Howie v Burgess (for the City of Playford)
[2005] SASC 368
•23 September 2005
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
HOWIE v BURGESS (FOR THE CITY OF PLAYFORD)
Judgment of The Honourable Justice Layton
23 September 2005
TRAFFIC LAW - OFFENCES - PROCEDURE - INFORMATION AND COMPLAINT
LOCAL GOVERNMENT - POWERS, FUNCTIONS AND DUTIES OF COUNCILS GENERALLY - POWERS IN GENERAL - DELEGATION OF
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - INFORMATION AND COMPLAINT - RELEVANT PRINCIPLES
The appellant appeals against penalty imposed by a magistrate for the offence of stopping in a no stopping zone - two expiation notices sent to appellant - complaint laid and filed in Magistrates Court - two copies of complaint and summons sent to appellant - no appearance by appellant at Court on day advised in summons - appellant convicted and fines imposed - procedural and administrative issues - whether Council had requisite statutory power to impose parking controls - whether the complaint and summons were invalid due to procedural errors - whether the Australian Road Rules 1999 validly enacted - consideration of statutory provisions providing power to Council - consideration of errors in the complaint and summons not enough to render invalid - inadequate material to challenge validity of Governor's appointment - Appeal dismissed.
Acts Interpretation Act 1915 s 25; Australian Road Rules 1999 .; Local Government Act 1934 s 246; Magistrates Court Rules 1992 r 5.03; Summary Procedure Act 1921 s 49, s 181, s 182; Road Traffic Act 1961 s 11, s 12, s 16, s 17, s 35, s 80, s 174; Road Traffic (Road Rules - Ancillary and Miscellaneous Provisions) Regulations 1999 .; Parking Regulations 1991 ., referred to.
Brunsgard v Daire (1984) 36 SASR 391; Hull v Nuske (1974) 8 SASR 587; Howie v Scheer (1984) 114 LSJS 286; Howie v Gordon (1986) 60 LGRA 36; Howie v Fuss (1989) 9 MVR 95; Howie v McBrearty No 2 [1991] SASC 2702; Howie v Scheer (No 1) (1986) 59 LGRA 367; Howie v Marsh (1994) 20 MVR 216; Police v Howie [1998] SASC 6991; Ireland v Police [2005] SASC 202; Lepadatu v Police [1999] SASC 400; Robey v Police (1993) 18 MVR 121; Pennings v Selby (Unreported, Supreme Court of Western Australia, Parker J, 17 March 1997, Judgment No 1080 of 1996), considered.
HOWIE v BURGESS (FOR THE CITY OF PLAYFORD)
[2005] SASC 368Magistrates Appeal: Criminal
LAYTON J: The appellant was charged on a complaint and summons with the offence of stopping in a no stopping zone on Gawler Road, Virginia contrary to r 167 of the Australian Road Rules 1999 (“the Australian Road Rules”). Two expiation notices were sent to the appellant’s address. Subsequently a complaint was laid, filed in the Elizabeth Magistrates Court (“the Court”) and two copies of the complaint and summons were sent to the appellant’s address. The appellant did not appear in the Court on the day and time advised in the complaint and summons. In his absence, the appellant was convicted and a penalty of $50 by way of a fine was imposed, with court fees, levies and counsel fees bringing the amount payable to $218. The appellant now appeals against his conviction and sentence.
The appellant has a lengthy history in challenging road traffic regulations and council by-laws.[1]
[1] For example Howie v Scheer (1993) 19 MVR 202; Howie v Gordon (1986) 60 LGRA 36; Howie v Fuss (1989) 9 MVR 95; Howie v Scheer(No 1) (1986) 59 LGRA 367; Howie v Marsh (1994) 20 MVR 216; Police v Howie [1998] SASC 6991.
The appellant raises many procedural and administrative issues in his appeal grounds which will be discussed in more detail later in these reasons. The two main arguments focus on the following matters. First, that the City of Playford (“Playford Council”) did not have the requisite statutory power to impose parking controls. Secondly, that the complaint and summons were invalid and unenforceable because of procedural errors. The appellant argues that as a consequence of this alleged invalidity that he was under no obligation to appear before the Court and the penalty should not have been imposed.
A third argument was also raised, namely that the Australian Road Rules were not validly enacted as Sir Eric Neal had not validly been appointed as Governor of South Australia.
Preliminary issues
I gave liberty to the respondent to file an affidavit of John Anthony Burgess sworn on 5 July 2005 which was not objected to by the appellant, who appeared in person.
In addition to this affidavit I was provided with some further documentation with the consent of the parties for use on the appeal, namely:
· Instrument of General Approval and Delegation dated 12 March 2001;
· Expiation Notice number 2100 dated 7 December 2004;
· Expiation Notice number 2100 dated 20 January 2005;
· Two copies of Form No 3 being complaint and summons dated 28 January 2005. One copy containing an endorsement of fees paid of $108;
· Government Gazette dated 5 August 2004 containing copy of the Form 3 required to be used as from 1 January 2005.
Grounds of appeal
I will deal first with the fundamental argument of the appellant concerning the power of the Council to impose parking controls. I do so because if the appellant is successful on this aspect of his appeal, there is no need to progress further to the procedural arguments he seeks to mount in relation to the complaint and summons upon which his conviction and penalty is based.
No power for the Council to impose parking controls
The appellant argues in Grounds 1 to 3 contained in Attachment A to his Notice of Appeal, that the Playford Council had no power to impose or maintain any parking controls under the Australian Road Rules.
This argument is based on the premise that as a consequence of the repeal of Part XXIIA of the Local Government Act 1934 (SA) and inferred repeal of the Parking Regulations 1991 on 1 December 1999, without any appropriate replacement legislation, such passing of by-laws pursuant to s 246 of the Local Government Act 1999, (the present statutory scheme), does not give the Council power to impose parking or other controls. According to the appellant’s argument this means no offence could have been committed pursuant to r 167 of the Australian Road Rules, which rule provides for the offence of stopping on a length of road or in an area to which a “no stopping sign” applies.
As part of this argument the appellant contends that the Minister for Transport did not have the power to impose parking controls and so the Instrument of General Approval by the then Minister for Transport and Urban Planning, dated 12 March 2001, cannot be construed as including a power to impose parking controls. The argument continues that the power of the Minister was restricted to a power to “install, maintain, alter or operate or cause to be installed, maintained, altered or operated, a traffic control device on, above or near a road”.[2] In other words, as I understood the appellant’s argument, there was a power for the Council to install signs but not to control the public in relation to the signs.
[2] Road Traffic Act 1961 (SA), s 7.
In my view the arguments of the appellant are incorrect. It is not necessary for me to consider whether there may have been another means whereby Parliament could have empowered the Council to take proceedings for the offence under r 167 of the Australian Road Rules, my only consideration is whether there is an appropriate statutory basis for the Council to take these proceedings.
Statutory Provisions and Rules
For reasons which I now set out, I consider that the following interaction of the provisions of the Road Traffic Act1961 (SA), (“the RTA”) the Australian Road Rules and the Road Traffic (Road Rules-Ancillary and Miscellaneous Provisions) Regulations 1999, together with the Instrument of General Approval, provide the requisite statutory power.
Power to install traffic control devices
Section 17(1) of the RTA provides:
17—Installation etc of traffic control devices
(1) An Authority may, with the approval of the Minister, install, maintain, alter or operate, or cause to be installed, maintained, altered or operated, a traffic control device on, above or near a road.
This section is enlivened by the Minister giving approval to an Authority. The scope of the approval which can be given by the Minister pursuant to this section is discussed below, and is concerned with, amongst other matters, the installing of any traffic control devices.
The term “Authority” is also defined in s 16 (1) as meaning, amongst other bodies, “any council.”[3] The term “council” is defined in s 5 of the RTA as meaning “a municipal or district council”. The City of Playford is a municipal or district Council within the meaning of the Local Government Act 1999 (SA).[4]
[3] Road Traffic Act 1961 (SA) s 16 (1) (b).
[4] Chapter 3- Constitution of Councils, Part 1, Creation, Structuring and Restructuring of councils, Division 1 Powers of the Governor, s 9, a Council is defined under the LGA under s 4 (1) of the interpretation as a council constituted under the LGA.
The phrase “traffic control device” is also defined in s 5 of the RTA as “a sign, signal, marking, structure or other device or thing, to direct or warn traffic on, entering or leaving a road”. The inclusion of the word “sign” is significant in this case because it is the failure to comply with a “no stopping sign” which forms the basis of this offence.
The relevant verb in relation to that sign is the word “install” which is not specifically defined in the RTA, but in ordinary parlance would refer to the erecting of a sign on a road, in accordance with the Macquarie Dictionary definition:
Install 1. to place in position for service or use, as a system of electric lighting, etc. 2. to establish in any office, position or place.[5]
[5] A Delbridge, JRL Bernhard (eds) The Macquarie Concise Dictionary (3rd ed, 2000) 858.
The scope of the power that the Minister has in relation to the approval required under s 17 of the RTA is dealt with in s 12. Section 12 of the RTA provides as follows:
12—Power of Minister in relation to approvals
For the purposes of this Act, any approval of the Minister required under this Act—
(a) may, if the Minister thinks fit, be of a general nature extending to matters specified by the Minister; and
(b) may be unconditional or subject to conditions specified by the Minister.
This section empowers the Minister to give approvals in a general way in relation to specified matters which may be either conditional or unconditional.
In this case the Minister for Transport on 12 March 2001 provided an Instrument of General Approval in accordance with s 12 of the RTA. The Instrument of General Approval specifically referred to “traffic control devices”. Relevant to the issues in this case, the General Approval was in the following terms:
A. TRAFFIC CONTROL DEVICES
Pursuant to section 17 of the Act, and subject to the conditions pertaining to this clause, I grant to Council, GENERAL APPROVAL to install, maintain, alter, operate, remove or display, or cause such action, any traffic control device, other than those specified in Clause A.8 or those dealt with in other clauses of this notice, on a road or road-related area (as defined in the Act) which is under its care, control and management.
Conditions relating to Clause A:
A.1 Authorisation of other Officers
The Council may authorise any Officer to exercise the powers conferred on it pursuant to Clause A of this Notice. Any Authorisations to any Officer must be made by instrument in writing and passed by resolution of Council. All actions carried out by that officer in accordance with Clause A must be done so “for, and on behalf of the Council”.
Therefore by this Instrument of General Approval, the Minister gave to the City of Playford, as a Council, the approval which enlivened the s 17 power to install a traffic control device, including a sign. Although a council, with the approval of the Minister may be empowered to install the traffic control device, it is the Governor, through the Australian Road Rules, who is empowered to require public compliance with such devices.
Power to require compliance with traffic signs
Section 80(a) of the RTA provides:
80—Australian Road Rules and ancillary or miscellaneous regulations
The Governor may make—
(a) rules (Australian Road Rules) to regulate traffic movement, flows and conditions, vehicle parking, the use of roads, and any aspect of driver, passenger or pedestrian conduct; and
(b) regulations to deal with matters ancillary to this Part and the Australian Road Rules and to make miscellaneous provisions relating to matters of a kind referred to in paragraph (a).
This section empowers the Governor to make rules to regulate, amongst other matters, “vehicle parking” and “the use of roads”, and the section itself refers specifically to the Australian Road Rules. I will return later to the appellant’s argument as to whether the Governor Sir Eric Neal was validly appointed as Governor.
Part 20 of the Australian Road Rules provides in considerable detail, the requirements for traffic signs or other traffic control devices. Part 12 provides for restrictions on “stopping and parking”. Rule 167, which appears under that Part, provides specifically for “no stopping signs”. Omitting the diagrams, r 167 provides as follows:
a driver must not stop on a length of road or in an area to which a no stopping sign applies.
The Dictionary of the Australian Road Rules also defines the term “traffic control device” in the following terms:
traffic control device means a traffic sign, road marking, traffic signals, or other device, to direct or warn traffic on, entering or leaving a road.
I note that slightly different wording is used between the definition of “traffic control device” in the RTA and the definition contained in the Dictionary of the Australian Road Rules, but nothing significant turns on this difference of wording. There is no relevant difference between a “sign” (used in the RTA) and “traffic sign” (used under the Australian Road Rules) given the overall context of both definitions. The term “traffic sign” is also defined in the Dictionary of the Australian Road Rules.
traffic sign means a board, plate, screen, or another device, whether or not illuminated, displaying words, figures, symbols or anything else to direct or warn traffic on, entering or leaving a road, and includes a children crossing flag, a hand-held stop sign, a parking control sign and a variable illuminated message sign, but does not include traffic signals.
I note that a “parking control sign” is also specifically referred to. The term “parking control sign” is also defined in the Dictionary and definition (i) particularly states that it means “a no stopping sign”.
In summary, the Australian Road Rules make it quite explicit that it is an offence for a driver to stop in an area to which a no stopping sign applies.
Power to appoint inspectors
Section 35(1) and sub-s (1a) of the RTA provide:
Division 4—Inspectors
35—Inspectors
(1) The Minister may appoint any persons to be inspectors under this Act.
(1a) An authorised person as defined in the Local Government Act 1999 is an inspector under this Act for the purposes of enforcing prescribed provisions of this Act in the area of the council for which he or she is an authorised person.
Section 35(1a) makes persons who are authorised pursuant to the Local Government Act, inspectors under the Act in order to enforce the prescribed provisions. In ordinary parlance they would be the persons who are seen regularly in the streets observing whether or not the Australian Road Rules are being complied with.
The “prescribed provisions” referred to in s 35(1a) are defined in reg 6(1) of the Road Traffic (Road Rules-Ancillary and Miscellaneous Provisions) Regulations 1999 which provides:
6 Prescribed provisions for purposes of ss. 35, 174A, 174B, 174C and 174D of Act
(1) For the purposes of the following provisions of the Act:
(a) section 35 (Inspectors);
(b) section 174A (Liability of vehicle owners and expiation of certain offences);
(c) section 174B (Further offence for continued parking contravention);
(d) section 174D (Proceedings for certain offences may only be taken by certain officers or with certain approvals),
the provisions of Part 12 of the Rules (Restrictions on stopping and parking) are prescribed provisions. (Emphasis added)
This regulation makes explicit that the restrictions on stopping and parking contained in Part 12 of the Australian Road Rules referred to above, are “prescribed provisions” under the RTA.
Liability for Prescribed Offences
Section 174A of the RTA provides for the liability of vehicle owners in respect of prescribed offences.
174A—Liability of vehicle owners and expiation of certain offences
(1) In this section—
owner, in relation to a vehicle, has the meaning assigned to the term by section 5, and includes the operator of the vehicle;
prescribed offence means an offence against a prescribed provision of this Act.
(2) Without derogating from the liability of any other person, but subject to this section, if a vehicle is involved in a prescribed offence, the owner of the vehicle is guilty of an offence and liable to the same penalty as is prescribed for the principal offence and the expiation fee that is fixed for the principal offence applies in relation to an offence against this section…
These sub-sections indicate that a failure to comply with a prescribed provision, including the failure to comply with a no stopping sign, in contravention of r 167 of the Australian Road Rules, constitutes a prescribed offence.
As indicated in the section itself, the word “owner” is defined in s 5, and includes a person registered or recorded as an owner of the vehicle under the Motor Vehicles Act. It is important to note at this point that the appellant does not contest that he was the owner of the vehicle nor indeed that he parked on Gawler Road on the day of the offence. Rather the basis of the appellant’s argument on appeal is that the Council did not have the requisite power to regulate parking, as set out in his grounds of appeal.
Power to bring proceedings in relation to prescribed offences
Section 174D of the RTA provides as follows:
174D—Proceedings for certain offences may only be taken by certain officers or with certain approvals
No person, other than a member of the police force or an officer or employee of a council, may commence proceedings against a person for an offence against a prescribed provision of this Act without the prior approval of the Commissioner of Police, or the chief executive officer of the council of the area in which the alleged offence was committed.
This section permits a council to commence proceedings against a person for an offence against a prescribed provision of the RTA. These proceedings may be commenced by either an “officer or employee” of a council.
This may be contrasted with s 35 which provides for the appointment of inspectors for the purpose of enforcing prescribed provisions. “Inspectors” includes, under sub-section (1a), authorised persons as defined by the Local Government Act 1999. The persons authorised to enforce prescribed provisions on the one hand, and to bring proceedings in relation to prescribed offences on the other, are therefore defined differently. That is not to say that an authorised person may not be an employee of the Council or to put it the other way around, that an employee or officer of a Council could not also be an authorised person.
I also note s 174E, which contains a presumption that, in the absence of proof to the contrary, proceedings are commenced on the complaint of an officer or employee of the Council. I also note s 175 which provides that an allegation in the complaint of certain specified matters is proof of the matters so alleged in the absence of proof to the contrary.
In summary, on the appellant's first major argument, I am satisfied that the combination of these statutory provisions and rules, empower the Council to install stop signs and to take proceedings against a person who is the owner of a vehicle for an offence of stopping in a no stopping signed area. I therefore reject the argument of the appellant that the Council was not empowered to institute these proceedings against him. In rejecting the appellant’s arguments I draw attention to the fact that the appellant has focused solely upon whether the Minister had power to control and enforce compliance with traffic signs, when the sources of the power to control and enforce compliance are to be found in a combination of other provisions of the RTA and the rules as set out above.
Whether the complaint and summons are invalid
Grounds 4 to 10 as set out in Attachment B of the appellant's Notice of Appeal complained of a number of procedural deficiencies. In order to consider these arguments it is necessary to set out the chronology of events and the relevant documents to which these alleged procedural errors relate.
The chronology of events was itself the subject of dispute between the parties but before dealing with those disputed matters, I will set out the chronology which is common to both the appellant and the respondent’s arguments.
4 December 2004 The appellant's Ford station wagon registered number UNN441 was stopped in a no stopping zone on Gawler Road Virginia 7 December 2004 Expiation notice no 2100 sent to appellant alleging contravention of no stopping sign on 4 December 2004 claiming expiation fee of $47 to be paid by 4 January 2005 20 January 2005 Expiation reminder notice sent claiming expiation fee of $80.50 payable by 10 February 2005 28 January 2005 John Anthony Burgess (Burgess) an officer of the Council drafted and laid a complaint on Form No 3 Contested date Burgess had the complaint and his signature witnessed by Justice of the Peace James Olds Contested date Burgess filed the complaint at the Elizabeth Magistrates Court and paid the court filing fee of $108 by cheque 11 February 2005 Appellant acknowledges he received two copies of the complaint and summons in an envelope addressed to him 12 April 2005 Appellant fails to appear at the Court and the action proceeds ex parte
The form and content of the complaint and summons
The use of the wrong form 3 (Ground Four)
The appellant claims that an old Form No 3 was used in relation to the complaint and summons. This is premised on the amendments to the Magistrates Court (Civil) Rules 1992. By Government Gazette dated 5 August 2004 amendments were made which replaced the old Form 3 with another Form 3 (in effect from 1 January 2005). The complaint and summons in this matter were laid after the date when the new Form 3 came into operation, namely after 1 January 2005.
Apart from the format of each of the Forms, the relevant differences are that the old Form contained a section whereby the Complainant could appear before a witness, being a registrar or Justice of the Peace, for the purpose of laying the complaint, whereas this was not required on the new Form which simply required the signature of the complainant. The second difference is the information given on the reverse side of the Forms which provided that a plea of guilty could be entered without attending court and could be done in writing. The new Form also provides greater details for the Proof of Service.
The relevant legislation on the legal position with regards to the validity of forms, provides as follows:
Section 25 of the Acts Interpretation Act 1915 (SA) states:
Whenever forms are prescribed by any Act, forms to the same effect are sufficient provided that deviations from the prescribed forms are not calculated to mislead.
Further, r 5.03 of the Magistrates Court (Civil) Rules 1992 states:
It is sufficient compliance with these Rules, as to the form of any document, if the document is substantially in accordance with the Form.
In my view the difference between the two Forms is not substantial. The relevant information was apparent on both forms, namely that the appellant by the information on the form is aware of the offence he is charged with and is aware of the requirement that he appear in court to answer the charges, if he wished to contest them. Further, it is clear by reason of his own previous litigation namely Howie v Scheer,[6] that the appellant was aware of the consequences of failing to appear in court in answer to the complaint and summons. I reject this basis of invalidity claimed by the appellant.
The incorrect date on the complaint and summons (Ground 4)
[6] (1984) 114 LSJS 286 and see also Howie v Gordon (1985) 121 LSJS 1.
The appellant contends that the complaint and summons wrongly referred to the date of the alleged offence as being the "4th of December 2005” when the date should have read "4th December 2004". There is no suggestion that the appellant was in any way confused by the insertion of the wrong year on the complaint and summons as the expiation notices both contained the correct date.
Sections 181 and 182 of the Summary Procedure Act 1921 (SA) (“the Summary Procedure Act”) provide that a complaint and a summons, or other process of the Court, are not invalid because of a defect of substance and / or of form. Under these sections the Court may make amendments to rectify a defect if the defendant has not been “substantially prejudiced by the defect”.[7] The insertion of the wrong year, namely 2005 instead of 2004, for the date of the offence is one such defect which the Court may amend. In the case of Ireland v Police,[8] Gray J discussed the power of the Supreme Court to make an amendment to a complaint on appeal and cited a number of cases in support.[9] In Ireland, the defect in the complaint was that the offence had been misdescribed by placing the wrong offending provision, namely r 20 of the Australian Road Rules instead of reg 9B of the Road Traffic (Road Rules- Ancillary and Miscellaneous) Regulations 1999. After amending the complaint to reflect the correct offence, Gray J held that no real prejudice arose to the appellant and the appellant in turn could not identify any material prejudice arising from the application to amend.
[7] s 181 (2) (a) and s 181 (2) (b).
[8] [2005] SASC 202, 4.
[9] See Robey v Police (1993) 18 MVR 121, 123 per Cox J; Lepadatu v Police [1999] SASC 400, [19]-[20] in which Martin J held that: “On appeal the Supreme Court has the same powers to make amendments as the Court of Summary Jurisdiction (Supreme Court Rules r 96C.06 and r 97.18)”.
In the case at bar, considering that the nature of the defect is slight and given that the appellant was under no misapprehension as to the correct date of the offence particularly having regard to the correct dates on all other documentation including the expiation notices, no relevant prejudice arose to the appellant.[10] One can readily see why a wrong year was inserted as the summons was taken out in January of 2005, although not an excuse, it provides a possible reason for the mistake.
[10] Brunsgard v Daire (1984) 36 SASR 391, 400.
Although the defect in the complaint may have been the subject of a contest at the hearing listed on the complaint and summons, the appellant chose not to take the issue up as he did not appear in Court on the arranged date. I reject this appeal ground as being a proper foundation for invalidity of the complaint and summons.
The failure of the Justice of the Peace to date the complaint (Ground 4)
The appellant contends that the complaint was also invalid because the Justice of the Peace failed to date the complaint as required by the rules when Burgess signed the complaint before him.
I do not consider that this ground has any merit. It is also to be noted that under the new form 3, if that had been used, there was no requirement at all for a complainant to appear before a Justice of the Peace let alone have a Justice of the Peace sign and date the complaint. Therefore I reject the appellant’s argument that the complaint was invalid.
Whether the complaint was incorrectly filed (Grounds 5 – 8)
These grounds are linked. The appellant draws attention to the endorsement on one of the copies of the Form No 3 in which the following appears within a pro forma stamp.
FEE $108.00 PAID 14/2/2005
Rct 2800278
The appellant contends that this was the date upon which the complaint was filed in the Court when he had received two copies of the complaint on 11 February 2005. The appellant therefore argues that the complainant failed to comply with the rules because the two copies which were served on him could not have been filed on 14 February 2005 as appears on the endorsement as he had already received the complaint three days earlier. The appellant therefore argues that the Court failed to reject the complaint as invalid because other copies were not filed.
The appellant relied on s 49 of the Summary Procedure Act which provides the procedure for filing a complaint and summons for a summary offence in the Magistrates Court. Pursuant to r 12 of the Magistrates Court (Criminal) Rules and s 49 of the Summary Procedure Act, the complaint must be filed in Court as soon as practicable after it is made[11] and when the complaint has been filed, the Court must issue a summons for the appearance of the defendant. Rule 12.07 of the Magistrates Court (Criminal) Rules provides that a complaint must be filed in the Court within seven days of being made unless not practicable and a copy of the complaint given to the defendant on or before the time of the first Court appearance.[12] The rules provide that the person against whom the complaint is laid should know the nature of the document and receive it as a complaint in its proper form. There is no question here that the appellant received the complaint on or before the time of the nominated Court appearance date, which he subsequently did not attend.
[11] s 49(5).
[12] r 12.08.
The appellant's contention is based on the inference that the fee endorsement on the complaint of 14 February for the payment of fees necessarily corresponds with the date when the complaint was filed in the Court.
The affidavit of Burgess deposes to a chronology in paragraphs 3.2 to 3.6 of his affidavit sworn on 5 July 2005. Mr Burgess states that he filed the complaint and paid the fee by cheque, returned to the Council offices and placed two copies of the complaint and summons in an envelope addressed to the appellant, posted the envelope and completed the "service by post" proof of service on the reverse side of the complaint and summons on the morning of 11 February 2005. Mr Burgess does not depose as to the date upon which he filed the complaint, but the order of events would suggest that the complaint was filed in the Court on or before 11 February 2005. I note that 11 February 2005 was a Friday, the endorsement of the fees paid was made on the following Monday namely 14 February 2005, which may have been the date upon which the cheque was processed and a receipt recorded.
I agree with the appellant that the absence of an appropriate record either in the Court or by some written endorsement by the complainant as to the time and date of the filing of the complaint and the number of copies of the complaint which were filed, is unsatisfactory. This, however, does not satisfy me that the relevant complaint, including the copies with which the appellant was served, were not all filed in the Court prior to the date when the appellant was served with them by prepaid post. I am not satisfied that there has been a failure to comply with the rules nor am I of the opinion that the Court was required to strike out the complaint.
In the case at bar, there is a question whether a failure to comply with the requirement that other copies be filed in the Magistrates Court renders the complaint invalid. It is important to look at the intention of the provisions in the Magistrates Court Rules and the Summary Procedure Act and whether there is a presumption of compliance if one of the steps in the making and laying of the complaint is overlooked.
In the case of Korber v Police,[13] Mullighan J read the requirements for making and laying a complaint and summons as requiring an examination of both s 49 and 57 of the Summary Procedure Act and r 12 of the Magistrates Court (Criminal) Rules. Justice Mullighan in his reasons for decision sets out the three steps required in bringing a defendant to court. First the making of a complaint which is done orally or in writing, second, the laying of the complaint, before a registrar, deputy registrar or Justice of the Peace[14] and thirdly the issuing of a summons signed by the registrar or deputy registrar of the Magistrates Court or a Justice of the Peace. In the case of Pennings v Selby,[15] a single judge of the Western Australian Supreme Court aptly summarised that where there has been a failure to comply with certain provisions,
The task of construction is to determine whether the legislature intended that a failure to comply with the stipulated requirement would invalidate the act done, or whether the validity of the act would be preserved notwithstanding non-compliance: the Franklins Stores Pty Ltd. Case [further]… [a] statute which, on its proper construction, does not nullify the act in question, even for total non-observance of the stipulation, is also described as directory in its terms: Victoria v The Commonwealth.
[13] (2003) 85 SASR 462.
[14] r 12.07.
[15] (Unreported, Supreme Court of Western Australia, Parker J, 17 March 1997, Judgment No 1080 of 1996).
Here the relevant rules of the Magistrate Court Rules and the Summary Procedure Act indicate that the threshold for finding a complaint invalid is high. The Supreme Court has upheld the sufficiency of a complaint even where the complaint fails to give particulars of the offence or the essential elements of the offence.[16] Where a complaint fails to disclose an offence known to the law or fails to give the Court jurisdiction to hear the complaint by failing to issue a summons, the complaint may be held to be a nullity.
[16] Smallacombe v Day [1944] SASR 368; Hunt v Bond [1930] SASR 46.
As I have indicated, given the probable order of events in the filing of the complaint, as deposed by Mr Burgess, I find that there is a presumption of compliance, there is no prejudice to the appellant and further it is not the intention of the provisions that a failure to comply with this particular requirement renders the complaint invalid.
Whether the complaint was invalid and the summons therefore ineffective (Ground 9)
This contention is dependent on the previous grounds of appeal. The appellant argues that as the complaint was, in his submission, invalid, he was under no obligation to make an appearance in court on 12 April 2005 or any time to answer the purported complaint. The complainant relies on Korber which came on by way of appeal before Mullighan J. The facts concern an appellant who appealed against convictions on the basis of irregularities in the making and laying of a complaint and the validity of the summons. The allegation made on appeal was that the complaint was served on the appellant before it was filed in court and was not signed by the Registrar of the Court or a Justice of the Peace.
Justice Mullighan found that the original summons was a nullity as it had never been issued by the Court, was not signed by the Registrar or a Justice of the Peace. However, this was of no consequence in the case when the complaint was heard as the appellant was present in court in obedience to a subsequent validly issued summons. His Honour stated that the jurisdiction of the Court did not depend upon the summons being issued but upon the making of a complaint.
The principles upon which Mullighan J considered that the summons was a nullity is not applicable here as I am not satisfied that the preconditions to nullity or invalidity are present in this case as per the reasons set out earlier.
I consider that this ground has no merit. I am not satisfied that the complaint or summons were invalid nor that the Council lacked the requisite power to issue proceedings in relation to vehicles stopping in a no stopping sign area. The complaint and summons which had been served on the appellant clearly indicated that he was required to appear in court on 12 April 2005 at 2.15 p.m. to answer the complaint unless he wished to plead guilty in writing without attending court. The appellant deliberately chose not to attend court and contest the matters, including some issues which would otherwise have been appropriate to have been raised in the matter on the alleged procedural errors in the complaint and summons. I therefore reject this ground of appeal.
Whether Sir Eric Neal was properly appointed
The final argument concerns the alleged failure of Sir Eric Neal to be appointed as Governor of Australia. The appellant first raised this matter at a hearing on 9 June 2005. I gave the appellant liberty to argue this point at a later time. The matter resumed before me on 12 July 2005 and I asked the appellant if he wished to pursue this argument. He indicated that he did. The appellant provided information from the Bar table indicating that he had a copy of a commission obtained from Government House indicating Sir Eric Neal was appointed as Governor of South Australia with a signature appearing to be that of the Queen. The appellant submitted that there was an attachment which contained no signature of any authorised officer, nor was it sealed. The appellant argued on this basis that the Commission appointing Sir Eric Neal was not properly implemented. He also referred to a facsimile which had been received from England in which a person undertaking research from the register stated that there was no record of the appointments of Dame Roma Mitchell, Sir Eric Neal or Marjorie Jackson Nelson. I indicated to the appellant that this was not evidence and there was inadequate material upon which he could mount any argument to challenge the validity of the Governor's appointment. For those reasons I reject his argument.
Conclusion
I therefore consider that for the reasons set out above, that the appeal should be dismissed and I so order.
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