Coughlin v Curran [2008] QDC 66

DISTRICT COURT OF QUEENSLAND CITATION: Coughlin v Curran [2008] QDC 66 PARTIES: MICHELLE COUGHLIN Appellant AND MATTHEW CHRISTIAN CURRAN Respondent FILE NO/S: 90/07 DIVISION: Civil PROCEEDING: Appeal ORIGINATING COURT: Magistrates Court, Rockhampton DELIVERED ON: 14 March 2008 DELIVERED AT: Rockhampton HEARING DATE: 13 March 2008 JUDGE: Nase DCJ ORDER: 1. The appeal is allowed; 2. The orders below are set aside and in lieu thereof: A conviction is recorded; A fine of one penalty unit is imposed; and Respondent is disqualified from holding or obtaining a drivers licence for six months. 3. No order as to costs CATCHWORDS: VEHICLES AND TRAFFIC – LICENSING OF DRIVERS – APPEALS - Service of Notice to Choose under Transport Operations (Road Use Management – Driver Licensing) Regulation 1999 – proper construction of the term “service” – whether non-receipt of notice to choose offers a defence to charge of unlicensed driving -- 1 of 9 -- 2 Acts Interpretation Act 1954 (Qld), ss39 & 39A Criminal Code Queensland, s24 Interpretation Act 1978 (UK), s7 Transport Operations (Road Use Management - Driver Licensing) Regulations 1999, s25(2) Cases considered Deputy Commissioner of Taxation v Coco [2003] QSC 119 Fancourt v Mercantile Credits Limited (1983) 154 CLR 87 Re Ocean Distributors Pty Ltd (1990) 2 ACSR 486 COUNSEL: Mr R J Pointing for the appellant Mr A Defrane the respondent SOLICITORS: Office of Director of Public Prosecutions for the appellant McGowran Lawyers for the respondent [1] This appeal raises an interesting point about the service of notices under the Transport Operations (Road Use Management - Driver Licensing) Regulations 1999 (“the Regulations”). [2] As in other States frequent traffic offences may result in a licence suspension in addition to any Court imposed penalty for the individual offences. The system established in Queensland involves allocating a fixed number of what are called demerit points for particular traffic offences. Once a driver accumulates 12 or more demerit points in a continuous three year period the licence is suspended. [3] The procedure leading up to a licence suspension is set out in the Regulations. The accumulation of 12 or more demerit points triggers the first step in the process. The chief executive must give the driver a written notice (s 25 (2) Regulations) which offers a choice to the offending driver. The notice, not surprisingly, is called a notice -- 2 of 9 -- 3 to choose. The choice for the driver is between accepting an immediate licence suspension for a defined period, and agreeing to be of good behaviour for 12 months. The catch is, that if while on good behaviour the driver accrues more than one demerit point the driver's licence is then suspended for double the defined period. [4] The critical section in the Regulations is s 25 (2). The section provides that if 12 or more demerit points are accumulated then "The chief executive must give the person a written notice (a notice to choose), requiring the person, within a specified time of at least 21 days, to choose between: a) Having the person's licence suspended for the requisite suspension period; and b) Agreeing to be of good behaviour while driving for a year.” [5] The notice specifies the time allowed for the driver to exercise the choice in the section. If an immediate licence suspension is chosen or if the driver fails to make an election within the time specified then the licence is suspended for the requisite period. In other words the licence is suspended unless the driver elects to be on good behaviour for 12 months. [6] In this case the chief executive gave the notice to Mr Curran by posting it to his last known address. Service by post engages ss 39 and 39A of the Acts Interpretation Act 1954 (Qld). Those sections provide that whenever an Act requires a document to be served on or given to a person, the document is served or given by sending it by post to the person's last known address (s 39 (1) (a) (ii)). Service by post is effected by properly addressing, prepaying, and posting the document as a letter. And, unless the contrary is proved, the service is taken to occur at the time at which the letter would have been delivered in the ordinary course of post (s 39A (i)). -- 3 of 9 -- 4 [7] Although the notice was appropriately posted to Mr Curran he claimed he had not received it and that, as a result, he was unaware his licence had been suspended at the time he was detected driving his motor vehicle. His licence was suspended because he failed to choose to be on good behaviour for 12 months within the time allowed in the notice. The Magistrate believed Mr Curran when he said he was unaware his licence had been suspended, and, ultimately, dismissed the charge of unlicensed driving. He dismissed the charge for two reasons. [8] Firstly, he believed Mr Curran's evidence he did not receive the letter or notice. He thought the evidence of non-receipt by Mr Curran (and another witness) rebutted the presumption of service by post. This conclusion is challenged on appeal. [9] Secondly, he accepted Mr Curran honestly and reasonably, but mistakenly, believed he (Curran) held a valid licence and he thought Curran was protected by his mistake from liability for the offence. The appellant before me argued there is no scope for s 24 Criminal Code to operate in this case. [10] I believe that both points are correctly taken. The mistake made by the Magistrate, in my respectful opinion, was to treat the evidence of non-receipt as decisive evidence of rebuttal of service. Although s 39A Acts Interpretation Act refers to proof of “the contrary”, what has to be contradicted is the proof of delivery. That is, the acts of addressing, prepaying, and posting the letter. The distinction between proof of delivery and proof of non-receipt is essential to the section. [11] A clear statement of the difference for these purposes is found in a joint judgment of Justices Mason, Murphy, Wilson, Deane and Dawson, sitting as the Court in Fancourt v Mercantile Credits Limited (1983) 154 CLR 87. At that time, 1954 to 1962, s 39 (1) of the Acts Interpretation Acts 1954 (Qld) was in this form: -- 4 of 9 -- 5 1. "When any Act authorises or requires any document to be given, sent, served or delivered by post then, unless the contrary intention appears, such giving, sending, serving or delivery shall be deemed: (a) to be effected by properly addressing, prepaying and posting a letter or packet containing such document; and (b) unless the contrary is proved, to have been effected at the time when the letter or packet would be delivered interview he ordinary course of post." [12] The Court also had to consider section 42 of the Hire Purchase Act (Q). That section provides: "Any notice or document required or authorised to be served on or given to an owner or hirer under this Act may be so served or given; ……………… (c) By posting it addressed to him at his last known place of abode or business; and (d) The affidavit or oral evidence of an owner or his servant or agent as to the delivery or posting of any notice or document required to be served by this Act shall be admissible as prima-facie evidence of the due service of the document or notice et cetera." The Court said of these provisions: "Section 39 (1) of the Acts Interpretation Acts is subject to the expression of any contrary intention in the Act authorising service of a document by post. There is, in our view, no contrary intention in the Hire Purchase Act. It is true that section 42 (2) of the later Act provides that affidavit or oral evidence which may be based -- 5 of 9 -- 6 on information and belief shall be admissible as prima-facie evidence of due service. This subsection is, however, concerned with the mode of proof of service by one or other of the methods of service made available by section 42 (1). In referring to prima-facie evidence of due service section 42 (2) is not intended to allow evidence of service by the means provided by section 42 (1) (b) and (c), to be rebutted by proof of non-receipt. Subsection 2 is merely intended to allow evidence to be called to rebut evidence of the doing of those acts which are deemed by section 42 (1) to constitute service. Paragraphs (b) and (c) of section 42 (1) contemplate the possibility of something less than actual receipt by the person to be served. As was observed by Tindall, Chief Justice, in Bishop v Phelps in relation to a comparable provision, although leaving notices at a place of abode or sending them through the post involves the possibility of non-receipt by the intended recipient. “It was probably considered that the public convenience would be promoted by the present provisions and that its advantages would greatly outweigh the inconvenience which in some few cases might possibly arise from it." The Court then considered specifically the operation of section 39(1) Acts Interpretation Act (Qld), as it then was. In speaking of an equivalent provision in the United Kingdom the Court said: “The effect of the cases appears to be that proof of non-delivery means that service cannot be deemed to have taken place under the second limb of the section at the time of delivery in the ordinary course of the post. And cannot be established as having taken place at any time. The consequence is that where it is necessary to establish service at a particular time, proof of non-delivery is proof of non-service, -- 6 of 9 -- 7 not withstanding that service by post is in the circumstances permitted and the requirements of the act are reserved.” The Court commented: "It may be thought that there is an anomaly in such a result because it means that not withstanding the adoption of a permitted means of service, the service is nevertheless ineffective if there is proof of non-delivery. It is however unnecessary to permit to peruse these decisions here save to remark that they are all cases in which delivery was disproved. Despite remarks in the judgments about non- receipt, it was non-delivery which was significant because the second limb of section 26 of the Interpretation Act refers to proof of the contrary of delivery. As the present case shows delivery may be different from receipt by the intended recipient and provided that delivery is not disproved, the fact of non-receipt does not displace the result that delivery is deemed to have been effected at the time at which it would have taken place in the ordinary course of the post. Here there is no evidence of non-delivery." [13] It is of interest to note that the equivalent English section (now s7 Interpretation Act 1978) is set out in a single paragraph. In Queensland the draftsman split the section (s 39 Acts Interpretation Act (Qld)) into subparagraphs. In so doing the words, "unless the contrary is proved," were placed at the commencement of the second paragraph (that is, in s39 (1)(b), even though the words qualify the acts of delivery in the first paragraph (s39 (1)(a)). The removal of the words to the second paragraph may have contributed to the Magistrates’ reading of the section. [14] Fishermen fish and draftsmen fiddle, so fiddle a bit more they did. This time rearranging the second paragraph to move the words; "unless the contrary is proved," -- 7 of 9 -- 8 to the end of the second paragraph. Even further away from the words they qualify. Nonetheless the meaning of the section is, I think, clear. Both McKenzie J and Mullins J have interpreted equivalent provisions in the same way (See Re Ocean Distributors Pty Ltd (1990) 2 ACSR 486 and Deputy Commissioner of Taxation v Coco [2003] QSC 119 at paragraph 28). [15] To turn now to the second aspect considered by the Magistrate. The possible application of s 24 Criminal Code undoubtedly involves difficulties of analysis. While it is true that s 24 is not expressly excluded, a difficulty lies in identifying a relevant mistaken belief of fact. Mr Curran's evidence was quite short. He understood the system of demerit points. He said he had exercised the choice given in the past and he was expecting to be notified, but, as he had not been notified, he believed his licence was still valid. [16] A belief that in these circumstances a licence is still valid until receipt of the notice is really a mistake about the law: it is a question on which we might go to a lawyer for legal advice. But his belief the licence was valid was in turn based on his belief the notice had not yet been sent to him. Is a belief the letter or notice was not delivered, a mistake of fact or law? At one level it is a mistake of fact, but the mistake Mr Curran made is not purely one of fact as the delivery in this case is a deemed delivery (s 39 Acts Interpretation Act). Is a belief of non-delivery consistent with the notion of a deemed delivery? Is the mistake in these circumstances one of law or fact? These are not easy questions to answer. [17] I think the statutory framework is inconsistent with the application of s 24 Criminal Code to the question of delivery, and that the mistake Mr Curran made about the validity of his licence involved a misunderstanding of the law. And I do not think that -- 8 of 9 -- 9 a claim based on s 24 is available to him in the circumstances of this case. I therefore propose to allow the appeal. [18] The orders are these: a) The appeal is allowed; b) The orders below are set aside and in lieu thereof a conviction is recorded; c) A fine of one penalty unit is imposed; and d) The Respondent is disqualified from holding or obtaining a drivers licence for six months. [19] No order is made as to costs. -- 9 of 9 --