving without a valid licence earlier in the day, if such had been detected and prosecuted. That conclusion is strengthened by the express retrospectivity afforded a cancellation of suspension effected pursuant to s180H.
The respondents submitted that, although the appellant was a person whose licence had been suspended under Part XIA of the MTA, it was implicit that if, at any time before the hearing of the application under s180H, the penalty was paid so as to cancel the suspension of his licence to drive, he was then rendered ineligible to make or continue to make an application under s180H.
The respondents' submissions expressly concede that there is a real distinction between the cancellation of a suspension under s180G and the cancellation of a suspension ab initio under s180H. Further, there is a distinction, in my opinion, between a suspension of a cancellation on the basis of a declaration that the allegation that the applicant had committed a traffic infringement fails and a suspension based merely on payment of the relevant penalty, leaving that allegation unchallenged.
The law has traditionally afforded great significance to the proposition that no person should be subjected to penalties without an allegation of prohibited conduct being proved according to law. Whatever the standard of proof or mode of trial, this principle has been affirmed as fundamental throughout the history of the common law.
The Great Charter (Magna Carta), Article 20, (as translated) provided, relevantly,
A freeman shall only be amerced [punished by the infliction of fines or like penalties], for a small offence after the manner of the offence. ... And none of the aforesaid amercements shall be imposed except by the oaths of good men from the neighborhood.
Only Article 29 of the Great Charter is continued in this Territory by Imperial Acts Application Act 1986, Sch. 3 Part 2 (IAA Act). The terms thereof are,
No freeman shall be taken or imprisoned, or disseised of his freehold, liberties or free customs, or be outlawed or exiled or in any other wise destroyed; nor will We pass upon him nor condemn him, but by lawful judgment of his peers or by the law of the land. We will sell to no man, and we will not deny or defer to any man, either justice or right.
Nevertheless, other continued enactments embrace the substance of Article 20 as well as Article 29.
Part 3-25 Edw. 3, St.5, c.4 (1351) continued by IAA Act Part 3 provides, relevantly, that,
...none be deprived of his franchises, or of his freeholds, unless he be duly brought into answer, and forejudged of the same by the course of the law; ...
See also, IAA Part 6-2 Hen. 4, c1, s5, continued by IAA Act Part 6 provides that,
Full justice and right be done, as well to the poor as to the rich, in his [The King's] courts aforesaid.
The power of officials to impose penalties was the subject of complaint in Article 2 of The Petition of Right - 3 Chas. 1 c.l (1627). That enactment is continued by IAA Act Part 10.
After the "Glorious Revolution" 1688, the Crown, then granted by the lords and commons without Crown assent to William and Mary; assented to The Bill of Rights - 1 Will. and Mary, Sess. 2, c2, (1688) which is continued by IAA Act Part 11.
Various complaints of wrongs done by or under James II were recited in the Bill. Paragraph 12 thereof complained,
And several grants and promises made of fines and forfeitures before any conviction or judgment against the persons upon whom the same were to be levied.
Article 12 declared that all such "grants and promises of fines and forfeitures of particular persons before conviction are illegal and void".
Those laws were applied to New South Wales and Van Dieman's Land by the Australian Courts Act, 1828 (UK). Section 24 thereof is continued in this Territory by IAA Act Part 19.
Those laws are, of course, subject to the will of Parliament which may, subject to any constitutional limitations, alter the application of those fundamental civil rights. In the Territory that power resides in the Federal Parliament, pursuant to s122 The Constitution, and the ACT Legislative Assembly, pursuant to s22 of the Australian Capital Territory (Self-Government) Act 1988 (ACT (S-G) Act).
The latter provision is in the following terms,
Subject to this Part [Part IV] and Part VA, the Assembly has power to make laws for the peace, order and good government of the Territory.
Section 28 subordinates such laws to any law otherwise applying in the Territory not being an "enactment", that is, a law made by the Assembly or given that status by s34, or a "subordinate law", that is, a legislative instrument made pursuant to such a law.
Pursuant to s34 ACT (S-G) Act, the Imperial Acts referred to above are "enactments" as also are the various provisions of the MTA.
It follows that the provisions of the MTA dealing with traffic infringements should be interpreted consistently with the long standing requirement that no person should be penalised for an offence unless due process of law has been observed. That due process includes the right to oppose the imposition of such a penalty before a properly constituted court. It would be inconsistent with such principles if the first Respondent, for example, was given power to impose penalties not only without giving a right to the alleged offender to be heard but also without recognising the right of the alleged offender to be dealt with according to law, enjoying the same rights and protections afforded any other alleged offender in like circumstances.
For that reason, no doubt, s180A MTA, recognises the right of an alleged infringer, to opt to be dealt with by way of the laying of an information should the prosecuting authorities decide that so to do was appropriate.
A person who, having been summonsed to answer such an information, fails to attend so to answer, may be dealt with ex parte, but, even then, has the right to apply to have adverse findings and penalties made set aside and then to defend the charge made, see s23 Magistrates Court Act 1930 (ACT) (MC Act).
There is, in any event, a right of appeal against a conviction or other adverse order even if made ex parte, see s208 MC Act. Section 216 MC Act stays the enforcement of any such adverse order, including the suspension of a driver's licence, pending the determination of such an appeal.
No doubt there would be many reasons, some quite compelling, as to why an alleged infringer might have failed to lodge a notice disputing the infringement within 28 days of its issue. Unless the chief police officer chooses to withdraw the TIN, whether in order to lay an information or unconditionally, the alleged infringer automatically becomes liable under s180B, to pay the penalty and charge referred to in s180B(1).
Section 180H is a provision enabling such an alleged infringer, notwithstanding failure to give the notice permitted by s180D, still to dispute the infringement. On the hearing of an application under s180H, the chief police officer (or delegate) must prove the infringement. That is in accord with the objectives of due process.
That procedure is consistent with the provision in s23 MC Act enabling a person convicted and sentenced ex parte to show cause why conviction and sentence should be set aside and the original allegation defended.
The relief sought by the appellant under s180H is different from that available under s180G. The cancellation of suspension under s180G leaves the demerit points in force. It does not cancel the consequences of the suspension of licence, if any, occurring before payment. By contrast a cancellation effected pursuant to s180H (4) not only is retrospective, it also avoids the demerit points incurred as a result of paying the penalty, see s180NB(1)(b). Again, that result is consistent with the principle that if guilt of an offence is not proved against a person, no penalty should be imposed.
It is true that Part XIB, Demerit Points and Probationary Licences, contains no express provision dealing with demerit points suffered by virtue of payment of a penalty. However, that liability must depend on the continued existence of an uncontested allegation that an infringement has occurred, that is, an allegation which has not been resolved upon the hearing of an information alleging a prescribed traffic offence, or pursuant to an application under s180H challenging the occurrence of the infringement. I have already observed that if the Magistrates Court was persuaded to make such a declaration it is empowered to grant all relief consequential upon that finding. A person applying under s180H should not be in a substantially worse position than an applicant under s23 MC Act seeking to have an ex parte finding and penalty set aside.
It may well be that the legislature did not contemplate that an alleged infringer might both belatedly pay a penalty under s180G and also seek a remedy under s180H. Nevertheless, it would require a clear indication to conclude that seeking relief under s180G was intended to exclude the right to seek relief pursuant to s180H.
The respondents submit that such an intention may be inferred from the terms of s180H(1)(a) and (b). Those provisions define the classes of persons who are entitled to make application under s180H. If there is such an intention therein expressed, it must be said that the message is not entirely clear. Subsection (a) refers to a person,
... whose licence to drive in the Territory... has been suspended under this Part.
To exclude the appellant from that class of persons the words "and which suspension remains in force" would need to be added. That would be an unwarranted gloss on the words used. It would be inconsistent with the presumed intent of the legislature to afford due process.
Subsection 180H(1)(b) refers to persons,
in respect of whom, or in respect of whose motor vehicle, a suspension under subparagraph 180 F(1)(d)(iii) or (iv) [that is, non-Territory licence or vehicle registration] is in force.
There are, of course, two possible interpretations of (b) consistent with the literal interpretation of (a). One is to infer an intention to restrict the right of non-Territory persons relative to their Territorial counter-parts. The second is to regard the words "in force" as embracing not only the suspension itself but any flow-on consequence of it. That would include both the period during which the person had been forbidden to drive or use any or any particular vehicle in the Territory or the demerit points which remained applicable. Neither interpretation requires any particular gloss on the words chosen by the drafter.
It seems to me that a broader interpretation is more consistent with the general policy of the MTA Act in respect of traffic infringements and with ensuring a reasonable opportunity for a person who wishes seriously to contend that he or she is not liable in respect of an infringement a "second chance", similar to that afforded other alleged summary offenders by s23 MC Act. That is a view of s180H(1) which seems to me 'fairly open' in the sense referred to in Khoury v GIO (NSW) [1984] HCA 55; (1984) 54 ALR 639, 650.
If the facts at the time of the alleged infringement had been as the appellant alleges they were, it is at least seriously arguable that the appellant had not committed the alleged traffic infringement.
It therefore seems to me arguable that, subject to evidence explaining the delay in acting to dispute the traffic infringement notice within 28 days of its receipt, the appellant has a seriously arguable case for having a declaration under s180H made in his favour.
For those reasons, irrespective of whether his Worship was in error in determining a matter already decided between the parties, I find that there was, in fact, jurisdiction to entertain the application and his Worship erred in declining jurisdiction.
It follows that the appeal must be upheld and the order refusing the application set aside.
I will hear the parties as to the consequential orders now required, including any order as to costs.
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