Basham v City of Joondalup
[2015] WASC 345
•16 SEPTEMBER 2015
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: BASHAM -v- CITY OF JOONDALUP [2015] WASC 345
CORAM: CORBOY J
HEARD: 24 FEBRUARY, 23 JULY & 7 SEPTEMBER 2015
DELIVERED : 16 SEPTEMBER 2015
FILE NO/S: SJA 1070 of 2014
BETWEEN: FRANCIS SHANE BASHAM
Appellant
AND
CITY OF JOONDALUP
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE R BROMFIELD
File No :JO 4882 of 2014
Catchwords:
Appeal - Application for leave to appeal - No real prospect of success on allegations that the appellant entitled to a trial by jury on a simple offence in a court of summary jurisdiction or that the Local Government Act 1995 (WA) invalid or that the Imperial Acts Application Act 1980 (Vic) or the Bill of Rights applied - Leave granted on question of whether the magistrate failed to adequately consider or give adequate reasons for costs order
Legislation:
Local Government Act 1995 (WA), pt 2 div 2, pt 9 div 2
Result:
Appellant given leave to amend notice of appeal and to appeal on costs order
Leave to appeal on all other proposed grounds of appeal refused
Category: B
Representation:
Counsel:
Appellant: In person
Respondent: Mr T L Beckett
Solicitors:
Appellant: In person
Respondent: McLeods Barristers & Solicitors
Case(s) referred to in judgment(s):
Brookvista Pty Ltd v Meloni [2009] WASCA 180
City of Armadale v Merrick [2014] WASCA 125 (S)
Glew v Shire of Greenough [2006] WASCA 260
Hedley v Spivey [2011] WASC 325
Hobsons Bay City Council v Viking Group Holdings Pty Ltd [2010] VSC 386
Knight v FP Special Assets Ltd [1992] HCA 28; (1992) 174 CLR 178
Lasscock v Seidner [2013] WASC 94
Latoudis v Casey (1990) 170 CLR 534
Musarri v Director of Public Prosecutions [2002] WASCA 28
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Stewart v City of Belmont [2013] WASC 366
Taylor v WA Police [2007] WASC 158
Wilson v McDonald [2009] WASCA 39; (2009) 193 A Crim R 63
CORBOY J:
The application and the result
The appellant was convicted of a charge that on 21 February 2014, within the City of Joondalup, he parked a vehicle, namely a Holden sedan registered in his name, in a parking area along Reid Promenade where a permissive parking sign indicated that a fee was payable for parking, without purchasing a ticket for a period of parking from the ticket machine equipped for issuing a ticket for that area and placing that ticket inside the vehicle in a position where the ticket was clearly visible and all details could be read by an authorised person from outside and from the front of the vehicle at all times while the vehicle remained parked in that parking area. He was fined $60 and ordered to pay costs of $1,478.70.
The appellant appealed from his conviction and the costs order made by the learned magistrate. A hearing was held to determine whether the appellant should be given leave to appeal on any of his proposed grounds of appeal.
The first proposed ground of appeal alleged that the costs order made by the magistrate was 'manifestly excessive'. The parties were invited to provide further submissions following the leave hearing on whether the magistrate had arguably erred in awarding costs without receiving further evidence on the reasonableness of the amount claimed; that is, whether the magistrate had erred by failing to adequately consider the question of costs by reference to the actual conduct of the prosecution. That was not a matter that had been raised by the appellant, who was a self‑represented litigant.
I have concluded that grounds of appeal to the effect that the magistrate erred by failing to adequately consider the question of costs, further or alternatively, failed to give adequate reasons for the order that he made, would have a real prospect of success (see the test for leave identified in Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473). I have found that leave to appeal on each of the remaining proposed grounds of appeal should be refused.
Statutory framework
The functions to be performed by local governments are specified in pt 3 of the Local Government Act 1995 (WA) (LGA). Section 3.1(1) provides that the general function of a local government is to provide for the good government of persons in its district. Section 3.4 provides that the general function of a local government includes legislative and executive functions. Part 3 div 2 confers legislative powers on local governments; in particular, s 3.5(1) provides that a local government may make local laws under the LGA prescribing all matters that are required or permitted to be prescribed by a local law, or are necessary or convenient to be so prescribed, for the local government to perform any of its functions under the LGA. Section 3.10 expressly empowers a local government to make a local law that creates an offence and provides a penalty by way of punishment for contravention of the offence‑creating provision.
Part 9 div 2 LGA concerns enforcement and legal proceedings. Section 9.13 applies to vehicle offences. A 'vehicle offence' is defined to mean an offence against the LGA of which the use, driving, parking, standing or leaving of a vehicle is an element. Section 9.13 further provides:
(2)Where a vehicle offence is alleged to have been committed and the identity of the person committing the alleged offence is not known and cannot immediately be ascertained an authorised person may give the owner of the vehicle a notice under this section.
(3)The notice is to be in the prescribed form and is to contain particulars of the alleged offence and require the owner to identify the person who was the driver or person in charge of the vehicle at the time when the offence is alleged to have been committed.
(4)The notice may be addressed to the owner of the vehicle without naming, or stating the address of, the owner and may be given by -
(a)attaching it to the vehicle or leaving it in or on the vehicle at or about the time that the alleged offence is believed to have been committed; or
(b)giving it to the owner within 28 days after the alleged offence is believed to have been committed.
(5)The notice is to include a short statement of the effect of subsection (6).
(6)Unless, within 28 days after being served with the notice, the owner of the vehicle -
(a)informs the CEO or an employee authorised for the purposes of this paragraph as to the identity and address of the person who was the driver or person in charge of the vehicle at the time the offence is alleged to have been committed; or
(b)satisfies the CEO that the vehicle had been stolen or unlawfully taken, or was being unlawfully used, at the time the offence is alleged to have been committed,
the owner is, in the absence of proof to the contrary, deemed to have committed the offence.
Section 9.16(1) LGA provides that an authorised person who has reason to believe that a person has committed a prescribed offence against a regulation or local law may, within 28 days after the alleged offence is believed to have been committed, give an infringement notice to the alleged offender. Section 9.16(2A) provides that:
If a person who is given a notice under section 9.13 about an alleged offence involving a vehicle gives information in accordance with section 9.13(6) about another person who was the driver or person in charge of the vehicle at the time of the alleged offence, the period of 28 days for giving that other person an infringement notice runs from the time the information was given.
The appellant was alleged to have committed an offence under cl 2.4(1) and cl 9.1(1) of the City of Joondalup Parking Local Law 2013 (the Parking Local Law). Clause 2.4(1) of the Parking Local Law prohibits the parking of a vehicle in an applicable parking area without paying a fee for a period of parking and displaying a parking ticket. Clause 9.1 provides that any person who fails to do anything required or directed to be done under the Parking Local Law or who does anything which, under the Parking Local Law, that person is prohibited from doing, commits an offence. Clause 9.1(2) provides that an offence against any provision of the Parking Local Law is a prescribed offence for the purpose of s 9.16(1) LGA.
The proposed grounds of appeal
The appeal notice contains five proposed grounds of appeal:
(1)The awarding of costs to the sum of $1,478 is manifestly excessive to the cost of the fine. The costs sought are disproportionate to the criminality. Hobsons Bay City Council v Viking Group Holdings Pty Ltd [2010] VSC 386.
(2)The verdict cannot be supported as a Magistrates Court is not a Chapter 3 Court, which was requested upon my lodgement to have the matter heard in court. South Australia v Totani [2010] HCA 39 … Lane v Morrison [2009] HCA 29.
(3)The verdict cannot be supported as no evidence was supplied from any witness that I was the person who parked the vehicle and failed to display a valid parking ticket. It is a legal maxim that a person cannot be charged guilty without evidence of having committed the alleged offence. By owning a vehicle does not automatically make you the offender. The onus of proof is upon the prosecution to prove I was in fact the person who committed the offence. Liberato v R [1985] HCA 66; (1985) 159 CLR 507.
(4)Magistrate Bromfield failed to take into account the Commonwealth Constitution Section 109 - When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid. Local Government Act is in conflict with the Imperial Acts Application Act Section 8 Subsection 12.
(5)Magistrate Bromfield failed to take into account the Imperial Acts Application Act Section 8 Subsection 12 which states "that all grants and promises of fines and forfeitures of particular persons before conviction, are illegal and void". Which is recognised in the Constitution of Australia. Port of Portland Pty Ltd v State of Victoria [2010] HCATrans 221 (27 August 2010).
The first proposed ground of appeal
The trial
The trial commenced at 10.47 am on 2 September 2014 according to the transcript. The last time given in the transcript was 11.07 am. The learned magistrate commenced delivering his reasons at that time. The reasons occupied slightly more than three pages of transcript. There then followed exchanges between his Honour, the prosecutor and the appellant that are recorded in a further two pages of transcript. It is, therefore, very likely that the trial occupied less than 45 minutes of hearing time.
The respondent called one witness. The appellant elected not to give evidence. He referred in his closing submissions to s 8(12) of the Imperial Application Act and s 109 of the Constitution. He then asserted that he could not be convicted as he was not the driver of the vehicle at the time that it was illegally parked.
The magistrate delivered reasons in which he found that the appellant was guilty pursuant to s 9.13 LGA.
The power to order costs
Section 67 of the Criminal Procedure Act 2004 (WA) (CPA) concerns the power to order costs in summary criminal proceedings. Section 67(1) provides that a successful party to a prosecution is entitled to the party's costs (subject to matters that are not presently relevant). Section 67(2) provides that, if a court convicts an accused of a charge, the court may order the accused to pay all or a part of the prosecutor's costs. Section 67(3) provides that the amount of costs ordered under s 67(2) may be determined in accordance with the relevant determination made under s 275 of the Legal Profession Act 2008 (WA) for the purposes of the Official Prosecutions (Accused's Costs) Act 1973 (WA) and with s 280 of the Legal Profession Act. Finally, s 67(4) CPA provides that:
A court may reduce the costs that it would otherwise have awarded, or refuse to award costs, under this section to a party if -
(a)any act or omission of or caused by the party (other than an act or omission that is the subject of a charge) was unreasonable in the circumstances and contributed to the institution or continuation of the case; or
(b)any act or omission of or caused by the party during or in the conduct of the case was calculated to prolong the case unnecessarily or cause unnecessary expense.
The relevant costs determination made under s 275 of the Legal Profession Act is the Legal Practitioners (Official Prosecutions) (Accused's Costs) Determination 2012. The determination specifies the hourly rates that are to apply to the remuneration of legal practitioners and the award of costs to a successful accused in proceedings in the Magistrates Court. It also specifies a scale of costs for particular proceedings within a prosecution in the Magistrates Court. The maximum hourly rate for a senior practitioner (defined as being a practitioner who has been admitted for five years or more) is $374. The maximum amount allowed for a half‑day trial, inclusive of preparation and counsel fee, is $6,688.
The order that was made
Following the appellant's conviction, the prosecutor submitted that:
The maximum penalty for the offence is $5,000. The modified penalty is $60. In relation to sentencing, this is not a first offence. The accused was also convicted in May 2013 of a similar offence under the City of Joondalup Parking Local Law. On that occasion, Magistrate Roberts imposed a penalty of $60 and ordered the accused to pay costs in the amount of $1,478.70 at trial. In the current case, our application for costs will be along the same lines.
That's approximately 4 hours at the Accused's Costs scale. There has been two appearances, getting up for trial and having witnesses attend today. So we will seek costs again in the amount of $1,478.70 (ts 21).
The appellant submitted that the respondent had a choice to either use the 'Department of Police Prosecutions' or a 'private lawyer'. He stated that it was 'extremely unfair' for the respondent not to have used the 'Department of Police Prosecutions' so as to 'hit me with the costs'. He reiterated that he was not the person who had parked the vehicle illegally and that he was struggling to pay the previous costs order as a single parent and a university student (ts 21 ‑ 22).
The magistrate ordered that the appellant pay the respondent's costs in the amount sought. He gave no further reasons for making that order. His Honour merely stated:
[A]lthough I don't know your age, you appear before the court [an] articulate and mature individual, and there is no reason in the courts for you [should read 'me'] to impose a penalty greater than the modified penalty, particularly in view of the costs which are quite significant. You will be fined $60, and ordered to pay costs [of] $1478.70 (ts 22).
However, the amount at which costs were fixed indicates that the magistrate accepted the submission made by the prosecutor concerning how the amount claimed had been derived.
The appellant's complaint
The first proposed ground of appeal raised the question of proportionality between the amount of the penalty imposed and the order made for costs. In Hobsons Bay City Council v Viking Group Holdings Pty Ltd [2010] VSC 386, the respondent was convicted of various parking offences. It was fined $600 and ordered to pay $180.80 in costs in relation to one set of proceedings and a fine of $250 and costs of $65.20 in another set of proceedings. The matters were initially listed for hearing on a mention day. They were then listed for an ex parte hearing when the respondent did not appear. The solicitor for the Council applied for costs of $1,470.26, plus disbursements, for the first set of proceedings and costs of $170.50, plus disbursements, for the second hearing. The magistrate refused to award costs in the amount sought, concluding that the total was disproportionate to the criminality of the respondent's conduct. The magistrate stated:
It seems to me to be unfair to award costs based on the defendant's bad luck in being prosecuted by a council rather than by the police as a matter of principle, it cannot be or should not be the defendant that incurs the additional liability of substantial costs based on who prosecutes.
The Council appealed from the costs order. Osborn J concluded that:
(a)the magistrate had considered the issue of costs by reference to broader notions of consistency and proportionality rather than merely refusing costs on the basis that the prosecutor was a municipal council;
(b)under the relevant legislation, parking infringements could be prosecuted by either a police officer or an authorised council officer and accordingly, questions of consistency between the costs that would be awarded if the offences had been prosecuted by a police prosecutor were relevant;
(c)proportionality between the penalty imposed and the costs incurred in the proceedings was a relevant factor, notwithstanding that the purpose of an award of costs was not to punish the unsuccessful party but to indemnify the successful party;
(d)it was open to the magistrate to conclude that the costs were disproportionate to the criminality of the respondent's conduct;
(e)it was open to the magistrate to have exercised the discretion in the manner in which it had been exercised;
(f)the appellant had not demonstrated that the magistrate had made an error in the exercise of his discretion.
Prosecuting offences under a local law
The scheme for prosecuting an offence created by a local law under the LGA is different to that considered by Osborn J in Hobsons Bay City Council. Section 9.24 LGA provides that the prosecution for an offence against the LGA may be commenced by:
(a)a person who is acting in the course of his or her duties as an employee of the local government or regional local government that made the local law; or
(b)a person who is authorised to do so by the local government or regional local government that made the local law.
Section 9.29 expressly deals with representation for a local government in court. The section provides that in proceedings (defined to include proceedings in the Magistrates Court) a person who is the CEO or an employee of the local government appointed in writing signed by the CEO to represent the local government generally, or in a particular case, may represent the local government in all respects as though the person were the local government.
Accordingly, a breach of a local law concerning parking cannot be prosecuted by a police officer. Unlike in Hobsons Bay City Council, there is no question of maintaining consistency with the costs that might be awarded if the offence was prosecuted by a police officer.
However, the different statutory regime does not necessarily mean that proportionality is not a relevant consideration in fixing the amount of costs that might be awarded to the prosecution following a conviction. In my view, it is arguable that proportionality will be one of a number of factors relevant to the question of whether costs should be awarded and if so, the amount to be allowed.
I have found in the next section of these reasons that, arguably, the magistrate erred in the manner in which he determined the respondent's application for costs. Accordingly, I have concluded that the appellant should be permitted to contend in the appeal that proportionality between the fine imposed and the costs of the prosecution is a relevant factor in determining the amount of costs; that the magistrate erred by not considering that factor and that any order that might be made in the appeal in respect of the costs of the prosecution should reflect, among other things, proportionality between the penalty and the costs allowed.
The parties' further submissions on the question of costs
As has been explained, the parties were invited to provide further submissions on whether the magistrate had erred in awarding costs without further evidence on whether the amount claimed was reasonable. That invitation reflected a concern about how the magistrate had fixed the amount of costs to be paid by the appellant. His Honour merely adopted a figure suggested by the prosecutor; that figure apparently reflected the costs awarded in a previous prosecution and the magistrate, in effect, gave no reasons for why the quantum of costs was fixed in the amount awarded.
The respondent contended that:
(a)The determination of costs involved the exercise of a discretion. An appeal that relates to the exercise of a discretion should only be allowed in circumstances where the court finds that it was not open to the magistrate to exercise the discretion in the manner in which he did: Lasscock v Seidner [2013] WASC 94.
(b)The reference to the costs ordered in the previous prosecution involving the appellant was intended to indicate to the magistrate that the appellant was aware of the likely costs that would be ordered if he unsuccessfully defended the charge alleged against him.
(c)The prosecutor provided the magistrate with a sufficient basis for the costs claimed - costs were sought at the relevant scale rate for approximately four hours work.
(d)Costs are routinely ordered in the Magistrates Court following conviction on the basis of oral submissions made by the prosecutor and without any requirement for costs to be substantiated by additional evidence.
(e)It was open to the magistrate to conclude that the costs sought by the prosecutor were reasonable in circumstances that were known to the magistrate - his Honour was aware of the nature of the proceedings and referred to the relevant Scale.
The appellant's submissions did not address the issue on which the parties had been invited to make further submissions. Rather, his submissions repeated and sought to enlarge on the submissions that he had already made.
The relevant principles
The power to award costs is statutory: Knight v FP Special Assets Ltd [1992] HCA 28; (1992) 174 CLR 178, 193 (Dawson J). Section 67 CPA empowers the court to make a costs order in favour of the successful party in a prosecution in the Magistrates Court.
There is no general rule that costs follow the event in criminal matters. Rather, a magistrate has a general and unconstrained discretion with respect to costs, but that discretion must be exercised judicially: City of Armadale v Merrick [2014] WASCA 125 (S). Mason CJ explained in Latoudis v Casey (1990) 170 CLR 534 why there is no general rule that costs follow the event in criminal proceedings:
I would not be prepared to accept that in summary proceedings there should be a general rule that costs follow the event. … The differences between criminal and civil proceedings are substantial, not least of them being the absence of pleadings, the different onus of proof, the defendant's inability in criminal proceedings to enter into a compromise and the possibility that the charge, if proved, may affect the defendant's livelihood and reputation. These differences may possibly provide grounds in the circumstances of particular cases for refusing to order costs in favour of a successful informant which would have no application in civil proceedings (543 ‑ 544).
(And see Wilson v McDonald [2009] WASCA 39; (2009) 193 A Crim R 63.)
It is, of course, well established that the reasons given by a magistrate may be shortly stated, without being developed in any detail. What is expected must reflect the practical circumstances under which a busy court is required to conduct its business. Requiring detailed reasons in every case determined by a court exercising summary jurisdiction would inevitably cause delays in the administration of justice and be unduly burdensome. This is particularly so where a magistrate is required to fix the amount of costs for a prosecution: see, for example, the comments of Simmonds J in Taylor v WA Police [2007] WASC 158 [51].
Nevertheless, it remains necessary for a magistrate to sufficiently disclose his or her process of reasoning to enable the parties to understand the basis upon which a decision has been made and so that they can determine whether there may be grounds for an appeal (and also, so an appeal court can ascertain whether the decision involved any error). That does not mean that a magistrate is required, for example, to undertake an inquiry into costs of a kind commonly associated with a taxation conducted by a taxing officer. However, it is not an unnecessary burden to expect magistrates to make such inquiries as are necessary to fix the costs of a prosecution according to the applicable scale and the factors that may be relevant to ensuring that any costs that may be awarded are reasonable.
In civil proceedings, costs may be fixed so as to avoid the expense and delay involved in a taxation. Consistent with that objective, the court will apply a 'broad brush' approach to fixing the sum awarded; the court will not undertake a detailed review of the costs claimed. Nevertheless, the court's approach in fixing the amount of costs should be 'logical, fair and reasonable'. It is necessary for the court to make sufficient inquiries and to possess whatever information is required to ensure that the award of costs satisfies that standard and takes into account all other relevant matters: Brookvista Pty Ltd v Meloni [2009] WASCA 180. It is not immediately apparent why a similar requirement should not apply to the awarding of costs in summary criminal proceedings.
Conclusion
As has already been indicated, I consider that there is a real prospect that the appellant could succeed on grounds of appeal that alleged that the magistrate erred by failing to adequately consider the question of costs, further or alternatively, failed to give adequate reasons for the order that he made. I have reached that conclusion having regard to the principles outlined above.
I do not propose to further analyse the application of those principles as this was an application for leave. I would only observe that it is not clear that the magistrate understood that the prosecutor's reference to the costs ordered in the previous proceedings involving the appellant was only intended to indicate that the appellant was aware of the likely costs that would be ordered if he unsuccessfully defended the charge alleged against him. It is also not clear whether the magistrate gave consideration to the costs that ought to be awarded having regard to the circumstances of the prosecution that he tried or whether he merely adopted the amount that had been ordered in the previous proceedings.
The second proposed ground of appeal
The second proposed ground of appeal alleged that the Magistrates Court is not a court constituted under ch III of the Commonwealth Constitution with the result, so it was alleged, that the Magistrates Court lacked jurisdiction to hear and determine the offence for which the appellant was convicted. The appellant contended in oral submissions that he had a right, under s 80 of the Constitution, for a trial by jury.
It was apparent from this ground of appeal and from his oral submissions that the appellant did not understand or had been misinformed about the constitutional arrangements that constitute the federation created by the Commonwealth and the States. The constitutional structure is briefly explained by Wheeler JA in Glew v Shire of Greenough [2006] WASCA 260 at [5] and following. The power of State Parliaments to legislate stems, in each case, from the Constitution of the relevant State. Section 2 of the Constitution Act 1889 (WA) empowers the State to make laws for the 'peace, order and good government of Western Australia'. The words 'peace, order and good government' are to be understood as conferring ample and plenary power on the State to legislate for any matter having a connection with the State.
Laws relating to local governments in this State are plainly laws that are for the 'peace, order and good government' of Western Australia. Similarly, laws creating state courts such as the Magistrates Court are also plainly within the legislative power of the State Parliament.
The power conferred on the Commonwealth Parliament to create federal courts is not exclusive. Each State has its own courts created by state legislation. As McKechnie J observed in an appeal from conviction in the Magistrates Court (Hedley v Spivey [2011] WASC 325):
[A]t no time was the Constitution of the Commonwealth ch III ever engaged in these proceedings. The magistrate was sitting to hear and determine a matter entirely within the legislative competence of the jurisdiction of the State of Western Australia [18].
Section 80 of the Commonwealth Constitution provides that the trial on indictment of any offence against any law of the Commonwealth shall be by jury. The offence with which the appellant was charged was neither indictable, nor was it an offence against any law of the Commonwealth. Section 80 relates to offences that were created by laws made by the Federal Parliament pursuant to its legislative powers derived from the Commonwealth Constitution. The appellant did not have an entitlement to a trial by jury pursuant to s 80 of the Constitution.
The third proposed ground of appeal
Ms Roslyn Manderson was a parking officer employed by the City of Joondalup. She issued a parking infringement notice in relation to the parking of the appellant's vehicle on 21 February 2014. The notice specified a penalty of $60 and a due date of 21 March 2014. Ms Manderson had no contact with the driver of the vehicle at the time that the notice was issued (ts 6).
The appellant wrote to 'The Private Corporation trading as "City of Joondalup"' by letter dated 14 March 2014. The appellant stated in the letter:
I have received an infringement notice from your corporation (P242180) that I know nothing about. I was not the driver of the vehicle and do not know who was. I expect that my name is removed from this infringement notice immediately and that I am informed that this has occurred in writing to the above address.
If you refuse to do this then please consider this to be my written request to have this matter determined by a court of competent jurisdiction. A court that conforms to chapter III of the Commonwealth Constitution Act 1900 (UK) as confirmed by the High Court pursuant to the 'Forge v Asic' determination. Please note that a court with a solitary Bail Justice or computer does not comply and is therefore not a court in conformity with the law and in respect of my Constitutional Rights (exhibit F).
The respondent replied by letter dated 24 March 2014 (exhibit H). The letter stated:
If you are not able to provide the name and address of the driver of the vehicle at the time the Infringement was issued, as the registered owner of the vehicle, registration 1DMF 600, the onus of Infringement Notice P242180 remains with you.
The appellant replied to that letter, again asserting that he did not know who the driver of the vehicle was and contending that he was not required to pay the fine as he was not the driver.
The infringement notice issued in respect of the appellant's vehicle referred to s 9.13 LGA, including the deeming effect of that section.
Regrettably, the appellant appeared to either not read or not accept what was written on the infringement notice regarding the effect of s 9.13. The section has, as has been noted, the effect of deeming him to be the driver of the vehicle at the time that it was illegally parked.
The appellant sought in the appeal to meet the deeming effect of s 9.13 by contending, in effect, that the LGA was invalid. The argument reflected his misunderstanding as to the power of State Parliament to enact legislation - in particular, the LGA. The appellant's submission also reflected the proposition stated in his letter of 14 March 2014 that the City of Joondalup was not a validly constituted entity as the Commonwealth Constitution did not recognise local government. In Stewart v City of Belmont [2013] WASC 366, Martin CJ observed, in relation to this proposition [33] ‑ [34]:
The grounds upon which Mr Stewart sought a review order with respect to the decision of Magistrate Heaney were wholly without merit. The basis for the order sought was an argument that the lack of provision for local government in the Commonwealth Constitution, and the failure of the 1988 referendum to recognise local governments in the Commonwealth Constitution, has the effect that the City had no authority to charge or impose fines upon Mr Stewart. Arguments of this kind have been rejected by this Court on numerous occasions - see, for example, Glew v Shire of Greenough [2006] WASCA 260 [22] ‑ [25]; Van Lieshout v City of Fremantle (No 2) [2013] WASC 176; Pennicuik v City of Gosnells [2011] WASC 63; Hargreaves v Tiggemann [2012] WASCA 92; Glew v City of Greater Geraldton [2012] WASCA 94. In Glew v Shire of Greenough, Wheeler JA (Pullin and Buss JJA agreeing) held that:
'So far as the 1988 referendum is concerned, the proposition appears to be that, because that referendum was defeated, there arises some prohibition upon the State which would preclude it from passing legislation setting up local government authorities. That proposition misunderstands the referendum process. The 1988 referendum contained a proposal to amend the Commonwealth Constitution by inserting a proposed s 119A, which proposed section would have required each State to provide for the establishment and continuance of a system of local government. Because it was defeated, there is no Commonwealth constitutional requirement that a State provide a system of local government. However, the absence of a requirement to establish a system of local government does not imply any absence of power to do so. Each State has always had, pursuant to the power to legislate for the peace, order and good government of that State, a power to set up a system of local government as the State sees fit [24].'
The court's decision in Glew v Shire of Greenough was the subject of an unsuccessful application for special leave to appeal to the High Court (Glew v Shire of Greenough [2007] HCATrans 520 (6 September 2007)). Gummow J, on behalf of the coram, stated that:
'[The Local] court rejected the applicants' argument that the Local Government Act 1995 (WA) is unconstitutional, as is s 52 of the Constitution Act 1889 (WA). The District Court of Western Australia dismissed the applicants' appeal. In turn the Court of Appeal of the Supreme Court of Western Australia dismissed a further appeal as 'entirely lacking in legal merit'. We agree.'
There is no merit in this proposed ground of appeal.
The fourth and fifth proposed grounds of appeal
The fourth and fifth grounds of appeal refer to s 8(12) of the Imperial Acts Application Act. The appellant was unable to identify the Parliament that had enacted the Imperial Acts Application Act to which these proposed grounds of appeal referred. An Act bearing that title has not been passed by the Western Australian Parliament. Acts bearing that title have been passed by the Parliaments of New South Wales, Queensland, Victoria and the Australian Capital Territory.
However, it appeared that the reference in the proposed grounds of appeal was to the Imperial Acts Application Act 1980 as enacted by the Victorian Parliament. Section 3 of that Act provides that the enactments mentioned in the schedule to that Act, to the extent set out in pt II, shall continue to have in Victoria, whether separately or in combination with any unrepealed enactment or statutory provision, such force and effect, if any, as they had at the commencement of the Act. Section 8 appears in pt II of the Act and sets out those parts of the Acts referred to in the schedule that continue in effect in Victoria. The Bill of Rights ([1688] I William and Mary Sess. II) is one such Act. The Bill of Rights declares certain rights and liberties of the subject, including that 'all grants and promises of fines and forfeitures of particular persons before conviction, are illegal and void' (article 12).
Article 12 of the Bill of Rights forms part of the law of Western Australia: see, for example, the comment of McKechnie J in Musarri v Director of Public Prosecutions [2002] WASCA 28 [22]. However, the article merely prohibits fines being imposed prior to a person being convicted. In this case, the magistrate imposed a fine on the appellant following his conviction.
There is no merit in these proposed grounds of appeal.
6
23
1