Mr Sherman’s main argument was that the Magistrates’ Court could not and should not have granted a re-hearing of his s 26AA appeal. VicRoads argued the appeal has no reasonable prospect of success and should be summarily dismissed. The Court of Appeal agreed, at [22].

The interesting point in this case is on the power of the Magistrates’ Court to grant a rehearing.

[11] The Corporation acknowledged and the appellant agreed that the appellant’s principal ground of appeal was that the Magistrates’ Court had no power to rehear the appellant’s appeal pursuant to s 26AA of the Road Safety Act. The appellant had submitted to the judge that the Magistrates’ Court did not have such power because an appeal under s 26AA of the Road Safety Act was not a civil proceeding within the meaning of s 100 of the Magistrates’ Court Act 1989 (Vic). The appellant reiterated that submission before this Court, adding that the power of rehearing granted to the Magistrates’ Court under s 26AA of the Road Safety Act was in the nature of ‘an original supervisory jurisdiction’ and was neither a criminal nor a civil proceeding under the Magistrates’ Court Act. It followed, so the appellant submitted, that the first order made by the Magistrates’ Court allowing his appeal under s 26AA was not ‘a final order … in a civil proceeding’ within the meaning of s 110(1) of the Magistrates’ Court Act and therefore the Magistrates’ Court had no jurisdiction or power to rehear the s 26AA appeal. It seems to me that this question, in turn, depends upon whether an appeal under s 26AA of the Road Safety Act is a ‘cause of action’ in respect of which the Magistrates’ Court is ‘given jurisdiction … under any Act’ within the meaning of s 100(1)(d) of the Magistrates’ Court Act. If that question be answered in the affirmative then the s 26AA appeal is a civil proceeding but if that question be answered in the negative then it is at least strongly arguable that the Magistrates’ Court had no power under s 110 to order and conduct a rehearing.

[12] The appellant relied on the case of Lednar v Magistrates’ Court (2000) 117 A Crim R 396. In that case Gillard J stated, although it was probably not part of the ratio of his decision, that an application to the Magistrates’ Court for an order for the taking of a forensic sample under s 464ZF(3) of the Crimes Act 1958 (Vic) was neither a criminal nor a civil proceeding within the meaning of the Magistrates’ Court Act. The appellant submitted that a s 26AA appeal was likewise neither a criminal nor a civil proceeding. Although I tend to the view that a s 26AA appeal is properly to be characterised as a ‘cause of action’ under statute within the meaning of s 100(1)(d) of the Magistrates’ Court Act, I would accept that the contrary is arguable and that it cannot be said that the appellant has no prospect of succeeding in his submission that s 110 of the Magistrates’ Court Act was not a valid source of power for the rehearing of the s 26AA appeal conducted by the Magistrates’ Court.

[13] However the Corporation submitted that, even if the Magistrates’ Court had no power to rehear the s 26AA appeal under s 110 of the Magistrates’ Court Act, the Magistrates’ Court had an inherent discretionary power to set aside an order made in the absence of a party and to rehear the matter the subject of that order. In Taylor v Taylor (1979) 143 CLR 1 the High Court considered the jurisdiction of the Family Court to set aside an order in various circumstances including one made in the absence of a party. The High Court was unanimously of the view (although Murphy J dissented as to the result of the appeal) that the Family Court had an inherent jurisdiction or power to set aside an order made in the absence of a party if, in the circumstances, justice so required, provided that the Act did not negative the existence of any such power. Reference was made to an earlier High Court decision in Cameron v Cole (1944) 68 CLR 571 which was concerned with the Federal Court of Bankruptcy and in which it was considered that a statutory court of limited jurisdiction nevertheless had an inherent jurisdiction to set aside its orders (unless displaced by statute) in certain circumstances including those in which an order was made in the absence of a party. Indeed, in Taylor v Taylor (1979) 143 CLR 1, Murphy J expressly stated that there was a longstanding principle that an order made against an absent party might be set aside even where the absence was the absent party’s fault.

[14] In my opinion, as the judge below also thought, it is inconceivable that the Magistrates’ Court does not have a discretion to rehear a s 26AA appeal decided in the absence of the Corporation pursuant to an inherent jurisdiction or power to do so (on the assumption that s 110 is inapplicable). It follows, in my view, that the appellant’s principal argument has no prospect of success.

If the s 26AA appeal were categorised as a criminal proceeding, then the rehearing power would be Criminal Procedure Act 2009 Part 3.4. Although Criminal Procedure Act s 88 provides that a rehearing applies when a sentence is imposed by the Magistrates’ Court, I reckon it might apply in this case. The definition of sentence is not exhaustive. And, in Chief Commissioner of Police v Rigg (2004) 10 VR 134 at [15], the Supreme Court held that a provision was characterised as criminal or civil by considering if the underlying foundation for the proceeding was criminal or civil. (That case dealt with alcohol interlocks. They too might not be considered a sentence in the usual sense, but still have a punitive affect and for that reason also those provisions are criminal.) In reaching that conclusion, it relied on several cases including the Court of Appeal’s decision in Perkins v County Court (2000) 2 VR 246 at [16] – [21].

All that suggests that in this case, the proceeding was criminal, and within the scope of the rehearing provisions in the Criminal Procedure Act.

I’m not sure about an inherent power of the Magistrates’ Court to rehear the appeal. In Grassby v The Queen (1989) 168 CLR 1 at [21] – [24] the High Court held that inferior courts — such as a Magistrates’ or Local Court — can’t possess inherent powers but only implied powers: those that are necessarily antecedent to their statutory source of power.

This area of the law is notoriously complex, and fraught with difficulties for all the players. When VicRoads was notified that Mr Sherman committed the offence — even though that wasn’t correct because he was contesting the infringement notice  — it had no choice but to record the relevant demerit points. Because there is no discretion, there is no ‘decision’ to be made and so that can’t even be subject to administrative review: Russo v VicRoads (2001) 34 MVR 343; Roads and Traffic Authority (NSW) v Wilson (2003) 58 NSWLR 240. Nor can the driver appeal to the Magistrates’ Court unless they fit within the narrow criteria contained in Road Safety Act s 26 or s 26AA: Russo v VicRoads(2001) 34 MVR 455.

There isn’t even very much restriction on when the suspension must commence, aside from RS(D) Regs 73(3) which prohibits VicRoads from acting on demerit points more than 12 months after it’s notified of them. But, when legislation is silent about the time to perform an act, it is implied that the act must be performed in a reasonable time: National Car Parks Ltd v Baird (Valuation Officer) [2005] 1 All ER 53 at [59] – [65] per Dyson LJ.