Clements v Town of Claremont
[2011] WASCA 253
•18 NOVEMBER 2011
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: CLEMENTS -v- TOWN OF CLAREMONT [2011] WASCA 253
CORAM: BUSS JA
NEWNES JA
MAZZA J
HEARD: 7 NOVEMBER 2011
DELIVERED : 18 NOVEMBER 2011
FILE NO/S: CACR 131 of 2011
BETWEEN: PHILLIP CLEMENTS
Appellant
AND
TOWN OF CLAREMONT
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :McKECHNIE J
Citation :CLEMENTS -v- TOWN OF CLAREMONT [2011] WASC 193
File No :SJA 1034 of 2011
Catchwords:
Local government - Parking - Local Law - Requirement that vehicle be parked facing direction of travel of vehicles on that part of carriageway - Meaning of Local Law - Turns on own facts
Legislation:
Town of Claremont Parking and Parking Facilities Local Law, cl 7.1(2), cl 10.1(1)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: In person
Respondent: No appearance
Solicitors:
Appellant: In person
Respondent: McLeods
Case(s) referred to in judgment(s):
Clements v Town of Claremont [2011] WASC 193
BUSS JA: I agree with Newnes JA.
NEWNES JA: The appellant was convicted by a magistrate of a parking offence under the respondent's Local Law and fined the sum of $45. The appellant's application for leave to appeal against that decision was dismissed by McKechnie J: Clements v Town of Claremont [2011] WASC 193. The appellant now seeks leave to appeal against his Honour's decision.
The appellant, who once practised as a lawyer but apparently no longer does, appeared on his own behalf. On the hearing of the application, the appellant was at pains to say that the application was brought, not because there was any significant amount of money involved, but because he considered the decisions below were wrong and, as he put it, 'vigilance is the price of freedom'. The invocation of that dictum might seem to some to overstate the significance of a case involving a parking infringement.
Background
On 13 August 2009, the appellant parked his Volvo sedan on Kingsmill Street in Claremont. Kingsmill Street is a residential street. The street is a two‑way carriageway with one lane of traffic travelling east and one lane travelling west. The lanes are not marked and there is no median strip. There is also no embayment at the side or centre of the street for the stopping or parking of vehicles. The appellant parked his vehicle on the northern side of the carriageway, facing in a westerly direction. The direction of traffic on the northern side of the carriageway was in an easterly direction.
At approximately 2.50 pm that day, a ranger with the Town of Claremont saw the vehicle. He issued an infringement notice in which it was alleged that the vehicle was parked contrary to cl 7.1(2) and cl 10.1(1) of the Town of Claremont Parking and Parking Facilities Local Law.
The appellant did not dispute that he was the driver of the vehicle or that he had parked it in that way. But he contended that he had not contravened the Local Law in doing so. He declined to pay the amount of the infringement notice, an amount of $45.
The appellant was subsequently charged as follows:
[The appellant], on 13 August 2009 on Kingsmill Street in Claremont within the district of the Town of Claremont, parked a vehicle, namely, a Volvo sedan, registration 1CLD‑018, such that the vehicle did not face the direction of travel of vehicles in the line of traffic on or next to the part of the carriageway where the vehicle was parked, contrary to clauses 7.1(2) and 10.1(1) of the Town of Claremont Parking and Parking Facilities Local Law.
At trial, the facts were not in dispute. The only issue was whether in parking the vehicle as he did the appellant had contravened the Local Law. Clause 7.1 of the Local Law relevantly provides:
(1)The driver of a vehicle who parks on a carriageway … shall position the vehicle in accordance with subclauses (2) to (8) …
(2)The driver of a vehicle shall position the vehicle to face the direction of travel of vehicles in the marked lane or line of traffic on, or next to, the part of the carriageway where the driver parks.
(3)If a carriageway is a two‑way carriageway, the driver of a vehicle shall position the vehicle so that it is as near as practicable to, and parallel with, the left boundary of the carriageway.
In cl 1.3(1), 'carriageway' is defined as follows:
'carriageway' means a portion of thoroughfare that is improved, designed or ordinarily used for vehicles and includes the shoulders and areas including embayments at the side or centre of the carriageway, used for the stopping or parking of vehicles; and where a thoroughfare has two or more of those portions divided by a median strip, the expression means each of those portions, separately.
The appellant submitted that on its proper construction, the effect of cl 7.1(2) was that a driver could park a vehicle on a two‑way carriageway facing either in the direction of travel of vehicles on the part of the carriageway where the vehicle is parked or in the direction of travel of vehicles in the line of traffic next to the parked vehicle. The appellant argued that the line of traffic next to the part of the carriageway on which his vehicle was parked was traffic travelling in a westerly direction, and as his vehicle was parked facing in a westerly direction he had not contravened cl 7.1(2).
The magistrate did not accept that contention. Her Honour found that the appellant's vehicle should have been parked facing an easterly direction, that being the direction of the traffic on the part of the carriageway on which the appellant's vehicle was parked.
The magistrate convicted the appellant but imposed the same penalty as the infringement notice, $45, and ordered him to pay costs of $500.
The appellant considered that an injustice had been done and sought leave to appeal to a single judge of the general division of this court.
The application for leave to appeal came before the primary judge. The appellant advanced the same contention as he had advanced before the magistrate, with the same result. The primary judge described the argument as 'specious' and dismissed the appeal.
The appellant now seeks to appeal to this court. An appeal to this court from a decision of a judge of the general division is only by leave. Leave is required for each ground of appeal relied upon and leave to appeal cannot be granted on a ground of appeal unless the court is satisfied the ground has a reasonable prospect of succeeding: Criminal Appeals Act 2004 (WA), s 9(2), s 18.
The grounds of appeal
The grounds of appeal do not comply with the Supreme Court (Court of Appeal) Rules 2005 (WA) and it is not easy to extract from them the precise ground or grounds of appeal on which the appellant seeks to rely. But the appellant confirmed in the course of his oral submissions that the substantive (and only) ground of appeal is that the primary judge erred in finding that on the proper construction of cl 7.1(2) the appellant was in breach of that provision by parking his vehicle on the northern side of the carriageway facing in a westerly direction.
The disposition of the appeal
It seems to me that cl 7.1(2), when read with the definition of 'carriageway', is quite clear. It provides for two circumstances. One is where a vehicle is parked on a part of the carriageway where there is a marked lane or a line of traffic, in which case it must be parked to face the direction of travel in that marked lane or line of traffic. The other is where the vehicle is parked on a part of the carriageway where there is no marked lane or line of traffic (such as a shoulder or embayment), in which case it must be parked to face the direction of travel in the marked lane or line of traffic on the part of the carriageway next to where the vehicle is parked.
I do not understand how it could be read otherwise. On the appellant's argument, the effect of cl 7.1(2) would be to stipulate that a driver who parks a vehicle on a two‑way carriageway must park it facing in one direction of travel or the other. As that would seem to exhaust the realistic possibilities, the appellant (understandably) was unable to suggest the purpose of a law to that effect. In any event, such a construction does not accord with the language of the provision.
The appellant's vehicle was parked on a part of the carriageway where the line of traffic was in an easterly direction of travel. The vehicle was therefore required to be parked facing in an easterly direction. Instead it was parked facing in a westerly direction. It follows that the appellant was correctly convicted of the offence and his application for leave to appeal to the primary judge was properly dismissed.
Conclusion
The ground of appeal has no prospect of success and the application for leave to appeal must be dismissed.
MAZZA J: I agree with Newnes JA.