Lindsay John Burridge(Plaintiff) v Chief Magistrates of the Magistrates Court of the Australian Capital Territory (First Defendant)

• Jurisdiction: Australian Capital Territory
• Court: Supreme Court of ACT
• Judge: Mossop AsJ
• Judgment Date: 18 November 2016
• Docket Number: File Number: SC 255 of 2015
• Date: 18 November 2016

[2016] ACTSC 332

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Before:

Mossop AsJ

File Number: SC 255 of 2015

Lindsay John Burridge

(Plaintiff)

and

Chief Magistrates of the Magistrates Court of the Australian Capital Territory

(First Defendant)

James McCue

(Second Defendant)

Representation:

Counsel

Self-represented (Plaintiff)

J White SC (Second Defendant)

Cases Cited:

Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501

Burnett v Brown (1929) 24 Tas LR 23

Businessworld Computers Pty Ltd v Telecom (1988) 82 ALR 499 (1988) 82 ALR 499

Clayton v John L Pty Ltd (1984) 1 NSWLR 344

Cornwell v Curran [2006] ACTSC 119

Davies v Ryan [1933] HCA 64 [1933] HCA 64 ; (1933) 50 CLR 379

Day v Rugala (1978) 20 ACTR 3

Electronic Rentals Pty Ltd v Anderson (1971) 124 CLR 27 (1971) 124 CLR 27

Ex parte Lovell; Re Buckley (1938) 38 SR (NSW) 153

Ex parte Walker; Re Goodfellow (1944) 45 SR (NSW) 103

John L Pty Ltd v Attorney-General (NSW) [1987] HCA 42 [1987] HCA 42 ; (1987) 163 CLR 508

Kirk v Industrial Court (NSW) [2010] HCA 1 [2010] HCA 1 ; (2010) 239 CLR 531

Knaggs v Director of Public Prosecutions [2007] NSWCA 83

Lillyman v Pinkerton (1982) 45 ALR 543 (1982) 45 ALR 543

Lillyman v Pinkerton (1982) 63 FLR 93 (1982) 63 FLR 93

Martin v Shakespeare [1920] SALR 257

Oates v Williams (1998) 84 FCR 348 (1998) 84 FCR 348

Peterson & Magistrate Soames; Ex parte Brick & Pipe Industries Ltd (1994) 76 A Crim R 291

Smith v Moody (1903) 1 KB 56 (1903) 1 KB 56

R v Janceski [2005] NSWCCA 281 ; (2005) 64 NSWLR 10

Re Reference under Ombudsman Act s 11 (1979) 2 ALD 86

Legislation Cited:

Australian Road Rules, r 20

Court of Petty Sessions Ordinance (No 2) 1930 (ACT), ss 12, 26–31, 30, 32–36, 38, 46, 50, 207, 228

Court Procedures Act 2004 (ACT), s 8

Director of Public Prosecutions Act 1990 (ACT), ss 6

Justices Act 1902 (NSW)

Legislation Act 2001 (ACT), ss 13, 14, 40, 94, 185, 255

Magistrates Court Act 1930 (ACT), ss 9, 10M, 12, 19, 25, 26, 27, 27(2), 28, 30, 37, 38, 41, 116A, 116B, 228

Road Transport (General) Act 1999 (ACT), ss 53, 54, 60(1)(a), 75

Road Transport (General) Chief Police Officer Delegation 2006 (No 2)

Road Transport (Offences) Regulation 2005 (ACT), ss 5, 8, sch 1 pt 1.2

Seat of Government Supreme Court Act 1933 (Cth)

Statute Law Amendment Act 2005 (ACT)

Summary Jurisdiction Act 1848 (UK)

Summary Jurisdiction Act 1879 (UK)

Supreme Court (Summary Jurisdiction) Act 1967 (NSW), s 6

Texts cited:

Thomson Reuters, The Laws of Australia, vol 25

CRIMINAL LAW — JURISDICTION — Application for prohibition directed to magistrate — Jurisdiction of Magistrates Court to hear charge — Whether charge may be formulated in short form authorised by statute — Whether defects in summons affect jurisdiction of magistrate when defendant has appeared

CRIMINAL LAW — CRIMINAL PROCEDURE — Speeding offence — Short form of offences specified by regulation — Whether information in short form sufficient — Whether information must also specify length of road where driver was driving — Short form sufficient — Whether particulars may be provided orally in court after plea has been entered

Decision:

See [114]

Mossop AsJ

Introduction

1 This is an application for an order to the same effect as a writ of prohibition to restrain the Chief Magistrate from proceeding to hear a speeding charge and a related charge of failing to provide information as to the identity of the driver of a vehicle. The application is based on a number of grounds, each of which asserts that her Honour would exceed her jurisdiction if, in the circumstances, she proceeded to hear the proceedings.

Proceedings in this court

2 The plaintiff, a retired legal practitioner, commenced these proceedings by originating application filed on 15 July 2015. The only defendant named in the proceedings was the Chief Magistrate of the ACT Magistrates Court.

3 The proceedings were first before me on 31 July 2015. I ordered at this point that the informant in the proceedings, James McCue, be included as the second defendant in the proceedings. At that stage it was anticipated that the plaintiff would also be commencing proceedings in relation to other proceedings in Magistrates Court. He did not ultimately do so. The proceedings were listed for hearing and were heard on 10 November 2015.

4 In advance of the hearing, in accordance with the directions of the Court, the following written submissions were filed:

• (a) the second defendant's submissions filed 17 September 2015;

• (b) the plaintiff's submissions in reply filed 23 October 2015;

• (c) the plaintiff's further submissions in reply filed 26 October 2015.

5 At the hearing on 10 November 2015 the plaintiff relied upon his own affidavits dated 15 July 2015 and 31 August 2015, which contained a mixture of evidence and submissions.

6 The defendant relied upon the affidavits of Diana Likeman dated 30 July and 17 September 2015.

7 Neither deponent was required for cross-examination.

8 At the conclusion of the hearing on 10 November 2015 directions were made relating to the filing and service of written submissions relating to certain provisions of the Magistrates Court Act 1930 (ACT) ( MC Act) and the decision otherwise reserved. Written submissions were filed on 17 November 2015 (plaintiff), 23 November 2015 (second defendant) and 24 November 2015 (plaintiff).

9 The evidence was inadequate to the extent that it did not include the transcript of proceedings on 13 May 2015 and, more importantly, did not include the transcript of the reasons for decision given by the Chief Magistrate on 10 June 2015. The significance of these dates will become apparent in the light of the chronology of proceedings in the Magistrates Court.

Chronology of the proceedings in the Magistrates Court

10 In order to understand the nature of the application and the grounds set out in the originating application it is necessary to set out a chronology of events surrounding the proceedings in the Magistrates Court. The proceedings in the Magistrates Court involved two charges against the plaintiff, a speeding charge (CC2014/5882) and a charge of failing to provide a written statement about the name and address of the driver of a vehicle (CC2014/10654).

25 March 2014 Date of alleged breach of r 20 of the Australian Road Rules

13 June 2014 Date of summons in relation to charge CC 2014/5882.

That he in the Australian Capital Territory on 25 March, 2014, in a non-school zone, did exceed the speed limit by greater than 15 km/h but equal to or less than 30 km/h

15 June 2014 The summons was served on Mr Burridge at his home.

8 August 2014 The proceedings were first before the Magistrates Court and the plaintiff entered a plea of not guilty.

15 August 2014 Unsigned letter from the informant to Mr Burridge including demand under s 60(1)(a) of the Road Transport General Act 1999 (ACT) that he identify the driver of his motor vehicle at ‘6.53pm on Thursday 25 March 2014’ and provide a written statement to the informant within 14 days.

14 November 2014 Date of charge CC 2014/10654:

That he in the in the [sic] Australian Capital Territory on 28 August, 2014, the responsible person for a vehicle, did not give a written statement about the driver to a police officer when required.

23 April 2015 Hearing before Chief Magistrate (described in more detail below). Applications by Mr Burridge to dismiss the proceedings dismissed. Application by Mr Burridge to discharge subpoena to his wife Sina Burridge dismissed. Proceedings adjourned to permit further argument as to the validity of the summons. Written admission given by Mr Burridge in the following terms:

Further to my agreement with the DPP today for the subpoena of Sina Burridge to be discharged, I acknowledge that vehicle YEY40N driven on Thursday 25 ^th of March 2014 was driven by me.

13 May 2015 Further oral submissions by Mr Burridge. The transcript of these submissions is not in evidence. The prosecution was permitted to file written submissions in reply.

10 June 2015 Chief Magistrate gives her decision on the validity of the summons. A transcript of her Honour's reasons is not in evidence in these proceedings. The submissions filed by the respondent say: ‘10 June 2015 Her Honour found that the presumption of regularity applies, the summons was validly issued and served in time and there had been no abuse of process. She stated that the subpoena of Sina Burridge had not been discharged.’

15 July 2015 Originating application filed.

30 July 2015 Date upon which Magistrates Court proceedings had been listed for hearing, but which was vacated due to the filing of the originating application in this Court.

The proceedings on 23 April 2015

11 The only transcript of the proceedings before the Chief Magistrate that was in evidence in this Court was the transcript of the proceedings on 23 April 2015 when the proceedings had been listed for hearing. Mr Burridge appeared in person. Ms Likeman appeared to prosecute. Mr Burridge made two applications:

• (a) first, that both informations be dismissed because they involved an abuse of process; and

• (b) second, that a subpoena to his wife, Sina Burridge, be set aside.

12 So far as the second of these was concerned, the application appears to have been based on the proposition that Mrs Burridge was not a compellable witness in the case against Mr Burridge. Her Honour declined to hear Mr Burridge in support of the application as the application had been made by his wife and she was not present. So far as the application based upon the submission that the proceedings involve an abuse of process was concerned, her Honour rejected that application for three reasons.

13 First, the Director of Public Prosecutions was properly entitled to take over the...