Clements v Town of Claremont

[2011] WASC 193

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   CLEMENTS -v- TOWN OF CLAREMONT [2011] WASC 193

CORAM:   McKECHNIE J

HEARD:   2 AUGUST 2011

DELIVERED          :   2 AUGUST 2011

FILE NO/S:   SJA 1034 of 2011

BETWEEN:   PHILLIP CLEMENTS

Appellant

AND

TOWN OF CLAREMONT
Respondent

ON APPEAL FROM:

Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram  :DEPUTY CHIEF STIPENDIARY MAGISTRATE A E WOODS

File No  :PE 18834 of 2010

Catchwords:

Road traffic - Parking - Whether parked vehicle pointing the right direction - No new principles

Legislation:

Road Traffic Code 2000 (WA)
Town of Claremont Parking and Parking Facilities Local Law

Result:

Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     In person

Respondent:     Mr T L Beckett

Solicitors:

Appellant:     In person

Respondent:     McLeods

Case(s) referred to in judgment(s):

Nil

1. McKECHNIE J:  Mr Clements parked his vehicle in a quiet street in Claremont and was ticketed for it.  He was convicted after trial but the magistrate imposed an infringement penalty of $45 anyway.  Undeterred, he comes late to this court seeking an extension of time within which to appeal.  The reason why he was late would justify an extension if there was any merit in the proposed grounds of appeal.  There is not and leave should be refused. 

2. As amended, the somewhat compendious charge alleged that:

   Mr Phillip Clements, 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, 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. 

3. Mr Atkins, a ranger with the Town of Claremont, gave evidence that at approximately 2.50 pm he noticed the Volvo facing in the incorrect direction.  He took photos of it.  Kingsmill Street is a residential two way street with traffic going both east and west.  There was no obvious breakdown or flat tyre and he issued an infringement notice.  Mr Clements did not dispute he was the driver and the person who had parked the vehicle in that spot. 

4. There are three grounds of appeal.  The essence of ground 1 is that the magistrate should have held that the Volvo was correctly parked.  The Local Law cl 7.1(2) provides:

   The driver of a vehicle should 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. 

5. Each party submitted that the clause is unambiguous and therefore should be construed in the manner for which they contend.  Notwithstanding the debate, the clause is unambiguous, but not in the way that Mr Clements contends. 

6. The term 'carriageway' is an ancient term and is defined by cl 1.3(1) of the Local Law.  Kingsmill Street is a carriageway. 

7. Mr Clements was required under cl 7.1(2) to park the Volvo facing the direction of travel of the line of traffic in Kingsmill Street.  He did not.  Instead of parking his vehicle facing west, he should have parked his vehicle facing east.  To argue that he was next to the westerly line of traffic is specious in the context of cl 7.1(2).  Mr Clements parked on the carriageway, not next to it.  Clause 7.1(2) is clear in its terms and unambiguous, contrary to the assertion in the second ground of appeal, which in fairness to Mr Clements was his alternative submission should the first ground fail.  The evident purpose of cl 7.1(2) is to prevent vehicles being parked so as to potentially confuse other motorist by night or day.  However, it is unnecessary to construe the clause by its purpose as its meaning is clear. 

8. As to ground 3, the magistrate said: 

   That people who are responsible for driving and parking of motor vehicles, are well aware that the requirement is that the motor vehicle when parked, is parked facing the direction of travel.

9. People should be aware of such a requirement because it forms part of the Road Traffic Code 2000 (WA) reg 176(2), which is in the same terms as the Local Law, and ignorance of the Traffic Code does not excuse its breach. 

10. I do not consider that the magistrate's remarks read in context are in error, but even assuming that they are factual observations not supported by the evidence before her, the result remains the same.  The essential facts in this case were admitted and are not in issue.  The sole decision for the magistrate was the construction of the Local Law.  In this she did not err.  Even if the comment made was not open on the evidence, it led to no error or miscarriage of justice and the appeal is dismissed.