Kourtidis v City of Port Phillip

[2004] VSC 550

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
PRACTICE COURT

No. 6239 of 2004

THEODORE KOURTIDIS	Plaintiff
v
CITY OF PORT PHILLIP	First Defendant
AND
THE MAGISTRATES' COURT OF VICTORIA	Second Defendant

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JUDGE:	COLDREY J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	28 MAY 2004
DATE OF JUDGMENT:	7 JUNE 2004
CASE MAY BE CITED AS:	KOURTIDIS v CITY OF PORT PHILLIP & ANOR
MEDIUM NEUTRAL CITATION:	[2004] VSC 550

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EX PARTE APPLICATION – Applicant imprisoned for default of payment of parking fines – Required procedure for conduct of the hearing pursuant to Schedule 7 Magistrates Court Act 1989 not followed – Immediate release ordered

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P. Jansen	Victoria Legal Aid
For the Defendants	No appearance

HIS HONOUR:

1. This was an application brought ex parte for an order in the nature of Order 57 of the Rules of the Supreme Court of Victoria for the immediate release from custody of Theodore Kourtidis (the Plaintiff/Applicant).  At the time the order was sought, late on the afternoon of 28 May 2004, Mr Kourtidis was an inmate of Dhurringile Prison.  He had been sentenced in the Melbourne Magistrates' Court on 15 January 2004, to be imprisoned for 265 days in default of payment of parking fines totalling $26,414.50 to the City of Port Phillip. 

1. The history of the matter was by no means clear but given the urgency of the situation, the apparent anomalies in the procedure adopted, together with the nature of the offences leading to imprisonment, I granted the order sought indicating that I would give my reasons at a later date.  This I now do.

1. It is not necessary to set out in detail the legal process giving rise to the current situation. It is sufficient to note that what is termed the PERIN procedure provided in s.99 of the Magistrates' Court Act 1989 (the Act) was adopted in preference to initiation of proceedings under s.26 of the Act and their conduct in accordance with Schedule 2 therein.

1. The procedure to be followed pursuant to s.99, which deals essentially with offences for which an infringement notice or a penalty notice has been issued, is contained in Schedule 7 of the Act.

1. I have indicated that the precise course of events leading to this matter coming before the Magistrates' Court are not clear on the material but come before the Magistrates' Court it did, and on four separate occasions according to the Courtlink System of the Magistrates' Court.  On three of these occasions it was adjourned (18 September, 23 October, and 20 November 2003).  According to the submissions of Mr Jansen, who appeared on behalf of the plaintiff, on the first of these dates the matter was adjourned so that medical evidence could be obtained, whilst on the second hearing day the case was not reached.  On the third occasion the case was actually adjourned by a Magistrate one day before the date specified in the Advice of Hearing Date (namely 21 November 2003) which had been provided to the plaintiff.  It was asserted that on 21 November 2003, the plaintiff was informed that the matter had been dealt with the previous day but he was not told of the adjourned date being 15 January 2004. 

1. In the event, Mr Kourtidis did not appear on that date and the next he knew of the matter was his arrest on 7 May 2004.

1. The certified extract of the Court order states that Mr Kourtidis was before the Court pursuant to a PERIN (sic) Enforcement Warrant.  On the documentation exhibited, that cannot be correct unless this had occurred at some time prior to 18 September 2003, and Mr Kourtidis was subject to the operation of clauses 21-23 of Schedule 7 of the Act.  There was, however, no material to that effect. 

1. The Sheriffs Office Notice provided to the plaintiff on 7 May is also curious.  It recites, (inter alia), an arrest pursuant to a Penalty Enforcement Warrant and it then states:

"As you are currently being held in lawful custody for other reasons, it is not practicable to produce you before the Magistrates' Court of Victoria within 48 hours of your being lodged at the police gaol on the Penalty Enforcement Warrant(s). Upon your release from custody you are directed to appear before the Magistrates' Court of Victoria (details listed below), in accordance with the Magistrates' Court Act 1989 – Schedule 7 – Part 4 – Section 22."

This is followed by a notation that the plaintiff was to appear before the Melbourne Magistrates' Court on the 9th of March 2005 and continued:

"Failure to appear before the Court on the date specified will result in a Warrant for your Arrest being issued by the Court to the Sheriff/Victoria Police directing the Sheriff/Police to bring you before the Court in accordance with the Magistrates' Court Act 1989 – Schedule 7 – Part 4 – Section 27."

1. It is to be noted first, that the plaintiff was not "currently being held in custody for other reasons" and secondly, the date 9/3/2005 is, on its face, meaningless. 

1. The reverse side of the Notice details the rights of a person in the position of Mr Kourtidis in accordance with the provisions of clause 23 of Schedule 7. 

1. The effect of clauses 21-24 and 27 of the Schedule is that such person must be given the opportunity to be heard (having if necessary been arrested and, in effect, brought before the Magistrates' Court as soon as practicable).  Thereafter the Court has a number of options ranging from the discharge of the fine in whole or part;  the granting of an adjournment for up to six months (in each case where a person has a mental disorder or is intellectually impaired);  ordering imprisonment calculated (inter alia) as one day per $100;  or ordering a period of imprisonment for up to two thirds less than the application of the above formula would produce.  In exceptional circumstances the Court has the power to make a community based order.

1. In the event, on the material before this Court, the requisite procedure set out in Schedule 7 was not followed.  The plaintiff was never brought before the Magistrates' Court and was sentenced to imprisonment in his absence without any opportunity to be heard.  It followed, in my view, that Mr Kourtidis was not lawfully in custody.  Accordingly, I made the orders for his release from custody and for the rehearing of this matter according to law.  The orders that I made on 28 May 2004, were as follows:

"(1)The Order of Magistrate P.H. Mealy on 15 January 2004, in case No. RO2036658, whereby the Applicant was sentenced to be imprisoned for 265 days, be quashed.

(2)The Applicant be released from imprisonment upon receipt of this Order.

(3)The Applicant appear at the Melbourne Magistrates' Court on 21 June 2004, at which time Case No. RO2036658 shall be dealt with according to law."

1. On reflection two further orders should be made and they are as follows:

"(1)It is further ordered that the Applicant serve a copy of this Order upon the first and second defendants herein within two days hereof.

(2)      There be liberty to apply."

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CERTIFICATE

I certify that this and the 3 preceding pages are a true copy of the reasons for judgment of Coldrey J of the Supreme Court of Victoria delivered on 7 June 2004.

DATED this 7th day of June 2004.

Associate