Hatzisavas v Roads and Maritime Services

[2014] NSWSC 284

Supreme Court

New South Wales

Medium Neutral Citation:

Hatzisavas v Roads and Maritime Services [2014] NSWSC 284

Hearing dates:

07/02/2014

Decision date:

07 February 2014

Jurisdiction:

Common Law

Before:

Garling J

Decision:

(1) Dismiss the Summons filed 24 December 2013.

(2) Order the plaintiff to pay the defendant's costs of the proceedings.

Catchwords:

PROCEDURE - civil - pleadings - summons - dismissal

COSTS - general rule that costs follow event

Legislation Cited:

Constitution Act 1902 (NSW)
Crimes Act 1900 (NSW)
Fines Act 1996 (NSW)

Cases Cited:

R v Kirby; Ex parte Boilermakers Society of Australia [1956] HCA 10; (1956) 94 CLR 254

Category:

Principal judgment

Parties:

Kaula Hatzisavas (P)
Ex parte (D)

Representation:

Solicitors:
In person (P)
Ex parte (D)

File Number(s):

2013/386233

EX TEMPORE Judgment

1. By a Summons filed on 24 December 2013 Kaula Hatzisavas sets out a "Statement of Charge" in the following terms:

"That the RMS [Roads and Maritime Services] is found guilty of extortion under the provision of the Crimes Act 1900 (NSW) ss 99, 100, 100A, 101, 102, 103, 104 and 105."

1. The relief claimed in the Summons is expressed in the following way:

"Order RMS to reinstate drivers licence (and then)

Order to charge RMS with extortion."

1. That Summons has been supported in the proceedings before me today by reference to a number of affidavits.

1. On 24 December 2013, an affidavit was filed in which the deponent, Kaula Rafailidis, whom I take to be the same individual as Kaula Hatzisavas, says that on 17 December 2013 she received a letter in which the State Debt Recovery Office ("SDR") directed Roads and Maritime Service ("RMS") to suspend her drivers licence.

1. She said that RMS were conspiring with the SDR to try and force her to pay the money because of the possible consequences if she was stopped by a police officer whilst driving a car without a valid licence. The deponent set out the hardship with which she was presently confronted by reason of not having a valid driver's licence. She said:

"I have a family and I live with my family on farmland where there are no local amenities. My family is now put in danger of great harm and so too are the farm animals I tend to."

1. In a later affidavit filed on 30 December 2013, Ms Hatzisavas deposed that on 17 December 2013 she received via the post a letter from the RMS stating it had been directed to suspend her drivers licence and to "... not conduct certain driver licence and vehicle registration business" with her.

1. She recorded in that affidavit that the letter also stated that the suspension of her licence would not be lifted until she made full payment of the amount ordered to be paid.

1. The proceedings on the Summons were referred to me as the Duty Judge by the Registrar at Common Law. The plaintiff on the Summons has appeared before me by herself and without legal representation. There was no appearance by, or on behalf of, the RMS. The plaintiff has informed me of the following matters, which she submits are relevant.

1. On an occasion (the date of which I do not know) her motor vehicle, a silver Toyota Camry, was parked outside her mother's house. Whilst so parked, a parking fine issued by Holroyd Council, was placed on the vehicle. The fine was in the sum of $143.

1. The Toyota Camry is registered in Kaula Hatzisavas' name but, as she informs me, is sometimes driven by either her husband, or her daughter, or perhaps by her mother or father. The actual document by which the fine was imposed is not in evidence before the Court.

1. The plaintiff wished to dispute the fine but apparently did so a short time after the expiry of the time fixed within which an election to have the matter proceed to court, could be made. Accordingly, as the plaintiff has informed me, the matter has not been to court. However by reason of the position of what I may adequately call the on the spot fine, the plaintiff was obliged to pay $143 to the SDR.

1. The plaintiff informs me that the sum now required to pay the fine has escalated to an amount over $400. The plaintiff tells me that she has not paid either the original fine or any other money which has apparently accumulated upon it.

1. As best I can discern from the Summons and the affidavit, in light of the existence of the fine, which the plaintiff disputes, and the failure to pay any monies which are the subject of the fine, the SDR has issued a direction to RMS requiring it to suspend the plaintiff's drivers licence and not to enter into any dealings with the plaintiff until the sum of money has been paid. Those dealings were described by use of the phrase "driver licence and vehicle registration business".

1. So far as I can tell, on the limited information before me, the cancellation or suspension of the plaintiff's drivers licence has taken place pursuant to s 66 of the Fines Act 1996.

1. The plaintiff submits that the Fines Act is involved, although the basis of her submission is elusive.

1. The Fines Act is an Act of the New South Wales Parliament. It is undoubted that the New South Wales Parliament has the power to pass legislation for the peace, welfare and good government of the State of New South Wales and those who live in the State: see s 5 Constitution Act 1902 (NSW).

1. There is nothing in the material before me that is capable of casting any doubt on the constitutional validity of the Fines Act.

1. That Act creates in s 113 a Commissioner of Fines. Section 115 provides that the Commissioner is entitled in taking action in support of his (or her) function, to take such action under the name of, and to use the name of, the SDR.

1. The provisions of s 66 of the Fines Act obliges the RMS to suspend any driver's licence when it is required by the SDR to taken enforcement action.

1. It is apparent to me on the limited evidence which I have, that the SDR, which is the name used by the Commissioner of Fines, has given a direction to the RMS to suspend or cancel the plaintiff's drivers licence because the plaintiff has not paid to it, the fine which was originally imposed and any other sums which are lawfully to be added to that amount.

1. As far as can be told from the material which the Court has, the decision to suspend or cancel the licence of the plaintiff has been made in accordance with the legislation to which I have referred. So much is implicit in the very application made by the plaintiff and the facts upon which she relies.

1. The plaintiff submits that the Court should order the RMS to return her driver's licence to her and to reinstate it. She submits, if I may attempt to encapsulate or summarise her submissions to which I have listened most attentively, that the statute, being the Fines Act, is not properly to be regarded as a valid law; and that the statute is not capable of giving any power, function or authority to the SDR to either impose a fine upon her or, alternatively, to take any enforcement action with respect to that fine and, in particular, insofar as the Act permits a direction to be given to RMS, to suspend or cancel her drivers licence, any such direction, let alone the provision of the Act, is invalid and unconstitutional and beyond the legislative power of the NSW Parliament.

1. As well, the plaintiff submits that any conduct to enforce a fine is necessarily invalid because no fine can be imposed upon her validly unless there has been a conviction entered against her by a court. She says, and it appears to be so and I accept, that no conviction has been entered in this case.

1. Accordingly, she submits that by reference to fundamental human rights, as she describes them, which are said, at least in part but not entirely, to arise from the King James version of the Bible, the Magna Carta, the Bill of Rights and the authority of the decision of the High Court of Australia in the boilermaker's case, that is, R v Kirby; Ex parte Boilermakers Society of Australia [1956] HCA 10; (1956) 94 CLR 254, that what has occurred to her, and the conduct of the relevant bodies namely, the SDR and RMS, is of no force and effect.

1. It is possible that I can encapsulate the flavour of the plaintiff's argument by recording what she has written herself in paragraphs 41 and 42 of an affidavit filed on the 30th of December 2013. Those paragraphs say:

"41 I believe God created man. Man then created the system of government to serve man. Through government statutes are created for the good governance of man. Statutes cannot take away any rights of man. The right to travel is an inalienable right; it is not a privilege that is granted by government.

42 A statute that takes away the rights of any man is a statute created beyond power and therefore ultra vires."

1. Submissions to this general effect were put in one way or another and in different forms by the plaintiff in her application to the Court for the orders to be made. Because the plaintiff says that the SDR and RMS are not validly able to take the actions which they have, she submits that they are engaged jointly in a crime which constitutes extortion under the various provisions of the Crimes Act 1900 (NSW) to which I have earlier referred.

1. When the matter was called on before me there was no appearance in Court by the RMS, although the New South Wales Crown Solicitor has filed a Notice of Appearance, and at one stage there have been some further appearances. It was unclear to me whether RMS knew that the matter was before the Court. The plaintiff was of no assistance in this respect.

1. Notwithstanding the absence of the defendant, the plaintiff has submitted that I should proceed to hear and determine the matters set out in the Summons.

1. Ordinarily it would not be appropriate for any determination to be made in the absence of a representative of the defendant but since this is the third time the plaintiff has come to this Court seeking relief, when I was informed of the general nature of the relief being sought, I thought it was appropriate to allow the plaintiff to put all such submissions as she wished to. I did this essentially for the reason that the plaintiff was urging upon the Court that her matter was urgent because of her need to have her driver's licence restored.

1. As it appears from the Court record, the plaintiff first approached the Court on 27 December 2013, when the Court was constituted by the vacation Duty Judge, Rothman J. He listed the matter for hearing today before the Common Law Registrar and it is from that list that the matter has been referred to me.

1. It is also apparent that the plaintiff made an application on 7 January 2014, before Fullerton J who was also sitting as the vacation Duty Judge. At that time Fullerton J confirmed the orders made by Rothman J.

1. Proceedings in this Court are judicial proceedings in which the Court is obliged to, and does, act in accordance with the jurisdiction which it has, including the laws of New South Wales insofar as they are relevant to the proceedings.

1. It is beyond doubt that the laws of New South Wales, as that term is used, broadly consist both of the Statutes or Acts of Parliament, which are properly passed and which are constitutionally valid, and the common law of Australia as it applies in New South Wales. There is no proper legal basis for the plaintiff to argue otherwise, as she does. The Court is obliged to have regard to the laws of New South Wales in considering this application.

1. As it seems to me the decision made by the RMS to suspend the plaintiff's driving licence or cancel it was made in accordance with the Fines Act. A sufficient reason, accepted by the plaintiff, exists for that suspension, namely, a failure to pay the fine which was in fact levied.

1. The difficulty for the plaintiff is that she disputes that underlying fine but did not do so within the time limited for such a dispute to be agitated. I reject entirely the plaintiff's submissions that the Fines Act is beyond the legislative power of the New South Wales Parliament. On the contrary, I am positively satisfied that it is within the power of the New South Wales Parliament to pass the Act.

1. I reject entirely the plaintiff's submission that the enforcement action being taken by the SDR by way of a direction given to the RMS constitutes a "judicial acknowledgement by a corporation" which is beyond its power and function. On the contrary, the SDR and the RMS are performing functions given to each of them by the relevant statute.

1. There is no basis in any of the material put before me which would permit this Court to overturn the decision of either the RMS or the Commissioner of Fines undertaken in the name of the SDR. In those circumstances, it is not open to this Court and I decline to order the RMS to reinstate the plaintiff's driver's licence.

1. The allegation that the RMS ought to be found guilty of extortion under the named provisions of the Crimes Act is simply fanciful. The pleading in which that allegation is made is both vexatious and an abuse of the process of the Court. There is no material before the Court which will enable this Court to proceed to give either the relief sought or to issue the charge set out.

1. I make the following orders:

(1)   Dismiss the summons filed 24 December 2013.

(2)   Order the plaintiff to pay the defendant's costs of the proceedings.

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Decision last updated: 21 March 2014