Andrew David Crowther v Whitehorse City Council
[2018] VSCA 184
•27 July 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2018 0086
| ANDREW DAVID CROWTHER | Applicant |
| v | |
| WHITEHORSE CITY COUNCIL | Respondent |
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| JUDGE: | BEACH JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | On the papers |
| DATE OF JUDGMENT: | 27 July 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 184 |
| JUDGMENT APPEALED FROM: | [2018] VSC 344 (Zammit J) |
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PRACTICE AND PROCEDURE – Application for leave to appeal – Proceeding for judicial review summarily dismissed by associate judge – Appeal dismissed by judge – Proceeding having no real prospect of success – Proceeding correctly dismissed summarily – Order dismissing appeal plainly correct – Application for leave to appeal dismissed – Application for leave to appeal determined to be totally without merit – Supreme Court Act 1986, ss 14C and 14D(3).
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | No appearances | |
| For the Respondent |
BEACH JA:
On 11 May 2017, the applicant (Andrew David Crowther) was given a $93 parking ticket[1] for parking his six-tonne motor home in a disabled parking bay in Market Street, Nunawading. The ticket was issued by an officer of Whitehorse City Council (‘the Council’). The infringement offence referred to in the ticket was an alleged breach of r 200(2) of the Road Safety Road Rules 2009 (‘the Road Rules’). Rule 200(2) of the Road Rules relevantly provided:
The driver of a heavy vehicle, or long vehicle, must not stop on a length of road in a built up area for longer than one hour … unless … permitted to do so … by the Council.
[1]Described in the Infringements Act 2006 as an ‘infringement notice’.
On 5 June 2017, the applicant elected to have the matter heard and determined in the Magistrates’ Court.[2] Pursuant to s 40 of the Infringements Act, the Council then filed a charge sheet with that court, and posted a notice of hearing to the applicant.
[2]See s 16 of the Infringements Act.
On 10 July 2017, the applicant filed an originating motion seeking judicial review of the Council’s decisions to issue the ticket and to commence the Magistrates’ Court prosecution.
On 16 August 2017, the Council filed a summons seeking the summary dismissal of the applicant’s originating motion. The application was heard, on 25 September 2017, by Mukhtar AsJ. On 3 October 2017, his Honour granted the Council’s application, and summarily dismissed the applicant’s originating motion.[3]
[3]Crowther v Whitehorse City Council [2017] VSC 594 (‘Primary Reasons’).
On 17 October 2017, the applicant filed a notice of appeal from the decision of Mukhtar AsJ. The applicant’s appeal was heard, on 24 April 2018, by Zammit J. On 26 June 2018, Zammit J dismissed the applicant’s appeal.[4]
[4]Crowther v Whitehorse City Council[No 2] [2018] VSC 344 (‘Appeal Reasons’).
The applicant now seeks leave to appeal from Zammit J’s dismissal of the appeal from Mukhtar AsJ. Pursuant to r 64.15 of the Supreme Court (General Civil Procedure) Rules 2015, the application for leave to appeal has fallen to be dealt with by a single judge of Appeal without an oral hearing.[5] The applicant’s proposed grounds of appeal, the first seven of which are identical to the grounds of his appeal from the decision of Mukhtar AsJ, are as follows:
[5]See also s 14D(1) of the Supreme Court Act 1986.
1.Failure to make the relevant consideration that the subject Sections of the Civil Procedure Act 2010 are not ‘...intended to override... the Charter of Human Rights and Responsibilities Act 2006’ pursuant to s. 6 of that Act, and that the Originating Motion for the Application for Judicial Review states ‘The Application for Judicial Review is made under the provisions of s. 33 Charter of Human Rights and Responsibilities Act 2006…’ and ‘Remedies are sought ... by Declarations of Inconsistent Interpretation with ss.8 and 24 Charter of Human Rights and Responsibilities Act 2006 by Rule 200 (2) Road Safety Road Rules 2009, pursuant to the provisions of s.36 Charter of Human Rights and Responsibilities Act 2006’;
2.‘Application’ of the Civil Procedure Act 2010 (s. 4) in the conduct of the Strike Out Application Hearing for an improper purpose, to the extent that the making of irrelevant considerations for the improper purpose and failure to make relevant considerations for the proper purpose of the Hearing may be demonstrated to represent the sole purpose of the Hearing;
3.Failure to make the relevant consideration of ss. 2, 3, 8 and 10 of the Administrative Law Act 1978 and ss. 8, 9, 72 and Schedule 1 clause 4 of the Criminal Procedure Act 2009 in vigorously and repeatedly asserting that the Magistrates Court of Victoria possesses jurisdiction to determine the dispute between myself and the Defendant;
4.Making multiple irrelevant considerations regarding the Australian Disability Parking Scheme and the Disability Discrimination Act 1992 and Equal Opportunity Act 2010;
5.Failure to make the relevant consideration that the subject administrative decisions of the Application for Judicial Review were not ‘moot or spent’ for a person who possesses locus standii, by either the withdrawal of the PIN, or the filing of criminal charges by the Defendant;
6.Failure to make relevant consideration of the ‘Right to Recognition and Equality before the law’, without ‘discrimination’ (s 8 Charter) of a person with disabilities who is the ‘aggrieved person’ in this dispute, through discrimination against her ‘assistance aid’ (the Disabled Parking Permit). (ss. 5, 6,7, 8,10 and 11 Equal Opportunity Act 2010, and ss. 5, 8, 9, 23, 24, 43 and 47 Disability Discrimination Act 1992);
7.Failure to make the relevant consideration that the subject Application for Judicial Review represents my only defence against a submitted malicious prosecution by the Defendant;
8.Wednesbury Unreasonableness in dismissing the Appeal on the basis of five logical fallacies stated to be unimpeachable procedural defects in the Appellant’s Application for Judicial Review for error at law, where the five instant untruths are so manifestly unreasonable that no reasonable Supreme Court Justice could possibly conclude that such patently untrue deductive reasoning is true;
The proceedings below
In the proceedings below, the applicant did not dispute that he was the driver of the six-tonne motor home, that it was parked in the disabled parking bay for longer than one hour, or that it was a heavy vehicle as defined in r 200(3) of the Road Rules. The applicant, however, contended (and continues to contend) that he was ‘permitted … by the Council’ to be stopped for longer than one hour within the meaning of r 200(2).
The basis for the applicant’s assertion that he was relevantly permitted by the Council to be parked for longer than one hour was the displaying of a disabled parking permit on his vehicle. The applicant’s case is that he was assisting a legally blind person at the time the ticket was issued, and it was this person’s disabled parking permit that he displayed on his vehicle.[6]
[6]But see Appeal Reasons [27].
The Council accepts that the disabled parking permit displayed by the applicant was a valid permit. Its position, however, is that the permit (issued by a different municipal council) is not a permission by ‘the Council’ (the word ‘Council’ being relevantly defined in the dictionary at the end of the Road Rules to mean the council ‘within the municipal district within which a road … is situated’).
It is plain from the judgments of the associate judge and the judge that the arguments advanced by the applicant in the proceedings below were wide-ranging. Many of them were dealt with by the associate judge and the judge in their respective reasons for judgment.
The associate judge dismissed the applicant’s proceeding, holding that the application for judicial review of the ‘decision’ to issue the ticket must fail because that decision had been ‘subsumed or superseded by the decision to withdraw the infringement notice and to prosecute [the applicant] in the Magistrates’ Court.[7] In coming to that conclusion, the associate judge relied upon the High Court’s decision in Wingfoot Australia Partners Pty Ltd v Kocak.[8]
[7]Primary Reasons [25].
[8](2013) 252 CLR 480, 492 [25] (‘Wingfoot’).
As to the decision to prosecute, the associate judge said that this decision could not be the subject of judicial review in the absence ‘of exceptional or special circumstances, or a special reason’.[9] In coming to this conclusion, his Honour relied upon the decisions of Maxwell v The Queen,[10] Likiardopoulos v The Queen[11] and Rozenes v Beljajev.[12]
[9]Primary Reasons [27]–[31].
[10](1996) 184 CLR 501, 534 (‘Maxwell’).
[11](2012) 247 CLR 265, 280 (‘Likiardopoulos’).
[12][1995] 1 VR 533, 571 (‘Rozenes’).
In dismissing the appeal from the associate judge, the judge said that she adopted the content of the associate judge’s reasons in their entirety ‘wishing only to add a couple of supplementary observations of [her] own’.[13] In the result, the judge concluded that the applicant failed to establish any error in the order made by the associate judge.[14]
[13]Appeal Reasons [25].
[14]Ibid [39]-[41], [50]-[63].
Applicant’s written case
In support of his application for leave to appeal, the applicant filed a 28-page written case headed ‘Written Case Summary by the Appellant’.[15] The written case commences with a quote from Friedrich Nietzsche. The written case identifies what are described as ‘the four logical fallacies engaged in by the associate judge and the judge’. These are identified and described under the headings:
·a false dilemma logical fallacy;
·a post hoc ergo propter hoc logical fallacy;
·a circulus in probando logical fallacy; and
·a cum hoc ergo propter hoc logical fallacy.
[15]The applicant also filed a 6-page draft list of authorities, a 20-page draft summary and a 3-page draft appeal book index.
Each of the fallacies is described in the written case as a ‘strike’. The applicant describes himself as having a ‘three strikes and you are out policy’, before saying:
Whitehorse City Council is out. Associate Justice Mukhtar is out. Justice Zammit is out.
In discussing the so-called ‘false dilemma logical fallacy’, the written case states:
Now, if the readers of this written case find the brazen audacity of not one but two Supreme Court justices claiming such errant nonsense is true to be incredible, do not be concerned. You are not alone because both the trial justice [Mukhtar AsJ] and the reviewing justice [Zammit J] prove even they don’t believe themselves, by undertaking just such a construction without qualm in their respective judgments.[16]
[16]Applicant’s written case [30] (citations omitted).
Having identified four so-called ‘strikes’,[17] the applicant then assigns ‘individual assumed error rates’ and ‘common assumed error rates’ to these strikes. It is then asserted that by multiplying the assumed error rates one arrives at the conclusion:
The mathematical proof is beyond reasonable doubt that the clustering of so many falsehoods in relation to one issue by two Supreme Court justices is not an innocent mistake and was intentional.[18]
[17]While the applicant’s written case identifies four ‘strikes’ at [7], in the draft summary (between [195] and [196], there is a heading, ‘The Five Logical Fallacies of Justice Zammit’. It appears that the fifth logical fallacy attributed to her Honour relates to proposed ground 8 (a ground not asserted in the appeal from the associate judge’s order).
[18]Applicant’s written case [93].
The argument in the applicant’s written case (prior to describing the remedies he seeks) concludes:
Their Honours ulterior and improper purpose, apprehended bias, making of irrelevant considerations and failure to make relevant considerations of the submitted and pleaded jurisdictional facts and statutory and common law authorities, together with logical proof of the four logical fallacies and the mathematical proof that those fallacies were almost certainly made deliberately, renders the orders of both Associate Justice Mukhtar and Justice Zammit so manifestly unreasonable that no reasonable justice of the Supreme Court could possibly have made them.[19]
[19]Ibid [94].
Decision
The applicant’s proposed grounds of appeal, his arguments in his written case and his application for leave to appeal are all totally without merit. If I were forced to resolve the question of whether the reasons for judgment of the associate judge and the judge on the one hand, or the contentions in the applicant’s written case on the other hand, were ‘errant nonsense’,[20] I would not be giving that label to the reasons of their Honours.[21]
[20]Applicant’s written case [30].
[21]As the very language ‘forced to resolve the question’ might provoke a complaint that a ‘false dilemma logical fallacy’ has been committed, I will refrain from the resolution of the question posed.
Their Honours were correct, for the central reasons they gave, when they concluded that the applicant’s proceeding had no real prospect of success. The associate judge was plainly correct when he gave summary judgment against the applicant. The judge was plainly correct when she dismissed the applicant’s appeal. Notwithstanding the extensive reference to authority in the applicant’s documents, the applicant’s written case makes little attempt to engage with relevant principle in binding authority.[22] The applicant’s material provides no basis upon which one could possibly conclude that there was any arguable error made by either the associate judge or the judge, or that the applicant could be entitled to the relief he seeks.
[22]See the authorities relied upon by the associate judge and the judge, and in particular Wingfoot (2013) 252 CLR 480, Maxwell (1996) 184 CLR 501, Likiardopoulos (2012) 247 CLR 265 and Rozenes [1995] 1 VR 533.
The applicant’s proposed appeal does not have a real prospect of success. Accordingly, the application for leave to appeal must be refused.[23] Moreover, the application for leave to appeal is totally without merit within the meaning of s 14D(3) of the Supreme Court Act 1986, and will be declared as such (with the consequences that flow from that determination as provided in s 14D(3)). Undoubtedly, any appeal by the applicant from the orders of the judge would be bound to fail.[24]
[23]See s 14C of the Supreme Court Act 1986.
[24]R (Grace) v Secretary of State for the Home Department [2014] 1 WLR 3432, 3436-7 [13], [17], [19].
Order
There will be an order dismissing the application for leave to appeal, and declaring that the application is totally without merit.
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