DISTRICT COURT OF QUEENSLAND
CITATION: Parr v Department of Transport and Main Roads [2020] QDC 40 PARTIES: ANTHONY CRAIG PARR
(appellant)
v
DEPARTMENT OF TRANSPORT AND MAIN ROADS
(respondent)
FILE NO/S: 100/19 DIVISION: Civil PROCEEDING: Appeal ORIGINATING COURT: Magistrates Court, Ipswich
DELIVERED ON: 23 March 2020 DELIVERED AT: Ipswich HEARING DATE: 29 January 2020 JUDGE: Horneman-Wren SC DCJ ORDER: 1. The appeal is dismissed CATCHWORDS: MAGISTRATES – APPEAL AND REVIEW – QUEENSLAND – APPEAL – WHEN APPEAL LIES –
where applicant disqualified from holding or obtaining a drivers licence – where special hardship order refused – whether right to appeal from such refusal exists.
Cases:
Clarke v Bradlaugh (1881) 7 QBD 38
Electric Light and Power Supply Corporation Ltd v Electricity Commission of New South Wales [1956] 94 CLR 554
Johnson v Refuge Assurance Company Ltd [1913] 1 KB 259
National Telephone Co Ltd v Post Master General [1913] AC 546
R v Otto (1996) 90 A Crim R 492
Re W Carter Smith, Ex parte the Commissioners of Taxation
(1908) 8 SR (NSW) 246
State of Queensland v Mowburn Nominees Pty Ltd [2005] 1 Qd R 195
Wynch vs Ketchell [2002] 2 QR 560
Legislation:
Crimes Act 1914 (Cth) Excise Act 1901 (Cth) Judicial Review Act 1991 Justices Act 1886 Magistrates Court Act 1921
Parliamentary Oaths Act 1886 Stock Act 1915
Transport Operations (Road Use Management – Driver Licencing) Regulation 2010
Transport Operations (Road Use Management) Act 2010 Uniform Civil Procedure Rules 1999
COUNSEL:
The appellant appeared in person Mr A White for the respondent
SOLICITORS: Director, Prosecution Services, Department of Transport and Main Roads for the respondent
This is an appeal from the refusal of a magistrate to make a special hardship order under the Transport Operations (Road Use Management – Driver Licencing) Regulation 2010 (the Regulation).
The respondent, the Department of Transport and Main Roads, raises a threshold objection to the appeal. It contends that there is no right of appeal from such a refusal. Before turning to consider that threshold jurisdictional point, something first should be said about the legislative scheme and the particular applicatio n which the appellant made under it.
The application and the decision below
The legislative scheme under Part 14 of the Regulation provides a regime under which persons whose open or provisional drivers licence has been suspended for accumulation of demerit points may obtain, on application to a Magistrates Court, a special hardship order, authorising the person to continue to drive motor vehicles under their licence in stated circumstances.1
The appellant, Mr Parr, had his licence suspended for accumulation of demerit points. He was entitled to make an application for a special hardship order.2 He did so by
Transport Operations (Road Use Management – Driver Licencing) Regulation 2010 s 79, 83, 103, 104 and 105.
Section 106.
application filed in the Ipswich Magistrates Court on 5 March 2019. 3 That application was dismissed on 16 April 2019 when Mr Parr failed to appear at court. Mr Parr made a second application to the same court on 15 May 2019. On 9 July 2019, a magistrate, acting pursuant to rule 667(2)(a) of the Uniform Civil Procedure Rules 1999, which permits a court to set aside an order made in the absence of a party, set aside the earlier dismissal of the first application and issued directions. There were subsequent further mentions.
On 8 October 2019, the matter again came before the court. Mr Parr sought a further adjournment. That was refused. In a brief hearing the learned magistrate indicated that Mr Parr had been given sufficient opportunity to place any relevant materia l before the court. There were, in fact, several affidavits which Mr Parr had filed in accordance with the earlier issued directions.
Relevantly, s 111(1) of the Regulation expressly confines the circumstances in which the court may exercise the discretion to make a special hardship order. The court may only make an order if satisfied that the applicant is a fit and proper person to continue to drive having regard: to the applicant’s traffic history; safety of other road users and the public generally;4 and that refusal to make the order would either cause extreme hardship to the applicant or the applicant’s family by depriving the applicant of the applicant’s means of earning a living,5 or cause severe and unusual hardship to the applicant or the applicant’s family, other than by depriving the applicant of the applicant’s means of earning a living.6
Sub-sections 111(2) and (3) require an applicant to file, relevantly, an affidavit deposing to how a refusal of the order would cause, respectively, such extreme hardship or severe and unusual hardship. At least arguably, the affidavits filed by Mr Parr deposed to matters relevant to a consideration of each of those forms of hardship.
In the course of the brief hearing the learned magistrate asked Mr Parr questions, the answers to which may have been relevant to a consideration of each form of hardship. In that regard, it is to be noted that there is no other party to an application for a special hardship order. Although a copy of an application for an order must be given to the Chief Executive,7 and the Chief Executive may appear and be heard at the hearing, give or produce evidence, and examine and cross-examine witnesses,8 there is no requirement that the Chief Executive do so. Indeed, the Chief Executive did not appear on the hearing of Mr Parr’s application. Furthermore, there is nothing in the legislation that would establish the Chief Executive as a party to the application even if they did exercise their right to appear on the hearing. For reasons which will be developed later, this is significant to the threshold question of whether Mr Parr has any right of appeal. For present purposes it need only be observed that although there is no other party to the application, the Regulation prescribes that the applicant must, if required by the court, attend as a witness to give evidence in relation to all matters
Which was the relevant court being a court in the Magistrates Court district in which he resides: s 107(1) and (5)(b).
Section 111(1)(a).
Section 111(1)(b)(i).
Section 111(1)(b)(ii).
Section 107(4).
Section 109(2).
relevant to the application and may be liable to cross-examination in relation to the evidence. 9
It would not appear that the learned magistrate’s questioning of Mr Parr was expressly pursuant to any power to do so conferred by s 109(1). It would not seem that the appellant had been required by the court to attend “as a witness”. Nonetheless, the magistrate was entitled to ask questions of the applicant directed toward matters relevant to the issues of which he had to be satisfied under s 111(1) before a special hardship order could be made.
In the event, the learned magistrate dismissed the application. In his reasons, his Honour identified that in his affidavits Mr Parr raised many issues concerning other court proceedings which themselves had been causative of some stress and tension to him and which he said had caused him to be unable to focus his attention on the special hardship application. However, his Honour observed that there had been a number of prior adjournments and noted that whilst the application remained unresolved, the suspension of Mr Parr’s license was stayed.10
I have read the whole of the record, including Mr Parr’s affidavits. I concur with the view expressed by the learned magistrate that they set out many issues which, no doubt, Mr Parr genuinely considers were causing him hardship, even extreme hardship. I also concur, however, that the hardship he may have experienced related to those matters is not hardship of the kind contemplated by s 111(1)(b). Though, as I have already observed, the affidavit did raise matters which were relevant to the hardships contemplated.
His Honour concluded his reasons:
“Mr Parr indicates verbally and via his affidavits that he is not, in fact, employed in the traditional sense, but really does work on a sporadic basis as and when it can be found. For example, he has referred to doing fencing work for a particular person, who has provided an unsigned – unsworn document, which is on the file. That is a Mr – just let me find it – a Mr Patrick Kekau, who provided a document dated 13 August saying that he employs Mr Parr doing various labouring tasks. I can infer from that that it is contract employme nt, not traditional employer-employee employment. There is indicat ion that he needs his transport. There is, however, no indication as to when that work is undertaken. Mr Parr has also in his various documents indicated that he is involved in the Australian Olympic wrestling team and has various attendances there, although his precise involvement is not identified. It would appear that he may be some sort of trainer.
The material is, in my view, and remains deficient. I understand Mr Parr’s considerable tensions brought about by a variety of court appearances on this and other matters, the nature of which is irreleva nt to these proceedings, but which, according to him, have taken up his time.
Section 109(1).
This is the effect of section 108.
In essence, this application has been proceeding in one form or another since March of this year. At this point in time, Mr Parr, in my view, has not been able to satisfy me that it would cause extreme hardship by depriving him of a means of earning a living on the basis that Mr Parr himself indicates that his work is not dependant so much on his licence, but whether or not work can be found. It is not the licence which is restricting his capacity to work, or the lack of a licence. He has referred to potential exploration of other jobs, which hopefully in the long run will be realised, but at the present time, does not have anything concrete.
Taking all of those factors into account, and without having to consider any other questions such as whether or not he is a fit and proper person, I am not satisfied that the applicant’s made or satisfied me of that relevant criteria that extreme hardship would be caused by depriving him of a means of earning a living. In the circumstanc es, the application is dismissed. Mr Parr, you should also be aware that should your circumstances change, and that you become properly employed or have proper contract work, that may constitute a change of circumstances which would justify reapplication.”
From those reasons it is apparent that his Honour gave consideration to the extreme hardship arising from depravation of the means of earning a living contemplated by s 111(1)(b)(i) but, at least arguably, gave no further consideration to severe and unusual hardship to Mr Parr or his family other than by depriving him of his means of earning a living as contemplated by s 111(1)(b)(ii). Mr White who appeared for the respondent on the appeal, very fairly, conceded this may be so.
Is there a right of appeal?
The respondent contends that there is no right of appeal from a decision refusing to make a special hardship order conferred by the TORUM Act, the Regulation, or more generally under the Magistrates Court Act 1921. For his part, Mr Parr could not direct the court to anything which would give rise to a right of appeal saying only “there is always due process and there is always some other way to find it to show that, no, I was right.”11
There is certainly no express statutory conferral of a right of appeal under the Act or Regulation. There is, however, a legislative presumption expressed by the High Court in Electric Light and Power Supply Corporation Ltd v Electricity Commission of New South Wales12 as:
“When the legislature finds that a specific question of a judicial nature arises but that there is at hand an established court to the determinat ion of which the question may be appropriately submitted, it may be supposed that if the legislature does not mean to take the court as it finds it with all its incidents including the liability to appeal, it will say so.”
Transcript 1-8 lines 15-17.
The Electric Light case [1956] 94 CLR 554 at 560.
McPherson JA in State of Queensland v Mowburn Nominees Pty Ltd13 observed that in the Electric Light case the justices of the High Court set out a number of passages from the speeches of their Lordships in the House of Lords in National Telephone Co Ltd v Post Master General.14 McPherson JA contented himself to refer to only one, that of Lord Parker of Waddington in which his Lordship said:15
“Where by statute matters are referred to the determination of a court of record with no further provision, the necessary implication is, I think, that the court will determine the matters, as a court. Its jurisdiction is enlarged, but all the incidents of such jurisdict io n, including the right of appeal from its decision, remain the same.”
Therefore, in referring to the Magistrates Court the determination of applications for special hardship orders, the legislature is presumed to have done so with all the incidents of the jurisdiction of that court, including any appeal rights, as might exist.
In considering whether any appeal right arises from the decision to refuse a special hardship order, the starting point is s 43 of the Magistrates Court Act 1921. It provides:
“43 Judgments to be final
(1)Subject to this Act, all judgments and orders made by a Magistrates Court shall be final and conclusive.
(2)Except as provided by this Act, or by or pursuant to any other Act now in force or hereafter to be passed, a judgment given by a Magistrates Court, or an action brought before it or depending therein, shall not be removed by appeal, motion, writ of error or certiorari, or otherwise into any other court.”16
An exception, as contemplated by s 43(1), to this general prohibition against appeal, is found in s 45 which confers rights of appeals from judgments or orders given or made in particular cases. It provides:
“45 Appeal
(1)Subject to this Act, any party who is dissatisfied with the judgment or order of a Magistrates Court—
(a)in an action in which the amount involved is more than the minor civil dispute limit; or
(b)in an action for the recovery of possession of land if—
(i)the value of the land is more than the minor civil dispute limit; or
(ii)the annual rental of the land is more than the minor civil dispute limit; or
[2005] 1 Qd R 195 at 198-199.
[1913] AC 546.
At 562.
Section 43 is in the nature of a privative clause and must now be read subject to the judgment of the High Court in Kirk v Industrial Court (NSW)(2010) 239 CLR 531 at 581 [100] that such a privative clause cannot remove the power of the Supreme Court to grant relief on account of jurisdictional error.
(c)in proceedings in interpleader in which the amount claimed or the value of the goods in question is more than the minor civil dispute limit; or
(d)in a proceeding under the Property Law Act 1974, part 19, division 4, subdivision 1;
may appeal to the District Court as prescribed by the rules.
(2)Provided that—
(a)where in any of the cases above referred to in subsection (1) the amount is not more than the minor civil dispute limit, an appeal shall lie by leave of the District Court or a District Court judge, who shall not grant such leave to appeal unless the court or judge is satisfied that some important principle of law or justice is involved;
(b)an appeal shall not lie from the decision of the Magistrates Court if, before the decision is pronounced, both parties agree, in writing signed by themselves or their lawyers or agents, that the decision of the court shall be final.
(3)Within the time and in the way prescribed by the rules, the appellant must give to the other party or the other party’s lawyer notice of the appeal, briefly stating the grounds of the appeal. [s 45A] Magistrates Courts Act 1921 Part 6 Judgments, new trials, appeals and related matters Current as at 28 February 2015 Page 25 Authorised by the Parliamentar y Counsel
(4)Notice of appeal shall not operate as a stay of execution upon the judgment, but the execution may proceed unless the magistrate or a District Court judge otherwise orders.
(5)In this section—
minor civil dispute limit means the amount that is, for the time being, the prescribed amount under the Queensland Civil and Administrative Tribunal Act 2009.”
The only provision of s 45(1) which may avail a person dissatisfied with an order dismissing an application for a special hardship order is s 45(1)(a).
The respondent submits that “whilst a special hardship order may well be an ‘action’ for the purpose of s 4 of the Magistrates Court Act 1921, it should not be considered ‘an action in which the amount involved is more than the minor civil dispute limit. ’17 Thus the respondent’s contention that there is no right of appeal arising under s 45(1)(a) from a decision to refuse a special hardship application, focuses upon the monetary amount (or absence thereof) of any such action.
In my respectful view, the respondent’s focus upon the monetary amount, and its concession that a special hardship application may well be an action, whether for the purposes of s 4 or otherwise, is misplaced.18 In my view, no right of appeal arises
Respondent’s submissions p 25.
It should be observed that, on any view, whether an application for a special hardship orde r is not an action under s 4 of the Magistrates Court Act. Section 4 confers power, by the Magistrate, under the Magistrates Court Act itself, for the Court to hear and determine certain proceedings. The
jurisdiction to hear a Special Hardship Order Application arises, not under s 4, but by separate
under s 45(1)(a), primarily, not because of any failure to satisfy the monetary threshold, but because an application for a special hardship order is not an action.
The respondent’s concession that such an application “may well be an action” is based upon the Judgement of the Court of Appeal in the State of Queensland v Mowburn Nominees Pty Ltd.19 To explain why I consider the concession misplaced, some analysis is required of the reasons for judgment in Mowburn Nominees and the authorities cited therein.
The proceedings in Mowburn Nominees arose under the Stock Act 1915. That Act permitted an order to be made for the destruction of stock. Such an order was made in respect of some 8000 head of cattle the property of Mowburn. Upon that order being carried out, Mowburn became entitled to compensation under s 31 of the Stock Act, which compensation was to be equivalent to the estimated market value of the stock. In the first instance, the value was to be determined by the Chief Inspector of Stock. There was a right of appeal from the decision of the Chief Inspector determining the value.20 The appeal was to be commenced by filing a notice of appeal and serving it upon the Chief Executive.21 The appeal was to be by way of rehearing,22 and the magistrate hearing the appeal was able to give directions about the hearing of it.23 The Magistrate in fact exercised that power, requiring the parties to deliver points of claim and defence.
The Chief Inspector made a series of determinations as to valuation arising out of a number of destruction orders from which a series of appeals were commenced. They were all heard together and the magistrate fixed the amount of total compensation in the sum of $6,385,497.
The Department of Primary Industries brought an appeal to the District Court. The court determined that there was no right of appeal and that decision was appealed to the Court of Appeal.
Like the TORUM Act and Regulation under consideration here, the Stock Act itself conferred no right of appeal from the magistrate’s decision. If any appeal right was available, it was that which arose under the general provision under s 45(1). The issue which arose was whether the claim for compensation in which the magistrate ’s decision was made was “in an action”.24
McPherson JA, with whom the President and Philippides J (as her Honour then was) agreed, observed that on a strict view of the word “action” an appeal from the determination of the value of a right to statutory compensation was not an action as it was not a proceeding to enforce a right at common law.25 His Honour went on to observe, though, that this was not to say that it could not be treated as an action for the purposes of s 36(2). In that regard his Honour said:
express statutory conferral under the Regulation. Compare State of Queensland vs Mowburn Nominees Pty Ltd, supra, Wynch vs Ketchell [2002] 2 QR 560 at [30].
[2005] 1 QR 195.
Section 36(2).
Section 36(7).
Section 36(9).
Section 36(10).
It seems that the proceeding was conducted on the basis that if the compensation claim was “in an action” it exceeded the prescribed monetary amount of $5,000: see McPherson JA at [11].
At [16].
“Value or amount, once quantified in that way, would qualify as a debt due under the statute which, if not paid, would be recoverable as such in a court of law. To deny to the proceedings for its quantification in court the character of an ‘action’ would be to ascribe to that word in s 45(1)(a) of the Magistrates Court Act both a dominant as well an unnecessarily technical meaning”.
His Honour said that such a meaning had been rejected by the Court of Appeal in Wynch v Ketchell,26 where Thomas JA, with the assent of the other members of the court, preferred to regard it as a “generic term” which includes every sort of legal proceeding, or as Kennedy LC considered it meant in Johnson v Refuge Assurance Company Ltd,27 “a proceeding in the nature of a litigation between a plaintiff and a defendant.”
After further considering Wynch v Ketchell, McPherson JA later said:
“The only obstacle that is pointed to is the presence of the word ‘action’ in s 45(1)(a) of the Magistrates Court Act. Even if it is permissible to look to it to rebut the presumption, it, as Wynch v Ketchell accepted, includes every sort of legal proceedings, and so is fairly capable of comprehending proceedings like these in which Mr Quinlan determined the amount of compensation due under s 31 of the Stock Act. Those proceedings were in fact conducted before the Magistrate in the same way as other litigation inter partes.”
Wynch v Ketchell concerned proceedings arising under the Excise Act 1901 (Cth). Two vehicles had been seized under s 116(1)(e) of that Act which provided for forfeiture to the Crown of certain property. The combined value of the vehicles was
$265,000. The vehicles were seized by Wynch, a Federal Police Officer. Having seized them, s 9(1) of the Crimes Act 1914 (Cth) obliged him to take the forfeited goods before a court of summary jurisdiction. Section 9(2) then required the court of summary jurisdiction to enquire into the matter and, if satisfied that the goods were forfeited, order them to be condemned. If not so satisfied, the court was to order them to be delivered to such person as the court was satisfied was entitled to them. A right of appeal from a magistrate’s decision was expressly conferred by s 137 of the Excise Act. However, that right was to be exercised in the manner provided by Queensland law. The question for the Court of Appeal was whether s 45 of the Magistrates Court Act was a “law of the State…for appeals from convictions or orders of dismissa l”; that being the description in s 137 of courts to which the prescribed Appeal would lie.
Thomas JA considered that a proceeding under s 9 of the Crimes Act may be regarded as an “action” within the natural meaning of that term, citing in support the follow ing passage from the Judgment of Street J in Re W Carter Smith, Ex parte the Commissioners of Taxation:28
“Whatever the popular signification of the word ‘action’ may be, it is clear, as it was pointed out by Bramwell and Lush, LJJ, in Clarke v Bradlaugh [(1881) 7 QBD 38, at PP 50, 57] and by the Earl of
[2002] 2 QR 560 at 587.
[1913] 1 KB 259 at 264.
(1908) 8 SR (NSW) 246 at 249.
Selborne LC and Lord Blackburne in the same case on appeal to the House of Lords [8 AP. CAS. 354 at PP 361 and 374] that in its proper legal sense it is a generic term or nomen generale, and includes every sort of legal proceeding. When used by the legislature it must… be construed according to its true legal meaning unless it is apparent upon the face of the Act, in which it is used, that it is intended to bear a more restricted meaning.”
The relevant issue in Clarke v Bradlaugh in the Court of Appeal, and the sole issue in Bradlaugh v Clarke on appeal in the House of Lords, was whether a suit to recover a penalty from a member of the House of Commons who had sat and voted in the House before taking the prescribed oath could be maintained by a common informer rather than the Crown. Where a member sat and voted without first having taken the prescribed oath, the Parliamentary Oaths Act 1886 prescribed “he shall for every such offence be subject to a penalty of £500, to be recovered by action in one of her Majesty’s Superior Courts at Westminster.” It was contended that a common informer must be able to sue for the penalty as the Sovereign does not sue by action.
It was in that context, and in respect of that argument, that Bramwell LJ said:29
“By that reasoning I am convinced, and therefore, I think this action maintainable by the plaintiff. I should have had some doubts if the words had been merely ‘to be recovered by action,’ because although ‘action’ commonly means a proceeding commenced by writ, yet I am not sure that it would not be reasonable (if it could be otherwise inferred that the penalty was intended to go to the Crown) to hold that the word ‘action’ is a sort of nomen generale which includes every sort of legal proceeding.”
Baggallay LJ agreed with Bramwell LJ. Lush J said:30
“Now, it does not in terms say who shall have that penalty or who shall sue for it, and if the words had simply been ‘by action’, I am inclined to think at present it would have belonged to the Crown alone, because the word ‘action’ is a generic term and may be used as a general term… but it is evident that that is not the sense in which the word ‘action’ is used here. It is used here in the popular sense of a proceeding commenced by writ; because it is to be ‘in one of her Majesty’s Superior Courts at Westminster’ which means of course in either of them. Now the Sovereign could only sue by informat ion in the Court of Exchequer. The Sovereign could not have sued in the court of Queen’s Bench or the Court of Common Pleas for this penalty. Therefore, when the statute gives the right of suit by action in either of the courts, it of necessity to my mind implies it means an action to be brought by any person capable of suing in any of the three courts which you might select. Therefore, by what is called necessary implication, the right of suit is given to anybody who may sue for the same. The Court of Appeal held that a common informe r could maintain the action, indeed only a common informer could because the Sovereign could not have sued in either of the Court of Queen’s Bench or the Court of Common Pleas, those being Her Majesty’s two superior courts at Westminster
At 50.
At 57.
In allowing the appeal, Earl of Selborne LC said:31
“These authorities appear to me to prove that a suit to recover such a penalty is that incurred by the appellant might, in and after 1866, have been brought by the Crown in any one of the superior courts at Westminster, and consequently that the option given to sue in any of those courts cannot be a sufficient reason for letting in a common informer under statute by which a right of action is not otherwise given to him. I am also satisfied, after full consideration that the word “action” is (as Lord Justice Lush said) a generic term, inclusive, in its proper legal sense, of suits by the Crown, and, therefore, not furnishing any sufficient ground for implying a right of action in a common informer. That is used as “nomen generalissimum” is in this particular statute seems probable, from the fact that it stands there alone, without having super added to it a number of other technical terms, which are usually found associated with it in earlier statutes.”
Later, his Lordship concluded:32
“… that there is no difficulty in applying any part of the language of the clause in the Act of 1866, which creates the penalty sued for in the present action, to a suit by the Crown; and, therefore, that no part of that language affords any sufficient ground from implying an intent ion on the part of the legislature to give a common informer, as well as the Crown, a right of action for that penalty.”
Lord Blackburn came to same conclusion. In so doing he said:33
“But in legal phraseology “action” includes every suit, whether by a subject, or in the name of the Sovereign, or by an information by the Attorney-General on behalf of the Crown. For this, the definition of “action” given in Coke, Littleton 285, is a sufficient authority, but it is more distinctly laid down in the third institute, 136, where it is said by Lord Coke, “the King may have an action for such wrong as is done to himself, and where of none other can have an action, but the King (without being apprised by indictment, presentment, or other matter of record), as a quare impedit, quare incumbravit, a writ of attaint, of debt.”
Street J’s observation in Re W Carter-Smith to it being clear that from those various judgments and speeches that “action”, in its proper legal sense, is a generic term which includes “every sort of legal proceeding”, in my view, ought to be understood in the context of those judgments and speeches having been given and made in a case where there was undoubtedly a suit which could be brought by one party against another, the only issue being by whom it could be brought. This is reflected in Earl Hallsbury’s, The Laws of England, the first edition published in 1907 in which the definition of “action” contained, in paragraph 1 of Section 1, Part 1 is:
“Action”, according to the legal meaning of the term, is a proceeding by which one party seeks in a court of justice to enforce some right against, or to restrain the commission of some wrong by, another
(1883) 8 App. CAS 354 and 361.
At 362.
At 374.
party. More concisely it may be said to be “the legal demand of a right”, or “the mode of pursuing a right to judgment” (a). It implies the existence of parties, of an alleged right, of an alleged infringe ment thereof “either actual or threatened”, and of a court having power to enforce such a right.
In its wider meaning the term includes both civil and crimina l proceedings; it was frequently so used by older writers (b), and in a modern case (c) the House of Lords recognised that it is “a generic term, inclusive, in its proper legal sense, of suits by the Crown”,
and comprehending, in legal phraseology, every suit, “whether by a subject, or in the name of the sovereign, or by an information by the Attorney-General on behalf of the Crown.”
The “modern case” in the House of Lords referred to were the judgments of Lush LJ in the Court of Appeal and the speeches of Lord Selbourne LC and Lord Blackburn in the House of Lords in the two Clarke cases set out above.
In Wynch v Ketchell, Thomas JA also referred to Kennedy LJ’s consideration of the natural meaning of “action” in Johnson v Refuge Assurance Company Limited,34as “any proceeding in the nature of a litigation between a plaintiff and a defendant”. His Honour observed:
“This statement was made in the context for a proceeding in the County Court where proceedings were not commenced by writ. Kennedy LJ described the matter thus:
“In this case there was a civil proceeding in the County Court which was, according to the ordinary understand ing of language, not merely a matter, but a litigation between a plaintiff and defendants in the nature of an action.”
This approach is consistent with the wide meaning of “action” recognised by Street J in Re W Carter Smith, Ex parte The Commissioner of Taxation.”
As set out above, McPherson JA in applying that reasoning in Mowburn Nominees, observed that the proceedings in that case were in fact conducted before the Magistrates Court in the same way as other litigation inter partes.
Both the definition of “action” in Hallsbury’s Laws of England (by then in its fourth edition) and the statement by Kennedy LJ in Johnson v Refuge Assurance Co, were referred to by Master Lee (as his Honour then was) in Ariadne Properties Limited v Russell,35 in support of his Honour’s view that “an action is its natural meaning refers to any proceeding in the nature of litigation between a plaintiff and a defendant” (emphasis added). His Honour would repeat that view in the subsequent case of Lebon v Lake Placid Resort Pty Ltd.36
(1913) 1 KB 259 at 264.
[1989] 1 Qd R 491 at 495.
[1995] 1 Qd R 24 at 32.
In Winch v Kendall,37Thomas JA observed that those proceedings brought under s 9 of the Crimes Act were analogous with proceedings that could formerly have been brought under s 39 of the Justices Act, and that such proceedings required any person who may have a claim to the property to be given notice of the proceeding. His Honour further observed that in R v Otto38 it was recognised that the ownership of property may be altered by the procedure. The relevant issue in Otto was whether the police officer who had brought the original application could have standing as a “person aggrieved” for the purpose of bringing an appeal from the Magistrate’s decision under s 209 of the Justices Act. It was held that he could. It should be noted that the appeal in question was an appeal by way of order to review in the Supreme Court. Section 209 has since been repealed. As already noted, a decision of a magistrate in respect of a special hardship order may be reviewable by the Supreme Court under Part 5 of the Judicial Review Act if made in jurisdictional error.
Can it be said that an application for a special hardship order is a proceeding in the nature of litigation between a plaintiff and a defendant? In my view, it cannot. Nor can it be said that the proceeding before the Magistrates Court was conducted in the same way as other litigation inter partes.
Unlike an order under s 9 of the Excise Act, as in Wynch v Ketchell, or an order under s 39 of the Justices Act, as considered in R v Otto, a proceeding for a special hardship order cannot affect ownership of property. Although an applicant is required to give the Chief Executive a copy of the application and the Chief Executive is entitled to appear on the hearing of the application, give and call evidence and examine and cross-examine witnesses, they are not required to do so. The Magistrates Court may itself require the applicant to attend as a witness to give evidence in relation to relevant matters and the applicant may be liable to cross-examination, presumably by the court itself. No doubt, any such cross examination must be directed towards those matters prescribed by s 111 of which the court must be satisfied before being empowered to make the special hardship order, including those matters to which the affidavit required by s 111(2) to be filed must address.
In my view, such a proceeding is antithetical to litigation inter partes. There is no demand or right being asserted by the applicant. There is no alleged infringement of any right by anyone in the nature of a defendant. It is a proceedings brought on the initiative of one party, which does not require there to be a contradictor, in which a discretion may be exercised in the applicant’s favour upon a magistrate reaching a state of satisfaction as to specified statutory criteria.
Although in Wynch v Ketchell Thomas JA adopted what was said in Clarke v Bradlaugh (and Bradlaugh v Clarke) about an action being, in its proper legal sense, a generic term, it could only be if it, literally, included every sort of legal proceeding that an application for a special hardship order could be considered an action. As can be seen from the analysis above, Clarke v Bradlaugh was a case in which there was no issue as to a suit being able to be brought by one party against another, only the identity of the proper suitor, and in Wynch v Ketchell itself, it was a case in which the final ownership of property might be determined.
In my view, “action” as used in s 45(1) cannot, literally, include every sort of legal proceeding because of the qualifying words “in which the amount involved is more
[2002] 2 Qd R 560 at 568 [29].
(1996) 90 A Crim R 492.
than the minor civil dispute amount.” Those words of qualification narrow the use of the term “action” to proceedings to which a value can be ascribed. An application for a special hardship order is not such a proceeding. A special hardship order is not able to be ascribed a value. It is not analogous to a proceeding for the quantification of a right to statutory compensation as was the case in Mowburn Nominees. Nor is it analogous to an application for a forfeiture order of certain property under the Crimes Act, to which property of value may also be ascribed, as was the case in Wynch v Ketchell.
If an “action”, as used in s 45(1)(a), extended, literally, to every sort of legal proceeding, the combined operation of s 45(1)(a) and s 45(2) would be that, contrary to s 43, there would be a basis for appeal from every decision or order of the Magistrates Court, either as of right or by leave depending upon the value to be ascribed (if any) to the subject matter of the proceeding.
Furthermore, as the respondent correctly submits, no value can be ascribed to the subject matter of an application for special hardship order. Such a proceeding could never, therefore, satisfy the qualification that the value of the amount involved in the action was greater than the minor civil dispute amount.
Therefore, whilst of the opinion that such an application is not an “action” within the meaning of that term in s 45(1)(a), even if were, it is not an action in which the amount involved meets the threshold.
For these reasons, I am of the view that s 45(1)(a) does not provide a right of appeal from the decision of a Magistrate on appeal for special hardship order. There is no jurisdiction for the court to entertain the appeal. The appeal must be dismissed.