Gordon Leslie Howie v Robert Henry Marsh No. SCGRG 92/1649 Judgment No. 4804 Number of Pages 8 By-laws and Regulations
[1994] SASC 4804
•27 October 1994
COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA KING CJ (2), MILLHOUSE(1) AND DEBELLE(3) JJ
CWDS
By-laws and regulations - Appeal against decision of a magistrate convicting appellant of parking on a clearway - appellant parked motor vehicle in area designated a clearway - council sign in same area allowing half hour parking "at all times" - clearway not 'prescribed' in accordance with 5176(c) RoadTraffic Act - appeal allowed. Road Traffic Act (SA) sS176 and 177 and ActsInterpretation Act (SA) s 4. Howie v Fuss 149 LSJS 50, not followed.
HRNG ADELAIDE, 6 September 1994 #DATE 27:10:1994
Appellant: In person
Counsel for respondent: Mr A Moss
Solicitors for respondent: Crown Solicitor (SA)
ORDER
Appeal allowed.
JUDGE1 MILLHOUSE J On 22 August 1991 Mr Gordon Leslie Howie parked and left his car on a part of the Goodwood Road at Daw Park which was shewn, by signs, to be at the time a clearway. A police officer saw what Howie had done and reported him for an offence. The hook had been baited and the fish had taken it.
2. In due course Mr Howie was charged with having:-
"On the 22ND day of AUGUST, 1991 at DAW PARK in the said
State on a road namely GOODWOOD ROAD permitted a vehicle
namely a CAR to remain standing on a Clearway.
Regulations 4.07 and 11.01 of the Road Traffic Regulations,
1962."
3. The crucial part of Regulation 4.07, on 22 August 1991 reads:-
"'4.07 Clearways
(1) In this regulation:
"Clearway" means a prescribed part of a road during
prescribed times;
...
"prescribed part" means;
(a) the left hand portion of a two-way carriageway; or
(b) the whole of the width of a one-way carriageway, bounded
longitudinally by prescribed signs;
"prescribed signs" means two Clearway signs or a Clearway
sign and an End Clearway sign (in that sequence) positioned
on a road on the left of and facing the permitted direction
of travel of vehicles on that road;
"prescribed times" means the days and times displayed on a
Clearway sign which is a prescribed sign;"
4. The effect of this regulation is that a clearway is created when the signs at each end of a carriageway have been erected shewing it to be a clearway. No paper work at all - or at least none disclosed to the public. I suppose there must be some description of where the clearway is in some file in the Department of Transport. The scheme saves all the trouble of having to describe and publish where the clearways in the State are - very much easier for the Executive than the tedious business of description (although I expect the advantage claimed would be "flexibility").
5. Mr Iuliano SM heard the complaint in the Adelaide Magistrates Court. Mr Howie argued his own case. The learned special magistrate convicted him: he gave reasons: he set out the facts:-
"The evidence is that the defendant's vehicle was parked on
the western side of Goodwood Road facing a northerly
direction at 7.50 a.m. on the 22nd August 1991 in a Clearway.
There were a number of Clearway signs erected on the western
side of Goodwood Road, the nearest being some 35 metres to
the rear of the defendant's vehicle which indicated a
Clearway with the appropriate "C" and further letters "7.30 -
9.00 a.m. Monday to Friday" and there were also yellow lines
painted on the kerb. There was also another sign erected
just to the rear of the defendant's car which was a Council
parking sign which read, and I quote, "(Half) hour parking at
all times".
6. Amongst other points Mr Howie argued that the clearway had not been "prescribed" in the Regulation therefore the area, although shewn by signs to be a clearway, was not one. Another was of the inconsistency between the clearway signs prohibiting parking at the time he parked there and the Council sign allowing parking for half an hour "at all times": he argued that the Council sign prevailed over the clearway sign: therefore he was within his rights and not committing any offence.
7. Mr Howie was convicted.
8. In his Reasons Mr Iuliano said:-
"Mr Howie submitted that the Clearway signs had been
unlawfully erected, firstly because the Department of Road
Transport did not have any authority to control the activity
of the public with respect to the driving, standing or
parking of vehicles on any road and certainly had no
authority to erect Clearway signs on Goodwood Road. This
issue was dealt with in the case of HOWIE v. FUSS, a judgment
of Mr. Justice Bollen in Judgment Number 1272 delivered on
the 31st January 1989 and, in particular, at page 8 thereof.
There it was stated that the Government has power to make
regulations pursuant to Section 176 of the Road Traffic Act
"for improving or regulating the flow or management of
traffic". The Government has made the Regulation creating
the Clearway, namely Regulation 4.07, which leaves the fixing
of the Clearway to some unnamed person or authority by
erecting the required signs which come within the definition
of traffic control devices, pursuant to Section 5 of the Road
Traffic Act. ...
Mr. Howie also raised an interesting point that there were
conflicting signs erected along that kerb. The Clearway
signs which were lawfully erected as I have found above, gave
warning there was a Clearway along that kerb between the
hours of 7.30 to 9.00 a.m. Monday to Friday, whereas the
Council parking signs which were apparently erected in
accordance with Council by-laws, marked "(Half) hour parking
at all times". There's clearly a conflict between the two
signs and it may have caused some confusion with motorists,
and there is no doubt that Mr. Howie is right when he
submitted that it is another example of a clear lack of
co-operation and co-ordination between two authorities,
namely the Council and the Highways Department ...
I have regard to the provisions of Section 177 of the Road
Traffic Act which says:
"If a by-law made by a council is inconsistent with this Act
or a regulation made under this Act, this Act or the
regulation prevails and the by-law is, to the extent of the
inconsistency, invalid".
Thus, the Clearway signs erected pursuant to the Regulations
under the Road Traffic Act take precedence over the Council
erected signs."
9. (As to the second point we were told that the authority for the Council signs was parking regulations and not a Mitcham Council by-law: if that were so then s177 of the Road Traffic Act would not apply.)
10. Mr Howie appealed on 16 grounds. Cox J heard the appeal and was against the appellant on all but two grounds. He referred those two to the Full Court. The two grounds referred concern the two matters I have already canvassed:-
"(4) If on and after 15 July, 1991 the carriageways of
Goodwood Road south of the portions of same mentioned in
Regulation 4.07 of the Road Traffic Regulations 1962-1982
were to be clearways then the Governor should have made
regulations specifying those portions to be clearways
pursuant to Section 176(1)(c) of the Road Traffic Act 1961.
...
(16) As the parking signs were in position in accordance with
the Parking Regulations 1981 as continued by the Local
Government (Parking) Regulations 1991 the indications of
these signs prevailed over any signs erected by the
Department of Road Transport."
11. The appellant argued the points himself. Mr Allan Moss, Assistant Crown Solicitor, appeared for the respondent.
12. We heard Mr Moss on the first ground.
13. The question is this. Is it a sufficient "prescription" of a clearway merely to provide in the Regulation that a clearway is where signs on the ground shew it to be or must the area of each clearway be described in the Regulation?
14. Mr Moss argued that
"prescribed can still mean prescribed by the regulations
without going into the depth of detail that Mr Howie would
wish to have in the regulation, so, very simply I say that
modern drafting techniques are designed to promote a
flexibility ...".
15. I don't think this clearway - and the same probably may be said of all clearways but I don't know about them - has been "prescribed" at all.
16. The power to make Regulation 4.07 is in s.176 of the Road Traffic Act.:-
" 176. (1) The Governor may make regulations for, or with
respect to, all or any of the following matters:
...
(c) prohibiting, regulating or restricting the driving,
standing or parking of vehicles on prescribed roads or parts
of roads, or on roads or parts of roads within a prescribed
area;
..."
17. Mr Moss submitted that, contrary to what I have just said, the power does not arise under (c) but arises from (l):-
" (l) prescribing any matters, additional to those
prescribed in this Act,which it is necessary or convenient to
prescribe for securing the safe or convenient operation of
vehicles and the safety or convenience of persons on roads or
for improving or regulating the flow or management of
traffic; ..."
18. That cannot be so because (l) gives the power only with regard to matters "additional to those prescribed in this Act". (c) has already given the power in relation to "standing or parking" so (l) cannot give power in relation to "standing or parking" but only to other, "additional" matters.
19. Section 176 (c) refers to "a prescribed area".
"Prescribed" in s4 of the Acts Interpretation Act means:-
" (a) when used in an Act-prescribed by the Act or by a
statutory instrument made, or to be made, under the Act; and
(b) when used in a statutory instrument-prescribed by the Act
under which the statutory instrument was made, by the
statutory instrument itself or by some further statutory
instrument made, or to be made, under the Act under which the
statutory instrument was made;"
20. Mr Moss referred us to the decision of Howie v Fuss (149 LSJS 50). In that appeal Mr Howie was not successful. Bollen J (at 56) said:-
" The appellant said that the expression 'prescribed part' in
reg.4.07 (the 'Clearway regulation') does not prescribe
anything. He said that it leaves the fixing of the Clearway
to some unnamed person or authority.
I cannot agree. I think that the Governor has prescribed a
part of the road as a Clearway adequately. In the regulation
which he has made the Governor says that the 'prescribed
part' is the left-hand portion of the carriageway but between
signs fixing the longitudinal boundaries of each end of the
Clearway. I see nothing wrong with such a prescription even
though it, no doubt, leaves the placing of signs to someone
else."
21. With due respect to the learned Judge I suggest he was mistaken. In my view to "prescribe" in the context of s176(c) of the Road Traffic Act requires in the Regulation a precise description of the area which is to be a clearway. That is what Parliament has laid down. It is sensible too. The designation of a clearway merely by signs means that a citizen cannot know whether the signs have been placed where some public servant meant them to be: he cannot know whether the person putting the signs in the ground may have made a mistake, whether someone else may have moved the signs - and what if vandals were to deface or destroy or take the signs away?
22. Of course Parliament could empower the Executive to use the scheme which it has arrogated to itself but Parliament has not done so in s176 of the RoadTraffic Act: at present the Executive, is pretending to power it does not have.
23. All this means that there was in Law no "clearway" "prescribed" according to law where Mr Howie parked. Accordingly he was guilty of no offence. His appeal should succeed on that point.
24. It is therefore unnecessary to consider the other ground Cox J referred to us. The Council sign, whether it derived its authority from the Parking Rregulations or from a Council by-law, gave Mr Howie the right to park where he did and the sign was not contrary to any other sign with legal effect.
25. I suggest the appeal be allowed.
JUDGE2 KING CJ In my opinion this appeal should be allowed, the conviction should be set aside and the Complaint dismissed.
2. I agree with the reasons of Millhouse J.
JUDGE3 DEBELLE J Mr Howie, the appellant, pursues with unmitigated enthusiasm the cause of ensuring that authorities charged with the administration of traffic and parking laws act strictly within their statutory powers. On this occasion, his target is the Clearway system in the metropolitan area.
2. Mr Howie was charged with that, on 22 August 1991 at Daw Park, he permitted a car to remain standing on the Clearway on Goodwood Road contrary to Regulations 4.07 and 11.01 of the Road Traffic Regulations 1962. Goodwood Road runs north and south. The undisputed facts were that Mr Howie had parked his car on the western side of Goodwood Road facing in a northerly direction. At about 7.30 am on 22 August 1991 a police officer saw Mr Howie's car parked in that position. There were a number of Clearway signs erected on the western side of Goodwood Road, the nearest being some 35 metres to the rear of Mr Howie's car. The signs indicated a Clearway with the appropriate "C" and further letters "7.30-9.00am Monday to Friday" and there were also yellow lines painted on the kerb. There was also another sign erected just to the rear of the defendant's car. It was a Council parking sign which read "1/2 hour parking at all times". The police officer who reported Mr Howie's offence noticed an apparent inconsistency between the Council sign and the Clearway sign. He rang the City of Unley which had erected the sign. The Council removed the sign later the same day. Mr Howie gave evidence that he had deliberately parked at this point so that he could be reported and challenge the parking restriction.
3. Mr Howie was convicted of the offence. The learned magistrate who heard the complaint dismissed all of the arguments advanced by Mr Howie which challenged the validity of the Clearway restriction. Mr Howie appealed from that decision. The appeal was heard by Cox J who dismissed all but two of the points raised by Mr Howie. Those two points are
1. whether the Clearway had been lawfully prescribed on this
part of Goodwood Road; and
2. whether the sign which stated "1/2 hour parking" entitled
Mr Howie lawfully to park on that part of the Clearway.
Cox J referred those two questions to the Full Court for
determination pursuant to s.49 of the Supreme Court Act.
4. The source of the power to establish Clearways is s.176(1) of the RoadTraffic Act 1961 which enables the Governor to make regulations, among other things:
"(c) prohibiting, regulating or restricting the driving,
standing or parking of vehicles on prescribed roads or parts
of roads, or on roads or parts of roads within a prescribed
area"
5. This is the only power to make regulations concerning Clearways. Mr Moss, who appeared for the respondent, sought to call in aid s.176(1)(l) which enables the Governor to make regulations:
"prescribing any matters, additional to those prescribed in
this Act, which it is necessary or convenient to prescribe
for securing the safe or convenient operation of vehicles and
the safety or convenience of persons on roads or for
improving or regulating the flow or management of traffic"
6. However, as will have been noticed, paragraph (l) of s.176(1) is intended to supplement other provisions of s.176(1) by enabling regulations to be made providing rules as to matters in addition to those prescribed in the Act. If Mr Moss is correct, there would have been no need to enact all of the other provisions in s.176(1). The manifest scheme of s.176(1) is to enable the Governor to make regulations on a series of subjects and, if there are some matters remaining to be dealt with and which fall within the ambit of para (l), the Governor has power to make regulations concerning those matters. Where power already exists, as it does in s.176(1)(c), it is that power to which regard must be had. Section 176(1)(l), therefore, has no present application. If Regulation 4.07 exceeds the power to make regulations in s.176(1)(c), it must fall.
7. In purported compliance with s.176(1)(c), the Governor in Council made Regulation 4.07 of the Road Traffic Regulations, 1962. The relevant parts of Regulation 4.07 provide:
"(1) In this regulation:
'Clearway' means a prescribed part of a road other than a
service road, during prescribed times;
...
'left hand portion', in relation to a two-way carriageway
means:
(a) where the carriageway is divided by a dividing strip or
strips, the whole of the carriageway to the left of the
dividing strip or strips;
(b) where the carriageway is not divided by a dividing strip
or strips but is divided by a line or lines which is or are
intended to designate the centre of the carriageway, that
portion of the carriageway to the left of that line or those
lines;
(c) where the carriageway is not divided as in paragraph (a)
or (b) of this definition, that portion of the carriageway to
the left of an imaginary line drawn along the centre of the
carriageway;
...
'prescribed part' means:
(a) the left hand portion of a two-way carriageway; or
(b) the whole of the width of a one-way carriageway, bounded
longitudinally by prescribed signs;
'prescribed signs' means two Clearway signs or a Clearway
sign and an End Clearway sign (in that sequence) positioned
on a road on the left of and facing the permitted direction
of travel of vehicles on that road;
'prescribed times' means the days and times displayed on a
Clearway sign which is a prescribed sign;
...
'service road' means a carriageway or carriageways adjoining
a carriageway for through traffic, and constructed, intended
or used solely or mainly for servicing land, buildings or
other premises adjacent to any or all of those carriageways.
(2) For the purposes of subregulation (1) of this regulation:
'left' means the left hand side to a person driving a vehicle
along a carriageway int he lawfully permitted direction of
travel along that carriageway; and 'centre' includes
approximate centre.
(3) Except as provided in subregulation (5) of this
regulation, no person shall:
(a) stop a vehicle on a Clearway; or
(b) cause or permit a vehicle to remain standing on a
Clearway."
8. None of the exemptions referred to in subregulation (3) has any application in this case.
9. It will be noticed that Regulation 4.07 does not itself prescribe roads or parts of roads as Clearways where parking or standing is prohibited. Instead, it provides a means by which roads or parts of roads can be prescribed as Clearways. That is the gravamen of Mr Howie's complaint. He submits either that the Governor is the person who must prescribe the roads or parts of roads which are to be Clearways or at least that the regulation itself must prescribe the roads or parts of roads which are to be Clearways.
10. In ordinary parlance, the verb "prescribed" means to write first or beforehand and hence to write or lay down rules: see Oxford English Dictionary and Macquarie Dictionary. Thus "prescribed" means that which has already been written down. Parliament has picked up this ordinary usage of the word in s.4 of the Acts Interpretation Act, 1915 and defined "prescribed" to mean, in the absence of a contrary intention,
"(a) when used in an Act - prescribed by the Act or by a
statutory instrument made, or to be made, under the Act;
and
(b) when used in a statutory instrument - prescribed by the
Act under which the statutory instrument was made, by the
statutory instrument itself or by some further statutory
instrument made, or to be made, under the Act under which the
statutory instrument was made."
11. There is nothing in s.176(1)(c) or elsewhere in s.176 to indicate a contrary intention. Thus, the power in s.176(1)(c) to make regulations prohibiting the standing or parking of vehicles on prescribed roads or parts of roads or on roads or parts of roads in a prescribed area requires that the regulation itself names the roads or parts of roads or areas where parking or standing is prohibited. In the case of Clearways, the relevant regulation should itself prescribe the roads or parts of roads which are to be Clearways.
12. As Regulation 4.07 does not itself prescribe the roads or parts of roads which are Clearways, the regulation is ultra vires and invalid. The consequence is that Mr Howie did not commit the offence with which he was charged.
13. Given this conclusion, it is unnecessary to deal with the second question referred by Cox J.
14. In his written submission, Mr Moss noted that traffic conditions are continually changing and Reg 4.07 contemplates the necessity to establish and alter Clearways at short notice. There may be a good deal of force in that argument. If Parliament seeks to achieve that objective, it will be necessary to enlarge the Governor's powers to make regulations under the Road TrafficAct.
15. For these reasons, I would allow the appeal and quash the conviction.
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