Bickle v Corporation of the City of Adelaide - [2013] SASC 115

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
BICKLE & ORS v CORPORATION OF THE CITY OF ADELAIDE
[2013] SASC 115
Judgment of The Honourable Justice Vanstone
15 July 2013
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - POWERS OF COURT
LOCAL GOVERNMENT - REGULATION AND ADMINISTRATION - ORDINANCES, REGULATIONS, BY-LAWS AND LOCAL LAWS - ENFORCEMENT
Application for summary dismissal of appellants' appeals against convictions for preaching on a road without permission - the appeal grounds asserted invalidity of relevant Council by-law - applicant contended that since question of validity had been determined in Council's favour by the High Court the appeal was foredoomed to fail.
Held: application granted - appeal summarily dismissed.
Local Government Act 1999 (SA) s 276; Summary Offences Act 1953 (SA) s 48; Acts Interpretation Act 1915 (SA) s 13, referred to.

BICKLE & ORS v CORPORATION OF THE CITY OF ADELAIDE
[2013] SASC 115
Civil

VANSTONE J: The Corporation of the City of Adelaide seeks summary dismissal of an appeal against convictions for preaching on a road without permission. The applicant is the respondent to the appeal.
Background
Kevin Bickle, along with Daniel Farnden, Samuel Corneloup and Forbes Morrison, was found guilty of breaching clause 2.3 of “By-law No 4 – Roads” of the by-laws of the Corporation of the City of Adelaide (the Council). The by-law prohibits the carrying out of a number of activities without permission, including, relevantly, preaching. On 21 January 2011 Mr Bickle appealed to this Court against that finding. Meanwhile, the appellant Corneloup and another had challenged the validity of the by-law utilising s 276 of the Local Government Act 1999. The District Court judge before whom that matter came held that the by-law was invalid. At that point Mr Bickle lodged his appeal to the Court. On 30 September 2011 White J granted permission to the appellant to amend his notice of appeal to add as co-appellants Daniel Farnden, Samuel Corneloup and Forbes Morrison. The appeal was not listed for hearing pending the result of the Council’s appeal to the Full Court against the finding of the District Court. The result of the Full Court appeal was that the finding of invalidity was upheld, though on a different basis.
The Full Court decision was itself the subject of an appeal and the judgment of the High Court of Australia was delivered on 27 February 2013: Attorney-General (SA) v Corporation of the City of Adelaide & Ors (2013) 87 ALJR 289, [2013] HCA 3. The by-law was found by the High Court to be valid.
On 29 May 2013 the Council filed an interlocutory application seeking an order (among others) that the appeal be summarily dismissed. In the meantime, pursuant to White J’s order, Messrs Farnden, Corneloup and Morrison had filed affirmations indicating that each wished to be joined as an appellant. However, it seems that the addresses given on each of those filed documents are no longer correct. When the Council sought to serve the other three appellants with the interlocutory application it found that those addresses were incorrect.
The matter came before me on 7 June 2013 in the Chambers List. While I anticipated fixing a date for the argument, Mr Bickle indicated that he was ready to proceed at that time, as indeed was counsel for the Council, Mr Mazzachi. Mr Bickle told me that the argument in support of his appeal – and the resistance to the application to strike out the appeal – turned on legal issues and that the same argument would serve all four appellants.
In the event, due to time constraints, the argument could not be completed and an additional day was fixed. I asked Mr Bickle whether he would contact the other appellants in the meantime and ask them to confirm their positions. I also pointed out that, inasmuch as they had not filed an up-to-date address for service, any subsequent complaint that they had not been given the opportunity to respond to the interlocutory application might not be well received.
When the matter resumed on 13 June 2013 Mr Mazzachi advised that Mr Corneloup had been served with the interlocutory application on the previous Friday in Rundle Mall, where he was found to be preaching. There was no appearance by him. Mr Farnden appeared in person and advised that he wished to adopt Mr Bickle’s submissions. Mr Bickle told me that he had spoken to Mr Morrison in the meantime and that Mr Morrison has asked that Mr Bickle speak for him. No notices advising of new addresses had been filed. In the circumstances I determined to have the submissions completed.
The appeal
The second amended Notice of Appeal filed on behalf of the appellants by Mr Bickle on 17 October 2011 contained the following grounds.
1. The by-law has been found invalid.
2. The by-law is contrary to the Local Government Act 1999.
3.By-law impermissibly burdens political freedom of communication found in Federal Constitution.
Mr Mazzachi argued that, having regard to the decision of the High Court, all three grounds of appeal are unarguable. He submitted that the High Court had determined that By-law No 4 – Roads was a valid exercise of the Council’s power to make by-laws and that the by-law did not impermissibly burden the implied freedom of political communication. In those circumstances the appeal was foredoomed to fail.
Analysis
Ground 1 was plainly drafted at a time when the District Court decision had been delivered and parts of the by-law had been held to be invalid. However, the contention underpinning ground 1 has been overtaken by the decision of the High Court of Australia. Similarly, ground 3 has been effectively determined against the appellants by the High Court’s decision. Mr Bickle informed me that he was not seeking to challenge or go behind the decision of the High Court.
Mr Bickle addressed two arguments to me which, arguably, could be encompassed by ground 2, and which he suggested were plausible and should be allowed to be tested on the appeal.
In support of his first argument Mr Bickle sought to rely on a statement by French CJ in the High Court decision at [8]. The passage was as follows:
[8] The declaration made by the District Court was in the following terms:
1.The words “preaching”, “canvassing” and “haranguing” in paragraph 2.3 of “By-law No 4 — Roads” of the Corporation of the City of Adelaide are declared to be invalid and are severed from the By-law.
2.Paragraph 2.8 of “By-law No 4 — Roads” of the Corporation of the City of Adelaide is declared to be invalid and is severed from the By-law.
The form of the declaration, which was left in place by the order of the Full Court dismissing the appeal from the District Court, leaves something to be desired. Individual words of a by-law have no legal operation and are not amenable to declarations of invalidity. Severance is not an act of remedial amputation carried out by the court. It is the application of a constructional rule. The rule derived originally from the common law. It is now reflected in statutory provisions such as s 13 of the Acts Interpretation Act 1915 (SA), which applies to delegated legislation in South Australia. The effect of the declaration made by the District Court was clear enough and no point was taken about its form.
Mr Bickle argued that the meaning of this passage was that it was impermissible to sever any invalid part of a council by-law and that, where any invalidity was demonstrated, the by-law would fall in its entirety. Relying on that interpretation Mr Bickle sought to demonstrate to me that a quite separate clause of By-law No 4 – being clause 2.9 – Handbills on Cars – was invalid and so had the effect of bringing down the whole by-law.
I shall not pause to set out By-law No 4 in its entirety. Clause 2 of the by-law is headed “Activities Requiring Permission”. Under that heading are listed some ten activities which the by-law purports to prohibit unless permission to undertake them has been given. Many of the activities listed are entirely unrelated, as indeed are 2.3 – Preaching and Canvassing and 2.9 – Handbills on Cars.
I set out only the two subclauses under consideration.
ACTIVITIES REQUIRING PERMISSION
No person shall without permission on any road:-
…
2.3 Preaching and Canvassing
Preach, canvass, harangue, tout for business or conduct any survey or opinion poll provided that this restriction shall not apply to designated area as resolved by the Council known as a “Speakers Corner” and any survey or opinion poll conducted by or with the authority of a candidate during the course of a Federal State or Local Government Election or during the course and for the purpose of a Referendum;
…
2.9 Handbills on Cars
Place or put on any vehicle (or cause to be placed) any handbill, advertisement, notice or printed matter dealing with religious, charitable purposes or advertising except for any electoral matter posted on a vehicle with the authority of a candidate during the course of a Federal, State or Local Government election or Referendum;
…
As I understood Mr Bickle’s argument it is that clause 2.9 purports to allow a person, with the permission of the Council, to place a handbill, advertisement, notice or printed matter upon a motor vehicle. This would not only infringe the rights of the vehicle owner, but is also in conflict with s 48 of the Summary Offences Act 1953 which prohibits the posting of bills on “property”. (I note that property is defined in s 48(5) and does not include motor vehicles.) Therefore it is invalid. Therefore the whole of By-law No 4 is invalid.
There are many answers that could be made in respect of Mr Bickle’s argument. I merely note that in my view Mr Bickle mistakes the meaning of French CJ in the passage reproduced, and, in any event, the observation his Honour made was not adopted by the other members of the court. Further, I note that even were clause 2.9 arguably invalid for any reason (about which I express no opinion) its subject matter and its juxtaposition with clause 2.3 is such that s 13 of the Acts Interpretation Act 1915 (SA) would very likely save it.
The second argument mounted by Mr Bickle is that the by-law was administered invalidly. I must say that such an argument does not fit happily within the terms of the second ground of appeal, but I shall deal briefly with it notwithstanding. In support of his contention Mr Bickle referred to two documents which were tendered before the magistrate, Exhibits P11 and P12. P11 is entitled “Adelaide City Council Operating Guidelines, Distribution of Literature and Conduct of Preaching Operating Guidelines”. I was told that this is an internal policy document designed to assist Council officers in evaluating applications for permission under By-law No 4. P12 is again a document designed for use within the Council. It is headed “Conditions for Preaching and the Distribution of Literature” and contains a number of what I was told are standard conditions to be inserted in permits. Mr Bickle argues that the content of these documents demonstrates that in granting permits the Council required its officers to have regard to matters which could not conceivably be relevant to the proper purposes for which the by-law was enacted, namely for road safety and the prevention of obstruction to traffic. In other words, the criteria prescribed by the guidelines document P11 are in fact irrelevant to the subject matter of the By-law No 4. The document further stipulates that “preaching and literature distribution is not permitted in the Rundle Mall precinct or the side streets entering/exiting Rundle Mall to maintain a desired Mall environment” (clause 13) but goes on to say in clause 22 that “Rundle Mall and the side streets entering/exiting the Mall precinct” is a location which is “not permitted unless without (sic) specific permission”. Mr Bickle submits that inasmuch as the document seemed to dictate that no permission was to be granted for preaching in Rundle Mall it was apparent that no permit would be given in relation to such a proposal.
Again, there are several difficulties with the argument mounted. Dealing with the last matter first, a factual problem facing Mr Bickle’s argument was that in the magistrate’s reasons for decision, at [20], it was recorded that all defendants had agreed “that they were aware that a permit to undertake preaching was required and that they had not applied for, nor did they have the relevant permit”. What the Council might have done had such a permit been applied for is therefore unknown. In that sense the content of any guidelines which might have informed any decision made by a council officer is beside the point.
However, more fundamentally, even if it had been proved that council officers were dealing with applications for permits in a way which was inconsistent with the subject matter of the by-law, that could not affect the validity of the by-law itself; and so that argument would not be relevant to the second ground of appeal.
Conclusion
The arguments put by Mr Bickle in support of his appeal are, in my opinion, foredoomed to fail. In those circumstances it is appropriate to accede to the application of the Council and to give summary judgment upon the appeal.
I make the following orders:
1. that this appeal is summarily dismissed;
2. that the appellants pay the respondent’s costs of the appeal.