Pang v Rawlinson [2005] ACTSC 84 (7 September 2005)

Last Updated: 14 September 2005

JASON PANG v WILLIAM RAWLINSON [2005] ACTSC 84 (7 September 2005)

APPEAL - appeal from Magistrates Court - driving offences - issuing and contesting infringement notice offences - whether letter received from appellant to be construed as a notice disputing liability for infringement notice offence or an application for withdrawal of infringement notice - procedure where liability disputed - appeal upheld.

WORDS AND PHRASES - "dispute".

Road Transport (Safety and Traffic Management) Act 1999 (ACT), s 6

Road Transport (General) Act 1999 (ACT), Div 3.2, s 24, s 30, s 31, s 32, s 51, s 53

The Macquarie Dictionary (3^rd ed)

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 34 of 2005

Judge: Gray J

Supreme Court of the ACT

Date: 7 September 2005

IN THE SUPREME COURT OF THE )

) No. SCA 34 of 2005

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: JASON PANG

Appellant

AND: WILLIAM RAWLINSON

Respondent

ORDER

Judge: Gray J

Date: 7 September 2005

Place: Canberra

THE COURT ORDERS THAT:

1. The conviction and the penalties recorded against the appellant in respect of the offence of driving negligently be quashed.

2. The respondent pay the appellant's costs of this appeal and of the proceedings in the court below.

1. Jason Pang (the appellant) appeals from a conviction for an offence of negligent driving imposed on 22 April 2005. He was fined $175.00, court costs of $54.00 and a Criminal Injuries Compensation levy of $50.00. On 2 September 2005, I heard the appeal and upheld it. These are my reasons for that decision.

2. The appellant had been charged on information laid on 6 October 2004 that on 30 April 2004 he drove negligently, an offence in contravention of s 6(1) of the Road Transport (Safety and Traffic Management) Act 1999 (ACT). He had also been separately charged in respect of the same incident by informations laid also on 6 October 2004 with not stopping at the stop line at a yellow light and exceeding the speed limit. As a result of the incident which gave rise to these informations, the appellant had been served at the time with infringement notices authorised under the Road Transport (General) Act 1999 (ACT) (the Act) in respect of each of these alleged offences. It also appears that he was served with an infringement notice for not carrying his licence at the time. The appellant accepted liability for that last-mentioned notice and paid the penalty required by that notice. In respect of the other three notices, a document in writing signed by him was apparently received by the authorities on 1 June 2004.

3. When the informations came on for hearing, the appellant took a preliminary point. It was submitted that the document writing that he had given to the authorities constituted a notice disputing liability for the offences. If that was so, then the Act, in effect, required that the informations for the offences that the appellant was called upon to answer be laid within 60 days of the notice being given. The informations before the court were laid outside of this time limitation. The magistrate was not prepared to construe the writing as a notice disputing liability for the offence and accordingly held that there was no bar to the informations being laid. As a consequence, the prosecution tendered no evidence on two of the informations and the appellant pleaded guilty to the offence of negligent driving. This appeal challenges the magistrate's finding on that preliminary issue.

The relevant provisions of the Act concerning infringement notices

4. Division 3.2 of the Act sets up a regime of infringement notices for offences prescribed by regulations under the Act. Section 24 provides for service by an authorised person of such a notice where the authorised person believes, on reasonable grounds, that the intended recipient has committed an infringement notice offence. If the penalty set out in that notice is paid in the required time, that discharges the person's liability for the offence.

5. Section 30 provides:

30 Application for withdrawal of infringement notice

(1) The person on whom an infringement notice for an infringement notice offence is served may apply to the administering authority, in writing, for the withdrawal of the notice within 28 days after the day when the infringement notice, or a reminder notice for the offence, is served on the person (or any additional time allowed by the administering authority).

(2) The administering authority must--

(a) withdraw the notice or refuse to withdraw the notice; and

(b) tell the person in writing of the decision and, if the decision is a refusal, the reasons for it.

(3) For this section, an infringement notice declaration made and given to the administering authority by the person in relation to the offence is taken to be an application made by the person to the administering authority for the withdrawal of the notice.

6. An infringement notice declaration referred to in the section is a declaration by a recipient of the original notice as to the vehicle being illegally used, (see Dictionary) used by another person, sold or used by a person unknown. Provision is made in s 32 for guidelines to be issued by the Minister concerning the exercise of the functions under s 30 but no guidelines have, in fact, been issued.

7. An infringement notice may be withdrawn whether or not application has been made, the infringement notice penalty paid or the person has disputed liability. If the notice is withdrawn, any penalty paid must be refunded and there is no bar to proceedings for the offence being taken against any person (see s 31).

8. Section 51 provides:

51 Disputing liability for infringement notice offence

(1) A person on whom an infringement notice or reminder notice has been served for an infringement notice offence may dispute liability for the offence by written notice given to the administering authority.

Note For how documents may be given, see the Legislation Act 2001, pt 19.5.

(2) The notice must set out the grounds on which the person relies.

(3) The notice must be given to the administering authority--

(a) within 28 days after the date of service of the infringement notice or reminder notice; or

(b) if the person applies to the administering authority within the 28 days for additional time to dispute liability for the offence and the additional time is allowed--within the additional time allowed by the administering authority; or

(c) if the person applies to the administering authority within the 28 days for additional time to dispute liability for the offence and the application is refused--within 7 days after the day the person is told of the refusal or 28 days after the date of service of the infringement notice or reminder notice, whichever is later.

9. Section 53 provides:

53 Procedure if liability disputed

(1) This section applies if a person disputes liability for an infringement notice offence by giving the administering authority a notice in accordance with section 51 (Disputing liability for infringement notice offence).

(2) The administering authority may lay an information in the Magistrates Court against the person for the offence within 60 days after being given the notice.

...

(5) If the administering authority does not lay an information in the Magistrates Court against the person for the offence within 60 days after being given the notice, the administering authority must--

(a) tell the person, in writing, that no further action will be taken against the person for the offence; and

(b) take no further action against the person for the offence.

...

10. Section 51(2) requires that the notice disputing liability be given within 28 days after the date of service of the infringement notice or a reminder notice. The infringement notice was served on the day of the offence and, on the hearing of this appeal, it was agreed that a reminder notice had been sent prior to the writing, to which I have referred, being given to the administering authority. Both parties were agreed that there had been compliance with s 51(2) in that the writing had, in any event, been received within 28 days of the reminder notice.

The written document

11. The written document that was received set out the following (the spelling and syntax has not been changed):

To whom this may regard,

I Jason Pang am writting to appeal the infringement notices that were issued to me on the 30^th of April. I do not understand why I have been issued with, running an amber light and neglegence driving. On the other hand I understand and except I did not have my license on my, therefore I have paid that fine. At the time in my mind there is no doubt that it was more safe to go on the amber. I do not know what speed I was doing, but I now know it may have been to fast for the corner I was approaching. Hence forth the wheels on the vehicle spun a little, after I proceeded around the corner I slowed down and stopped at the red. I then took off again, realiesing I was being followed by the police I slowed down and pulled over. It was all very unclear after this point, when I asked for an explanation as to why I was pulled over I was issued with infrindgements. When I tried to ask to see my speed I was told to get back in the car, when approached I was not given a chance to speak. At this stage I did not understand why I had been issued with these infrindgements, for the reason that I misjudged a corner. I believe it was a human error because I had no intentions of making the car slide a little bit round the corner. I do not believe I should have been issued with the infrindgements and do not believe I am responsible for them. Although I will take responsibility for the fine I am responsible of.

Yours sincerely

Jason Pang.

The effect of the document

12. The terms of the writing are a little confusing but, in my view, the gravamen of the writing is clear. However, it was not clear to Sergeant Barber, the police officer dealing with infringement notice matters, who treated the writing as an application to withdraw the infringement notice not as a notice disputing liability. He subsequently advised the appellant of his determination to not withdraw the notice and, on 11 August 2004, he received the following letter from the appellant:

I, Jason Pang refer to your letters of 12^th June 2004 and continue to dispute the liability on the basis outlined in my first original letter of dispute which I lodged on Friday the 28^th of May 2004.

13. This was treated by Sergeant Barber as a notice disputing liability and informations were subsequently laid. However, if the first writing was a notice of dispute then the informations were not laid within the required 60 days.

14. The magistrate gave detailed reasons for her also, like Sergeant Barber, construing the writing as an application to withdraw the infringement notice. Although Sergeant Barber gave evidence before the magistrate, his views and actions could not affect the proper construction of the writing and I assume, as they should have been, that the magistrate's views were unaffected by his evidence.

15. The magistrate placed some emphasis on the writing referring to an "appeal". This suggested to her that the writing could be construed as a request to withdraw the infringement notices. There are difficulties with her appraisal. I would not regard the use of such an expression as "appeal" in a layman's letter as meriting a legal analysis, but to rather mean a questioning of the matters that are referred to in the writing. Further, I consider that the legislation in referring to a "dispute" to be adopting the general meaning of such a circumstance. The Macquarie Dictionary (3^rd ed) provides these meanings:

1. To engage in argument or discussion ...

4. To argue against; call in question.

16. I would have thought that a person who states that his intention is to "appeal" was, within the ordinary meaning of dispute, calling into question the subject matter. It certainly, in my mind, does not constitute or infer an application to withdraw the notices, which is the only other construction available. Even if such a construction is available on the writing, as the magistrate pointed out, a particular writing might well be construed as both a dispute as to liability and an application to withdraw the infringement notice. Once the former construction is open, it does not matter that the writing can also bear the latter. I have no doubt that, considered as a whole, first and foremost the writing means that the author is disputing his liability for the infringement notices.

17. Mr Clarke, who appeared as counsel for the Director of Public Prosecutions, maintained that the letter did not clearly dispute liability and accordingly was open to the magistrate to regard the letter as an application to withdraw rather than a notice of dispute. I do not agree. One of the concluding sentences of the letter is:

I do not believe I should have been issued with the infrindgements [sic] and do not believe I am responsible for them.

I am unable to construe this as anything other than a clear dispute as to liability.

18. It may be noted that s 51(2) of the Act requires the notice to set out the grounds upon which a person relies. I am able to draw from the writing the following grounds:

* that the appellant did not stop at the stop line at a yellow light on the ground that he could not stop safely;

* that the appellant does not know what speed he was doing but does not admit driving at the speed alleged;

* that the appellant was not driving negligently as the manner of driving could be attributed to an error of judgment (misjudgment) rather than carelessness;

* that the appellant was not responsible for failing to stop, speeding or driving negligently.

19. In all the circumstances, I am satisfied that on its proper construction the writing given by the appellant satisfies the criteria in s 51 of the Act for a written notice disputing liability for the offence. It follows that the writing should have been treated as such and that informations based upon the offences, the subject of the notice, should have been laid within 60 days of the notice being given.

20. Accordingly, I quashed the conviction and the penalties recorded against the appellant in respect of the offence of negligent driving.

21. I also ordered that the respondent is to pay the appellant's costs of this appeal and of the proceedings in the court below.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Gray.

Associate:

Date: 7 September 2005

Counsel for the appellant: Mr S Gill

Solicitor for the appellant: Hill & Rummery

Counsel for the respondent: Mr M Clarke

Solicitor for the respondent: Director of Public Prosecutions (ACT)

Date of hearing: 2 September 2005

Date of judgment: September 2005