Vassallo v Commissioner of Fines Administration [2024] NSWSC 1558 (26 November 2024)

Last Updated: 4 December 2024

Supreme Court New South Wales

Case Name:	Vassallo v Commissioner of Fines Administration
Medium Neutral Citation:	[2024] NSWSC 1558
Hearing Date(s):	26 November 2024
Date of Orders:	26 November 2024
Decision Date:	26 November 2024
Jurisdiction:	Common Law
Before:	Chen J
Decision:	(1) The decision of the Local Court of New South Wales made on 21 November 2023 in proceeding 2023/00338589 is quashed. (2) The first defendant is to pay the plaintiff’s costs of the proceedings.
Catchwords:	ADMINISTRATIVE LAW – Judicial review of decision of Local Court Magistrate to dismiss application under s 50(1) of the Fines Act 1996 (NSW) – Where first defendant accepts that the Local Court Magistrate mistook the scope of the Court’s function and committed a jurisdictional error – Where Court must satisfy itself that the orders sought should be made – Jurisdictional error established – Decision of the Local Court quashed
Legislation Cited:	Fines Act 1996 (NSW) Supreme Court Act 1970 (NSW)
Cases Cited:	Kovalev v Minister for Immigration & Multicultural Affairs (1999) 100 FCR 323; [1999] FCA 557 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 Rodger v De Gelder (2015) 71 MVR 514; [2015] NSWCA 211
Category:	Principal judgment
Parties:	Joseph-Sid Vassallo (Plaintiff) Commissioner of Fines Administration (First Defendant) Local Court of New South Wales (Second Defendant)
Representation:	Counsel: E Jones (First Defendant) Solicitors: Plaintiff (In person) NSW Crown Solicitor’s Office (First Defendant)
File Number(s):	2023/00458429
Publication Restriction:	Nil

JUDGMENT EX TEMPORE

Introduction

1. By an amended summons filed 16 February 2024, Joseph-Sid Vassallo (‘the plaintiff’) seeks judicial review of the decision of a Local Court Magistrate, Magistrate Milovanovich, on 21 November 2023 to dismiss an application made by the plaintiff under s 50(1) of the Fines Act 1996 (NSW). That application sought to appeal against the refusal by the Commissioner of Fines Administration to withdraw a penalty notice enforcement order issued to the plaintiff. The proceedings are brought against the Commissioner of Fines Administration (‘the first defendant’) and the Local Court of New South Wales (‘the second defendant’).
2. The first defendant is the only active defendant, the second defendant having filed a submitting appearance.
3. The relief sought by the plaintiff is “[a]n order that the record of the local court be brought up and quashed (certiorari)” (prayer 1); an “[o]rder for damages” (prayer 2); and orders “that the court may needs (sic) for justice to be done” (prayer 3).
4. Initially, by way of an amended response to amended summons filed 18 July 2024, the first defendant denied that the plaintiff is entitled to and/or should be granted the relief sought in prayers 1 to 3 and sought an order that the summons be dismissed with costs. The first defendant now accepts that the Local Court fell into legal error in its determination of the plaintiff’s application and that the decision of the Magistrate is liable to be set aside: the first defendant accepts that the Magistrate “mistook the scope of the Court’s function”, and thus committed jurisdictional error (first defendant’s submissions at [2] and [13]).
5. It is important, however, to emphasise a number of matters where, as here, proceedings seek to invoke the jurisdiction of this Court under s 69 of the Supreme Court Act 1970 (NSW) – as follows: first, it is important that the order disposing of the summons by consent be self-explanatory and, furthermore, not only must the order be “clear and complete” (so that, at a minimum, the basis for making those orders is apparent on the public record and not merely ascertainable from the materials of the parties), but the Court “must be satisfied that it is appropriate”: Kovalev v Minister for Immigration & Multicultural Affairs (1999) 100 FCR 323; [1999] FCA 557 at [8]- [9] (‘Kovalev’). Secondly, the requirement that the Court satisfy itself as to the appropriateness of making the order has a public dimension to it, extending beyond the parties. In this case, it is important that the error is identified given “there may potentially be some precedential impact in other like cases” and, in this particular case, absent explanation for the order, there would be an absence of binding direction as to precisely what it was the Court was required to do upon hearing the plaintiff’s application: Kovalev at [13] and [15].
6. For the reasons that follow, I consider that the concession made by the first defendant is correct and that the Magistrate committed jurisdictional error.

Background

The underlying offending

7. On 25 May 2022, a penalty notice (infringement no 4071012249) was posted to the plaintiff in relation to an offence alleged to have been committed on 21 May 2022. At around 10:33am on that day, it is alleged that the plaintiff was observed by police using a LIDAR gun to be travelling at a speed of 108km/hr in an 80km/hr zone on the Hume Highway at Boxers Creek.
8. The plaintiff’s “defence” is that, in fact, the speed limit in that location was 110km/hr, not 80km/hr. Accordingly, the plaintiff had not committed an offence because he was travelling at a speed that was 2km/hr below the designated speed limit.

Enforcement by the Commissioner of Fines Administration

9. On 2 July 2022, a penalty reminder notice was issued to the plaintiff. Between 18 July 2022 and 26 May 2023, the plaintiff lodged eight requests for reviews of the penalty notice online (see affidavit of Robert Sherrington affirmed 18 June 2024, paras 23-39). On each occasion, the Commissioner would write to the plaintiff declining the application for review, following which a further penalty reminder notice would issue to the plaintiff. However, on the fifth occasion of the plaintiff lodging a request for review, the Commissioner indicated, in a letter dated 29 December 2022, that he would not be responding to any further correspondence.
10. On or around 10 March 2023, an undated Overdue Fine notice (reference no 428242211) was issued to the plaintiff, providing notice under s 59 of the Fines Act that an enforcement order had been made against him.
11. On 16 July 2023, the plaintiff lodged a court election request online. Section 35 of the Fines Act provides:

35 Alleged offender’s right to elect to have matter dealt with by court

A person alleged to have committed or to be guilty of the offence to which a penalty reminder notice relates has the right to elect to have the matter dealt with by a court instead of under this Part.

12. Section 36(2) of the Act requires that such an election be made not “later than the due date specified in the penalty reminder notice for payment in relation to the offence concerned”. At the time of lodging the court election request, the plaintiff had most recently been issued with the payment reminder notice dated 24 September 2022, which required payment by 25 October 2022.
13. As the plaintiff’s court election request was made out of time, the Commissioner dealt with the request as an application under s 46 of the Fines Act, which allows a person against whom a penalty notice enforcement order has been made to apply to the Commissioner for the withdrawal of the order. The grounds for the withdrawal of a penalty notice enforcement order are contained within s 47(1):

47 Grounds for withdrawal of penalty notice enforcement order

(1) The Commissioner may, on application under section 46 or the Commissioner’s own initiative, withdraw a penalty notice enforcement order on any of the following grounds—

(a) a fine to which the penalty notice enforcement order applies has previously been the subject of a penalty notice enforcement order in respect of which any enforcement action has been taken,

(b) the person named in the penalty notice enforcement order is not the same person as the person in respect of whom a fine to which the order applies was imposed,

(c) the order relates to the owner of a vehicle or vessel, being a vehicle or vessel involved in an offence the subject of the fine at a time when the owner was not the owner of the vehicle or vessel concerned,

(d) the penalty notice for the fine to which it applies is withdrawn by the Commissioner under an arrangement under section 114,

(e) the person was not aware that a penalty notice had been issued until notice of the order was served, but only in the case of an application for withdrawal that is made within a reasonable time after that service,

(f) the person was otherwise hindered by accident, illness, misadventure or other cause from taking action in relation to the penalty notice, but only in the case of an application for withdrawal that is made within a reasonable time after the person ceased being so hindered,

(g) the penalty reminder notice in relation to a particular offence was, or both the penalty notice and the penalty reminder notice were, returned as being undelivered to its sender after being sent to the person at the person’s recently reported postal address (within the meaning of section 126A) and notice of the order was served on the person at a different postal address,

(h) the Commissioner is satisfied that a question or doubt arises as to the person’s liability for the penalty or other amount concerned,

(i) the Commissioner is satisfied that there is other just cause why the application should be granted, having regard to the circumstances of the case.

14. On 12 October 2023, the Commissioner wrote to the plaintiff advising that his “application does not meet legislative requirements to withdraw the Overdue Fine and process your court election. The Commissioner of Fines Administration has considered your application along with the relevant grounds for withdrawal of the overdue fine under the Fines Act 1996 and has decided that this overdue fine will not be withdrawn”. The reasons provided by the Commissioner for refusing to withdraw the overdue fine were as follows:

(1) The “fine notices were legally served”;

(2) The Commissioner conducted “multiple reviews” and sent “responses...to [the plaintiff] advising the fine still applied”;

(3) The plaintiff “did not submit a court election before the due date provided”;

(4) The plaintiff did not provide “any proof that [he was] hindered from dealing with the original fine prior to the issue of the overdue notice”; and

(5) “The information provided does not satisfy any other criteria for eligibility within the legislation”.

Decision of Magistrate Milovanovich

15. On 25 October 2023, the plaintiff lodged an application with the Local Court of New South Wales under s 50 of the Fines Act, appealing against the Commissioner’s refusal to withdraw the penalty notice enforcement order. Section 50 of the Fines Act relevantly provides:

50 Appeal against refusal to withdraw penalty notice enforcement order

(1) If the Commissioner refuses to withdraw a penalty notice enforcement order under section 47, the applicant may, not later than 28 days after notice is given of the refusal, lodge an application in writing with a registrar of the Local Court to have the penalty notice enforcement order annulled by the Local Court.

...

(3) The Local Court may annul a penalty notice enforcement order on any of the grounds on which the Commissioner may withdraw a penalty notice enforcement order under section 47.

16. Given the Commissioner treated and dealt with the plaintiff’s court election request dated 16 July 2023 as an application under s 46 of the Fines Act, the plaintiff lodged his application within the time prescribed by s 50(1).
17. The matter was heard on 21 November 2023 at the Blacktown Local Court by his Honour Magistrate Milovanovich. The first defendant did not appear and the plaintiff was self-represented.
18. On this occasion, the plaintiff argued in support of his application that he had not been provided with sufficient particulars in relation to a jurisdictional issue he had raised with the Commissioner as the alleged offence occurred on a “federal highway” and was therefore subject to “federal jurisdiction” (Tcpt, 21 November 2023, p 1(36)-(47)). It was further advanced by the plaintiff that the correct speed limit for the part of the highway where the alleged speeding occurred was 110km/hr, not 80km/hr (Tcpt, 21 November 2023, p 2(5)).
19. After ascertaining that the plaintiff did not contest that he was the driver of the vehicle, and that the vehicle was registered in his name, the following exchange occurred between the Magistrate and the plaintiff (Tcpt, 21 November 2023, p 2(20)-(29)):

HIS HONOUR: Right. So why didn’t you just pay the infringement notice?

[PLAINTIFF]: Because it was 110 k speed limit there, your Honour.

HIS HONOUR: Right. Well, then you should have elected to have the matter go to court.

[PLAINTIFF]: We did, your Honour.

HIS HONOUR: Well, you didn’t do it in time.

20. The Magistrate did not accept the submissions made by the plaintiff and the application to have the penalty notice annulled was dismissed.

Consideration and disposition

21. As noted above, the first defendant accepts that the Magistrate fell into error in his determination of the plaintiff’s application on the basis that his Honour mistook the scope of the Court’s function pursuant to s 50(3), read with s 47(1), of the Fines Act. The first defendant notes that s 50(3) provides that the Local Court may annul a penalty notice enforcement order on any of the grounds contained in s 47, which are broad and relevantly include where there is a “question or doubt ...as to the person’s liability for the penalty” (s 47(1)(h)) and where there is “other just cause why the application should be granted” (s 47(1)(i)). The first defendant submitted that it was therefore open to the plaintiff, having made an application under s 50(1), to seek to demonstrate a question or doubt as to his liability or otherwise to argue that it would be just for his application to be granted, and it was the Local Court’s function to hear and determine the plaintiff’s application in respect of such grounds.
22. In my view, the first defendant’s construction is plainly correct, and follows from the clear language of s 50(3) – as set out in [15], above.
23. However, on the first defendant’s submission, the Magistrate “proceeded on the basis that it was not open to the plaintiff to raise matters with the effect of contesting his liability for the offence in circumstances where the plaintiff had not (on the Magistrate’s understanding) properly elected to have the matter dealt [with] by a court” (first defendant’s submissions at [12]). The first defendant accepts that on a reading of the transcript (a necessary course, it should be added, given the Magistrate did not provide any reasons), it is apparent that the Magistrate took an unduly narrow view of the grounds on which the plaintiff’s application could succeed, giving rise to a jurisdictional error.
24. In my view, the first defendant’s further submissions are also plainly correct: the Magistrate not only took an unduly narrow view of the grounds on which the plaintiff’s application could succeed, but a legally inaccurate one – thereby committing jurisdictional error: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 at [41]; Rodger v De Gelder (2015) 71 MVR 514; [2015] NSWCA 211 at [95].
25. The first defendant submits, however, that having made that concession, it is unnecessary and inappropriate for the Court to address the plaintiff’s other complaints and arguments. I agree, and do not propose to do so. Separately, to the extent that the plaintiff’s claim seeks an order for damages, it is misconceived, and, as the first defendant submitted, no proper cause of action entitling the plaintiff to damages has been identified (first defendant’s submissions at [15]).

Orders

26. I therefore making the following orders:

(1) The decision of the Local Court of New South Wales made on 21 November 2023 in proceeding 2023/00338589 is quashed.

(2) The first defendant is to pay the plaintiff’s costs of the proceedings.

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