Grange Legal Pty Ltd v Commissioner of Police - [2025] SASC 14

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeal: Criminal)
GRANGE LEGAL PTY LTD v COMMISSIONER OF POLICE
[2025] SASC 14
Judgment of the Honourable Justice B Doyle
18 February 2025
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - GROUNDS - CONVICTION ON EX PARTE HEARING
MAGISTRATES - HEARING - PROCEDURAL FAIRNESS AND NATURAL JUSTICE
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - EXCEEDING PRESCRIBED SPEED LIMITS
By Information filed in the Magistrates Court on 26 September 2023, the informant alleged that the appellant company was the owner of a vehicle which appeared from evidence obtained through the operation of a photographic detection device (a speed camera) to have been involved, on 25 November 2022, in the commission of a prescribed offence (namely, exceeding the prescribed speed limit by less than ten kilometres per hour, contrary to Rule 20 of the Australian Road Rules), rendering it guilty of a summary offence under s 79B of the Road Traffic Act 1961 (SA). The appellant had been issued an expiation notice in respect of the allegation on 1 December 2022.
Following service of a summons, at a hearing in the Magistrates Court on 5 February 2024, a man who was said to be the appellant’s ‘corporation service manager’ sought to appear on the appellant’s behalf. Having ascertained that the man was not a director, the Magistrate declined to permit the man to represent the appellant and indicated that unless the appellant’s director (who was present in the courtroom) appeared, the matter would be dealt with in the appellant’s absence.
The director and the man left and, relying upon ss 62(1)(b) and 62BA of the Criminal Procedure Act 1921 (SA) (‘CP Act’), the Magistrate proceeded in the appellant’s absence, recorded a conviction and imposed a fine of $187, without any evidence having been tendered in proof of the charge.
Pursuant to s 42(1) of the Magistrates Court Act 1991 (SA), the appellant appeals against its conviction on grounds which can be summarised as:
1.That the Information was not laid within time prescribed by s 52(1)(a)(ii) of the CP Act and was therefore void ab initio;
2.That the Magistrate erred in not permitting the man to appear for the appellant and in proceeding to determine the matter ex parte, or in denying the appellant procedural fairness on that question; and
3.Having determined to proceed ex parte, the Magistrate erred by proceeding to enter a conviction and impose a fine.

Held, dismissing the first such ground but allowing the appeal:
1.By reason of the operation of s 22(15) of the Fines Enforcement and Debt Recovery Act 2017 (SA), the Information was filed within time.
2.The Magistrate erred by failing to afford the appellant procedural fairness in connection with the question of whether the man who sought to appear on the appellant’s behalf was or should be permitted to do so as the company’s representative within the meaning of s 177 of the CP Act, and/or by failing to provide the appellant a sufficient opportunity to furnish or procure evidence of the appointment of a lay representative for the purposes of that section.
3.Because a corporation which appears by a representative appointed under s 177 will not have failed to appear within the meaning of, or for the purposes of, ss 62(1)(b) or 62BA of the CP Act, the failure to afford procedural fairness vitiated the decision to proceed ex parte and the exercise of discretion to dispense with formal proof.
4.The appeal is allowed and the conviction entered and fine imposed by the Magistrate are set aside.

5. The matter is to be remitted for further hearing.
Australian Road Rules (SA) rr 20, 21; Criminal Justice Act 1935 (UK) c 86; Criminal Law Consolidation Act 1935 (SA) s 291; Criminal Procedure Act 2004 (WA) s 55; Criminal Procedure Act 1921 (SA) ss 52, 62, 62BA, 76A, 77, 141, 177; Expiation of Offences Act 1996 (SA) ss 3, 5, 8, 15, 16; Fines Enforcement and Debt Recovery Act 2017 (SA) ss 6, 22; Joint Criminal Rules 2022 (SA) rr 24.1, 26.1, 75.1; Magistrates Court Act 1991 (SA) S 42; Road Traffic Act 1961 (SA) ss 79B, 174A, 175; Road Traffic (Miscellaneous) Regulations 2014 (SA) regs 30, 30A(2), sch 4 pt 3; Rules of the Supreme Court 1971 (WA) O 12, 58, referred to.
Adelaide City Council v Lepse [2016] SASC 66, distinguished.
Kelly v Fiander [2023] WASC 187, discussed.
Ashwell v Commissioner for Consumer Protection [2015] WASC 337; Director of Public Prosecutions (Cth) v Turner [2015] QSC 298; Gassy v The King [2023] SASCA 90; Grant v Irrgang (1991) 160 LSJS 334; Hinton Demolitions Pty Ltd v Lower (No 2) (1971) 1 SASR 512; Hoek v WA Police [2024] WASC 34; Jacobs v OneSteel Manufacturing Pty Ltd (2006) 93 SASR 568; Johns v Police [2015] SASC 118; Laurendi v Police [2010] SASC 324; Maider v Dancis (1985) 39 SASR 136; Mallios v Commissioner of Police [2024] SASC 131; Mathie v City of Playford [2023] SASC 145; Patel v Police [2022] SASC 83; Pawlak v Police [2017] SASC 40; Pharm-a-Care Laboratories Pty Ltd v Commonwealth (No 3) (2010) 267 ALR 494; Police v Bilaczenko [2018] SASCFC 7; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural (2023) 97 ALJR 419; Re HZX [2024] QSC 168; Rossiter v Adelaide City Council [2020] SASC 61; R (Upon the Application of Lehram Capital Investments Limited) v Southwark Crown Court [2023] EWHC 3190 (Admin); Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1; Reynolds v Nonkovic [2023] WASC 326; Saad v Baron [2012] WASC 507; Kwok v Gordon [2023] WASC 325; Walker v Police [2014] SASC 32, considered.

GRANGE LEGAL PTY LTD v COMMISSIONER OF POLICE
[2025] SASC 14
Magistrates Appeal: Criminal

B DOYLE J: By Information laid in the Magistrates Court on 26 September 2023, the appellant company was alleged to be the owner of a vehicle which appeared from the evidence obtained through the operation of a photographic detection device (a speed camera) to have been involved in the commission of a prescribed offence within the meaning of s 79B of the Road Traffic Act 1961 (SA) (‘RT Act’).
More particularly, it was alleged that on 25 November 2022 the vehicle was driven at a speed of about 69 kilometres per hour on a length of West Lakes Boulevard to which a speed limit sign indicating a speed limit of 60 kilometres of an hour applied,[1] contrary to r 20 of the Australian Road Rules.[2]
[1] Pursuant to r 21(1) of the Australian Road Rules.
[2] Rule 20 of the Australian Road Rules is a prescribed offence within the meaning of the RT Act by reason of reg 30 of the Road Traffic (Miscellaneous) Regulations 2014 (SA).
Following two hearings at which there was no attendance on the part of the appellant, a fresh summons was issued and service was effected on 16 January 2024.
When the matter subsequently came before the Magistrates Court on 5 February 2024, at the point of taking appearances, but in a part of the hearing that is not transcribed,[3] the Magistrate’s clerk advised the Magistrate that a man who was wishing to appear for the appellant was its ‘corporation service manager’. A female (likely a sheriff’s officer) can then be heard to advise the Magistrate that the man had identified himself by the name of ‘ro’ of the clan ‘i.am.ro’. The Magistrate then remarked ‘so, it’s going to be a sovereign citizen’.
[3] The Court was provided with an audio recording of the hearing. The events are also confirmed by an affidavit sworn by Mr Scott Mesecke (FDN 7), a solicitor for South Australia Police who appeared at the hearing and who deposes to the relevant events in terms which reflect the audio recording.
The prosecutor submitted that the Court should ensure that it knew who was purporting to represent the appellant company. The Magistrate then ascertained from the man that a director of the appellant, Ms Madeleine Potter, was present in Court. The man who was seeking to appear stated that he was an employee of the company. The following exchange then occurred between the man (referred to in the transcript as ‘Unknown’) and the Magistrate:[4]
HIS HONOUR:    Yeah, I don’t think you’ve got standing to represent the company, you’re not a lawyer. I would hear from Ms Potter if she wants to appear but not yourself.
UNKNOWN:     She doesn’t want to appear.
HIS HONOUR:    Alright then, well –
UNKNOWN:     That’s why she brought me, one of the employees.
HIS HONOUR:    Well I’m not – you’re not a lawyer, so you’re not qualified to appear on her behalf.
UNKNOWN:     I believe that the company can nominate someone and they’ve nominated me.
HIS HONOUR:    No, no. You’re not – you’re not a lawyer so I’m not willing for you to appear. I’m willing for Ms Potter to appear, she can speak for the company. If you don’t want to do that then you can both go and I’ll deal with the matter in your absence. So whichever you prefer Ms Potter really.
[4]     Transcript of Proceedings, Commissioner of Police v Grange Legal Pty Ltd (Magistrates Court of South Australia, Magistrate Oates, 5 February 2024) 2-3.
Ms Potter and the man left the courtroom. The prosecutor was not called upon to make any other submissions.
The Magistrate made a record of the non-appearance and proceeded to record a conviction without any evidence being tendered in proof of the charge.
As will be explained, that course was in apparent reliance upon ss 62(1)(b) and 62BA of the Criminal Procedure Act 1921 (SA) (‘CP Act’).
The Court imposed a fine in the sum of $187, on the basis that it corresponded with the expiation fee applicable to a contravention of r 20 of the Australian Road Rules where the speed limit was exceeded by less than ten kilometres per hour.[5]
[5] Road Traffic (Miscellaneous) Regulations 2014 (SA), Schedule 4, Part 3 (as at 25 November 2022).
In fact, the expiation fee applicable in relation to an offence against s 79B of the RT Act where the owner of the vehicle is a body corporate includes a ‘body corporate additional fee’ of $1,800 prescribed by regulation.[6] Additional orders were made waiving the court fees, imposing a victims of crime levy of $262 and ordering the appellant to pay the costs of the informant fixed at $150.
[6] Road Traffic (Miscellaneous) Regulations 2014 (SA), reg 30A(2). There was some confusion about this amount before the Magistrate when the conviction was entered and the fine imposed. The prosecutor, Mr Mesecke, explains in his affidavit in this Court that at the time he was unsure about the status of that amount. In his ex tempore remarks on penalty, the Magistrate said: ‘I do not know what it relates to, I have not imposed that amount. I simply dealt with the matter as best I can by imposing the fine, the same as the expiation and the usual Victims of Crime and prosecution fee’.
Notwithstanding the apparently favourable basis upon which that modest fine was fixed, by interlocutory application filed in the name of the appellant[7] in the Magistrates Court on 4 March 2024, the appellant sought an order setting aside the orders previously made, pursuant to s 76A of the CP Act, contending that the Magistrate had erred in law by ‘refusing to allow appearance in person eventuating in the matter being heard ex parte inconsistent with section 76A of the Criminal Procedure Act and contrary to the ruling of Kelly vs. Fiander 2023 WASC’.[8]
[7] The application recorded that it was filed by an authorised officer named as ‘ro’ of the clan ‘i.am.ro’. The application was accompanied by an affidavit affirmed by Ms Potter, in which she stated that a notice of acting had been submitted on 1 February 2024 and that the ‘Corporate Services Officer’ for the company had attended at the hearing.
[8] The correct reference is Kelly v Fiander [2023] WASC 187.
That application came before a different Magistrate on 30 April 2024. Ms Potter was encouraged to address the Court from the bar table and did so. She made submissions to the effect that ‘ro’ should have been granted leave to appear pursuant to s 177 of the CP Act.
The Magistrate dismissed the application and gave ex tempore reasons, referring to authority to the effect that, other than by the consent of the parties, the power to set aside a conviction or order was available where there had been a failure to attend Court by the party due to ‘genuine misadventure’. The Magistrate did not consider that the circumstances of the case could be so described.
By a notice of appeal relying upon s 42 of the Magistrates Court Act 1991 (SA) filed on 21 May 2024, the appellant appealed against the orders made by the Magistrate on 30 April 2024[9] declining the application to set aside the orders made on 5 February 2024 pursuant to s 76A of the CP Act.
[9] The notice of appeal refers to 30 April 2023 but that was evidently an error.
The appellant has amended its grounds of appeal since the institution of this matter on several occasions, and most recently in the form of a document titled Fifth Amended Appeal Grounds (‘Fifth Amended Grounds’).[10]
[10] FDN 15.
It has been held that an order dismissing an application under s 76A of the CP Act is an interlocutory order and that an appeal directed to such an order is incompetent, as it does not fall within the purview of s 42(1a) of the Magistrates Court Act 1991 (SA).[11]
[11] Laurendi v Police [2010] SASC 324 at [17] (Vanstone J), Johns v Police [2015] SASC 118 at [3] (Stanley J), Pawlak v Police [2017] SASC 40 at [3] (Vanstone J), Patel v Police [2022] SASC 83 at [15] (Kimber J).
On the hearing of this appeal, Ms Potter appeared and made oral submissions on the appellant’s behalf.[12] She indicated the company would not press its appeal in relation to the Magistrate’s decision on 30 April 2024 to decline to set aside the earlier orders. There being no objection on the part of the respondent to the notice of appeal being amended to incorporate a challenge to the earlier orders made on 5 February 2024, I granted the appellant permission to amend its grounds of appeal accordingly.
[12] The respondent indicated that it had been established that Ms Potter was a director and took no objection to her appearing for the appellant. I permitted her to be accompanied at the bar table by a man named Mr Darren Dickson on condition that he would not address the Court.
In the course of the hearing, Ms Potter refined some of the contentions contained in the Fifth Amended Appeal Grounds. In overview, the appellant’s main contentions were that:
(1)the Information was not laid within time and is void;
(2)the Magistrate erred in not permitting the man to appear for the appellant and proceeding to determine the matter ex parte, or failed to afford the appellant procedural fairness with respect to its representation; and
(3)having determined to proceed ex parte, the Magistrate erred by proceeding to enter a conviction and impose a fine.
Contention that Information not laid within time
The expiation notice addressed to the appellant was issued on 1 December 2022.[13] It stated:
It is alleged that GRANGE LEGAL PTY LTD Vehicle registration S941COI at 11.21 AM on 25/11/2022 at WEST LAKES BLVD, WEST LAKES
Code Offence
C801 (EXCEED SPEED LIMIT 60 kph) Vehicle Speed 69 kph
[13] The first or front page of the expiation notice was appended to the amended grounds.
The amount payable was $2,081, comprising three separate sums appearing adjacent to the reference to the offence information.[14] The ‘due date’ specified was 29 December 2022. As earlier noted, the Information was filed on 26 September 2023.
[14] The total comprised sums of an expiation amount of $187, a levy amount of $94 and a ‘corporate’ amount of $1,800. As noted earlier, this is a reference to the ‘body corporate additional fee’ prescribed by regulation for the purposes of the RT Act provisions.
The appellant contends that the Information in this matter is void ab initio on the basis that s 52(1)(a)(ii) of the CP Act requires that proceedings in respect of an expiable offence must be commenced within 6 months of the date on which the offence was alleged to have been committed.[15]
[15] In fact, because it is accepted that an expiation notice was given, the effect of s 52 of the CP Act was that the proceedings were to be commenced within six months after the expiry of the expiation period in the notice. The expiation period is defined in s 4(1) of the Expiation of Offences Act 1996 (SA). By reason of that definition and the provision of 6(1)(c) of the Expiation of Offences Act 1996 (SA), that was a period of 28 days (consistent with the form of the notice). The CP Act therefore contemplated that proceedings be commenced by 29 June 2023. Nothing turns on this because the Information was filed after that date and the question whether it was within time turns on the operation of the Fines Enforcement and Debt Recovery Act 2017 (SA).
The respondent meets this contention, which was not ventilated in the Magistrates Court, by relying on the provisions of the Fines Enforcement and Debt Recovery Act 2017 (SA) (‘FEDR Act’). That Act provides for the recovery and enforcement of expiation fees and is complementary to the Expiation of Offences Act 1996 (SA) (‘EO Act’).
Under the EO Act, a person who receives an expiation notice may expiate the offence the subject of the notice by paying the amounts due under the expiation notice.[16] An expiation notice may be given in relation to an offence in respect of which an expiation fee is fixed by or under an Act, regulation or by-law.[17] The notice must be in the prescribed form. The prescribed form is a form that contains an allegation that a person committed an offence or offences and specifies, inter alia, the general nature of the alleged offence or offences.[18]
[16] EO Act, s 3(4).
[17] EO Act, s 5(1).
[18] Expiation of Offences Regulations 2011 (SA), Schedule 1, cl 1(c).
When an offence or offences to which an expiation notice relates is or are expiated in accordance with that Act, the alleged offender is not liable to prosecution for that offence or those offences or any other expiable offence arising out of the same incident.[19] In Walker v Police,[20] Blue J said that the object of the EO Act was:
to provide a simple and expedient alternative to the institution of prosecution proceedings for relevant summary offences. This provides advantages to the issuing authority in avoiding the time and expense of instituting criminal proceedings. It provides advantages to alleged offenders of avoiding the time, expense, distraction and emotional cost of being involved in criminal proceedings and it also avoids any finding of guilt being made or conviction being recorded against the alleged offender. It provides advantages to Government in that it reduces the resources otherwise committed to and expenses otherwise incurred in a larger court system to deal with prosecutions for all summary offences.
[19] EO Act, s 15(1). The expiation of an offence does not constitute an admission of guilt or any civil liability, will not be regarded as evidence tending to establish guilt or any civil liability and cannot be referred to in any report furnished to a court for the purposes of determining the sentence for any offence: EO Act, s 15(4).
[20] [2014] SASC 32 at [26].
Alternatively, the alleged offender may elect to be prosecuted for the offence, in which case the expiation notice is taken to have been withdrawn.[21] The notice may also be withdrawn by an issuing authority where it decides that the alleged offender should be prosecuted for the offence or offences.[22]
[21] EO Act, s 8.
[22] EO Act, s 16(1)(b), subject to the qualification in s 16(3).

Where no election has been made, and the expiation notice has not been withdrawn, the issuing authority in respect of the expiation notice may provide the notice to the Chief Recovery Officer who may then make an ‘enforcement determination’ in relation to the notice pursuant to s 22 of the FEDR Act. The Chief Recovery Officer may only do so where the periods of time set out in s 22(3) have elapsed.
The effect of the enforcement determination is that the offence is taken to have been expiated and various other means of enforcement then become available to the Chief Recovery Officer under the legislation.
The person the subject of the enforcement determination cannot resist enforcement action on the basis that they deny the commission of the offence in respect of which the expiation notice was given. Nor, in the ordinary course,[23] can they elect to be prosecuted after the day on which an enforcement determination is made.
[23] The position is otherwise where the enforcement determination is revoked on the ground that the alleged offender had not had a reasonable opportunity to elect under the section to be prosecuted. In that case, the right of election is available for a further 14 days: EO Act, s 8(2a).
However, under s 22(5)(b) of the FEDR Act, the Chief Recovery Officer may revoke an enforcement determination on his or her own initiative or on application made within 30 days of notice of an enforcement determination being given, sent or published in accordance with the section.
An application for revocation of the enforcement determination can only be made on the grounds set out in s 22(10), namely:
(a)     the expiation notice to which the determination relates should not have been given to the applicant in the first instance (other than because the alleged offender did not commit, or has a defence against, the alleged offence); or
(b) the alleged offender did not have a reasonable opportunity to elect under section 8 of the Expiation of Offences Act 1996 to be prosecuted for any offence to which the expiation notice relates (other than because the alleged offender did not receive an expiation notice or an expiation reminder notice as required under that Act); or
(c) the alleged offender did not have a reasonable opportunity to apply for review of the expiation notice to which the determination relates under section 8A of the Expiation of Offences Act 1996 (other than because the alleged offender did not receive an expiation notice or an expiation reminder notice as required under that Act); or
(d)     the procedural requirements of this Act or any other Act were not complied with; or
(e)     the applicant failed to receive an expiation notice and an expiation reminder notice as required by the Expiation of Offences Act 1996; or
(f)     the issuing authority failed to receive—
(i)a notice sent to the authority by the applicant electing to be prosecuted for the offence; or
(ii)a nomination, statutory declaration or other document sent to the authority by the applicant in accordance with a notice required by law to accompany the expiation notice or expiation reminder notice; or
(g)     the applicant has expiated the offence, or offences, under the notice.
Section 22(15) of the FEDR Act then provides:
Despite any other provision of this Act, if the Chief Recovery Officer revokes an enforcement determination on a ground referred to in subsection (10)(d), (e) or (f), the following provisions apply:
(a)     if the period of 1 year from the date of commission of the alleged offence, or offences, has not expired, the applicant will be taken to have been given an expiation notice by the issuing authority in respect of the alleged offence, or offences, for the first time on the day on which the determination was revoked; and
(b)     the expiation notice will also be taken to have been issued on that day; and
(c)     the expiation period will be taken to be the period of 28 days from (and including) that day; and
(d)     a prosecution can be commenced for the alleged offence, or offences, within 6 months of the expiry of the expiation period (despite the fact that the time for the commencement of the prosecution may have already otherwise expired).
It was common ground between the parties that after the receipt of the expiation notice there was correspondence between the appellant and the ‘Expiation Notice Branch’ and that, subsequently, the notice was referred to the ‘Fines Enforcement and Recovery Unit’ for enforcement.
Whilst the relevant documents were not in evidence on the appeal, the appellant agreed as accurate the respondent’s contention that, on 28 July 2023, the Chief Recovery Officer revoked the enforcement determination on the application of the appellant pursuant to s 22(5) and in reliance upon the circumstance prescribed by s 22(10)(f), on the ground that the issuing authority failed to receive an election to be prosecuted or a driver nomination from the appellant.
In those circumstances, on the face of things, s 22(15) of the FEDR Act authorised the commencement of the prosecution by the filing of the Information on 26 September 2023.[24] The appellant contended, however, that the respondent was not entitled to avail itself of the benefit of s 22(15) for a number of reasons.
[24] No contention was advanced in this case that the offence the subject of the Information differed from the offence disclosed by or alleged in the expiation notice: cf. Mathie v City of Playford [2023] SASC 145, where the expiation notice contained a reference to an Australian Road Rule and the Information alleged a contravention of s 174A of the RT Act. In the present case, the expiation notice did not in terms reference the Australian Road Rule or s 79B of the RT Act, however, since a body corporate cannot be a ‘driver’ within the meaning of the Australian Road Rules, and because the expiation notice included the body corporate additional fee contemplated by s 79B(2a)(b) of the RT Act, construed objectively, the expiation notice may be taken to allege that the appellant was the owner of a vehicle that had exceeded the speed limit in the manner alleged. The expiation notice provided information about how photographs could be accessed, and no contention was advanced that the notice did not comply with s 79B(5) of the RT Act. An appeal against the decision in Mathie has been heard and judgment is presently reserved.
Inadequate responses to correspondence
First, it was submitted that the Expiation Notice Branch had not responded satisfactorily to requests for particulars about the underlying offence, which it is said denied the appellant the opportunity to make informed decisions regarding the alleged incident.
The respondent did not concede this was so. There was no evidence before me as to the communications nor any application to adduce evidence of that kind.[25] In those circumstances, the contention fails for want of substantiation. This makes it unnecessary to resolve whether a failure to provide requested particulars of alleged offending the subject of an expiation notice could have the consequence that s 22(15) does not take effect upon the revocation of an enforcement determination made in connection with the expiation notice.
[25] At one stage, during the period judgment was reserved, the applicant foreshadowed (without detail) an application to rely on further evidence, but it has not been pursued and I consider the matter should not be further delayed.
The legal basis for a contention to that effect was not explained. To the extent that the appellant should be taken to contend that the original enforcement determination was invalid, with the result that the revocation of the enforcement determination was therefore a nullity, such a contention would face significant obstacles, even assuming it would not be precluded by the principles respecting collateral challenge.[26]
[26] See Hinton Demolitions Pty Ltd v Lower (No 2) (1971) 1 SASR 512 at 523-524 (Bray CJ), 548-550 (Wells J) and Jacobs v OneSteel Manufacturing Pty Ltd (2006) 93 SASR 568 at [68]-[97] (Besanko J, Duggan, Vanstone and Layton JJ agreeing).
It would be surprising if the giving of a timely or complete response to requests for particulars about an expiation notice was an essential condition of the legal efficacy of a determination, with the consequence that there is nothing to which the statutory consequences of revocation under s 22(15) can then attach.
A complaint that the procedural requirements of the FEDR Act or any other Act were not complied with may found an application for revocation of an enforcement determination pursuant to s 22(1)(d) and a complaint that an alleged offender was denied a reasonable opportunity to elect to be prosecuted is, as noted earlier, a separate basis upon which the revocation of an enforcement determination under s 22(10)(b) may be sought. That a determination may be revoked by the Chief Recovery Officer in such a case suggests that it is legally effective unless and until revoked.
Where the Chief Recovery Officer revokes a determination on the basis that the alleged offender was denied a reasonable opportunity to elect to be prosecuted, s 22(13) authorises the commencement of a prosecution within 6 months of the date of the revocation notwithstanding that the time for commencement of the prosecution may have already otherwise expired, and s 8(2a) of the EO Act provides that the alleged offender is given a further period of 14 days within which to make an election to be prosecuted.
The legislative scheme is such that where the complaint is that an alleged offender has, for some reason, been denied the opportunity to avoid enforcement action in relation to an expiation notice by electing to be prosecuted, the complaint, if accepted, results in a re-enlivening of that right of election coupled with an extension of the time within which a prosecution may lawfully be commenced.
In those circumstances, and having regard to the purpose of the legislative scheme ascertained in light of the language used,[27] it is difficult to see how, even if a failure to respond in a timely or complete way to inquiries by the recipient of expiation notice could amount to a failure by the issuing authority to comply with the RT Act, the EO Act or the FEDR Act, it would result in the enforcement determination being a legal nullity. Such a conclusion would undercut the regime in s 22 of the FEDR Act. It is even more difficult to see how a failure by the issuing authority which falls short of non-compliance with the provisions of the RT Act, the EO Act or the FEDR Act could invalidate an enforcement determination or invalidate the revocation of enforcement determination, so as to deny the operation of s 22(15).
[27] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [93] (McHugh, Gummow, Kirby and Hayne JJ).
Negligence or abuse of public office
Next, the appellant contended that the conduct of the Manager of the Expiation Notice Branch was inconsistent with the obligations of a model litigant, and that the referral of the matter to the Fines Enforcement and Recovery Unit for an ‘electronic conviction’ amounted to negligence or an abuse of public office so as to deny the respondent the benefit of s 22(15) of the FEDR Act.
The factual basis for these contentions is not established by evidence.[28] Further, the referral of a matter to the Chief Recovery Officer does not amount to an ‘electronic conviction’[29] and, even supposing that the conduct or omissions complained of could amount to tortious conduct, the remedies for tortious conduct do not include the denial to a tortfeasor (or any person associated with them) of the benefit of a statutory provision.
[28] In oral submissions on the appeal, Ms Potter stated that she ‘believed’ the Expiation Notices Branch had ‘pushed it onto the fines enforcement recovery officer to make determination because they had run out of time to serve a summons’. There is no evidentiary basis for Ms Potter’s asserted belief. An allegation of misfeasance in public office is a serious one which is required to be raised with specificity; a person ought not be condemned casually or by ‘inexact proofs, indefinite testimony, or indirect inferences’: see Pharm-a-Care Laboratories Pty Ltd v Commonwealth (No 3) (2010) 267 ALR 494 at [66]-[68] (Flick J).
[29] The appellant did not develop this assertion but it is likely to be a reference to s 6 of the FEDR Act, which contemplates that a class of determinations required to be made by the Chief Recovery Officer may be made by means of an automated process. The outcome of the process is not a conviction. The appellant’s written submissions included a contention that the Expiation Notice Branch failed to follow appropriate provisions of s 6 before the matter was referred to the Chief Recovery Officer where an automated determination was possible. The submission did not identify the provision said not to be followed, and s 6(2) imposes obligations on the Chief Recovery Officer rather than the issuing authority. There was no sufficiently articulated basis identified to challenge or doubt that, to the extent that the enforcement determination in this case was made by automated process, the Chief Recovery Officer did not comply with those obligations.
Legal status of Fines Enforcement Recovery Unit
The appellant further contends that the respondent has not ‘been able to provide any evidence that the Fines Enforcement Recovery Unit is a lawful entity’. This contention is irrelevant. The question of whether the proceedings were instituted within time does not turn on the validity of any act taken by that unit as a distinct legal entity.
Absence of Chief Recovery Officer as a party
Finally, it was contended that the respondent was not entitled to rely upon the provisions of the FEDR Act unless the Chief Recovery Officer was added as a second respondent to the proceedings, to be able to address matters arising under the FEDR Act.
I reject that contention. Even if it were appropriate to hear from the Chief Recovery Officer in the event that a collateral challenge to the enforcement determination or revocation decision is permissible, the factual basis for any such challenge is not made out and there is no occasion to consider these matters further.
The proceeding was validly instituted
The result is that by virtue of s 22(15) of the FEDR Act, on 28 July 2023, a fresh expiation notice was taken to be issued to the appellant and a prosecution was able to be commenced for the alleged offence within 6 months of the expiry of a 28 day expiation period commencing on that date, despite the fact that the time for the commencement of the prosecution may have already otherwise expired.
Accordingly, it was open to commence a prosecution against the appellant at any time before 25 February 2024. The Information was laid on 26 September 2023, within that time period.
Contention that Magistrate erred in not permitting the man present in court to appear for the appellant and proceeding to determine the matter ex parte
The appellant by its Fifth Amended Grounds complains that the Magistrate erred in law in refusing an authorised company representative to have the care and conduct of the proceedings at the hearing on 5 February 2024, and that the Magistrate was ‘unduly influenced by the opinion of the prosecution’. Elaborating upon this assertion, the appellant contends that the Magistrate erred by refusing to permit its representative to appear for it pursuant to s 177(2) of the CP Act and erred by denying it the opportunity to provide evidence of the requirements of that section, by demonstrating that the representative had been nominated by the appellant’s director to act as its representative. This is said to have involved a failure to afford procedural fairness.
In the context of the appellant’s application pursuant to s 76A of the CP Act there was reference, in an affidavit purportedly filed in support of the application, to a Notice of Acting having been ‘submitted’ on 1 February 2024 at 5.16 pm. A document titled Notice of Acting, and referring to ‘ro’ of the clan ‘i.am.ro’ was included as part of the appeal book filed by the appellant. The respondent submitted that there was no such document on the electronic portal and that, in any event, the form did not amount to a document meeting the requirements of s 177(2)(b) of the CP Act.
When I raised the evidentiary status of the document with Ms Potter on the hearing of the appeal, she indicated the document was of no relevance to the case and would not be relied upon by the appellant.
The appellant has not pointed to a statement in writing purporting to be signed by a director of the appellant to the effect that ‘ro’, at the time of the hearing on 5 February 2024, had been appointed as the representative of the appellant for the purposes of s 177 of the CP Act.[30]
[30] On the s 76A application, the high point of the evidence was Ms Potter’s conclusory assertion that the ‘Corporate Services Officer’ had attended the Magistrates Court on 5 February 2024 and that that person was ‘the representative’. There was no direct evidence of the appointment of ‘ro’ as a representative within the meaning of s 177 of the CP Act.
The essential argument pressed by the appellant on the appeal was that the Magistrate erred by not indicating, at the 5 February 2024 hearing, that the appellant could appear by and be represented by the man if it appointed him a representative of the company within the meaning of s 177 of the CP Act or provided satisfactory proof of that appointment.
The respondent relied in its written submissions upon Rule 26.1 of the Joint Criminal Rules 2022 (SA), pointing out that whilst the Court may under Rule 26.1(4) grant leave to a non-lawyer to represent or appear for a company in a proceeding or appellate proceeding on such terms as it thinks fit, that is only where the proposed representative is a director or other officer of the other legal entity.
However, in the course of argument, when questioned whether it was being contended that that requirement effectively limited the effect of s 177 of the CP Act, counsel for the respondent conceded that s 177 and Rule 26.1 are ‘separate’. Respectfully, I consider that that is an appropriate concession.
Section 177 is titled ‘Proceedings against corporations’ and comprises part of Part 7 (‘Supplementary provisions’) of the CP Act. It provides as follows:
177—Proceedings against corporations
(1)In this section—
representative, in relation to a corporation, means a person appointed by the corporation to represent it for the purposes of this section.
(2)For the purposes of this section—
(a)     a representative need not be appointed under the seal of a corporation; and
(b)     a statement in writing purporting to be signed by a managing director of a corporation or by 1 or more of the persons having the management of the affairs of a corporation, to the effect that the person named in the statement has been appointed as the representative of the corporation for the purposes of this section is admissible in evidence and, in the absence of evidence to the contrary, is proof that the person has been so appointed.
(3)A corporation charged with an offence may appear in the proceedings by its representative and may, by its representative, enter or withdraw a plea or make or withdraw an election.
(4)If—
(a)     a representative appears in a proceeding against a corporation for an offence; and
(b)     there is a requirement that something be done in the presence of the defendant, or be said to the defendant,
it is sufficient if that thing is done in the presence of the representative or said to the representative.
(5)The trial of a corporation may proceed in the absence of any representative of the corporation.
(6)If a corporation arraigned on an information fails to appear by a representative to enter a plea in relation to the charge, the court may order that a plea of not guilty be entered.

Rule 26.1 (‘No right of representation by non-lawyer’) forms part of Division 4 (‘Representation: non-lawyers’) of Part 4 (‘Parties and representation’) of the Joint Criminal Rules 2022 (SA). It provides as follows:
26.1—No right of representation by non-lawyer
(1) Subject to Division 3 and the following subrules and any applicable statutory provision, a person may not be represented or appear in a proceeding or appellate proceeding by a person other than a law firm or lawyer legally entitled to practice in South Australia.
(2) To avoid doubt, this rule does not prevent an individual from acting or appearing as a self-represented party without any representation.
(3) The Court may give leave for a person other than a law firm or lawyer to represent or appear for the informant in a proceeding or appellate proceeding on such terms as the Court thinks fit if—
(a)     the informant is a public authority;
(b)     the representative is a public officer of the public authority;
(c)     the representative has power to bind the informant in the proceeding; and
(d)     the Court considers that it is in the interests of justice to give such leave.
(4) The Court may give leave for a person other than a law firm or lawyer to represent or appear for a party in a proceeding or appellate proceeding on such terms as the Court thinks fit if—
(a)     the party is a company or other legal entity not being an individual;
(b)     the representative is a director of the company or officer of the other legal entity;
(c)     the representative has power to bind the party in the proceeding; and
(d)     the Court considers that it is in the interests of justice to give such leave.
(5) The Court may, if it thinks fit, give leave to a self-represented party to be assisted in the presentation of their case at a hearing or trial by a person approved by the Court but, unless the Court otherwise orders, such leave does not permit the person assisting to address the Court.
Section 177 is not concerned with all aspects of the conduct of a criminal proceeding. The significance of the appointment, or absence, of a representative under the section is specific and limited. First, a corporation charged with an offence may appear in the proceedings by its representative and may, by that representative, enter or withdraw a plea or make or withdraw an election.[31] Secondly, where there is a requirement that something is done in the presence of, or is said to a defendant that is a corporation, it is sufficient if the thing is done in the presence of, or said to, the representative.[32] Thirdly, if there is no representative of the company present, the trial of a corporation may proceed in their absence.[33] Fourthly, if a corporation arraigned on an information fails to appear by a representative to enter a plea in relation to the charge, the court may order that a plea of not guilty be entered.[34]
[31] CP Act, s 177(3).
[32] CP Act, s 177(4).
[33] CP Act, s 177(5).
[34] CP Act, s 177(6).
Whilst s 177(3) speaks of a company appearing by its representative, it may be doubted whether the effect of the section is that a representative appointed under the section can participate as of right in all respects in a criminal trial in the way in which a legal representative may do. The legislative history tends to confirm a narrower operation of the section.[35]
[35] The predecessor to s 177 was s 291 of the Criminal Law Consolidation Act 1935 (SA). That section in turn drew upon s 33 of the Criminal Justice Act 1935 (UK) c 86. The second reading speech in respect of the legislation introducing the relevant form of s 291 highlighted the necessity of the provision to avoid the cumbersome procedure of issuing writs of venire facias and destringas, in order to ensure a corporation’s appearance to answer charge (South Australia, Parliamentary Debates, Legislative Council, 8 March 1995, 1387-1388 (K.T. Griffin, Attorney-General)). Similar provisions in other states including Western Australia, New South Wales and Victoria also appear to have as their focus the arraignment of a corporation in respect of a major indictable offence, or the appearance of or by a corporation in relation to summary matters.
By contrast, it seems clear that Rule 26.1 is concerned with the circumstances in which a non-lawyer may represent a party in criminal or appellate proceedings in the broadest sense. It is in similar terms to Rule 25.6 of the Uniform Civil Rules 2020 (SA).
In any event, although Rule 26.1(4) only empowers the Court to authorise a non-lawyer to represent a corporation where he or she is a director or other officer, Rule 26.1(1) makes clear that the rule of preclusion that would otherwise prohibit a non-lawyer representing a party is subject to any applicable statutory provision. Thus, quite apart from the fact that legislation will, generally speaking, prevail over inconsistent rules of court and other forms of subordinate legislation, in this case, the Rule is itself made expressly subject to a contrary statutory provision.
It is not necessary for me to resolve the full scope and breadth of s 177. It suffices to say that at least for the purposes of appearing in answer to a summons and entering a plea, a company may be represented by a non-lawyer representative who need not be a director, though they must be appointed by the corporation to represent it for such purposes.
More particularly, I would hold that where there is present in court a representative of a company, appointed as such for the purposes of s 177 of the CP Act, the defendant company will not have ‘fail[ed] to appear in obedience to the summons’ for the purposes of s 62(1) of the CP Act, and it will not be able to be said that the defendant ‘[did] not appear at the time and place appointed for the hearing and determination of the information’ within the meaning of s 62BA(1)(b)(i) of the CP Act.
Those sections are located in Division 3 (‘Hearing of summary offence’) in Part 4 (‘Summary Jurisdiction’) of the CP Act. They provide as follows.
62—Proceedings on non-appearance of defendant
(1)If the defendant fails to appear in obedience to the summons the Magistrates Court may—
(a)     issue a warrant as provided by section 58, and adjourn the hearing until the defendant is apprehended; or
(b)     upon proof that the summons was served a reasonable time before the time thereby appointed for his appearance, proceed in the absence of the defendant to the hearing of the information and subject to section 62C to adjudicate thereon as fully and effectually, to all intents and purposes, as if the defendant had personally appeared before it in obedience to the summons; or
(ba)   upon proof that the summons was served a reasonable time before the time thereby appointed for the defendant's appearance, order that the information may be heard in the absence of the defendant and adjourn the hearing; or
(c)     if the defendant has pleaded guilty in writing pursuant to section 57A proceed in the manner provided by sections 62B and 62C.
(2)At a hearing adjourned pursuant to paragraph (ba) of subsection (1) of this section, the Magistrates Court may proceed in the absence of the defendant to the hearing of the information and subject to section 62C of this Act adjudicate thereon as fully and effectually, to all intents and purposes, as if the defendant had personally appeared before it in obedience to the summons.
(3)Where a hearing is adjourned under subsection (1), the Magistrates Court need not be constituted at the adjourned hearing of the same judicial officer as ordered the adjournment.
62BA—Proceedings where defendant neither appears nor returns written plea of guilty
(1)If in any proceedings under this Act—
(a)     an information has been laid against a defendant; and
(b)     the defendant has been duly served with a summons but—
(i)does not appear at the time and place appointed for the hearing or determination of the information or at a time and place at which the information is subsequently heard or determined; or
(ii)in the case of an information and summons served under section 57A—the defendant neither appears nor pleads guilty in the manner provided under that section,
the Magistrates Court may proceed to adjudicate on the information in the absence of the defendant in accordance with section 62, and in so doing regard any allegation contained in the summons, or information and summons, (as served on the defendant) as sufficient evidence of the matter alleged.
(2)If the Magistrates Court finds the charge proved, the prosecution may recite to the Court any relevant matters alleged against the defendant in the same way as if the defendant had personally appeared and pleaded guilty.
(3)For the purposes of subsection (1), allegations are contained in a summons, or information and summons, if they are contained in, annexed to, or accompany, the summons or information and summons.
(4)The allegations referred to in subsection (1) may include particulars of the alleged offence and of the circumstances in which it is alleged to have been committed.
(5)The provisions of this section are supplementary to, and do not derogate from, any other statutory provision regulating the hearing and determination of an information.
Section 62(1)(b) authorises a court of summary criminal jurisdiction to proceed in the absence of a defendant to hear an information and adjudicate upon it as effectually as if the defendant had personally appeared before it in obedience to the summons. Where the defendant has failed to appear, s 62BA(1) authorises the Court, when proceeding in the absence of the defendant, to regard any allegation contained in the summons, or information and summons (as served on the defendant) as sufficient evidence of the matter alleged.
The discretion whether to dispense with formal proof under s 62BA is separate from the discretion whether to proceed ex parte under s 62.[36] The seriousness of the offence may bear on the proper exercise of that discretion.[37]
[36] Walker v Eves (1976) 13 SASR 249 at 255-257 (Bray CJ), Williams v Lewis (1977) 76 LSJS 141 at 143 (Bray CJ). It may be noted that when Walker v Eves was decided there was no facility to apply to the Magistrates Court for a conviction entered int default of appearance to be set aside, and that was a matter about which Bray CJ remarked (at 255).
[37] Walker v Eves (1976) 13 SASR 249 at 255 (Bray CJ).
In Rossiter v Adelaide City Council,[38] Livesey J observed that:
Whilst there may in some cases be good reason to be cautious and proceed with proof in the ordinary way, that inevitably involves time spent on matters that may not genuinely be in issue.
[38] [2020] SASC 61 at [27].
As has been observed, both the power to proceed ex parte, and the power to dispense with proof of certain matters, are conditioned upon the Court being satisfied that the defendant (who has been duly served) has not appeared before the Court.
In Adelaide City Council v Lepse (‘Lepse’),[39] Peek J held that mere presence by a summonsed defendant without being prepared to address the Court from the bar table did not amount to an appearance in obedience to the summons in the sense required to engage ss 62(1)(b) and 62BA of the CP Act. In reaching that conclusion, his Honour referred to a decision of the Western Australian Supreme Court in Ashwell v Commissioner for Consumer Protection.[40] In that case, the defendant refused to come to the bar table despite repeated requests.
[39] [2016] SASC 66 at [52], [54] (Peek J).
[40] [2015] WASC 337 (Jenkins J).
More recently, in Kelly v Fiander,[41] Vandongen J undertook an analysis of s 55 of the Criminal Procedure Act 2004 (WA), which allows a court of summary jurisdiction to hear and determine a charge in the absence of the accused and, in those circumstances, to take as proved any allegation in the prosecution notice containing the charge that was served on the accused. In that case, it was tolerably clear that the person who was physically present in Court was the defendant, used only her first and middle names, and claimed to be both a Minister and the executor of the defendant’s estate. This was undoubtedly an attempt by the defendant to rely upon the ‘pseudolaw’ concept sometimes referred to as the ‘strawman duality’.[42] The magistrate said that the person had no standing to appear and proceeded to deal with the matter utilising s 55.
[41] [2023] WASC 187.
[42] As Vandongen J observed in his reasons at [11]: ‘The strawman duality theory is based on the fundamentally misguided notion that there exists a physical human being and, at the same time, a separate non-physical person (a 'doppelganger'). Under this theory, it is said that while governments can exercise power over both the physical and the non-physical person, the capacity to exercise power over the physical person only exists because there is a 'contract' that links the physical person with the non-physical person. This 'contract' is evidenced by documents such a birth and marriage certificates.’
On appeal, Vandongen J considered that, as a matter of fact, the magistrate should have been satisfied that the person in court was the defendant, or at the very least, the magistrate ought not have been persuaded that the defendant ‘does not [appear]’.[43] The critical issue was whether, on the proper construction of s 55(1), it could be concluded that the defendant had not ‘appeared’ because she refused to clearly acknowledge that she was the person named in the prosecution notice.[44]
[43] Kelly v Fiander [2023] WASC 187 at [42].
[44] Kelly v Fiander [2023] WASC 187 at [39].
He noted that the ordinary meanings of the word ‘appear’ (and its derivative ‘appearance’) suggest that when it is used in a legal context it connotes visible, and therefore personal or physical, attendance in court, but do not support a conclusion that it is necessary that the person attending must acknowledge that they are a party to the relevant proceedings in order for them to be considered to have ‘appeared’.[45] Vandongen J then considered the contextual considerations relevant to the meaning of ‘appear’ in s 55. One such consideration was that where s 55 is engaged the court is empowered by s 55(2) to hear and determine the charge ‘in the accused’s absence’.[46] In his Honour’s view, that tended to confirm that the failure to appear is equivalent to absence, a physical concept. Noting that an accused might come before the court from custody under an arrest warrant, his Honour considered it a strange proposition that an accused who refused to identify themselves, but whose identity was not seriously in issue, should be taken to not have ‘appeared’.[47] His Honour then continued:
[45] Kelly v Fiander [2023] WASC 187 at [48].
[46] Kelly v Fiander [2023] WASC 187 at [51].
[47] Kelly v Fiander [2023] WASC 187 at [53].
[56]Finally, the purpose and rationale of that provision, as was explained by Beech J in Saad v Baron [2012] WASC 507 [61] - [62], does not support a construction of s 55 such that it would apply in circumstances in which an accused is before the court, but refuses to acknowledge or clearly accept that they are the person named in the prosecution notice:
On any view, cases of no appearance at all are the core of the operation of the section, and will comprise at least the vast bulk of cases to which the section applies ...
In a situation where an accused does not appear at all, whether in person or by counsel, the purpose and rationale of s 55 may readily be deduced. In that situation, two things can safely be said that explain s 55. First, the accused has chosen not to contest the charges. That may reflect the absence of interest in or concern about the charge, or it may reflect the absence of any issue with what is alleged. Secondly, there is no one in the court to dispute the prosecution case. In those circumstances, the legislature has evidently determined that proof by the prosecution is unnecessary. The process is … 'streamlined' by permitting the court to take any allegation in the prosecution notice to be proved, without evidence.
[57]It could not be concluded that an accused person has chosen not to contest charges, or that they do not take issue with what is alleged by the prosecution, merely because they refuse to identify themselves when asked to do so by a court, or do not clearly identify themselves with a name used in a prosecution notice. As this case demonstrates, the accused may have conducted themselves in this way because they hold misguided beliefs about the legal significance that attahces [sic] to a name that appears in a prosecution notice, and not because they do not wish to defend themselves.
[58]I accept that in certain legal contexts, the words 'appear' and 'appearance' have acquired a technical meaning, particularly in relation to civil litigation procedure. For example, a defendant to an action commenced in this court may 'appear', and submit to the jurisdiction of the court, by entering an 'appearance'. Under the Rules of the Supreme Court 1971 (WA), this is done by filing a memorandum of appearance. Of course, this necessarily constitutes a formal acknowledgement that the person or entity filing the document is a party to the relevant proceedings.[48] However, having regard to the overall scheme of the CP Act, and in particular to the fact that none of its provisions place an obligation on an accused to enter an appearance in any similar manner, the word 'appear' is clearly not used in this technical sense in s 55(1) of the CP Act.
[59]In my opinion, where an accused is charged in a court of summary jurisdiction with a simple offence, an accused 'appears' on a 'court date for a charge' for the purposes of s 55(1) of the CP Act if the accused is before the court at the time the court is dealing with the accused's charges. A person 'appears' when they are personally before the court at that time or, if they are not personally before the court, they are nevertheless represented by counsel.[49] They will also 'appear' when they (or their counsel) are permitted to be before the court via an audio or video link.[50]
[60]Importantly, an accused person who is before the court 'appears', for the purposes of s 55(1), even if they refuse to accept or clearly acknowledge that they are the person named in the relevant prosecution notice, or that they identify themselves with that name. The issue for the court to decide is whether it is sufficiently satisfied that the person who is before them is the accused who is named in the prosecution notice; that they are the person who is alleged to have committed the specified charge or charges.
[61]This is because, in deciding whether an accused has appeared for the purposes of s 55(1) of the CP Act, the court should be concerned with the question of whether the person who is alleged in the prosecution notice to have committed the specified offence is before the court, no matter by what name or other incantation they identify themselves with at that time. Under the system of law that operates in this state, only a person can do (or be deemed to have done) 'an act or omission which renders the person doing the act or omission liable to punishment'.[51] Criminal liability attaches to a human being, not to a 'doppelganger'.
[48] Rules of the Supreme Court 1971 (WA) O 12. See also, O 58.
[49] Saad v Baron.
[50] As to which, see ss 77, 141 and 177 of the CP Act.
[51] Criminal Code (WA) s 2: definition of 'offence', Pickett v Western Australia [2020] HCA 20; (2020) 270 CLR 323 at [66].
The approach taken by Vandongen J has been followed in a number of later decisions in Western Australia.[52] In a recent Queensland decision, it was held that a defendant who was subject to undertakings to appear at court hearings as a condition of a grant of bail had not failed to appear by reason that she insisted on describing herself by another name.[53] Bowskill CJ observed:
[32]To ‘appear’ does not mean simply to be present at the relevant court building; it means to appear before a judicial officer sitting in court at a particular time and place, as required by the person’s undertaking.[54]
[33]A question that may arise in another case, but not on the facts of this case, is whether stepping inside a courtroom, but refusing to come to the bar table and address the judicial officer (for example, shouting at the judicial officer from the back of the public gallery, particularly where the words being shouted are in defiance of respect for the court process) is sufficient to ‘appear’. Justice Peek in Adelaide City Council v Lepse [2016] SASC 66 at [54] held that it was not. So too did Jenkins J in Ashwell v Commissioner for Consumer Protection [2015] WASC 337 at [27]-[29].
[52] Kwok v Gordon [2023] WASC 325 (Tottle J), Reynolds v Nonkovic [2023] WASC 326 (Forrester J) and Hoek v WA Police [2024] WASC 34 (Forrester J).
[53] Re HZX [2024] QSC 168.
[54] Director of Public Prosecutions (Cth) v Turner [2015] QSC 298 at [35].

The defendant in Lepse had declined to approach the bar table. The defendant in Kelly v Fiander appears to have been present at the bar table but declined to confirm her identity. Whether the outcome in Lepse would (or should) have been different if the defendant had come to the bar table (but continued to insist that their presence was ‘without prejudice’, or continued to deny the court’s jurisdiction) may be debated. I need not resolve this but there is, in my respectful view, force in the analysis of Vandongen J, at least where there can be no question that the defendant is physically present at the bar table. Where the consequence of concluding there has been no appearance in that a conviction may be entered without proof being offered, it seems appropriate to resolve any constructional ambiguity in a way that limits, rather than expands, the circumstances where that is the consequence, even where the offence is of a summary kind.
In the case of a defendant that is a company or some other legal entity (and thus not a natural person), there is no sense in which the defendant can be physically present in its own right unless there are circumstances which the relevant law or procedure regards as having that consequence. That is to say, the company will only be able to appear if the company has taken steps through duly authorised individuals, which the law treats as having the consequence that the company has appeared. Accordingly, even adopting the approach of Vandongen J as applicable in the context of ss 62 and 62BA of the CP Act, it cannot be said, in the present case, that, irrespective of whether it had complied with the requisite formalities, the company was ‘as a matter of fact’, present. Ms Potter was not the company, and did not in any event approach the bar table or seek to participate in any way in the hearing. The man who was at the bar table was plainly attempting to participate on behalf of the company, but his presence was not, without more, the presence of the company in question. It could only so qualify if the court were satisfied of his status as a representative pursuant to s 177.
However, to the extent that the Magistrate’s exchanges with the man who was purporting to represent the appellant suggested that it was not possible for any layperson other than a director to represent the company, at least for the purposes of determining whether there was an appearance for the company within the meaning of those sections (ss 62 and 62BA), that was, in my respectful view, wrong.
In the course of oral submissions during the hearing of the appeal, Ms Potter clarified and narrowed the submission made in this context. She accepted that the company had not in fact ‘appeared’ at the hearing. She also accepted that there was before the Magistrate no actual evidence of the appointment of the man who was present as representative of the company.
Rather, the complaint as refined was that the Magistrate erred by failing to afford the company the opportunity to furnish or procure evidence of an appointment of a representative for the purposes of s 177 of the CP Act. The appellant did not develop that submission in detail but it can be seen to have two aspects. First, an approach which denies a sufficient practical opportunity to a party or its putative representative to establish their standing or presence, could amount to a denial of procedural fairness. Secondly, there could be circumstances in which explaining the bases upon which the party or its putative representative might establish their status or right to appear forms part of the duty, which a court owes, in appropriate cases, to advise an unrepresented litigant about the existence of relevant rights and duties so that they can decide how to conduct the case.[55] Whether a party must be advised about rights or duties in this way depends upon all the circumstances, including, potentially, whether the party has exhibited a complete or clear disinclination to participate in any conventional fashion.[56] The court must also be careful not to engage in conduct by way of assistance of an unrepresented litigant which compromises its neutrality.
[55] Gassy v The King [2023] SASCA 90 at [36] (Livesey P, David JA, Stein AJA).
[56] Lepse at [61]-[62] (Peek J).
Turning to the present case, whether or not the Magistrate would have owed a positive duty in other circumstances to explain the existence of a company’s entitlement to be represented by a lay representative for the purposes of s 177, the approach in fact taken by the Magistrate implicitly asserted or conveyed the absence of such an entitlement (at least in the case of a non-director). Alternatively, and in any case, no real opportunity for its exercise was afforded. Neither the man seeking to appear nor Ms Potter had, to that stage of the proceedings, engaged in vexatious or obstructive behaviour of a kind that might be taken to mitigate the practical content of any obligation to provide procedural fairness.
The respondent’s answer to the appellant’s complaint of a denial of procedural fairness was that the Magistrate cannot have owed a duty to explain the possible application of s 177 to those present in the courtroom because, in effect, unless and until their status as a representative of the company was established, they were strangers to the litigation. Whilst not put in these terms, the logic of the respondent’s submission was that if no person at all had been present in court, the Magistrate would not have been obliged to explain that a layperson could be authorised to represent the company, nor obliged to refrain from proceeding ex parte until such a step had been taken. The position should be the same where persons who are merely associated with the party are present, but not appearing as or for the company.
Whilst there is some logic to that argument, it has an air of unreality. The company was not, in point of law, present at the hearing, but a director who the Magistrate considered had the capacity to speak for the company was present and, by her conduct, she was evincing a desire on the part of the company to appear by a representative. As Gleeson CJ said in a different context, ‘[w]hether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice’.[57]
[57] Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1 at [37].
In the present case, there seems little reason to doubt that the appellant would have wished to avail itself of the opportunity to authorise the man in question (or perhaps another lay representative) to appear as its representative, and to provide (and if need be, create) any necessary proof of that authority.[58] Had that occurred,[59] the prosecution would have been required to prove its case, because it could not be said the corporation had failed to appear. As well, there may have been opportunity for the appellant to seek to make out one of the various exceptions, excuses or defences available under s 79B(2) of the RT Act.
[58] Whilst s 177(2)(b) of the CP Act could be read as providing a non-exhaustive method of proof of appointment, it appears to be accepted in the United Kingdom that written documentation to this effect is required: see R (Upon the Application of Lehram Capital Investments Limited) v Southwark Crown Court [2023] EWHC 3190 (Admin).
[59] There is a separate question whether, in order to satisfy s 177, the representative must have or give a name that corresponds with their legal name. I need not decide this issue.
I reach this conclusion with some reluctance because I acknowledge that the Magistrate was dealing with a matter which was very much at the least serious end of the spectrum of legal controversies, and was tasked with doing so in the context of what was likely a busy list. I also recognise that the facility given by s 177 to a company to be represented by a nominated layperson who is not a director has the potential to provide a platform for proponents of pseudolaw, whose conduct can on occasions be frustrating and wasteful.
A separate complaint was advanced that the Magistrate’s decision to proceed ex parte was ‘coloured’ by the understanding he reached, based on statements made by the process server who prepared the certificate of service,[60] that it ‘appears that the people associated with this company hold ‘sovereign citizen’ ideations and have elected to be prosecuted for this matter with the intention of not being served the summons for court’. Although the Magistrate did make a remark to the effect that he was anticipating hearing from a ‘sovereign citizen’, it is not clear to me that the approach taken by the Magistrate was the result of any particular views he held about sovereign citizens, and nor was the making of the remark such as to give rise to a reasonable apprehension of bias on that score. Having regard to the name that the man had given, it was a not-unreasonable supposition. But, standing alone, it does not suggest pre-judgment or bias on some other recognised basis.[61] To the extent that this comprised a free-standing and separate ground of complaint on appeal, I reject it.
[60] These observations were made having regard to the process server’s attempts to effect service, and observations of a ‘Trespass Notice’ at the appellant’s registered office.
[61] Cf. QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural (2023) 97 ALJR 419 at [38] (Kiefel and Gageler CJ).
I also reject the appellant’s claim for a ‘declaration of the right to hold a political opinion’. In support of this claim, the appellant complains that the respondent influenced the Magistrate by asserting that it had a political ideology known as ‘sovereign citizen’, without proper evidence.
The appellant refers to the International Covenant on Civil and Political Rights and the Vienna Convention on the Law of Treaties and submits that I should make a declaration ‘prohibiting SAPOL from impermissively [sic] allowing personal opinion to influence judicial officers’.
What is sought is not an appropriate declaration, and the making of declarations does not fall within any power exercisable by the Court in respect of this appeal in any event. To the extent that it in substance amounts to a request for an injunction, and even if considering the grant of an injunction could be said to be incidental to the powers of the Court on appeal, there is no sound basis to grant an injunction in such question-begging terms nor where the substantive basis for the injunction appears to involve international, rather than domestic law.
Contention that Magistrate erred by entering conviction without proof of underlying matters
As has been noted, the discretion whether to dispense with formal proof is separate and distinct from the power and discretion to proceed in the absence of the defendant. The complaint made by the appellant, that it was denied procedural fairness in a way which vitiated the decision to proceed to determine the matter in its absence, can equally be seen as a ground for vitiating the discretion to dispense with formal proof, particularly if, as appears may have been the case, the Magistrate proceeded upon a misapprehension of the appellant’s capacity to a appoint a layperson who was not a director to represent it, at least for the limited purpose of appearing and entering a plea.
However, the appellant also advanced separate and additional complaints about the process adopted by the Magistrate.
First, the appellant contends that the procedure set out by Peek J in Lepse[62] was not complied with, because the Magistrate failed to grant the prosecutor leave to proceed ex parte and because the prosecutor was silent and failed to provide any evidence in the form of a complaint for the Magistrate to find the charges proven. In particular, the appellant complains that the prosecutor failed to read the charge or complaint before the Magistrate.
[62] [2020] SASC 66.
The record of outcome on 5 February 2024 states that ex parte leave was granted. The remarks are consistent with this. Whether or not the Magistrate uttered these words, it is clear that he made a decision to proceed in the absence of an appearance by the appellant. This complaint fails.
Next, in my view, the reading of the charge or complaint by the prosecutor is not essential, and the reasons of Peek J in Lepse do not suggest otherwise.[63] Where the criteria for its operation are met, s 62BA authorises the Magistrates Court to ‘regard any allegation contained in the summons, or information and summons, (as served on the defendant) as sufficient evidence of the matter alleged’. There is no reason to construe that provision as requiring that the prosecutor read the content of the document to the Magistrate. The text of the section does not require this, and it cannot be said to arise by necessary implication from the context or structure of the CP Act.
[63] In Patel v Police [2022] SASC 83, Kimber J noted that there were no reasons given and that there was no explicit reference to s 62BA on the court record, but said there was no other reasonable conclusion for the endorsement on the file but that the Magistrate had utilised s 62BA. There is no suggestion in his Honour’s reasons that it mattered whether the charge was read.
The appellant’s grounds of appeal included a complaint that the Court did not require prima facie evidence pursuant to s 175(3)(ba) of the RT Act, and the appellant’s written materials also complain that the prosecution has never provided a document or certificate of the kind contemplated by that sub-section, nor established beyond reasonable doubt that the device was operating correctly on the day of the alleged incident. That sub-section creates an aid to proof, but it does not detract from or qualify s 62BA of the CP Act. The complaint therefore does not avail the appellant.
The appellant also complained in its written materials that the prosecution had not filed an evidentiary material brief and it points to r 75.1 of the Joint Criminal Rules 2022 (SA). The contention was not developed at the hearing. Rule 75.1(2) provides that unless the Court otherwise orders, the informant need not file an evidentiary material brief. In my view, where a court is otherwise entitled to proceed to treat the allegations as proved following the non-appearance of a defendant in obedience to a summons, it is idle and therefore irrelevant to complain about the non-provision of an evidentiary material brief. To the extent that the appellant meant generally to complain about an absence of disclosure, the complaint is also without substance. Even if a general disclosure obligation arises in an uncontested matter, the complaint of non-disclosure here is abstract and theoretical.
Finally, in supporting submissions filed after judgment was reserved, the appellant challenged the Crown Solicitor’s right to appear in this appeal for the Commissioner of Police. There is nothing in this point.[64]
[64] See Rule 24.1 of the Joint Criminal Rules 2022 (SA), Mallios v Commissioner of Police [2024] SASC 131 at [34] – [46].
Conclusion and disposition
Whilst I have rejected many of the grounds of appeal and complaints advanced by the appellant, I have concluded that there was a failure to afford procedural fairness in connection with the question of whether the man who sought to appear on the appellant’s behalf should be permitted to do so as the company’s representative within the meaning of s 177. I conclude that this failure vitiated the decision to proceed ex parte and the exercise of discretion to dispense with formal proof. Having regard to the various bases upon which a corporation may avoid liability for an offence against s 79B, I would not conclude that a conviction was inevitable or that no risk of miscarriage arose from the denial of procedural fairness.
Although the appellant framed its appeal on the basis that the Magistrate erred in proceeding as he did, the powers of this Court to intervene on appeal in cases where a conviction has been entered in the defendant’s absence are not necessarily limited to cases where it can be said, on the material before the Magistrate, an error was made. In that residual category of cases, it is relevant to consider whether the failure of the party to appear involved ‘genuine misadventure’.[65] I have not decided the appeal on this basis, but its existence demonstrates that where a conviction has been entered other than following a trial in which the defendant has participated, considerations of finality will more readily be overcome by the need to avoid a risk of a miscarriage of justice.
[65] In such cases the appeal should be allowed only if there has been a miscarriage of justice (or a ‘probability of injustice if the conviction is not set aside’) and that a critical consideration on that issue is whether or not there is any meritorious defence to the prosecution. In such a case, ultimately, it is a case of doing what the justice of the case requires, see: Johns v Police [2015] SASC 118 at [10], [15] (Stanley J), referring, inter alia, to Grant v Irrgang (1991) 160 LSJS 334; Police v Bilaczenko [2018] SASCFC 7 at [4] (Kourakis CJ, Peek and Nicholson JJ); Johns v Police [2015] SASC 118 at [17] (Stanley J), referring to Maider v Dancis (1985) 39 SASR 136 at [142].
The consequence of my conclusions is that the appeal must be allowed and the conviction (and fine) entered (and imposed) by the Magistrate should be set aside. However, contrary to the appellant’s implicit submission that this should be the end of the matter, it should be remitted to the Magistrates Court for further hearing. If the appellant is ultimately convicted, the magistrate hearing the matter will need to consider afresh the quantum of any fine imposed.
It does not follow from my reasons that a layperson should or will in all respects be authorised to conduct the defence of the charge on behalf of the appellant, for example, by way of cross-examining witnesses or making submissions at trial.
My decision is simply that a layperson who is not a director may be authorised by a company to act as its representative for the purposes identified by s 177 of the CP Act and that, where that occurs, it cannot, without more, be said there is no appearance for the company so as to enliven ss 62(1)(b) or 62BA of the CP Act.
Because the hearing on 5 February 2024 was conducted in a way which appeared to deny this capacity to a layperson who is not a director, and because the appellant therefore was not given a reasonable opportunity to appear by a lay representative who was not a director, the conviction of the appellant, entered in its absence and without proof of the underlying facts, should be set aside, and the matter remitted to the Magistrates Court for further hearing.