Citation: Freeman v Van De Hoek [2008] NSWSC 316
Court: Supreme Court of New South Wales, Common Law Division
Date: 10 April 2008
Judge(s): Harrison AsJ
Background
The plaintiff was a delegate of the Director of Liquor, Gaming and Racing who had filed a Court Attendance Notice (CAN) against the first defendant for an alleged offence under the Liquor Act 1982, said to have occurred on or about 30 June 2006. The proceedings were listed for hearing in the Sydney Licensing Court on 21 November 2007. Both parties accepted that the applicable limitation period for commencing proceedings was 12 months from the date of the alleged offence.
At the hearing, the Magistrate dismissed the proceedings on the basis that they had been commenced outside the 12-month limitation period. The Magistrate reached that conclusion by reference to the documents physically present on the court file, and declined to allow evidence to be called about when the CAN had actually been filed in the registry.
The plaintiff appealed to the Supreme Court, arguing that the Magistrate had misconstrued the relevant provision of the Criminal Procedure Act 1986 and had wrongly refused to hear evidence on the question of when filing had occurred.
Legal Issues
- Whether s 178 of the Criminal Procedure Act 1986 precluded the calling of evidence to establish the actual date on which the CAN was filed in the registry.
- Whether the Magistrate asked himself the correct legal question when determining the jurisdiction of the Licensing Court.
- Whether the Magistrate's approach amounted to jurisdictional error warranting intervention by the Supreme Court.
Decision
Harrison AsJ held that the Magistrate had misconstrued s 178 of the Criminal Procedure Act 1986. That provision, which provides that proceedings are taken to have commenced on the date a CAN is filed in the registry, does not exclude the calling of evidence to establish when filing actually occurred. The court noted that there will be occasions when, for administrative reasons or through error, a CAN will not appear on the court file, and a prosecutor must be at liberty to tender evidence relevant to whether and when the CAN was filed.
The Magistrate had effectively asked the wrong question. Instead of asking whether the CAN was filed within the prescribed period, the Magistrate asked only whether the court file contained a record of filing within that period. By confining his inquiry to the documents physically on the file and refusing to admit any further evidence, the Magistrate identified the wrong issue and ignored potentially relevant material.
Harrison AsJ characterised this as a constructive failure to exercise jurisdiction, applying the principles in Craig v South Australia and Minister for Immigration and Multicultural Affairs v Bhardwaj. The Magistrate's duty to determine the validity of the proceedings remained, in that sense, unperformed. Accordingly, the orders dismissing the proceedings were set aside and the matter was remitted to the Local Court for determination according to law.
Orders Made
- The orders of Magistrate Lucas dated 21 November 2007 are set aside.
- The matter is remitted to the Local Court to be determined according to law.
- The first defendant is to pay the plaintiff's costs as agreed or assessed.
Key Takeaways
- Section 178 of the Criminal Procedure Act 1986, which deems proceedings to commence on the date a CAN is filed in the registry, does not preclude a party from calling evidence to establish the actual date of filing.
- Restricting consideration solely to documents physically present on the court file, when determining whether proceedings were filed in time, constitutes asking the wrong legal question.
- Under the principles in Craig v South Australia, a decision-maker who identifies the wrong issue or ignores relevant material exceeds their authority, resulting in jurisdictional error that will invalidate the decision.
- A constructive failure to exercise jurisdiction arises where a decision-maker, by asking the wrong question, leaves the duty to make a proper decision effectively unperformed.
- In dismissing the proceedings on an incorrect jurisdictional basis, the Magistrate's orders were amenable to judicial review in the Supreme Court and were set aside accordingly.
Legislation and Cases Referenced
Legislation:
- Criminal Procedure Act 1986 (NSW), ss 172, 178
- Liquor Act 1982 (NSW), ss 111, 145, 146
- Supreme Court Act 1970 (NSW), s 69(3), (4), (5)
Cases:
- Craig v South Australia (1994-95) 184 CLR 163
- DPP v Stevens [2007] NSWSC 1350
- Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
- Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323