Kyria v Traffic Camera Office
[2017] VSC 630
•13 October 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2017 01346
| GEORGE KYRIA | Appellant |
| v | |
| TRAFFIC CAMERA OFFICE | First Respondent |
| MAGISTRATE CLIFFORD OF THE MAGISTRATES’ COURT OF VICTORIA | Second Respondent |
---
JUDGE: | MACAULAY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 9 October 2017 |
DATE OF JUDGMENT: | 13 October 2017 |
CASE MAY BE CITED AS: | Kyria v Traffic Camera Office |
MEDIUM NEUTRAL CITATION: | [2017] VSC 630 |
---
JUDICIAL REVIEW AND APPEALS – Appeal from Magistrates’ Court pursuant to Criminal Procedure Act 2009 (Vic), s 272 – Question of law ‒ Whether Magistrate erred in identifying and applying applicable legal test – Meaning of sufficient grounds for revocation of enforcement order – No error – Appeal dismissed - Infringements Act 2006 (Vic), s 66A.
---
APPEARANCES: | Counsel | Solicitors |
| For the Appellant | In person | |
| For the First Respondent | Mr S Russell | Maddocks |
| For the Second Respondent | No appearance |
HIS HONOUR:
Introduction and summary
Mr George Kyria (the appellant) was issued with a traffic infringement notice for exceeding the speed limit in a motor vehicle by 6km an hour[1] on Christmas day 2015 as detected by a prescribed road safety camera. At the time he was the registered operator of the vehicle. When the penalty under the infringement notice went unpaid an enforcement order was made, deemed to be an order of the Magistrates’ Court. Mr Kyria applied for revocation of that enforcement order but, ultimately, a magistrate refused that application. By this proceeding Mr Kyria has appealed the magistrate’s order pursuant to s 272 of the Criminal Procedure Act 2009 (Vic) on a question of law.
[1]An offence in contravention of r 20 of the Road Safety Road Rules2009.
The first respondent is the Traffic Camera Office.[2] The second respondent, the Magistrates’ Court, informed the Court by letter that it would abide the decision of the Supreme Court in accordance with the principles enunciated in R v Australian Broadcasting Tribunal; Ex parte Hardiman.[3]
[2]The Traffic Camera Office is a division within the Road Policing Enforcement Division of Victoria Police: Affidavit of Ian Gillanders sworn 16 June 2017 [1] (‘Gillanders affidavit’).
[3](1980) 144 CLR 13.
Because the notice of appeal was filed out of time Mr Kyria applied for leave to appeal. Mr Kyria gave an explanation for his lateness, including that, mistakenly, he first brought an appeal to the County Court under s 254 of the Criminal Procedure Act which (correctly in my view) held it did not have jurisdiction. The first respondent did not press any opposition to leave being granted and in my view it is appropriate in all the circumstances that I should grant leave to appeal out of time.
However, for the reasons that follow, the appeal must be dismissed.
Relevant legal principles
An appeal on a question of law may succeed if it is established that the relevant tribunal has identified the wrong legal test or failed to apply the correct legal test; there is no evidence to support a finding by the tribunal of a particular fact; or the facts as found do not fall within the statute as properly construed (including that the factual findings of the tribunal cannot support the legal description given to them).[4]
[4]Cosmopolitan Hotel (Vic) v Crown Melbourne Limited (2014) 45 VR 771, 783-784 [48]- [49] (Warren CJ), 805-806 [167]- [168] (Whelan JA with whom Santamaria JA agreed).
Relevant legislative provisions
The Infringements Act 2006 (Vic) provides a framework for the issuing and service of infringement notices for particular offences and the enforcement of those infringement notices.[5] Section 88 of the Road Safety Act 1986 (Vic) provides that a traffic offence for which a traffic infringement notice may be served is an infringement offence under the Infringements Act. Such an offence therefore is amenable to the framework established by the Infringements Act.[6]
[5]Infringements Act s 1.
[6]Road Safety Act s 88. It was not in dispute that the offence in question in this case was one for which a traffic infringement notice may be served. The provisions leading to that inclusion are as follows: the definitions of ‘infringement notice’ and ‘infringement offence’ in s 3 of the Infringements Act; the definition of ‘traffic infringement’ under s 3 of the Road Safety Act; s 88, in Part 7, of the Road Safety Act; reg 73 of the Road Safety (General) Regulations; Item 10 of Schedule 7 of those Regulations which refer to exceeding the speed limit in contravention of r 20 of the Road Safety Road Rules.
The Infringements Act provides, inter alia, for: the service, payment and withdrawal of infringement notices (Part 2, Division 2); a process for the internal review of an infringement notice (Part 2, Division 3); the service of penalty reminder notices (Part 2, Division 4); the lodgement of the infringement penalty with the infringement registrar (Part 4, Division 1); the making of an enforcement order by the infringement registrar (Part 4, Division 2); the revocation of an enforcement order (Part 4, Division 3); and court hearings about an enforcement order or the revocation of an enforcement order (Part 4, Division 4).
The process that was followed for the matter to reach the decision by the magistrate, and then come before this court, must be traced through the provisions of the Infringements Act, the Road Safety Act, the Road Safety (General) Regulations 2009 (Vic), the Magistrates’ Court Act 1989 (Vic) and the Criminal Procedure Act. Relevant to a traffic offence for which an infringement notice may be served, they are as follows:
· A person may be served with a traffic infringement notice – s 12 Infringements Act.
· Payment is due not later than 28 days after service of the notice – s 14 Infringements Act.
· The traffic infringement notice may be withdrawn by the relevant enforcement agency before an enforcement order is made – s 18 Infringements Act.
· A prescribed offence that is detected by a prescribed road safety camera (as this particular offence was) is an ‘operator onus offence’ for the purposes of Part 6AA of the Road Safety Act – s 66 Road Safety Act.
· In relation to an operator onus offence, the operator of a motor vehicle (which includes the registered operator) is not liable if the operator ‘establishes that, at the time of the offence, [he or she] was not responsible for the motor vehicle’ – s 84BA(4) Road Safety Act.
· Unless and until the operator ceases to be responsible by establishing another person was responsible that operator remains guilty of the offence and liable to the same penalties as if the operator had been the driver at the time of the offence – s 84BC Road Safety Act.
· The operator can avoid that liability if ‘within the prescribed period’ the operator gives an effective ‘known user statement’ to the relevant enforcement agency identifying the driver of the car at the time of the offence along with other prescribed details – s 84BE Road Safety Act.
· The period for making the ‘known user statement’ in relation to a traffic infringement notice ends when the enforcement authority lodges the infringement penalty with the infringement registrar under the Infringements Act – reg 80(b)(i) Road Safety (General) Regulations 2009.
· After service of the traffic infringement notice, a person may request an internal review of the notice for a mistake or if it is considered the notice was issued contrary to law etc. and the enforcement agency must undertake a review – s 24 Infringements Act.
· The enforcement agency may serve a penalty reminder notice if the penalty under the infringement notice is not paid – s 29 Infringements Act.
· Providing that a penalty reminder notice has been served, the penalty remains unpaid and the person remains ‘responsible’ under the operator onus provisions of the Road Safety Act (that is, has not provided an effective known user statement) the agency may lodge the details of the outstanding infringement penalty with the infringement registrar – s 54 Infringements Act.
· The effect of ‘lodgement’ with the infringement registrar is to bring to a close the operator’s right to serve a known user statement to avoid liability for the offence by that means.
· Upon ‘lodgement’ under s 54, the infringement registrar may make an enforcement order for the penalty which is deemed to be an order of the Magistrates’ Court – s 59 Infringements Act.
· Such an order does not entail a conviction for the offence[7] – s 61 Infringements Act.
[7]Which is why the County Court did not have jurisdiction to hear Mr Kyria’s appeal under s 254 of the Criminal Procedure Act.
· The person against whom an enforcement order is made may apply for the revocation of the enforcement order, which application must state the ‘grounds’ on which the revocation is sought – s 65 Infringements Act.
· In the case of an infringement offence involving a motor vehicle, the infringement registrar ‘may’ revoke the enforcement order if satisfied the applicant was not the driver at the time of the offence and has nominated another person as the driver – s 61A(4) Infringements Act.
· The infringement registrar ‘must’ revoke an enforcement order if ‘satisfied that there are sufficient grounds for revocation’ but, if not so satisfied, must advise the applicant that the order has not been revoked – s 66A(1)(2)(3) Infringements Act.
· The power of the infringement registrar to revoke an enforcement order is not limited by the above grounds but may be exercised ‘on any other basis’ – s 61A(7) Infringements Act.
· If the infringement registrar refuses to revoke an enforcement order, the applicant may apply to have the revocation application referred to the Magistrates’ Court, such application to be made within 28 days of the refusal – s 65(1) Infringements Act.
· The Magistrates’ Court may revoke the enforcement order and proceed to determine the matter of the infringement offence or not revoke the enforcement order and refer the matter back to the infringement registrar for enforcement – s 72 Infringements Act.
· If the Magistrates’ Court hearing the matter under s 72 of the Infringements Act was constituted by a judicial registrar, the applicant for revocation may appeal any refusal by the judicial registrar, which appeal is to be heard by a magistrate as a hearing de novo – s 16K(3)(4) Magistrates’ Court Act.
· If the magistrate refuses the application for revocation of the enforcement order the applicant, as a party to a criminal proceeding in a Magistrates’ Court, may appeal to the Supreme Court ‘on a question of law’ – s 272 Criminal Procedure Act.
· An appeal to the Supreme Court must be made within 28 days of the Magistrates’ Court order (unless leave to appeal out of time is granted) – s 272(3) Criminal Procedure Act.
Factual background
Bearing that process in mind, the particular facts relevant to Mr Kyria are summarised chronologically below:
25-Dec-15 A road safety camera detected a vehicle of which Mr Kyria was the registered operator being involved in a speeding offence, namely exceeding 60km an hour (66km/hr). 07-Jan-16 A Traffic Infringement Notice for a penalty of $190 was sent to Mr Kyria at his registered address attaching a form for nominating another driver (i.e. a known user statement). 18-Feb-16 The due date for payment of the penalty under the Traffic Infringement Notice. 26-Feb-16 A penalty reminder notice was sent to Mr Kyria’s registered address, the penalty then due was $214.50. A further driver nomination form was attached. 08-Apr-16 The due date for the penalty under the reminder notice. 15-Apr-16 A final warning notice was sent to Mr Kyria’s registered address for payment of the penalty of $214.50. 22-Apr-16 The due date for payment under the final warning notice. 05-May-16 The Traffic Camera Office lodged details of Mr Kyria's infringement offence with the infringements registrar.
The period for lodging a driver nomination statement expired 'immediately before lodgement of the infringement penalty details'.05-May-16 The infringements registrar made an enforcement order. 06-May-16 Notice of the enforcement order was sent to Mr Kyria’s registered address. 15-Jul-16 Civic Compliance Victoria received Mr Kyria’s application for revocation of the enforcement order in which he stated that Theodora Kyria was the driver at the time of the offence. Mr Kyria answered both ‘yes’ and ‘no’ to the question whether he received the penalty reminder notice and ‘N/A’ to questions concerning any action he took upon receipt of the notice and any explanation he could give for not receiving it. 29-Jul-16 The infringements registrar refused Mr Kyria's application for revocation giving reasons that:
The reason for refusal by the Infringements Registrar is INSUFFICIENT GROUNDS:
Still resident at address where penalty reminder notice was sent. The penalty reminder notice and enforcement order were sent to the address stated on the applicant's revocation form as their residential address. The applicant has not satisfied the Infringements Registrar that the notices were not received.22-Aug-16 Mr Kyria sent a typed letter (seemingly dated 3 August 2016) referring to receipt of the Infringement Court letter dated 29 July 2016 and objecting to the decision. It was taken to be an application to have the application for revocation referred to the Magistrates’ Court. 11-Oct-16 The Magistrates’ Court constituted by Judicial Registrar Dixon heard and refused the revocation application. 11-Oct-16 Mr Kyria lodged an appeal of the judicial registrar's decision to a magistrate. 11-Nov-16 The appeal of Judicial Registrar Dixon's decision was heard by Magistrate Clifford who refused the appeal.
Reasons for decision
The magistrate’s reasons for refusing the appeal on 11 November 2016 were as follows:[8]
There is a process to deal with the situation where a registered owner of a vehicle has failed within the prescribed time to nominate an actual driver of the vehicle in the event that the registered owner was the driver on the occasion of the offending.
The process is to apply to Civic Compliance Office to revoke the initial infringement and direct the infringement to the actual driver.
If the Registrar of Civic Compliance refuses that application, the registered owner may apply to the Court to overrule the decision by the Civil Compliance Registry.
Before the Court can overrule the order of the Registrar of Civic Compliance, the Court has to be satisfied that there was a valid reason why the notice to Civic Compliance was not filed within the required time frame.
The fact the registered owner was not the driver of the vehicle is irrelevant in this decision.
Mr Kyria you have agreed there was no valid reason why you did not file the notice of the driver within the required time and consequently your application is dismissed.
[8]Transcript of hearing before Magistrate Clifford on 11 November 2016, p 11, Exhibit IG-9 to the Gillanders affidavit.
Grounds of appeal
Mr Kyria was self-represented in this court. His documentation was mostly handwritten. In his notice of appeal Mr Kyria identified the question of law in the following terms:
The Magistrate found I was not guilty of the offence, but because I nominated the driver (who was responsible) outside the 28 period without a ‘good’ reason my application was refused. No precise definition of ‘good’ in these circumstances exist, ‘good’ is too loose a legal reason and not properly defined and subjective.
In his first affidavit filed in support of the appeal Mr Kyria stated:[9]
As noted in this notice of appeal Magistrate Clifford found I was not guilty of the traffic infringement offence for speeding approximately 6km/hour over the limit. An offence he noted was very minor. However he refused to find in my favour as he was desperate to find a technicality to hold me responsible. That was to say that because I didn’t nominate an alternative driver outside [sic] the 28 day nomination period without a ‘good’ reason the fine would stay in my name even though he confirmed I wasn’t the driver. See details about ‘good’ in notice of appeal question of law.
[9]Affidavit sworn 12 April 2017.
From these statements I take Mr Kyria’s grounds to be that the magistrate either failed to identify the relevant legal test for determining a revocation application or failed to apply the correct legal test — that is, he applied an incorrect legal test.
Submissions
Mr Kyria supplied written submissions as an attachment to his second affidavit filed on the appeal.[10] The written submissions are in attachment B headed ‘Outline of case – Supreme Court’. Those submissions are quite florid in tone and, in parts, scandalous in content. The essence of the submission may be gleaned from the following portions:
[10]Affidavit sworn 1 August 2017.
At its core this matter is about a $190 dollar fine and as the magistrate court Judge [sic] himself put it, an [sic] minor traffic infringement, that millions of people per year transgress, that it’s clear I was not the perpetrator of.
The Judge at that point was as the transcript shows about to find in my favour.
However the judge fully aware and acknowledging that in relation to this one traffic infringement, that is the one and only point to the court hearing, I was not the perpetrator, acknowledging the evidence, the witness on the stand and the guilty party’s letter taking responsibility, the judge looked for a technicality to knowingly, obscenely and maliciously see Injustice prevail, and not repeal the fine.
I repeat, the judge knowingly, obscenely and maliciously ruled to see injustice prevail.
The technicality he used, is the principle of ‘deeming’. Deeming is an administrative convenience written into regulation for multimillions of fines that are issued by the regulator, in this case the traffic camera office and civic compliance.
Acknowledging that I missed the 28 day window to nominate the actual driver responsible, the process and legal recourse exists to correct that oversight. When I did approach the Traffic Camera Office and Civic Compliance after the 28 day window had closed, I was advised to the process still exists and was instructed to follow it, which I did. Up until the magistrates’ court judge’s ruling, I was only informed and believed I had not provided enough evidence to show I was not the driver, it was only then it became apparent that they, the Traffic Camera office, Civic Compliance and the Magistrates’ Court Judge were fully aware I was not the perpetrator, but it was just that they knowingly wanted to see injustice inflicted on me.
As the transcript from the magistrates hearing shows, the judge is aware I was not the perpetrator of the infringement, and was at one point about to find in favour of me, but then looked for a technicality, a feeble, completely unjust technicality, that transparently and fraudulently hides behind the process.
Namely that according to him, a person is allowed to nominate the actual culprit outside the nomination window, but because I did not have a ‘good enough’ reason for nominating the actual offender outside the nominating period, I was to continue to wear the injustice and be recorded as the perpetrator. No stated description was given for what is a ‘good enough’ reason, and allowing the truth to be recognised?
The Truth, is society’s understanding of what a ‘good enough’ reason is, and fuck the legal people and bureaucrats who knowingly acknowledge the truth that I was not the driver of the vehicle, and even tenuously considered the owner, (Ownership of the vehicle is tenuous, as I had no control over the vehicle its ownership is actually that of my ex-wife, even though it was at the time registered in my name. I was not the driver) but are happy to see injustice stand and make me the victim who has to fight for years through the Civic compliance process, the magistrate Court twice, the County Court and now the Supreme Court.
Together with submissions made orally before the Court, I discern that Mr Kyria’s submissions of substance are to the following effect:
(a) so long as a registered operator of a vehicle is able to satisfy a court that another person was in control of the vehicle at the time of the offence the court must revoke an enforcement order;
(b) that is so because the legislative process ‘exists to correct any oversight’ on the part of the operator to nominate the actual driver before an enforcement order is made;
(c) further or alternatively, the existence or absence of a ‘good reason’ (or ‘valid reason’, the term used by the magistrate) for failing to nominate the actual driver before the enforcement order was made is not a proper legal criteria for determining whether to revoke an enforcement order, particularly in circumstances where the magistrate finds that another person was the driver at the time of the offence.
In substance, the first respondent submitted that the magistrate correctly identified and applied the applicable legal test in holding that Mr Kyria’s failure to give any valid reason for not filing a notice nominating the driver within time justified the refusal of his application for revocation of the enforcement order.
Analysis and decision
The legal test which an infringement registrar must apply when deciding whether to revoke an enforcement order is expressed in two parts:
(a) if the infringement notice involves a motor vehicle, the infringement registrar may revoke the order if satisfied the applicant was not the driver and had nominated another person as the driver at the time of the offence;[11] and
(b) the order must be revoked if the infringement registrar is satisfied that there are ‘sufficient grounds’ to do so but, if not so satisfied, the order is not to be revoked.[12]
[11]Infringements Act s 66(4)(b).
[12]Infringements Act s 66(2), (3).
Combining these two parts, it follows that in the case of a motor vehicle offence the power to revoke an enforcement order is opened if the applicant satisfies the court he or she was not the driver and nominates the actual driver. Once opened, the power to revoke is exercised by reference to the sufficiency of grounds to justify the revocation.
Seen in this way, the mere fact that the applicant for revocation has shown that he or she was not the driver and that somebody else was, is not sufficient to determine the application. The infringement registrar must then consider the sufficiency of grounds for the revocation. Those grounds may include whether the infringement notice came to the attention of the applicant, or whether there was some reasonable explanation why the applicant did not nominate the actual driver within the period allowed, or some other ground sufficient to justify revocation of the enforcement order.
Given the scheme of the legislation as outlined above, there is no reason to think that just because a registered operator of a motor vehicle may be liable to a penalty even though he or she was not the driver at the time of the offence is itself any justification for the revocation of an enforcement order. Section 84BC of the Road Safety Act demonstrates the legislative intention that the ‘operator’ remains guilty of the offence unless and until that guilt is transferred by the nomination of the actual driver made within time. Several opportunities are given to the ‘operator’ to make that nomination. Absent revocation, once an enforcement order is made the opportunity to expiate or transfer that liability is lost.
In that context, it makes perfect sense that to obtain the benefit of revocation once the enforcement order is made the applicant should demonstrate ‘sufficient grounds’ other than that he was not the driver in order to justify the revocation. Those grounds, sensibly, may include some acceptable explanation why the opportunity to expiate or transfer liability was not taken within the time prescribed.
Although the test I have described applies to the infringement registrar, it is clear that the same test is to be applied if the matter is referred to the Magistrates’ Court, there being no other test prescribed. In other words, when the matter came before the judicial registrar of the Magistrates’ Court and then before the magistrate himself, the same legal test that I have described applied.
I am not convinced that, as Mr Kyria asserted, the magistrate reached any concluded finding that Mr Kyria was not the driver. The magistrate only said that the fact that a registered owner was not the driver was not relevant to the decision on revocation. What was meant by that, clearly, was that a finding that the applicant was not the driver was not determinative of the application – which is correct. Such a finding would merely open the gateway, in motor vehicle cases, to exercising the power to revoke the order based upon the sufficiency of grounds. In any event, by going on to consider the sufficiency of grounds for revocation, his Honour at least assumed that Mr Kyria was not the driver.
The magistrate was correct to identify, as a potentially sufficient ground for justifying revocation, the existence of a good, valid or acceptable reason why the applicant did not nominate the actual driver before the enforcement order was made. The magistrate heard the applicant give evidence about his reason for not having done so. During the hearing, Mr Kyria seemed to variously maintain that his reason was not relevant, or that he did not have a good reason, or that the reason was that he was going through marital difficulties and a lot of mail was not opened or went missing.
The magistrate also heard Mr Kyria cross-examined on the many other outstanding infringement notices (said to be 79) that he had received but not paid. The magistrate was entitled to take that evidence into account when considering if he was satisfied there was a valid or acceptable reason for Mr Kyria not nominating an alternative driver before the particular enforcement order in issue was made. He made a finding of fact, plainly open to him on the evidence, that there was no valid reason for Mr Kyria not having done so. Such a finding is not appealable on an appeal limited to a question of law.
It follows that I reject each of Mr Kyria’s arguments on this appeal. The magistrate did not err in identifying or applying the correct legal test. The magistrate’s decision, proceeding from a finding that there was no valid explanation for Mr Kyria not nominating an alternative driver within time, was a perfectly sound application of the correct legal test, namely, whether there were sufficient grounds to justify revocation of an enforcement order.
It follows that the appeal must be dismissed.
0
2
0