Finikiotis v City of Tea Tree Gully

[2007] SASC 32

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

FINIKIOTIS v CITY OF TEA TREE GULLY

[2007] SASC 32

Judgment of The Honourable Justice Anderson

6 February 2007

MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - NATURE OF APPEAL

MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - SUMMONS - PROOF AND SUFFICIENCY OF SERVICE

LOCAL GOVERNMENT - REGULATION AND ADMINISTRATION - OFFENCES AND PENALTIES - PARTICULAR OFFENCES AND CONDUCT INVOLVING PENALTIES

Appellant charged with depositing rubbish on a public road or place – appellant not in attendance at hearing before Magistrate – appellant convicted in his absence – appellant applied for re-hearing on basis that summons not properly served – conviction upheld by Magistrate in re-hearing – appellant appealed to Supreme Court – whether Magistrate erred in convicting appellant – whether appellant was provided a proper hearing – whether summons was properly served.  Held: Appeal dismissed – conviction upheld – appellant was given a fair hearing before Magistrate – summons was properly served.

Local Government Act 1999 (SA) 235, referred to.

FINIKIOTIS v CITY OF TEA TREE GULLY
[2007] SASC 32

Magistrates Appeal

ANDERSON J

Introduction

1. Mr Finikiotis appeals from a conviction by a Magistrate at Holden Hill on 21 August 2006. He was convicted on two counts of depositing rubbish on a public road or place without authority. The dates of the offences were 30 December 2005 and 16 January 2006 respectively. The offences are created by s 235 of the Local Government Act 1999 (SA) (“the Act”).

2. Mr Finikiotis did not attend the hearing before the Magistrate and was convicted in his absence.  He had been served on 26 July 2006 with a complaint and summons relating to the offences.  The proof of service was endorsed on the complaint and summons by an officer of the respondent and placed before the Magistrate.

3. Mr Finikiotis asked for and obtained a re-hearing before the same Magistrate because he said that he had not been properly served and did not know that he had to attend on the time and date appointed on the summons. 

4. The Magistrate heard submissions at the re-hearing from Mr Finikiotis, although Mr Finikiotis disputed whether he was given the opportunity to explain his position properly.  The Magistrate heard the arguments that the appellant would have put had he attended on the first occasion.  Having heard the submissions by Mr Finikiotis, her Honour was not prepared to set aside the orders that she had made previously.  She found specifically that the summons was properly served and that, on hearing Mr Finikiotis’ argument relating to the merits of the alleged offence ruled that "there is little chance of successfully fighting the charges".

5. Mr Finikiotis' notice of appeal to this court states as follows:

   1.       The offence described in the expiation notice and in the judgment order is denied.

   2.       No proper hearing to ascertain the facts and evidence was conducted.

   3.The summons was not served and the proof of service section was not signed and was left blank.

6. I requested a report from the Magistrate because Mr Finikiotis disputed that he had made submissions on the re-hearing similar to the ones that he made before me.  I allowed him to put the submissions so that he could tell me what it was that he was arguing, because at that time I had not heard from the Magistrate.  Mr Dickinson, counsel for the respondent, maintained that Mr Finikiotis had been given a full opportunity by the Magistrate to make submissions on the re-hearing as to what his argument was and that Mr Finikiotis proceeded to do so.  As it turns out, I am convinced that the submissions made before me covered more or less the same ground as the submissions which Mr Finikiotis made to the Magistrate.  This is because of the report I have received from the Magistrate which confirms that to be the case.

   Background

7. In summary, Mr Finikiotis deposited dead tree branches on the verge outside his house.  He said this was to prevent a possible accident which may have otherwise been caused by vehicles from a neighbouring residence parking on the verge.  He said that it was necessary to do so because he had advised the council of the potential danger created by these vehicles to users of the verge, including pedestrians.  He maintained that the council took no notice of his suggestions.  He claimed therefore that he placed the dead braches on the verge to prevent parking.

8. He produced photographs to me which were tendered in evidence before the Magistrate.  The photographs illustrate the branches on the verge.  I must say, that this created quite an unattractive aspect at the front of his house.  The council, not surprisingly, took action and charged him with depositing rubbish.  The fact is that he did deposit the branches there and admits that.  Furthermore, the branches are definitely rubbish.

9. Mr Finikiotis says that he didn’t know that he had to attend the initial hearing.  The summons makes it quite clear that if he didn’t attend on the date and at the time nominated on the summons, namely, 21 August 2006 at 2:15 pm, the court could proceed in his absence.  Furthermore, the summons indicated that if he did not attend court, he could be convicted and fined in his absence.  His argument about the proof of service not being completed is nonsensical.  Service was by post.  After service was effected by post, a proof of service was completed and provided to the court.  Of course it was blank at the time it was served on Mr Finikiotis because up until that time he had not been served.  I reject the argument. 

10. In any event, the Magistrate provided him with a re-hearing and heard his submissions.  Having heard the same submissions myself, I agree entirely with her Honour that there was no chance of successfully fighting the charges. 

11. He argued before me that he had a defence in any event concerning s 235(3) of the Act. He had been charged pursuant to s 235(1) of that Act. Subsection (3)(a) states:

    (3)It is a defence to a charge of an offence against subsection (1) to establish—

    (a)that the act subject to the charge was done by or with the consent of the owner of the land on which the act was done…

12. Section 235(3)(a) applies to the owner of the land. The owner of the land is the council. Mr Finikiotis seemed to think that he was the owner of the land, but that is clearly not so.

    Summary

13. In summary I agree with the learned Magistrate that the summons was properly served.  I agree with her Honour that there was nothing in the argument which would have made any difference had Mr Finikiotis presented himself on the first occasion.  The Magistrate heard the appellant's argument on the re-hearing and found it to be without merit.  There was nothing in any of the points made in argument before me that changed the situation from what it was before the Magistrate on the re-hearing.  The offences were properly proved before the Magistrate.

14. In the circumstances, I dismiss the appeal.