Gilbert v CEO Chief Executive Officer Cockburn Council
[2022] WASC 419
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: GILBERT -v- CEO CHIEF EXECUTIVE OFFICER COCKBURN COUNCIL [2022] WASC 419
CORAM: FORRESTER J
HEARD: 24 NOVEMBER 2022
DELIVERED : 9 DECEMBER 2022
FILE NO/S: SJA 1094 of 2021
BETWEEN: PETER JOHN GILBERT
Appellant
AND
CEO CHIEF EXECUTIVE OFFICER COCKBURN COUNCIL
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE P MALONE
File Number : FR 6562 of 2021
Catchwords:
Criminal law – Appeal against conviction – Parking infringement – Effect of any inconsistency between City of Cockburn local parking law and the Road Traffic Code 2000 – Whether any inconsistency exists – City of Cockburn Parking and Parking Facilities Local Law 2007 cl 33(f) – Road Traffic Code 2000 reg 166 – Local Government Act 1995 s 3.7 – Whether the appellant was deprived of a reasonable opportunity to make submissions
Legislation:
City of Cockburn Parking and Parking Facilities Local Law 2007
Criminal Appeals Act 2004 (WA)
Criminal Code
Interpretation Act 1984 (WA)
Local Government Act 1995 (WA)
Road Traffic Act 1974 (WA)
Road Traffic Code 2000 (WA)
Result:
Leave to appeal refused on ground 1
Leave to appeal refused on ground 2
Appeal dismissed
Representation:
Counsel:
| Appellant | : | In Person |
| Respondent | : | N P Sloan |
Solicitors:
| Appellant | : | In Person |
| Respondent | : | McLeods |
Cases referred to in decision:
Defendi v Szigligeti [2019] WASCA 115
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
FORRESTER J:
Introduction
Mr Gilbert was initially issued a $100 parking infringement for parking on a footpath. He declined to pay the infringement and was prosecuted. After trial, the magistrate found him guilty, whereupon Mr Gilbert was fined $200 and ordered to pay costs of $2,011. He now appeals that decision.
Mr Gilbert argues that the City of Cockburn parking law under which he was prosecuted is invalid because it is inconsistent with a regulation contained in the Road Traffic Code 2000 (WA) (RTC).
He also argues that the magistrate failed to allow him to present his argument and failed to properly consider his submissions and that there has therefore been a miscarriage of justice.
The principal issue I must determine is whether any inconsistency would render the City of Cockburn parking law invalid and, if so, whether there was such an inconsistency.
Legislation referred to at the trial
It is convenient to first set out the relevant provisions which were in issue at the trial.
The provision under which the appellant was being prosecuted was cl 33(f) of the City of Cockburn Parking and Parking Facilities Local Law 2007 (City of Cockburn parking law), which relevantly states:
Subject to any law relating to intersections with traffic control signals, a person shall not stop or park a vehicle so that any portion of the vehicle is -
…
(f)on or over a footpath or a place of refuge for pedestrians.
Regulation 166 of the Road Traffic Code (RTC), which relevantly states:
(1)A driver must not stop a vehicle so that any portion of the vehicle is in front of a path, in a position that obstructs access by vehicles or pedestrians to or from that path, unless —
(a)the driver is dropping off, or picking up, passengers; or
(b)the driver stops in a parking bay and the driver is permitted to stop in the parking bay under these regulations.
Modified penalty: 1 PU
Section 3.7 of the Local Government Act 1995 (WA) (LGA) provides:
A local law made under this Act is inoperative to the extent that it is inconsistent with this Act or any other written law.
Facts relevant to the appeal
At the hearing of the appeal, the appellant indicated that the facts upon which the prosecution was based were not in dispute.[1] I will accordingly proceed on the basis that on 28 May 2021, the appellant parked his motor vehicle on a footpath on Eucalyptus Drive, Hammond Park.
[1] Transcript, WA Police v Peter John Gilbert, Magistrates Court of Western Australia, 8 December 2021, 21 (Transcript of Proceedings 8 December 2021).
The appellant acknowledges that his sole defence at trial was the inconsistency issue he raises on this appeal.[2] It is therefore unnecessary for me to set out the evidence adduced at the trial. However, it is necessary to set out the manner in which the appellant's argument was dealt with at trial.
[2] At the trial, the appellant argued that, had he been prosecuted under the RTC, he would have had a defence in that he was picking up a passenger. It is not necessary to deal with that issue in this appeal.
The trial
The trial proceeded on 8 December 2021. In opening, the prosecutor raised the argument he understood would be made by the appellant as to the inconsistency between cl 33(f) of the City of Cockburn parking and reg 166 of the RTC.[3]
[3] Transcript of Proceedings 8 December 2021, 4.
The prosecutor submitted that there was no inconsistency. He argued that the two instruments operated together, that the appellant could be prosecuted under either, and the prosecution had elected to prosecute under the City of Cockburn parking law.[4]
[4] Transcript of Proceedings 8 December 2021, 4.
After the prosecutor opened, the appellant addressed the magistrate and said:
My disagreement isn't with their photos or their evidence…I'm quite happy to accept their evidence … It's just my issue is, under the Local Government Act, quite clearly it states if there's an inconsistency, that's void. And there's a defence under the Road and Traffic Act to parking on a footpath, which is picking a passenger up or dropping them off. It applies to verges, footpaths, and all of those sorts of areas, and that is exactly what I was doing at the school.[5]
[5] Transcript of Proceedings 8 December 2021, 8.
The magistrate responded:
I'm not saying for a microsecond that you don't - you mightn't have a defence that gets imported into the local law. In all probability, you would have the defences under the Criminal Code. Your argument that you have a defence that imports into the local traffic law under the Road Traffic Code is a bit more interesting, a bit more challenging. But yet, you might have a defence. Nobody's arguing with that. It will just be the question of what that defence is.[6]
Prosecution closing submissions on the inconsistency issue
[6] Transcript of Proceedings 8 December 2021, 8.
The prosecutor addressed the appellant's contention that cl 33(f) of the City of Cockburn parking law was inconsistent with the RTC and again submitted there was no inconsistency. He submitted that the RTC is an instrument which applies across the State, while the City of Cockburn parking law applies only in the district, and that they operate alongside each other. He submitted there was nothing prohibiting the local government from enacting local laws which regulated parking under the LGA.[7]
[7] Transcript of Proceedings 8 December 2021, 33 - 34.
The magistrate expressed the view that, whilst the Criminal Code defences apply unless a particular statute excludes them, the defences in the RTC have no broader application than to the RTC, a view which the prosecutor supported.[8]
Appellant's closing submissions on the inconsistency issue
[8] Transcript of Proceedings 8 December 2021, 34.
In closing, the appellant asked if he could pass up some written submissions. The transcript records the magistrate as agreeing to accept them.[9] However, the appellant claims on this appeal that the submissions were never in fact handed up, and that his Honour did not read them. The respondent concedes that the transcript at least suggests that the magistrate did not read the submissions and does not press for an alternative finding.[10]
[9] Transcript of Proceedings 8 December 2021, 36.
[10] ts 13 - 14.
The appellant orally raised his argument regarding s 3.7 of the LGA and what he submitted was an inconsistency between the City of Cockburn parking law and the RTC. As part of his argument, he submitted, in effect, that if the RTC applied, he would have a defence to the infringement.[11]
[11] Transcript of Proceedings 8 December 2021, 37 - 38.
His Honour pointed out that there was no evidence as to the circumstances in which the appellant drove onto the footpath other than that there was nowhere else to park.[12] From this, and the exchange between his Honour and the prosecutor referred to at [16] above, it is apparent that the magistrate had not appreciated the full extent of the appellant's submission.
[12] Transcript of Proceedings 8 December 2021, 39 - 40.
After an exchange between the magistrate and the appellant regarding the RTC offence, led by the magistrate, the magistrate invited the appellant to 'keep going' with his submissions and allowed him to continue uninterrupted.[13]
[13] Transcript of Proceedings 8 December 2021, 40.
The appellant then again submitted that, due to an inconsistency with the RTC, cl 33(f) of the City of Cockburn parking law 'needs to be invalidated' and that his Honour should find that the City of Cockburn did not have the power to fine him for his conduct.[14]
[14] Transcript of Proceedings 8 December 2021, 40 - 41.
The Magistrate's findings
The magistrate delivered oral reasons for his verdict.
His Honour summarised the issue taken by the appellant as being that
…because there is a provision in the Road Traffic Code that allows you to obstruct a footpath in the event that you're picking up or dropping off, that somehow this invalidates the City of Cockburn provision 33(f).[15]
[15] Transcript of Proceedings 8 December 2021, 42.
His Honour held that the submission of the appellant lacked any substance, holding:
It certainly is the case that 33(f) doesn't contain within it any specified defences, but…there is a series of statutory defences that, no doubt, in the right evidentiary circumstances, would have application and they would include such things as emergency and that sort of thing. The fact that the Road Traffic Code provides a provision in respect of its operation, which is something that's a matter for police officers and any prosecutions run by police, that contains within that section a defence has no application other than to the Road Traffic Code.
…
At the end of the day, Mr Gilbert is wanting me, obscurely, to say that he was simply picking up and dropping off his child so he could do that under whichever way Mr Gilbert wanted to do it, so that, if he parked fairly and squarely on the footpath, he could just do that because, in that general sense, the only reason he was there was to pick up his son and the only - or to drop off his son, so, therefore, ipso facto, it followed that, if you've got a provision in the Road Traffic Code, that governs what's in the parking facilities bylaw and that makes the local law invalid. It's just an argument without any substance.[16]
[16] Transcript of Proceedings 8 December 2021, 42 - 43.
His Honour found that the provision was clearly valid, the prosecution had made out the factual circumstances, and no defence had been raised. He concluded the charge had been made out beyond reasonable doubt and convicted the appellant.[17]
[17] Transcript of Proceedings 8 December 2021, 43.
Grounds of Appeal
The appellant's initial appeal notice, filed on 30 December 2021, contained six grounds of appeal. He filed written submissions on 27 May 2022, which contained what appeared to be six further grounds of appeal, although there was significant overlap in the various grounds.
However, on 14 November 2021, the appellant filed a further document, entitled 'Applicant's proposed amended grounds of appeal.' At the hearing of the appeal, he stated clearly that he no longer wished to proceed on the basis of the earlier documents he had filed, but was prepared to proceed on the basis of the most recent document only.[18] When clarification was sought from him, he agreed that his sole grounds of appeal were, in effect:
(1) the magistrate made an error of law by refusing to permit the appellant to properly make submissions as to his argument regarding the invalidity of the City of Cockburn parking law, thereby giving rise to a miscarriage of justice; and
(2) pursuant to s 3.7 of the LGA, the City of Cockburn parking law was procedurally and substantively invalid as a result of the inconsistency between cl 33(f) of the City of Cockburn parking law and reg 166 of the RTC.[19]
[18] ts 3 - 8.
[19] ts 4 - 5.
Leave to Appeal – legal principles
The application for leave to appeal is made under div 2 of pt 2 of the Criminal Appeals Act 2004 (WA) (CA Act). A decision to convict an accused after a trial is a decision which may be appealed.[20]
[20] CA Act s 6(c) and s 7(1).
Leave to appeal must not be granted on a ground of appeal unless the court is satisfied that the ground has a reasonable prospect of succeeding,[21] meaning that the ground is required to have a rational and logical prospect of succeeding.[22] Unless leave to appeal is granted on at least one ground, the appeal is taken to have been dismissed.[23]
[21] CA Act s 9(2).
[22] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
[23] CA Act s 9(3).
Even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.[24]
[24] CA Act s 14(2).
Disposition of the appeal
Ground 1
It is convenient to deal with Ground 1 first because, if there was no error, there will be no miscarriage of justice even if Ground 2 were made out.
Does an inconsistency between the City of Cockburn parking law and the RTC render the City of Cockburn parking law invalid?
There is some dispute as to whether there is in fact an inconsistency between the City of Cockburn parking law and the RTC. However, the anterior question is whether, even if there were an inconsistency, it would render the City of Cockburn parking law invalid or of no application.
Section 3.7 of the LGA provides:
A local law made under this Act is inoperative to the extent that it is inconsistent with this Act or any other written law.
The term 'local law' means a local law made by a local government under the Act in which the term is used.[25] The City of Cockburn parking law is made by the City of Cockburn under the LGA[26] and is thus a 'local law'.
[25] Interpretation Act 1984 (WA) s 5.
[26] Exhibit P2.
The term 'written law' means all Acts for the time being in force and all subsidiary legislation for the time being in force.[27]
[27] Interpretation Act 1984 (WA) s 5.
The definition of subsidiary legislation includes any 'regulation' or 'local law'.[28]
[28] Interpretation Act 1984 (WA) s 5.
The RTC is a set of regulations made under the Road Traffic Act 1974 (WA).[29] The RTC therefore constitutes a written law.
[29] Interpretation Act 1984 (WA) s 5.
Accordingly, if s 3.7 of the LGA applied, any inconsistency between the RTC and the City of Cockburn parking law would, on the face of it, render the City of Cockburn parking law inoperative to the extent of the inconsistency.
However, reg 8 of the RTC states:
(1) Where, in any particular case, the parking or stopping of a vehicle constitutes an offence against local laws in force in a local government district under the provisions of Part 3 Division 2 Subdivision 1 of the Local Government Act 1995, the parking or stopping of that vehicle does not constitute an offence against the provisions of this Code (other than regulation 108).[30]
(2) Where a parking or stopping offence against a local law to which subregulation (1) applies is subject to conditions or exceptions, then a person who complies with all the conditions or is subject to the exceptions does not commit an offence under either the local law or this Code.
[30] Reg 108 of the RTC has no application in this case.
There is no dispute that the City of Cockburn parking law, including cl 33(f), was made under pt 3 div 2 subdiv 1 of the LGA, specifically s 3.5, which relevantly provides:
(1) A local government may make local laws under this Act 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 it to perform any of its functions under this Act.
The appellant contended that the RTC was intended to constitute the entirety of the law relating to the behaviour of road users, including parking and that reg 8 therefore does not apply. He submitted that reg 8 permits the council to 'add on but not to contradict things that are fundamental in the RTC.'[31]
[31] ts 12 - 13.
This contention cannot be sustained. Regulation 8 expressly contemplates that local laws will be made in relation to parking or stopping of vehicles and provides that, in that event, the local law would prevail over the RTC.
The result of the application of reg 8 of the RTC is that, if the parking or stopping of the appellant's vehicle constituted an offence under the City of Cockburn parking law, it could not constitute an offence under the RTC.
As a result, there is no inconsistency between the RTC and the City of Cockburn parking law. Section 3.7 of the LGA therefore has no application to this case.
That is a complete answer to the appellant's contention that cl 33(f) of the City of Cockburn parking law and reg 166 of the RTC are inconsistent and that cl 33(f) of the City of Cockburn parking law is therefore invalid. Notwithstanding this, I propose to deal with the appellant's other arguments on the appeal.
Is there an inconsistency between the City of Cockburn parking law and the RTC?
Even if the appellant's argument that reg 8 of the RTC does not apply were to be accepted, it is my view that there is no inconsistency which could assist the appellant in this case.
The appellant submits that an inconsistency would render the City of Cockburn parking law 'invalid', meaning of no legal force. However, the meaning of 'inoperative to the extent of the inconsistency' is different to 'invalid'. At its highest, s 3.7 of the LGA could only mean that the City of Cockburn parking law would not operate insofar as there was an inconsistency. It could not make it 'invalid'.
Clause 33(f) of the City of Cockburn parking law prohibits parking 'on or over a footpath or a place of refuge for pedestrians'. Regulation 166 of the RTC prohibits a person stopping a vehicle or a portion of it in front of a path, in a position which obstructs access by vehicles or pedestrians to or from that path.
The words 'path' and 'footpath' are separately defined in the RTC, such that 'path' has a wider meaning than 'footpath' (but includes a 'footpath').[32]
[32] RTC reg 3.
The words 'in front of' do not mean the same as 'on'. The latter means 'on top of', whereas the former means 'ahead of.' Accordingly, the RTC addresses a different situation to cl 33(f) of the City of Cockburn parking law and there is not necessarily any inconsistency.
However, it is possible to contemplate a factual scenario which constitutes an offence against both the RTC and cl 33(f), such as where a vehicle is parked partly on a footpath and partly in front of it, such that it obstructs access to the path. If reg 8 did not operate to prevent that conduct being an offence under the RTC, s 3.7 of the LGA would render the City of Cockburn parking law inoperative only to the extent of the inconsistency, that is, the RTC would prevail in such a case.
However, that does not assist the appellant. A vehicle parked wholly on a footpath, as the appellant's was in this case, could in no way be said to be parked 'in front of it'. There is therefore no inconsistency between the RTC and the City of Cockburn parking law in this case which would require the latter to be rendered inoperative, even if reg 8 did not apply.
Ground 2
The appellant submits that the magistrate failed to allow the appellant to properly make his submissions. On appeal, he argued that the proper conduct of the trial required that he be provided with the opportunity to make full submissions orally, or at least the magistrate should have properly considered his written submissions, and in this case that did not occur.[33]
[33] ts 22 - 23.
Having regard to my decision on Ground 1, even if this ground were to succeed, it would not result in a different decision being made. Accordingly, no miscarriage of justice could arise. However, I will deal with it briefly, as it was a significant focus of the appellant's submissions on the appeal.
A court is obliged to accord procedural fairness to a litigant. For the purposes of this case, the fundamental requirement of procedural fairness is that a party be given a reasonable opportunity to be heard, that is, to present their case by evidence, information and submissions. What is necessary to meet the requirements of procedural fairness, and to avoid practical injustice, will depend on the circumstances.[34]
[34] Defendi v Szigligeti [2019] WASCA 115, [45] - [48].
It has already been noted that it does not appear from the transcript that the magistrate read the appellant's written submissions. It is also apparent from the transcript that, at times, the appellant's submissions were interrupted and, to some extent, diverted by the magistrate's interjections on related, but different matters.
From the reasons for decision which were given by the magistrate, it is apparent that he did not fully appreciate the extent of the appellant's argument which is made on this appeal. This is unsurprising; from the transcript, it is evident that the appellant's argument as made on appeal was not as fully expressed at the trial.
However, I am unable to accept that the appellant was not given a reasonable opportunity to make his submissions. Towards the end of his closing submissions, the applicant was permitted to speak without interruption and there is no suggestion that he was prevented from completing his submission. The fact that the appellant may have failed to present his argument as fully as he may have wished, as a result of nerves or feeling under pressure does not mean he did not have a reasonable opportunity to put his case.
As I have observed, even if the appellant should have been given a greater opportunity to make his submissions, those submissions could not have succeeded. Accordingly, no miscarriage of justice could arise from the failure to provide him with a greater opportunity to make them.
Conclusion
Neither ground has any reasonable prospect of success. Leave to appeal in relation to each of them is therefore refused. As a result, the appeal is taken to be dismissed.
Leave to appeal is refused on Ground 1.
Leave to appeal is refused on Ground 2.
The appeal is dismissed.
I will hear from the parties as to costs.
I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.
AT
Associate to the Honourable Justice Forrester
9 DECEMBER 2022
3
0