AB v County Court of Victoria

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW & APPEALS LIST

S CI 2017 03716

AB	Plaintiff
v
COUNTY COURT OF VICTORIA	First Defendant
And
GREATER SHEPPARTON CITY COUNCIL	Second Defendant

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JUDGE:	ZAMMIT J
WHERE HELD:	Melbourne
DATE OF HEARING:	1 March 2018
DATE OF JUDGMENT:	26 April 2018
CASE MAY BE CITED AS:	AB v County Court of Victoria
MEDIUM NEUTRAL CITATION:	[2018] VSC 188

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ADMINISTRATIVE LAW – Judicial Review – Originating motion – Application for extension of time in which to file originating motion for judicial review – Application refused by Associate Justice – Whether error in finding no special circumstances – No special circumstances – Whether error in finding no arguable case – No arguable case – Appeal dismissed – Supreme Court (General Civil Procedure) Rules 2015 rr 56.02, 77.06 – Road Safety Rules 2009 rr 207, 332.

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APPEARANCES:	Counsel	Solicitors
The Plaintiff appeared in person
For the Second Defendant	Ms A Haban-Beer	Dawes & Vary Riordan Pty Ltd

HER HONOUR:

This appeal is about whether the plaintiff should be granted an extension of time to bring a proceeding for judicial review pursuant to O 56 of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’). The difficulty is her originating motion was filed approximately three years out of time and her application for an extension of time was refused by an Associate Justice of this Court. She has appealed to a single Judge of the Trial Division pursuant to r 77.06 of the Rules. In particular, she seeks relief in the nature of certiorari, quashing the orders of the Associate Justice on the ground of jurisdictional error.

The substantive aspect of the plaintiff’s proceeding concerns a parking fine she received in Shepparton in March 2013. The original fine of $70 has since grown, due to interest, administration fees and unsuccessful litigation, to the point where she currently owes the second defendant $4572.07.[1] The plaintiff has at all material times been self-represented in this and each of the lower courts through which her proceeding has passed.
[1]These were the moneys owed at the time of the plaintiff’s originating motion of 14 September 2017.

It is to be remembered that an appeal to this Court pursuant to r 77.06 is an appeal by way of rehearing rather than a hearing de novo. Ordinarily error must be shown on the part of the Associate Judge before appellate power will be exercised.[2] Of course, such an appeal is not strict, which is to say it is not confined to errors of law or process.[3] However, where the orders from which an appeal is brought relate to a matter of practice and procedure (as is the case here), an appellate court will exercise particular caution in reviewing the decision.[4]
[2]Oswal v Carson [2013] VSC 355 [11]; Schreuders v Grandiflora Nominees Pty Ltd [2014] VSC 310 [4].
[3]Hou v Westpac Banking Corporation Ltd [2015] VSCA 57 [44]; Djime v Le [2016] VSCA 105 [20].
[4]Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc (1981) 148 CLR 170, 177.

For the reasons that follow, I have concluded that the orders of the Associate Justice disclose no error, chiefly because the plaintiff does not have an arguable case. The appeal must therefore be dismissed.

Factual and procedural background

It is necessary to set out the factual and procedural background to the appeal in detail.

On 12 March 2013 the plaintiff travelled from Melbourne to Shepparton to attend the Shepparton Magistrates’ Court. She parked her car in Welsford St, Shepparton, in a parking bay where a prescribed fee must be paid. The plaintiff did not pay the fee and so received a parking fine (‘the fine’).[5] The fine was for $70 and was issued pursuant to r 207(2) of the Road Safety Rules 2009 (‘Road Rule 207’).
[5]Affidavit of Simon Pogue sworn 25 October 2017 [4].

The evidence is that the subject parking bay falls within permissive parking signs with arrows pointing towards each other about 50 metres apart. The permissive parking signs therefore fulfil the requirements of r 332 of the Road Safety Rules 2009 ‘(Road Rule 332’).[6]
[6]Ibid [21] SMP11. Road Rule 332 is set out at [57] below.

It is not in dispute that the plaintiff parked in the subject parking bay in between the permissive parking signs. Nor is it disputed that the car parked in the subject parking bay was registered to the plaintiff, that she was driving the car on the day of the offence or that she failed to pay the prescribed fee. Further, it is not disputed that the parking fine was lawfully issued, that the subject parking bay was in an area where a prescribed fee must be paid or that the permissive parking signs were in place.[7]
[7]Ibid [23].

By letter dated 21 March 2013 the plaintiff wrote to the second defendant and requested that the fine be reviewed and withdrawn. By letter dated 4 April 2013 the second defendant wrote to the plaintiff and refused her request.[8]
[8]Ibid SMP3.

On 26 April 2013 the plaintiff wrote to the second defendant stating:

I am not familiar with Shepparton and there was no indication that the parking spot that I moved into was in a ticketed area. I did not know that I had to purchase a parking ticket, I took photos of the area and an area similar across the road. The parking spot was not clearly signed. I did not deliberately park there and not pay, I simply did not see a parking sign indicating that it was a ticketed area and I had parked in an area on the opposite side of the intersection that was not a ticketed area, so I assumed it was the same. I therefore request that this matter be heard in court.[9]

[9]Ibid SMP4.

The plaintiff was subsequently charged under Road Rule 207(2) as follows:

The accused at Shepparton on 12 March 2013 did without lawful excuse fail to pay the applicable fee and obey instructions.[10]

On 10 October 2013 the plaintiff was served with the charge and summons and full brief of evidence.[11]

[10]Ibid SMP5.

[11]Ibid [9].

On 13 December 2013 the plaintiff was found guilty by a judicial registrar at Shepparton Magistrates’ Court. She was sentenced without conviction to pay a fine of $70 (the original infringement), statutory costs of $73.20 and legal costs of $660. The total owed to the second defendant at that point in time was thus $803.20.

On 23 December 2013 the plaintiff filed a request for direction that the matter be reviewed by a magistrate. The application was granted on 13 January 2014 and listed for hearing on 27 February 2014. On that day the plaintiff appeared before a magistrate in the Shepparton Magistrates’ Court and was again found guilty as charged. The same sentence imposed by the judicial registrar was reimposed by the magistrate.[12]
[12]Ibid [11], [12].

On 11 March 2014 the plaintiff filed a notice of appeal against sentence and conviction. On 26 August 2014 the plaintiff pleaded her case at a hearing de novo before a judge of the County Court sitting at Shepparton. The judge found the charges proven against her and ordered her to pay the costs of the second defendant in the sum of $5472.07.[13] The judge ordered a three-month stay to give the plaintiff time to make the necessary arrangements to pay the second defendant’s costs.[14]
[13]The County Court document ‘Result of Appeal’, exhibited at SMP7, records that the offence appealed against was ‘failure to pay a parking fee’ as found proven in the Shepparton Magistrates’ Court on 27 February 2014.
[14]Ibid SMP7.

The plaintiff did not make any payment or enter into any instalment plan by the time the stay expired. She did, however, meet with her local state member of Parliament, the Hon. Sonya Kilkenny, who, on 1 May 2015, wrote to the Chief Executive Officer of the second defendant on her behalf.[15] Ms Kilkenny received a letter in reply, dated 2 June 2015, from the second defendant’s Director of Business.[16] It seems Ms Kilkenny also sent a letter dated 1 May 2015 to the Hon. Luke Donnelan MP, Minister for Roads and Road Safety, as she received a reply dated 30 July 2015.[17] The Minister’s letter explained that the plaintiff had also contacted him, around the same time she had contacted Ms Kilkenny, seeking clarification of Road Rule 332 and that he had arranged for her to meet with a VicRoads officer. This meeting went ahead on 22 June 2015 at which the VicRoads officer explained to the plaintiff the official position on Road Rule 332.
[15]Exhibit L to the Affidavit of AB sworn 14 September 2017.
[16]Ibid.
[17]Exhibit M to the Affidavit of AB sworn 14 September 2017.

Subsequent email correspondence between the plaintiff and the VicRoads officer reveals that he explained to her the meaning of a ‘length of road’ under Road Rule 332.[18] Her reply to him, dated 24 June 2015, stated that he had said the definition is ‘vague’ and that ‘councils can interpret it any way they like.’ She also wrote that he had said the definition is ‘inconsistent and ambiguous’ and that ‘it had been in the back of [his] mind to rectify it.’[19] The VicRoads officer then replied to her, by way of email dated 24 June 2015, that, ‘to clarify, my recollection of our conversation was that the rule was something I had considered looking at, not “rectifying”.’[20] He confirmed that the definition of a ‘length of road is nationally agreed’ and that VicRoads is ‘not considering any change to this rule at this time.’[21]
[18]Exhibit N to the Affidavit of AB sworn 14 September 2017.
[19]Ibid.
[20]Ibid.
[21]Ibid.

VicRoads’ position was helpfully summarised in the Minister’s letter to Ms Kilkenny dated 30 July 2015. The relevant passage is as follows:

Road Rule 332 refers to parking within parking bays along a signed length of road. VicRoads advises me that this is a nationally consistent road rule. Where parking signs are placed on a road, parking restrictions apply to the length of road in the direction indicated by the sign. The restrictions continue to another parking sign or to a feature such as a T-intersection, which clearly terminates the road.
If the Road Rules were to amended to terminate a parking restriction at features such as a driveway, there would be significant implications for the required signage. This would lead to a proliferation in signs. Currently, no change is being considered to Road Rule 332 by Victoria, or nationally.[22]

Self-evidently, this letter was shared with the plaintiff, as it appears as an exhibit to her affidavit material.

[22]Exhibit M to the Affidavit of AB sworn 14 September 2017 (emphasis added).

On 14 July 2015 the County Court granted the plaintiff an instalment plan that required her to pay $10 per week. The second defendant received payments on behalf of the plaintiff from 4 August 2015 to 29 May 2017. The plaintiff’s housemate, whom she cares for, assisted by paying the instalments for her.[23] Her housemate deposes to the effect that he has mental health issues that led him to miss some of the instalments.[24] This led, on 29 August 2017, to a warrant being issued for the plaintiff’s arrest.
[23]Affidavit of Anthony William Seals sworn 6 November 2017 [12].
[24]Ibid [13].

In the intervening period, that is between 4 August 2015 and 29 August 2017, the plaintiff was not idle. In September 2015 she made contact with a barrister who is an accredited specialist in this area. The correspondence is revealing and some of it warrants extracting here:[25]
[25]Exhibit O to the Affidavit of AB sworn 17 September 2017 (emphasis added).

9 September 2015
Hi [Counsel]
My name is [AB] and I have attached the story of what has happened to me where I have been convicted of a Parking Infringement. I was never given a fair hearing on my appeal in the County Court and have subsequently exposed a flaw in the law where anyone, councils, Members of Parliament, anyone can interpret it anyway they like because it is so vague.
…
I [have] spent 12 months trying to get sense out of the government and VicRoads as to the interpretation of length of road and that is where I have exposed this problem.
…
I am hoping you will help me and I believe that, given the right Judge, fix the flaw in the law.
Kind regards,
[AB]
14 September 2015
Hi [AB]
Thanks for your email …
If you have a simple question, then ask it. If it is so complicated that I need to read an essay and provide legal advice, maybe you should be booking a telephone conference or an in-person conference.
Regards
[Counsel]
14 September 2015
Hi [Counsel]
I was given this email address by Mary because I didn’t know how to contact you. Basically I am a pensioner who contested a parking ticket because there was no sign on the parking bay … I have spent twelve months trying to get sense out of the Government, as I was never given a fair hearing (have court hearing recording to prove it), and even the Minister for Road Safety interprets the section differently to what it says. I have emails and letters from various members of the government hierarchy all with different interpretations.
I guess I am asking for assistance to have my case reheard as I am out of time as I have a right to have a fair hearing and I am also questioning the Victorian and Australian definition of ‘length of road’.
…
I am currently applying for legal aid as I am questioning the law, because, as stated, it is so vague …
Kind regards,
[AB]
14 September 2015
…
If you have had a county court appeal, the only way forward is to appeal to the supreme court on an ‘Order 56’ application for review, which is difficult and expensive. I would not recommend it unless you had a very good chance of winning.
18 September 2015
Hi [Counsel]
…
As far as the court interpreting the court interpreting [sic] it wrong, yes I am claiming the judge got it wrong and I have the recording to prove it. Even the Parking Officer got it wrong, it was the fact that the Judge was clearly not with it and was taking every thing the Barrister was saying as gospel, basically she was running the hearing.
…
There is also the question of entrapment as all parking areas around the Shepparton court precinct are only 2 hours and the council knows full well that people get caught in court for longer than 2 hours and they obviously police it very well and it is why I believe that they fought this vigorously otherwise it would have a huge impact on their revenue raising.
Sonya Kilkenny, my local MP could see the confusion and wrote to the council and said they should have used discretion, their answer to that was to threaten to arrest me.
…
I believe that I have a very good chance of winning as this section should basically not exist. I believe if there with [sic] an issue with too many driveways and footpaths then the council should have used ‘PARKING AREA’ signs.
Hoping you will help and take on the challenge,
Kind regards
[AB]
19 September 2015
If you were denied procedural fairness, you have 60 days within which to file proceeding in the supreme court seeking judicial review pursuant to Order 56 Supreme Court Rules.
It is a complicated and probably expensive exercise, even if representing yourself because of the court filing fees.
You need to file an Originating Motion, a Summons on Originating motion, and affidavit in support exhibiting the transcript and the order made below, and set out the grounds upon which the application is made. Most lawyers struggle with it if they have never done it before.
[Counsel]

This exchange of emails, among other things, establishes that the plaintiff was squarely on notice from 19 September 2015, if not earlier, as to the time limit under r 56.02(1) of the Rules and the expense and difficulty of mounting an application for judicial review in this Court.

On 18 January 2016 the plaintiff received a letter from Victoria Legal Aid (‘VLA’) refusing her request for legal assistance.[26] The letter stated that her application had been refused on grounds that her current weekly income was above the threshold required to pass VLA’s ‘means test’. The letter stated that VLA had taken into account both her average Centrelink payment per week and her income from employment per week.
[26]Exhibit P to the Affidavit of AB sworn 14 September 2017.

On 27 January 2017 the plaintiff received a letter from the Attorney-General’s office in response to her concerns about Road Rule 332. The letter stated that the issue fell within the portfolio responsibilities of the Minister for Roads and Roads Safety, the Hon. Luke Donnelan MP, and so a copy of the correspondence had been forward to his office for consideration.

On 11 April 2017 the plaintiff received a letter from the chief of staff to the Hon. Luke Donnelan MP. The letter set out at length the correct construction of Road Rule 332 and gave examples as to its application. The letter reiterated that the Victorian state government was not contemplating any amendment to the rule.[27]
[27]Exhibit S to the Affidavit of AB sworn 14 September 2017.

On 14 September 2017 the plaintiff filed an originating motion for judicial review of the County Court decision on grounds of jurisdictional error. This commenced the present proceeding. Shortly afterwards, she obtained a stay of costs, releasing her from payment until 24 September 2018. As I have said, the accumulated costs at the time the originating motion was issued were $4572.07, the debt having been reduced from $5472.07 at the time the County Court dismissed her appeal. Given the lateness of the plaintiff’s originating motion, it was necessary to apply for an extension of time under r 56.02(3), which stipulates that time shall not be extended ‘except in special circumstances’.

On 21 November 2017 an Associate Justice of this Court heard the plaintiff’s application for an extension of time together with an application for summary judgment filed by the second defendant. On 6 December 2017 her Honour handed down her ruling and written reasons.[28] On 8 December 2017 orders were made refusing the plaintiff’s application for an extension of time. Given that refusal, it was not necessary to make orders granting the second defendant summary judgment, or dismissing the proceeding. The Reasons find nonetheless that the proceeding had no real prospect of success because the plaintiff did not have an arguable case.[29]
[28]AB v County Court of Victoria [2017] VSC 740 (‘Reasons’).
[29]Ibid [96].

Notice of appeal

The plaintiff’s grounds of appeal are that the Associate Justice:

1.Failed to take relevant considerations into account in the exercise of her power.

2. Had no evidence to base large aspects of her reasons for her decision.
3.Failed to observe procedures that were required by law to be observed in connection with the making of the decision.
4.Making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made.

5. Had no evidence or other material to justify the making of the decision.
6. The decision was otherwise contrary to law.

The plaintiff seeks orders that:

1. The extension of time be allowed.
2.The Order be set aside and the proceeding be remitted for rehearing by a judge.
3.The second defendant pay the plaintiff’s costs.

Materials relied upon in this appeal

The plaintiff filed a number of affidavits in the proceeding before the Associate Justice and a further affidavit in this appeal. They are as follows:

·affidavit dated 11 September 2017;
·affidavit dated 15 September 2017;
·affidavit dated 5 November 2015;
·affidavit dated 22 December 2017; and
·affidavit of Anthony William Seals dated 29 October 2017.

The second defendant relies upon the affidavits filed in the proceeding before the Associate Justice as follows:

·Affidavit of Anthony William Seals.
·Affidavit of Simon Pogue dated 25 October 2017.

At the commencement of the appeal the plaintiff raised an issue in relation to submitting further evidence to the Court that was not available to her when the matter was heard by the Associate Justice.[30] In her affidavit dated 22 December 2017 the plaintiff exhibits a record of the Magistrates Court of Victoria ‘Statement of Fines and Penalties Imposed’. The plaintiff relies, in particular, on the following extract from the document:

On 13/12/2013 the case was heard in the Shepparton Magistrates Court.
The following sums of money were ordered to be paid . This fee, charge or fine is not subject to GST.
Charge(s)
PARK FOR LONGER THAN INDICATED.[31]

[30]Transcript of Proceedings, AB v County Court of Victoria (Supreme Court of Victoria, Zammit J, 1 March 2018) (‘T’) 14.25–15.6.

[31]Exhibit AA to affidavit of Linda Christine Bedoe sworn 5 January 2018.

I will come back to the relevance of this ‘additional evidence’ a little later in my reasons. The evidence was admitted with no objection.

The Associate Justice’s reasons

The central issue before the Associate Justice was whether there were ‘special circumstances’ warranting an extension of time to file and serve an originating motion.

Her Honour cited the settled principles that apply in determining what constitutes ‘special circumstances’.[32] Factors relevant to the exercise of the discretion under r 56.03(2), as her Honour noted, include but are not limited to:
[32]Reasons [21]–[23].

(a) the period of delay;

(b) the reason for the delay;

(c) whether the plaintiff has an arguable case;

(d) the justice to both parties, including the prejudice to the parties; and

(e) the public interest in the finality of litigation.[33]

[33]Ibid [22] citing Lazarevic v Victoria Police [2015] VSC 13 [36] (J Forrest J) upholding Lazarevic v Victoria Police [2014] VSC 497 (Derham AsJ).

In the course of her Reasons the Associate Justice took into account the following considerations:

·The plaintiff’s failing mental health as a result of her former partner’s sexual abuse of her biological daughter between the ages of 12 and 17; his prosecution for incest, culminating in his trial, conviction and imprisonment; and her daughter’s serious mental health issues including a serious attempt to take her own life. These events took place between 2012 and 2016.
·The time the plaintiff expended on the interpretation of Road Rule 332.
·The alleged failure of the first defendant to advise her as to her right to apply for judicial review under O 56 of the Rules.
·The length of the delay (nearly three years).
·Allegations that the second defendant acted unconscionably.
·The principle of finality of litigation.
·Justice to both parties including the question of prejudice to the parties.
·The merits of the proceeding.

Under the last heading, ‘Merits of the proceeding’, her Honour weighed the force of the following complaints made by the plaintiff:

(a) that the County Court judge convicted her of the wrong offence;

(b) that the County Court judge provided inadequate assistance to her as a self-represented litigant;

(c) that the County Court judge was biased in favour of the second defendant;

(d) that the County Court judge failed to provide adequate reasons for his decision; and

(e) that the County Court judge failed to provide adequate reasons for an indemnity costs order.

The Associate Justice concluded, rightly in my view, that each and every one of these grounds was without merit. I will now review her Honour’s findings in light of the plaintiff’s grounds of appeal as set out at [25] above.
The plaintiff’s grounds of appeal

I will deal firstly with the plaintiff’s grounds of appeal one, two, four and five. I will deal with them concurrently for the simple reason that grounds two, four and five and no more than a restatement of ground one. I will call this ‘ground one’. I will then deal with the remaining grounds three and six. I will call this ‘ground two’.

Ground one

Ground one is stated in the language of administrative law. It complains, in essence, that the Associate Justice failed to take into account relevant considerations, took into account irrelevant considerations, made an erroneous finding or reached a mistaken conclusion, exercised her power improperly such that she exceeded her authority or power.[34] The central question, for this Court sitting in review, is whether the Associate Justice exercised her power in such a way as to make an error of law.[35]

Plaintiff’s submissions

[34]Craig v South Australia (1995) 184 CLR 163, 179.

[35]Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, 351 [82].

The plaintiff submitted that the cases referred to by the Associate Justice in relation to ‘special circumstances’ were not on point because they did not speak to her situation. They did not, that is, concern a person who had been a victim of crime or who was suffering from mental health problems caused by violent crime.[36]
[36]Plaintiff’s written submissions dated 18 February 2018 [7].

Next the plaintiff submitted that, while the Associate Justice accepted she was experiencing emotional distress, her Honour failed to take this into account as an explanation for the delay of nearly three years in initiating proceedings.[37] Further, by allegedly failing to take into account her mental issues as a victim of crime for the purposes of an extension of time application, the plaintiff submits that the Associate Justice discriminated against her.[38] As the plaintiff put it in the course of oral argument, ‘it’s common knowledge about mental health being an admissible defence in criminal cases, but not for … an issue that arose out of being a victim of crime.’[39]
[37]Ibid [8].
[38]Ibid [10].
[39]T25.8–25.11.

The plaintiff thirdly submitted that, in addition to her mental health issues, she did not know she could seek judicial review under O 56 of the Rules until January 2017. The plaintiff deposed that she has been unable to get legal representation and complained that the County Court judge did not inform her that judicial review was open to her. In oral submissions, the plaintiff said that in ‘appealing this’ she had relied on ‘some wrong advice’,[40] including from the registry staff at the Shepparton Magistrates’ Court.[41] She alleged that they advised her to appeal to the County Court, which she did, and that the staff at the Melbourne Supreme Court registry subsequently told her ‘she could not appeal [her case] any further.’[42]
[40]T25.22.
[41]T26.14–26.23.
[42]T26.21–26.25.

Fourthly, the plaintiff submitted that the Associate Justice erred in finding that she was charged and convicted under Road Rule 207, when on her view she was charged and convicted under Road Rule 332. She points, in particular, to the fact that there is no mention of Road Rule 207 in the County Court transcript.[43] She says that she was therefore required to investigate Road Rule 332 and that, through no fault of her own, she was required to spend an inordinate amount of time seeking the correct interpretation of Road Rule 332.[44]
[43]This overlooks the obvious fact that, if Road Rule 207 is not mentioned, this does not mean it was not taken into account. Moreover, it was the plaintiff who erroneously produced Road Rule 198, which the judge correctly pointed out had no relationship to the offence she was charged with.
[44]Plaintiff’s written submissions [14]-[15].

The plaintiff fifthly submitted that the Associate Justice failed to take into account her allegation that the second defendant has acted unconscionably in not providing adequate parking near the Shepparton Magistrates’ Court. In her written submissions she states that the only parking in the streets surrounding the Shepparton Magistrates’ Court is for two hours and that this constitutes ‘entrapment’.[45]
[45]Ibid [24]–[26].

Next the plaintiff submitted that the Associate Justice erred in finding that there is public interest in the finality of this litigation. She submitted that there is a countervailing public interest in the fact that she has identified an ambiguity in Road Rule 332 and how it is administered by local councils and, more significantly, that she has been found guilty of an offence she was never charged with.[46] Further, the plaintiff submitted that the Associate Justice erred in finding that the second defendant would be prejudiced by an extension of time, whereas her Honour should have found that the plaintiff would be denied procedural fairness if not given the opportunity to ventilate the issues raised in her originating motion.[47]
[46]Ibid [30].
[47]Ibid [31].

Finally, in relation to the merits of the proceeding and whether the plaintiff has an arguable case, the plaintiff submitted that:

·the Associate Justice erred in that she accepted that the plaintiff was charged and convicted pursuant to Road Rule 207 when in fact she was convicted pursuant to Road Rule 332;
·the County Court judge and Associate Justice were each biased in favour of the second defendant;[48] and
·she was denied procedural fairness at the County Court in that she had further evidence to present but was not given the opportunity to do so. She asserts that the judge should have asked her if she had further evidence. Further, she contends she was unaware that she could ask for a view of the subject parking bay, which had she known would have formed a crucial part of her evidence.[49]

[48]Ibid [42]–[43].

[49]Ibid [44].

I will analyse and respond to each of these submissions in turn.

Analysis – the plaintiff’s mental and emotional state

It was accepted by the Associate Justice, and has never been disputed by the second defendant, that the plaintiff has suffered from domestic violence and that her former partner’s sexual abuse of her daughter has caused her to suffer greatly.

The evidence put before this Court, and each of the below courts, is not contested. Nor is it contested that the ensuing prosecution, conviction and imprisonment of her former partner has placed enormous strain on the plaintiff and her daughter. They have dealt with, and continue to deal with, huge mental and emotional issues arising from what can only be described as very grave offending. One has only to read the plaintiff’s victim impact statement (annexed to her former partner’s County Court file) to glean the serious and profound impact that these events have had on her and her family.

I accept, as did the Associate Justice, that:

·the plaintiff’s former partner sexually abused her biological daughter between the ages of 12 and 17 years old;
·her former partner was sentenced to five years’ imprisonment in February 2016 for this offending;
·the plaintiff first became aware of a police investigation against her former partner in 2012;
·her former partner was arrested in New South Wales in 2014 and charged with this offending;
·the prosecution of her former partner commenced in New South Wales in 2014 and took some time to be expedited to Victoria and, throughout this time, the plaintiff had to clean up his finances and affairs;[50]
·her former partner pleaded guilty and was sentenced in February 2016; and
·the plaintiff’s daughter was diagnosed with post-traumatic stress disorder (‘PTSD’), depression and anxiety and attempted to take her own life in September 2016.

[50]Reasons [25]-[28].

The Associate Justice in her Reasons took all of these factors into account. Her Honour stated that she accepted the plaintiff’s emotional distress was caused by her former partner’s offending and that it had had a significant impact on her and her daughter.[51] She further stated these were relevant considerations when determining whether there are special circumstances that would warrant an extension of time.[52] However, her Honour agreed with the second defendant that her former partner’s prosecution was already on foot at the time of her review hearing at the Magistrates’ Court and appeal in the County Court. She upheld the submission that the plaintiff’s mental and emotional health was not such that it stopped her from initiating these proceedings. Her Honour reasoned, correctly in my view, that the plaintiff’s emotional distress is not a sufficient explanation for the three-year delay in initiating the present appeal under O 56 of the Rules.
[51]Reasons [34].
[52]Ibid [35].

The Associate Justice carefully considered all of the evidence—including the evidence contained in her former partner’s County Court file—relating to her former partner’s offending and its impact on the plaintiff and her daughter. The plaintiff’s complaint that the Associate Justice did not consider this evidence, or declared it inadmissible, is simply incorrect.

In essence, when the plaintiff says the Associate Justice failed to take relevant considerations into account, she is really saying she disagrees with her Honour’s findings. She is, in a word, disgruntled. This is not a case where a party has raised an issue and the judicial officer has failed to consider it. Her Honour carefully considered the evidence in its totality and concluded that it did not satisfy the test for special circumstances under r 56.02(3).

Crucially, the Associate Justice was not persuaded that despite the seriousness of the issues raised by the plaintiff, she could not have initiated a proceeding for judicial review in time. I see no flaw in her Honour’s reasoning in this regard. This was not a case where the Associate Justice simply summarised the evidence and submissions of each of the parties; rather, her Honour made findings as to whether any given factor, or all of the factors in cumulation, amounted to special circumstances. Her Honour held that they did not. That finding was entirely open to her.

Analysis – time spent on interpreting Road Rule 332

As I have said, the plaintiff complains that she was convicted of an offence pursuant to Road Rule 332, when she should have been charged pursuant to Road Rule 207. This allegedly wrongful conviction contributed to the delay because the plaintiff had to go and seek the correct construction of Road Rule 332.

The threshold question here is whether the Associate Justice gave these matters sufficient weight in her reasoning. The short answer is that she did.

For example, as noted at [15]–[22] above, her Honour accepted that the plaintiff had corresponded with her local state member of Parliament, the office of the Attorney-General and the Minister for Roads and Safety about the correct construction of Road Rule 332, and that this all took time. Her Honour further noted the plaintiff’s submission that she had received different interpretations of Road Rule 332 and that this caused further delay as she had to figure out which of those interpretations was authoritative.[53]
[53]Ibid [36].

More fundamentally, however, the Associate Justice rejected the plaintiff’s submission that she had in fact been wrongfully convicted. In other words, her Honour accepted the second defendant’s submission that the plaintiff’s legal research and the delay that it occasioned was misconceived, flowing from her failure to grasp the nature of her situation and her prospects of success in having her conviction overturned. It follows that if the plaintiff’s sense of her own case being meritorious was misconceived then her delay in bringing it forward for adjudication in a timely fashion cannot be other than unreasonable and unwarranted.

The Associate Justice carefully considered these issues in her Reasons. Her Honour grappled extensively with the plaintiff’s submission that she had been wrongfully convicted.[54] Her Honour considered the following evidence in relation to this point:
[54]Ibid [56]–[65]. The plaintiff reiterated the same submissions before this Court at [14]–[19] of her written submissions.

(a) the fact that the plaintiff was issued a parking fine pursuant to Road Rule 207 and failed to pay the prescribed fee;

(b) the fact that, on 10 October 2013, the plaintiff was charged and served with the charge and summons and a full brief of evidence, which stated that the plaintiff ‘at Shepparton on 12 March 2013 did, without lawful excuse, fail to pay the applicable fee and obey instructions’ under Road Rule 207.

(c) the fact that the County Court judge found that the order/conviction the plaintiff appealed against was ‘fail to pay parking fee’ despite not referring expressly to Road Rule 207.

Accordingly, her Honour concluded that the parking infringement was issued under Road Rule 207, not Road Rule 332 as the plaintiff contends.

While it is not strictly necessary, for the sake of completeness, I shall set out in the full the relevant passages from the Reasons where the Associate Justice explained the operation of Road Rule 207 (and notes that it is a penalty provision) as compared to Road Rule 332 (which is an informing or interpretive provision). To be clear, I adopt and uphold the following passages from her Honour’s Reasons:

Time expended on seeking interpretation of Road Traffic Rule 332
Secondly, AB says that she has been trying to seek a proper explanation of rule 332 of the Road Safety Rules 2009 (‘the Road Rules’) and it takes everyone time to respond. She says that no one interprets rule 332 in the same way. She deposes that she now has five different interpretations of that rule. AB refers to the letters, such as those to and from her State Member of Parliament. She submits that every time she wrote to another authority, there was a lapse of time in them getting back to her. She has written to Local Members of Parliament and received correspondence from the Office of the Attorney-General and the Minister for Roads and Safety in January 2007.
On the other hand, the council says there is a misapprehension. The parking ticket was issued under rule 207 of the Road Rules, not 332. The Council says that rule 207, not 332 of the Road Rules, is the regulation under which the parking fine was issued. This has been the case throughout. This is not an issue in dispute.
I accept the Council’s submissions. Rule 332 of the Road Rules is not in issue in this proceeding, as discussed further below. AB was charged under rule 207 of the Road Rules. Rule 207 is a penalty provision. Rule 332 is not. At the relevant time, rules 207 and 332 were as follows:
207 Parking where fees are payable
(1)This rule applies to a driver who parks on a length of road, or in an area, to which a permissive parking sign applies if information on or with the sign indicates that a fee is payable for parking by buying a ticket or putting money into a parking meter.
Note
With is defined in the dictionary.

(2) The driver must –
(a)pay the fee (if any); and
(b)obey any instructions on or with the sign, meter, ticket or ticket-vending machine.

Penalty: 2 penalty units

Notes:
1Area, length of road, park and stop are defined in the dictionary.
2Rule 165 provides defences to the prosecution of a driver for an offence against a provision of this Division.
…

332 Parking control signs applying to a length of road
(1)If a parking control sign displays an arrow and is at the side of a road, then, unless information on or with the sign indicates otherwise, the sign applies to the length of road between the sign and the nearest (in the direction indicated by the arrow) of the following –

(a)a parking control sign at the side of the road that displays an arrow indicating the opposite direction;
(b)a yellow edge line on the road;
(c)if the roads at a T-intersection or dead end—the end of the road.
Notes
1Edge line, parking control sign, T-intersection and with are defined in the dictionary.
2Rule 322(3) and (4) deal with the meaning of a traffic control device in or at an area or place.

(2)If a parking control sign displays an arrow and is at the centre of a road or on a dividing strip, then, unless information on or with the sign indicates otherwise, the sign applies to the length of road between the sign and the nearest (in the direction indicated by the arrow) of the following—
(a)a parking control sign at the centre of the road or on the dividing strip that displays an arrow indicating the opposite direction;
(b)a yellow edge line on the road;
(c)if the road ends at a T-intersection or dead end—the end of the road.
Note

Centre of the road and dividing strip are defined in the dictionary.

There was a reference to r 332 during the County Court proceeding by the representative for the Council … The submission was made in respect of rule 332 informing rule 207:
[COUNSEL]: [to the parking officer giving evidence]: With respect to the space we’re talking about, between the signs where [AB] parked, do you say that nothing in that space breaks the continuation of those two signs, or the obligations of the person parking in that length of road?

PARKING OFFICER: No.
JUDGE: That’s what the issue is.
[COUNSEL]: Your Honour, the legislation does, under s 332 of the Road Safety Rules 2009, clearly indicates that length of road and what would break the signage.

JUDGE : A foot crossing doesn’t?
[COUNSEL]: A foot crossing doesn’t, no . What it says is a parking control sign at the side of the road that displays an arrow indicating an opposite direction, a yellow edge line on the road, or C, if the road ends in a T-intersection or dead end, the end of the road.
JUDGE: Yes, I understand that.
[COUNSEL]: So it would be based on the evidence of [parking officer], the Australian Standards and the Road Safety Rules, with particular reference to s 332, that we say supports [the parking officer’s] evidence.
JUDGE:I understand that.
[COUNSEL]: There was no break there.
JUDGE: Right. I don’t know that [AB] understands that, but I will talk to her about it.

The Judge accepted that rule 332 informed rule 207 of the Road Rules.
In her written submissions, AB says that based on rule 332 it appears that one can park in driveways and on footpaths as they are not referred to in this rule as a no-parking area within guidelines. She refers to the Judge having trouble interpreting the law because of an analogy used about parking in a driveway and paying a fee.
I note the analogy used by his Honour was an attempt to explain the regulations to AB. Rule 332 of the Road Rules informed his Honour’s decision, but the finding was not in respect of it, but rather, in respect of rule 207 of the Road Rules.
AB’s attempts to obtain information on the interpretation of rule 332 were misconceived.
…
Ground – Conviction of an offence for which she was not charged
AB says she was convicted of an offence she was never charged with. She refers to the transcript in the County Court and says that it is different to what is recorded on the extract of the County Court with the Order. She questions and compares the Judge’s comments made at the hearing with the extract of the County Court Result of Appeal, noting that the latter is just a piece of paper.
The relevant paragraph of the transcript is as follows:
JUDGE: [after referring to parking, survey detail and other documents] … but you agree with everything that you’ve said. You agree with [sic] that you were the owner of the car, that this man inspected the car, that he saw it there at the time, and he then attached a certificate because he says that you had infringed by staying in the excess of your time. (Underline added).
AB: Yes, sir.
JUDGE: You agree with all of that?
AB: Yes, sir.
JUDGE: The only thing you disagree with is, you say the signs are faulty. Are there any questions you want to ask him [the parking officer], other than what I’ve said to you?
AB: Yes, sir.

AB is then invited to question the parking officer, and does so.

AB’s characterisation of this as a conviction for a new offence is contrary to what the Judge said. His Honour was referring to the Parking Survey Detail and the statement of the parking officer who issued the parking fine on 12 March 2013. The Parking Survey Detail describes the infringement as ‘fail to pay fee and obey instructions and sign, meter, ticket or ticket vending machine’. It notes a photo attached shows ‘meter expired 1.16 hours’ and ‘no ticket displayed’. The statement of the parking officer indicates that the meter was expired by one hour, 16 minutes when the parking infringement was issued.
The charge sheet states the charge to be ‘the accused at Shepparton on 12 March 2013 did, without lawful excuse, fail to pay the applicable fee and obey instructions’. The charge is stated to be under rule 207(2) of the Road Safety Rules 2009.
The County Court Result of Appeal states the Order appealed is ‘fail to pay parking fee’. The result of the appeal is stated to be, amongst other things, ‘charge(s) found proven’.
The County Court extract correctly records the relevant order. Having listened to the recording of the proceeding, I do not agree that the Judge’s comments above constitute a finding that there was any other conviction than the one recorded.
There is no foundation for AB’s claim that she has been convicted of an offence that she was never charged with. She was charged and convicted under rule 207 of the Road Safety Road Rules 2009. This ground does not have any merit.[55]

[55]Reasons [36]–[43], [59]–[65] (citations omitted).

The above paragraphs from the Associate Justice’s Reasons reveal that she gave painstaking attention to the evidence. Her Honour not only read the County Court transcript (which was not produced by an authorised provider) but also watched and listened to the video recording of the County Court hearing.[56]
[56]Ibid [17].

The plaintiff is no doubt correct when she states that the meaning of Road Rule 332 is open to interpretation. But the point she has missed is that it has deliberately been drafted this way so as to leave ample room for discretion. The drafters have chosen not to nail down what ‘a length of road’ or ‘a permissive parking sign’ means precisely so that there is some flexibility in their application. As the Minister for Roads and Road Safety explained to the plaintiff in his letter dated 30 July 2015, if Road Rule 332 was to be narrowly construed there would be significant implications for the required signage, which would lead to an impracticable proliferation of signs.[57]
[57]See [17] above.

The plaintiff is correct to the extent that her charge and conviction under Road Rule 207 is relatable to the definition of a ‘length of road’ and ‘permissive parking sign’ given in Road Rule 332. Road Rule 332 is necessary to the extent that it explains Road Rule 207. But Road Rule 332 is not a penalty provision and so cannot have any application insofar as charges and convictions are concerned. Indeed, as her Honour noted, the plaintiff’s charge and conviction always related to Road Rule 207. There is no uncertainty or ambiguity, contrary to the plaintiff’s submission, about the rule pursuant to which she has been charged and convicted at first instance and on appeal. Her Honour was therefore correct in concluding that the plaintiff’s case is misconceived.[58]
[58]Reasons [43].

The dispute in the County Court centred on whether the infringement should have been imposed on the plaintiff at all. The plaintiff, in essence, argued that Road Rule 207 did not apply to her because it was not clear whether the area in which she parked was a ‘length of road’ or an area to which a ‘permissive parking sign’ applied. The Associate Justice reviewed the findings of the County Court judge and, in particular, his finding in relation to the evidence of the parking officer. The evidence was that there was adequate signage in place in the area where the plaintiff parked her car and that the parking control signs satisfied the definition of ‘permissive parking sign’ under Road Rule 207. Her Honour further considered the correct construction of Road Rule 332 and concluded—and I respectfully agree—that the parking area in question gave rise to a penalty under Road Rule 207.

At every step of the way—in the Magistrates’ Court, the County Court and now the Supreme Court—the plaintiff has failed to demonstrate that Road Rule 207 did not apply to the area in which she parked her vehicle. More to the point, she has failed to persuade me, from which it follows that this ground must fail.

For completeness, I note that the plaintiff filed a further affidavit sworn 22 December 2017, submitting that exhibit AA was fresh evidence going to this ground. Exhibit AA is a ‘Statement of Fines and Penalties Imposed’ from the Shepparton Magistrates’ Court dated 10 January 2014. The document records the charge as ‘parked for longer than indicated’. The plaintiff says that this indicates that she was found guilty of the wrong charge. The plaintiff also deposes that, on the morning of the review in the Magistrates’ Court, the solicitor for the second defendant handed her Road Rule 332. She again complains that throughout the course of that review there was no mention of Road Rule 207.[59]
[59]Plaintiff’s written submissions [15].

To be clear, exhibit AA is irrelevant, since what is relevant is the charge sheet. The charge sheet, not the statement of fines, provides the legal basis upon which the plaintiff brought her County Court appeal. The appeal was determined by the judge on that basis. I do not doubt that the plaintiff expended a significant amount of time trying to interpret Road Rule 332. But her fundamental submission that she has been wrongfully convicted has no merit. Further, whatever review or appeal process the plaintiff undertook or plans to undertake, time limits apply. Those time limits are only to be extended if special circumstances can be demonstrated pursuant to r 56.02(3).

The plaintiff chose to seek an interpretation of Road Rule 332. She chose to engage in lengthy correspondence with members of Parliament and staff in the Attorney-General’s department. She did so at the cost of issuing her proceeding for judicial review in time. No party has unlimited time to conduct their investigations in relation to an appeal or a judicial review. There are strict time limits in place for good reason: as her Honour observed there is public interest in having finality to any civil litigation. I note, in particular, that from September 2015, when the plaintiff corresponded with a specialist barrister in this area, she was on notice of the time limits and her prospects of success.

Analysis – time delay due to lack of assistance given to self-represented litigant in relation to judicial review

The plaintiff submits that the Associate Justice erred in not finding that the three-year delay was in part due to the fact that she is self-represented and was not adequately advised by the County Court judge. She complains, in particular, that the judge did not explain to her that she could challenge his decision by filing and serving an originating motion under O 56 of the Rules.

The plaintiff’s evidence before the Associate Justice was that she was told by the registry staff at the County Court in Shepparton she could not appeal the judge’s decision. The plaintiff sought pro bono assistance from Victoria Legal Aid and approached a specialist barrister in this area. She was refused by each. The plaintiff states that she only became aware of her right to seek judicial review in this Court in January 2017.[60] This does not sit comfortably with her correspondence with the barrister in September 2015.[61]
[60]Ibid [11].
[61]See [19] above.

The plaintiff reiterated that she only became aware of her right to seek judicial review under O 56 in her written submissions:

Whilst I accept that the County Court Judge was not obliged to inform me that I could initiate a judicial review, the comment by [the second defendant] that ‘a person not to take any action over three years is simply absurd’ shows complete lack of understanding or care with respect for another human being’s horrific life plight.
After being told by Court Administration staff at Shepparton that I could not ‘appeal’ the decision because of the type of matter it was, I sought help. I was given the name of a Barrister who specialises in this type of case and asked for assistance pro bono, but he refused, I spoke with my local MP and wrote to others re clarification and assistance resolving this matter, especially as it appears that I raised serious questions with respect to some rules and how they are administered. As previously stated, I learnt about I could do the Judicial Review myself in 2017.[62]

For the same reasons already given, namely that it is contradicted by the correspondence with the barrister, I consider this to be an inaccurate reconstruction of events.

[62]Plaintiff’s written submissions [20]–[21].

The Associate Justice considered and rejected this submission in her Reasons.[63] Relevantly, her Honour cited Tomasevic v Travaglini,[64] relying on Bell J’s statement of the principles that apply to a judge who is tasked with ensuring that a self-represented litigant receives a fair trial. I adopt those principles as relevant and applicable in the present appeal.
[63]Reasons [44]–[47].
[64](2007) 17 VR 100 [139]–[142] (‘Tomasevic’).

The Associate Justice correctly concluded that the County Court judge was not obliged to give legal advice or even guidance to the plaintiff. The judge did not have to disclose to her the procedural requirements that govern an application for judicial review under O 56 of the Rules. All the judge had to do, as Bell J explained in Tomasevic, was ensure that the plaintiff received a fair trial. All the evidence before me, from each of the lower courts through which the plaintiff’s proceeding has passed, indicates to me that this has been the case.

Analysis – the second defendant acted unconscionably

The plaintiff submitted to the Associate Justice that the second defendant failed to provide adequate parking near the Shepparton Magistrates’ Court and that it deliberately ‘entrapped’ citizens in the knowledge that their legal proceedings would likely take longer than two hours.

The claim is without any legal foundation and, as was correctly noted by the Associate Justice, is a submission that is ‘completely speculative and without any relevance as to whether or not there are special circumstances to warrant the extension of time, or indeed the substantive matters in the case’.[65]

Analysis – the principle of finality in litigation

[65]Reasons [49].

The Associate Justice considered that the principle of finality in litigation was applicable to the plaintiff’s case. Self-evidently this principle will have some bearing on any determination as to whether special circumstances exist in justifying an extension of time to file and serve an originating motion under O 56 of the Rules. The Associate Justice correctly noted that, should an extension be granted, it would prejudice the second defendant. She considered, however, the such prejudice could be cured by an appropriate costs order.[66]
[66]Ibid [54].

The plaintiff has entered into an instalment agreement to pay the costs ordered by the County Court judge. The second defendant submitted that this demonstrates her acceptance of the judge’s decision. The plaintiff’s evidence before the Associate Justice was that her housemate had paid the instalments on her behalf but had been irregular in doing so. The plaintiff submitted that the payments were made to ‘buy her time’ or else she would face arrest.[67] As she put it, in her written submissions, the payments were more ‘a blackmail’ than a ‘willing acceptance’.[68]
[67]Plaintiff’s written submissions [28].
[68]Ibid.

It is not clear how the plaintiff’s housemate’s inability to continue payments relates to the principle of a party having finality in litigation. The Associate Justice was correct in not accepting this as a relevant factor.

As I have said, the plaintiff’s mental health and its impact on her ability to seek judicial review was extensively considered by the Associate Justice. The plaintiff was unable to identify any specific prejudice that would apply to her in the circumstances if the extension of time was not granted.

Analysis – merits of the proceeding

The plaintiff submitted that the Associate Justice erred in that she did not find the plaintiff had an arguable case. The plaintiff’s complaint, having reviewed all the evidence, is no more than bitter disagreement with her Honour’s finding.

The Associate Justice had regard to the plaintiff’s grounds as set out in her originating motion. Her Honour carefully considered the plaintiff’s extension of time application together with the second defendant’s summary dismissal application. The Associate Justice had regard to the following grounds agitated by the plaintiff: wrongfully convicted; procedural fairness; apprehended bias; failure to assist a self-represented litigant; summary dismissal of her appeal in the County Court; adequacy of reasons; and adequacy of reasons relating to the indemnity costs order. On each of these grounds her Honour found that the plaintiff’s case was without merit.

I am not going to repeat what I have said, and what the Associate Justice said before me, about the plaintiff’s contention that she was wrongfully convicted.[69] It is simply wrong. The plaintiff was correctly charged and convicted under Road Rule 207 and has at all material times been appealing that conviction despite her misconception that she was somehow charged and convicted under Road Rule 332.
[69]See [59]–[65] above.

For completeness, I note that the plaintiff submitted that the Associate Justice misquoted the County Court transcript in her Reasons, supposedly at paragraph [60]. The text of that paragraph is set out earlier in my Reasons.[70] The plaintiff complains that the Associate Justice altered the transcript by inserting words in square brackets. As she said in the course of oral argument, ‘[Her Honour’s] put that in herself [but] I thought quotations were actually word for word.’[71] Having reviewed the transcript of the County Court hearing, it is clear to me that what the Associate Judge has done is added an interpolation of what was said at an earlier stage, so that the reader can make sense of the passage excerpted in her Reasons. Her Honour even added underlining and expressly stated ‘underline added’ so as to be crystal clear about the interpolated passage. The plaintiff has, once again, been labouring under a misconception.

Analysis – procedural fairness

[70]See [57] above.

[71]T18.20.

In dealing with the merits of the proceeding the Associate Justice traversed the plaintiff’s ground of relief that she was denied procedural fairness. Her Honour carefully considered the plaintiff’s submission that the County Court judge failed to assist her as a self–represented litigant; summarily dismissed the proceeding before hearing all the evidence and submissions; failed to give adequate reasons for summary dismissal; failed to give adequate reasons in ordering indemnity costs; and engaged in ‘apprehensive [sic] bias behaviour’.

Analysis – apprehended bias

The plaintiff submitted to the Associate Justice that the County Court judge was biased in favour of the second defendant. The plaintiff submitted that the County Court judge always and automatically preferred the second defendant’s evidence over any evidence she presented.

The Associate Justice set out the test for apprehended bias and considered the video recording of the County Court hearing. Her Honour noted that the evidence was largely accepted between the parties in the course of the County Court appeal.

The plaintiff’s real complaint is that the County Court judge did not accept her submissions and, in particular, her claim that the parking fine should not have been imposed on her at all. It cannot be said that the County Court judge preferred the second defendant’s evidence over her evidence. He clearly preferred the second defendant’s submissions; but this of itself cannot constitute bias.

At the hearing of this appeal, in fact in her opening remarks, the plaintiff stated that the Associate Justice had treated her case ‘as a very trivial thing’ and had treated her ‘as a second class citizen.’[72] She complained that, by writing in her Reasons that the ‘nature of the proceeding must be firmly borne firmly in mind,’ the Associate Justice had dismissed her case as in some way menial or undeserving of judicial attention. The plaintiff went on to submit that the Associate Justice was biased against her and that she did not have ‘equality in front of the law no matter what the case is’ and no matter what evidence she presented.[73] The plaintiff submitted that she had been ‘totally ignored’ even though she had ‘the evidence’ to support her case.[74]
[72]T10.12–10.14.
[73]T11.11–11.30.
[74]T12.1–12.5.

There is no evidence to support the plaintiff’s submission that the County Court judge or the Associate Justice were biased against her. The Associate Justice did not ignore the plaintiff’s evidence or her submissions. As noted, her Honour carefully considered transcript of the County Court hearing together with all the evidence that was put to her, weighing the evidence in light of the parties’ submissions.

Tellingly, while the plaintiff complains the Associate Justice trivialised her claim, in the course of the oral hearing before me she said: ‘And this started off as a simple fine in a very difficult circumstances that could have been short circuited right at the start.’[75] The plaintiff went on to say that the second defendant had ‘relentlessly gone on with [the proceeding] to where it’s now come [to]. And I stood my ground on it.’[76] The plaintiff, along with the County Court judge and the Associate Justice, is correct that the substantive point underlying the whole sequence of legal proceedings was the plaintiff’s failure to pay a parking fine.
[75]T12.8–12.9.
[76]T12.10–12.11.

No judicial officer has said that the plaintiff’s concerns are trivial. This is a simple misconception on the part of the plaintiff. Further, to its credit, I note that the second defendant has never criticised or cavilled with any of the plaintiff’s submissions.

At every step of the way it was the plaintiff who decided, as is her right, to seek further appellate hearings. She sought a review in the Magistrates’ Court, she ran her de novo appeal in the County Court, she issued proceedings for judicial review under O 56 of the Rules out of time and, most recently, has appealed the Associate Justice’s refusal to grant her an extension of time. Equally, the second defendant has the right to defend itself against the plaintiff’s allegations, which cannot be reasonably described as a litigant behaving in a unjustified or relentless manner.

The County Court judge and the Associate Justice carefully considered the evidence and each party’s submissions. The fact that they decided for the second defendant does not mean they were biased. It merely means they rejected the plaintiff’s submissions as having less force.

Analysis – failure to assist a self-represented litigant

The plaintiff submits that the County Court judge and the Associate Justice each failed to give her necessary assistance as a self-represented litigant.

The Associate Justice considered this submission in her Reasons.[77] Having read the County Court transcript and listened to the audio recording, her Honour concluded that the judge was ‘quite engaged’ in the proceeding.[78] I agree with her Honour that the plaintiff was afforded ample opportunity to lead evidence, make submissions and reply to the submissions of the contradictor. Accordingly, there was no need for the judge to intervene, although, to his Honour’s credit, he attempted at several points throughout the hearing to explain matters in plain English, and by way of analogy, to the plaintiff. The plaintiff was given the opportunity to cross-examine the parking officer, which she did, and told the judge she had no further questions for the witness. I note that the judge even summarised and attempted to clarify the plaintiff’s submissions for her.
[77]Reasons [69]–[77].
[78]Ibid [76].

Having reviewed the County Court transcript myself,[79] I note the following (in addition to the matters noted by the Associate Justice):
[79]Exhibit B to the plaintiff’s affidavit dated 22 December 2017.

·the judge asked the plaintiff appropriate questions;
·the judge clarified whether the plaintiff understood and agreed with the submissions on behalf of the second defendant, namely that the plaintiff was the owner of the car, that the parking officer inspected the car at the time the offence was committed, that the parking officer saw the plaintiff at that time and issued the infringement notice on the basis that the plaintiff had stayed in excess of the permitted time;
·the judge confirmed with the plaintiff what issues she disagreed with, namely that the signs were faulty, and invited her to ask the parking officer appropriate questions; and
·the judge asked the parking officer questions for the plaintiff and then invited her to ask any other questions she considered relevant.

The transcript quite clearly shows that the judge gave appropriate assistance to the plaintiff and satisfied himself he understood her submissions and evidence. There is no conceivable basis upon which it might be said that the plaintiff was not given the assistance she required, as a self-represented litigant, to receive a fair trial. The Associate Justice was correct in so finding.

To be clear, there is no merit in the plaintiff’s submission that she was not provided assistance as a self-represented litigant, and the Associate Justice did not fail to take this into account in the exercise of her discretion to grant an extension of time.

Analysis – summary dismissal

The plaintiff submitted that the County Court judge summarily dismissed her proceeding without adequate reasons. The Associate Justice considered this issue in her Reasons and found that there had been no such ‘summary dismissal’.[80]
[80]Reasons [78]–[85].

The plaintiff submitted in her written submissions that the judge did not listen to her and complains that a view of the subject parking bay and surrounding signage did not occur.[81] She states that she was not aware that she could request a view. Had she known, she says, she would have requested a view and, what is more, the failure to undertake the view led to crucial evidence not being taken into account as part of her County Court appeal.[82] She further submitted that the judge failed to have regard to her submission that there is an inconsistency between Road Rule 198 and Road Rule 332. She complains that the judge did not make a finding as to which rule was applicable to her case.
[81]Plaintiff’s written submissions [40]–[51].
[82]Ibid [44].

The Associate Justice found that the County Court judge had taken her submissions into account but had quite simply rejected them. Her Honour pointed out that—as the judge explained to the plaintiff during her appeal hearing—Road Rule 198 has no relevance to Road Rules 332 or 207. The Associate Justice correctly noted that Road Rule 198 provides for a completely different offence to the one the plaintiff was charged with.[83] Road Rule 198 prohibits a driver from stopping their vehicle ‘on a road or in a position that obstructs access by vehicles or pedestrians to or from a footpath ramp or similar way of access’. It is difficult to understand why the plaintiff thought that this rule had any application to her case.
[83]Reasons [87].

The Associate Justice’s Reasons demonstrate that she carefully considered all of the plaintiff’s grounds and submissions. Her Honour correctly concluded that the decision to have a view was one for the Court in its discretion. The judge had the benefit of hearing from the parking officer and his evidence traversed the relevant parking area and the signage. In addition the plaintiff gave evidence and made submissions about the parking area and signage. In those circumstances, it is difficult to see how the judge could have been left in any doubt as to the factual circumstances giving rise to the plaintiff’s charge.

The Associate Justice concluded that the judge conducted a fair trial and did not shut the proceeding down prematurely or unfairly. As I have said, her Honour concluded that there was no ‘summary dismissal’, since the judge gave the plaintiff a fulsome hearing. There is force in what the Associate Justice says about the ‘nature of the hearing’ needing to be borne firmly in mind. This does not mean the plaintiff’s case is trivial. It means there must be some proportionality between the amount of time and expense that the litigants and, more to the point, the Court expends on a matter. Resources are not unlimited. The Court must therefore prudently exercise control over proceedings. This may mean controlling the flow of submissions, limiting the evidence presented, reducing costs and truncating oral or written submissions where it is in the interests of the administration of justice to do so. The Court has these powers as part of its inherent jurisdiction.[84]
[84]See generally Keith Mason, ‘The Inherent Jurisdiction of the Court’ (1983) 57 Australian Law Journal 450.

Bearing this in mind, as the Associate Justice correctly noted, the provisions in the Civil Procedure Act 2010 (‘CPA’) that go to ‘overarching purpose’ (Pts 2.1, 2.2 and 2.3) make it clear that there is no basis to the plaintiff’s claim that the County Court judge summarily dismissed her case. It is convenient to say something further about the CPA and its application to this proceeding. Section 7 sets out the overarching purpose of the CPA, which is to facilitate the ‘just, efficient, timely and cost effective resolution of the real issues in dispute’ in a proceeding. The Court must give effect to the overarching purpose (s 8) as must the parties to a proceeding (s 10). Section 9 provides a list of objects to which the Court shall have regard to further the overarching purpose. The list includes, among other things, the efficient conduct of the business of the court (s 9(c)); the efficient use of judicial and administrative resources (s 9(d)); and dealing with civil proceedings in a manner proportionate to the complexity or importance of the issues in dispute and the amount in dispute (s 9(g)(i) and (ii)).

In my view, the County Court judge approached the hearing of the appeal in precisely the way he was required to, controlling the flow of submissions, restricting evidence where necessary and delivering his reasons in a timely and non-verbose way. The Associate Justice likewise conducted the hearing and delivered reasons that are appropriate and proportionate to the nature of this proceeding. Neither the second defendant nor the judicial officers in each of the below courts has behaved in a manner inconsistent with their obligations under the CPA.

As I have said, while not trivial, the plaintiff’s proceeding concerns her failure to pay a $70 parking fine. Ultimately, the plaintiff must bear responsibility for appealing this matter as far as she has, consistent with her view that she has a ‘strong case’ and has found a ‘flaw in the law’. The courts, including this court, have an obligation to ensure that judicial resources, most notably the time of judicial officers, are used wisely and that civil proceedings are dealt with in a manner that is reasonably proportionate to the complexity and importance of the issues, and the amount, in dispute.

Analysis – adequacy of reasons

The Associate Justice carefully considered this ground in her Reasons.[85]
[85]Reasons [86]–[89].

Her Honour noted the County Court judge’s reasons were ‘brief but expositive’. The judge found that Road Rule 198 was not relevant and that Road Rule 332 informed Road Rule 207. Again, bearing in mind the nature of the proceeding, I agree with the Associate Justice that this ground has no merit.

Analysis – adequacy of reasons for indemnity costs order

Finally, the plaintiff submitted that she was not given any reasons for the indemnity costs order, which is excessive. The Associate Justice held that this ground was without merit. I agree with Her Honour’s analysis.[86] The County Court judge did not give specific reasons for the indemnity costs order. However, as the Associate Justice points out, the reason can be inferred from the transcript of the hearing: the judge considered the plaintiff’s case to be without merit. Once again, while this may not be ideal, it was adequate given the nature of the hearing.

Conclusion as to ground one

[86]Ibid [90]–[91].

I strongly agree with the Associate Justice that the plaintiff’s proceeding has ‘little, if any, merit.’[87] For the reasons set out above, what I have called ground one must fail (remembering that it encapsulates grounds one, two, four and five of the plaintiff’s notice of appeal). Next I will briefly consider ground two (remembering that it encapsulates grounds three and six in the plaintiff’s notice of appeal).
[87]Reasons [96].

Ground two

The plaintiff contends that the Associate Justice failed to observe procedures that were required by law to be observed in the making of the decision. It is not clear, however, from the plaintiff’s submissions precisely what procedures the Associate Justice failed to observe.

In any event, I have already dealt with the plaintiff’s complaints about procedural fairness, which have no substance. There is no evidence that the plaintiff was not afforded procedural fairness by the County Court judge or the Associate Justice.

The plaintiff contends that the Associate Justice’s decision was otherwise contrary to law. Nothing in the plaintiff’s written or oral submissions sheds light on this contention.

Conclusion as to ground two

Ground two has no meaning and so must fail.

Overall conclusion

The Associate Justice applied the relevant legal test for ‘special circumstances’ in determining whether the plaintiff should be granted an extension of time to file and serve an originating motion under r 56.02(3). There is no evidence that her Honour failed to take into account a relevant consideration, or took into account an irrelevant consideration, in the exercise of her discretion.

The appeal should be dismissed. It seems to me that costs should follow the event; however, I will hear the parties as to costs.

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[2018] VSC 188

26 April 2018