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Darren lance Norman v. Bradley john Curran - (25 May 2018)

Officer of the Department or an agent of Chief Executive Officer (CEO) may serve a Notice on his behalf without a formal written delegation from CEO

Criminal

In instant case, the Respondent was charged with offence of driving a motor vehicle whilst not being a person authorised to do so, for the reason that, his driver’s license was suspended due to the loss of demerit points pursuant to Section 49(1)(a) and Section 49(3)(c) of the Road Traffic Act 1974. Respondent pleaded not guilty and proceeded to trial in the Magistrates Court. The magistrate acquitted Respondent, finding that the service of the demerit point suspension notice on Respondent was invalid for the reason that, the Chief Executive Officer (CEO) had not personally served Respondent or alternatively, that the CEO had not given a written delegation to the respective Department of Transport officer. The prosecution now appeals that decision, contending that the CEO does not have to personally serve Mr Curran, nor does the CEO have to give a formal written delegation to the officer purporting to serve the Notice. The question to be determined in present appeal is whether it is necessary for the CEO to personally serve a person with the Notice under Section 49 of Road Traffic (Authorisation to Drive) Act, 2008 or formally delegate that function in writing under Section 8 of the Road Traffic (Administration) Act, 2008.

Section 8(8) of the Road Traffic (Administration) Act 2008 (WA) expressly provides that, 'nothing in this section limits the ability of the CEO to perform a function through an officer or agent.' That subsection therefore negates any presumption that might otherwise arise by virtue of Section 8(1), which permits the CEO to delegate any power or duty of the CEO under another provision of a road law.

The proper construction of Section 49 and Section 59 of the Road Traffic (Authorisation to Drive) Act 2008 does not require the CEO to personally serve the person or to grant a formal written delegation to an officer. The exercise of the function under Section 59(2) of the Road Traffic (Authorisation to Drive) Act 2008 is not a central part of the legislative scheme. The Road Traffic (Authorisation to Drive) Act 2008 establishes the statutory framework that regulates the authorisation of persons to drive motor vehicles. Whilst the enforcement provisions are important to the legislative framework they are not central. This is not a case where the centrality of the exercise of the power, duty or function means that the application of the Carltona principle is negated.

It was merely an administrative action. Accordingly, an officer undertaking a customer service role in a sub-urban branch of the Department is an appropriate person to exercise the CEO's function of service. The consequence of giving the Notice to the person is the commencement of the licence disqualification period, the length of which is fixed by the statute. The officer who gives the Notice exercises no discretion as to the consequences of that service. The consequence is merely the disqualification.

The administrative necessity of the task of giving the Notices to drivers who have incurred excessive demerit points means that, it is impractical for the CEO to act otherwise than through his or her officers. It is not necessary that, the CEO formally give a delegation to every customer officer (or other officer or agent). Parliament could not have intended that, the CEO must personally serve or formally delegate the function of service given the multitude of instances when its exercise would be required.

Accordingly, the magistrate erred in law by finding that, only the CEO personally, or an officer delegated with that function in writing, may serve the Notice. On a proper construction of Section 49 and Section 59 of the Act, 1974, read with Section 8 of the Act, 2008, an officer of the Department or an agent of the CEO may serve a Notice on behalf of the CEO without a formal written delegation from the CEO. Therefore, leave to appeal is granted and the appeal is allowed. The matter must be remitted to the Magistrates Court for the charge to be determined by another magistrate according to law.

Tags : POWER   DELEGATION   ACQUITTAL   VALIDITY  

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