Adelaide City Council v Lepse

Case [2016] SASC 66

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

ADELAIDE CITY COUNCIL v LEPSE

[2016] SASC 66

Judgment of The Honourable Justice Peek

18 May 2016

TRAFFIC LAW - TRAFFIC REGULATION - RESTRICTIONS ON STOPPING AND PARKING - STOPPING IN PARTICULAR VEHICLES ZONES

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - GROUNDS - CONVICTION ON EX PARTE HEARING

Appeal against conviction.

The defendant was charged on a complaint of an officer of the Adelaide City Council for stopping in a permit zone. In the Magistrates Court, first before a Special Justice and then before a Magistrate, the defendant refused to approach the bar table and did not unequivocally acknowledge she was the charged defendant. The Magistrate directed that she be removed from the Court and dealt with the matter in her absence. The Magistrate found the charge proven, convicted the defendant, imposed a fine and made other monetary orders.

The defendant appeals against the conviction and orders.

Discussion of the effect of the defendant’s refusal to come to the bar table and the meaning of “attending” or “appearing”. Discussion of the defendant’s abuse of process of the courts in engaging in pseudolegal arguments without merit, submitting nonsensical documents and surreptitiously altering a substantive part of a court-approved form document.

Held (dismissing the appeal):

1.       The Magistrate acted entirely properly in requiring the defendant to approach the bar table and, upon her repeated refusal to do so, in having her removed from the courtroom, in proceeding to convict the defendant and imposing penalty in accordance with ss 62(1)(b) and 62BA, Summary Procedure Act 1921.

Summary Procedure Act 1921 ss 49, 57, 62, 62(1)(b), 62BA, 76A; Supreme Court Civil Rules 2006 Rules 53, 57, 282(2)(a); Supreme Court Civil Supplementary Rules 2014 Rule 228; sch 3; Australian Road Rules 1999 Rule 185(1); Road Traffic Act 1961 s 174A(2), referred to.
Ashwell v Commissioner for Consumer Protection [2015] WASC 337; Re Magistrate M M Flynn; ex parte McJannett [2013] WASC 372; Meads v Meads 2012 ABQB 571; Smadu v Stone [2016] WASC 80, considered.

WORDS AND PHRASES CONSIDERED/DEFINED

"appear", "attend", "bar", "bar table"

ADELAIDE CITY COUNCIL v LEPSE
[2016] SASC 66

Magistrates Appeal

  1. PEEK J.    Appeal pursuant to s 42, Magistrates Court Act 1991.

    Overview

  2. Ms Waltraud Lepse was charged by the complainant, Robert Donoghue on behalf of the Adelaide City Council, on a complaint and summons pursuant to ss 49 and 57 of the Summary Procedure Act 1921, alleging an offence against rule 185(1) of the Australian Road Rules 1999 and s 174A(2) of the Road Traffic Act 1961.  The first page of the complaint and summons appears as follows:[1]

    [1]    The address, age and registration details have been redacted for privacy reasons.

COMPLAINT AND SUMMONS

Magistrates Court of South Australia

Summary Procedure Act, 1921

Sections 49 and 57

Complainant

Name              DONOGHUE          ROBERT  11073398

                    surname              given name   Complainant’s reference

Address         ADELAIDE CITY COUNCIL

   25 PIRIE STREET          8203 7541  8203 7476
   street   telephone…

Continue reading Adelaide City Council v Lepse

Sign in free to access the full text

Details
AGLC
Adelaide City Council v Lepse [2016] SASC 66
Case
[2016] SASC 66
Decision Date

CaseChat Overview and Summary

Adelaide City Council filed a prosecution against Ms Lepse in the Adelaide Magistrates Court for contravention of a parking permit regulation. Ms Lepse was issued with an expiation notice for parking her vehicle in a permit zone without a permit. She contested the charge and was summoned to appear in court. On the day of the hearing, Ms Lepse attended court but refused to attend or appear in the proper area, insisting instead that she would only attend if certain conditions were met. The matter was dismissed for non-attendance and Ms Lepse appealed to the Supreme Court.
The appeal raised two main issues. Firstly, whether Ms Lepse's refusal to attend or appear in court constituted non-attendance sufficient to warrant dismissal of the proceeding. Secondly, whether the Magistrate erred in failing to warn Ms Lepse that the matter would be dismissed if she did not attend or appear properly. The court found that Ms Lepse's refusal to attend or appear in the proper area amounted to non-attendance, as she deliberately avoided complying with the Court's directions. The court also found that while the Magistrate should have warned Ms Lepse of the consequences of non-attendance, this error did not vitiate the dismissal as Ms Lepse's non-attendance was sufficient in itself to warrant dismissal.
Accordingly, the appeal was dismissed and the original conviction of the Magistrates Court was upheld. The court made no orders as to costs.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

My reasons follow. On one level, it may be thought that such reasons should be very short, in that it is not in the interests of justice to appear to give credence to, and waste court resources on, what Le Miere J in Smadu v Stone referred to as “pseudolegal gibberish”.[4] However, on reflection, I think it worthwhile analysing several facets of the present case in order to confirm that antidotes to a current bane do exist. [4] [2016] WASC 80 at [10], [13] and [18]. Le Miere J further said at [5]: “It would be a waste of judicial resources and an affront to the dignity of this court to answer the pseudolegal arguments raised by the appeal in anything but a summary way.”Background On Monday 16 May 2015 at 6:07pm, a motor vehicle registered in the name of the defendant was observed by an officer of the Adelaide City Council (the Council) to be parked in a permit zone on Gilles Street, Adelaide without the required permit. An expiation notice was placed on the vehicle. After certain correspondence between the defendant and the Council, the defendant elected to be prosecuted. On Tuesday 12 January 2016, the complaint and summons, as reproduced above, was served on the defendant by a copy being left at the defendant’s residential address. The summons stated that the hearing was to be on Tuesday, 2 February 2016 at 11:30am at the Adelaide Magistrates Court.The proceedings at the Adelaide Magistrates Court on 2 February 2016 There is before this Court a transcript of the proceedings at the Adelaide Magistrates Court on 2 February 2016. In an affidavit sworn on 9 May 2016 by Mr Muscat, the solicitor for the respondent, which was received as Exhibit R1 on the appeal, Mr Muscat deposed as follows: I accept in full the evidence of Mr Muscat and the accuracy of the transcript, subject to the statements made by Mr Muscat. In circumstances described in more detail below, the defendant made some assertions in a document concerning the course of those proceedings which, for her benefit, I will treat as if they were in the form of an affidavit. I interpret the defendant’s assertions as a summary of the effect of statements she remembered rather than a verbatim account of what was said. For example, the defendant states that the Magistrate said ‘Get out of my court’. I accept that this may have been the meaning that the defendant attributed to what the Magistrate said, but I find that the actual words that the Magistrate used were as recorded in the transcript and as deposed to by Mr Muscat. In so far as there is any conflict, I prefer the evidence of Mr Muscat. The proceedings before a Special Justice on 2 February 2016 I find that on 2 February 2016 at 11:49am, the matter was called on in court before Special Justice Chu. The defendant passed through the door to the courtroom and, from a position just inside the door, said:I am here. I am the personal representative of Waltraud Lepse. My name is called Traudi. Would you be so good as to call Traudi instead of Waltraud Lepse as I am here to represent in this case. Is this a court a record? Is this a court of record?[5][5] The twice expressed question is reproduced in the transcript as “Is this a court of reference?” The defendant and the solicitor for the Council agree that the word spoken was “record”, which is internally consistent with what followed.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

PEEK J
I make some further general remarks addressed to matters that have arisen in this case.The Canadian judgment of Rooke ACJ in Meads v Meads I note that in Meads v Meads,[19] Rooke ACJ of the Court of Queen’s Bench of Alberta, Canada, has written a valuable and lengthy judgment dealing with a broad range of pseudolegal conduct. The judgment shows that many types of pseudolegal arguments have been encountered. I refer to some short excerpts particularly relevant to the present case from what is a very extensive judgment.[20][19] 2012 ABQB 571.[20] 2012 ABQB 571. Rooke ACJ referred to pseudolegal documents as OPCA documents. To find out why, I suggest reading the judgment.[243] Common ‘scripted’ motifs include demands by the OPCA litigant:...•that the court state whether it is addressing the litigant in one of two roles, such as whether this is to a “legal person” or a “corporation”, vs a “flesh and blood person”, or a “natural person” ...[244] OPCA litigants often present documentation to the court or another party at the hearing itself, without prior service or warning. Common examples include:•an attempt to present the judge or a court official with documents that make the court a fiduciary, agent, or foist a contract on the judge or court official: this proceeding; and•presenting the judge, the court clerk, or an opposing litigant with a ‘fee schedule’ or other foisted unilateral agreement (see below).…[251] A particularly difficult category of OPCA litigant are those who adhere to the OPCA concept that all interactions between the state, courts, and individuals are contracts. As is later explained in greater detail, persons who adopt this concept will interpret almost any invitation by the court or compliance with court procedure as the formation of a contract. For example, members of this Court have observed that litigants who apply the OPCA ‘everything is a contract’ strategy will refuse simple court directions and processes, such as to pass the bar,[21] sit, stand, or acknowledge their identity. [21] “To pass the bar” is the Canadian terminology for passing the dividing point in the courtroom between the public gallery and the area for litigants and counsel.[252] Similarly, litigants who refused to identify themselves but claim to represent an entity related to the litigant will often maintain this role in the face of strong court warning. These OPCA litigants are often very argumentative. [253] The manner in which the refusal occurs is often highly formalistic. ... …[324] Similarly, OPCA litigants have demanded that court documents, such as informations and summons, display their names in all capital letters: R. v Lawson, 2012 BCSC 356 at para 9, 2012 D.T.C. 5069. That, presumably, would then allow the litigant to claim that the all-capitals name related to someone else, and thereby go free.…[428] … In Mercedes-Benz Financial v Kovacevic, [2009] O.J. No 783 at para 14, 2009 CanLII 9368 (Ont. Sup. Ct. J.), Justice Brown reproduces a “most unusual” contract: ... signed twice by Mr Kovacevic: once in his capacity as “secured-party, first-party”, and then again as “debtor, second-party”. [429] Brown J then at para 15 summarizes the document’s intended effect: It appears that by this document Mr Kovacevic has attempted to split himself into two separate persons – a “flesh and blood living man”, and a “juristic person\strawman\legal entity” created by the Province of Ontario. If one takes the document at face value, then Mr Kovacevic impliedly acknowledges that up until December 11, 2007 – ie three months after he had purchased the Mercedes-Benz - he was a “juristic person”. He then attempts to transfer to his newly created “flesh and blood living man” all his property then owned. The document notably is silent as to what happened to the debt held at that time by the “juristic person”. [430] He then concludes at para 45: Of course this document has no legal effect. In the eyes of the law it is rubbish. However, when read together with the other documents created by Mr Kovacevic it forms part of what I conclude to be a deliberate effort on his part to avoid payment of his debt obligations.The ambit of a court’s duty to assist an unrepresented litigant

Ratio Decidendi

Legal Principle Established

Established by: PEEK J

The two grounds largely overlap and can conveniently be considered together. In essence, decision of this appeal involves a consideration of the requirement of “attending” or “appearing” at court in response to a summons and the application of a statutory power to proceed in the absence of a defendant when such requirements are not satisfied. Consideration of the appeal The meaning of “attending” or “appearing” in court in response to a summons is perhaps a topic that is addressed relatively infrequently, but in the present case it assumes some importance. It can be seen from the transcript (as verified by the affidavit of Mr Muscat, Exhibit R1), that the defendant deliberately adopted the same modus operandi in relation to both the Special Justice and the Magistrate. She passed through the door of the courtroom and, standing at a position just inside the door, attempted to negotiate with the Court the terms under which she would be prepared to attend, or appear, before the Court. She was asked on several occasions to come forward to the designated area where the parties in a case, or legal practitioners representing such parties, must attend or appear when their case is called on by the presiding judicial officer, namely “the bar table”. But the defendant at all times refused to do so, and asserted that it was entirely a matter for her choice as to whether she would submit to the Court’s jurisdiction. Delineated areas in a courtroom - the bar table It is of importance, both generally and in the present case, that there must be a clear differentiation between categories of persons who may be inside a courtroom. One category of persons consists of the presiding Judicial Officer(s) and Court staff (including stenographers). Another category of persons consists of lawyers and litigants, including defendants attending or appearing in response to a summons. A further category of persons consists of members of the public observing proceedings; these persons are free to enter and leave the courtroom whenever they please,[13] but have no right to address the Court.[13] Subject only to the occasional closing of a court for good reason under s 69 of the Evidence Act 1929. For the orderly conduct of proceedings, it is traditional to maintain a number of delineated areas in courtrooms including:·the “bench” where the presiding Judicial Officer(s) sit(s);·the “court staff area” where court staff including stenographers sit;·“the dock” where (a) defendant(s) in custody sit(s);·“the public gallery” where members of the public sit and observe; and·“the bar table” (however disposed in rows or otherwise), where lawyers and litigants actually engaged in a case being heard by the Court (including defendants attending or appearing in response to a summons) sit. There is no particular magic in the term, or in the physical object, “the bar table”.[14] No particular structure or labelling is necessary.[15] What is required is to keep separate the lawyers and litigants actually engaged in a case being heard by the Court on the one hand and members of the public in the public gallery who have no right to be heard by the Court on the other hand.[14] Jowitt’s Dictionary of English Law (Sweet & Maxwell, 2nd ed, 1977) defines “bar” as follows:A bar is a partition across a court of justice. In the House of Lords and the House of Commons, the bar forms the boundary of the House, and therefore all persons, not being members, who wish to address the House, or are summoned to it, appear at the bar for that purpose; thus, in arguing appeals in the House of Lords, counsel stand at the bar.In the ordinary court, the bar is a more or less imaginary barrier separating the bench and the front row of counsel’s seats from the rest of the court; only Queen’s counsel and barristers holding patents of precedence are allowed within the bar, together with solicitors (as officers of the court) and parties litigant who appear in person, while junior or utter barristers and the general public remain without the bar.Hence, “bar” has acquired the secondary sense of “court” in such phrases as the “case at bar,” “disclaimer at the bar,” meaning “in court,” and the tertiary sense of the whole body or profession of barristers. The operation of being admitted to practise as an utter barrister is described as being “called to the bar,” while Queen’s counsel are called within the bar, that is, invited by judges to take their seat in the front row. ...[15] Courts may be convened under a great variety of circumstances. An outback court on Aboriginal lands might be entirely in the open air; in such circumstances, members of the public observing could be divided from the litigants by as little as a line literally drawn in the sand.