Lyberopoulos v Holden Hill Magistrates Court & Ors No. Scgrg-98-757 Judgment No. S55

[1999] SASC 55

LYBEROPOULOS V HOLDEN HILL MAGISTRATES COURT & ORS [1999] SASC 55

Application for Judicial Review
Nyland J
1 This is an application for judicial review.  There is no real dispute between the parties as to the circumstances giving rise to the application.  The plaintiff was stopped at a random breath testing station at Birdwood on 14 August 1997.  He returned a positive reading of .089 grams of alcohol in 100 millilitres of blood and was duly reported.  An expiation notice was issued on 2 July 1997 but was not returned.  On 11 September 1997 a complaint was laid in the Holden Hill Magistrates Court charging the plaintiff with driving with a prescribed concentration of alcohol.  At the same time, a summons was issued to be served personally on the plaintiff, requiring the plaintiff to appear at the Holden Hill Magistrates Court on 28 October 1997 to answer the complaint.
2 By way of a letter dated 24 September 1997 (that is, about two weeks after the complaint was laid) the plaintiff notified the police that he was no longer residing at 5/152 Montacute Road, Rostrevor.  He gave his new address as 4/90 Ross Road, Hectorville.  He also provided his silent telephone number.  By letter dated 1 October 1997, addressed to the plaintiff at the Ross Road address, the police acknowledged the receipt of the notice of change of address and advised him that as the expiation notice had not been expiated by the due date, the matter had been forwarded to the court for the issue of an enforcement order.  The letter suggested that the plaintiff contact the Registrar of the Magistrates Court.  It provided a phone number on which the Registrar could be contacted.  There is no information before the court as to whether the plaintiff accepted that suggestion.
3 The matter came on for hearing in the Holden Hill Magistrates Court on 28 October 1997.  The plaintiff was not present.  The police prosecutor, Ms Murray, appeared for the prosecution.  The summons had not been returned to the court, indicating that it had not been served.  The court ordered that a fresh summons issue which was made returnable for 24 December 1997.
4 On 24 December 1997, Ms Murray again appeared for the prosecution and again the plaintiff did not appear.  The summons enquiry form stated that the police had been unable to serve the plaintiff with the complaint and summons at his Montacute Road address on I November 1997.  It indicated that his whereabouts were unknown.  Ms Murray then substantiated on oath the allegations with respect to the complaint and a warrant was issued by the court for the arrest of the plaintiff. 
5 On 21 February 1998 two police officers attended at the plaintiff's Ross Road address and executed the warrant.  The plaintiff was taken to the Holden Hill police station where he was released on bail to appear at the Holden Hill Magistrates Court on 5 March 1998.  The plaintiff attended at court on the required date, at which time he was served with a copy of the complaint and summons.  The matter was then adjourned to 1 April 1998 to enable the plaintiff to seek legal advice.
6 The plaintiff appeared in person before the court on 1 April 1998.  He sought an explanation for the issue of the warrant for his arrest.  He was informed by the court that the arrest had been ordered because the charge had been substantiated on oath.  The plaintiff applied to have the matter transferred to the Adelaide Magistrates Court.  This application was refused on the basis that the charge was to be disputed.  The matter was adjourned to a pre-trial conference on 1 May 1998.
7 The plaintiff attended at court in person on 1 May 1998 at which time he again applied for a transfer to the Adelaide Magistrates Court.  The application was refused on the basis that the charge was to be disputed.  The plaintiff applied to have the matter dismissed as an abuse of process and this application was also refused.  The matter was adjourned to 1 July 1998 for trial.
8 On 25 June 1998, the plaintiff filed the within application seeking an order for judicial review.
9 On 1 July 1998, the plaintiff appeared in person before the Holden Hill Magistrates Court, that being the date on which the matter was listed for trial.  The plaintiff, once again, applied to have the matter transferred to Adelaide, but the application was refused.  He also applied to have the matter adjourned pending the determination of the proceedings for judicial review, and to enable him to obtain legal advice.  The police prosecutor opposed the application for adjournment primarily on the basis that the matter had already been adjourned once to enable the plaintiff to obtain legal advice and that the matter had been set down for trial for two months, thus affording the plaintiff sufficient time to obtain legal advice.  Both applications were refused.  The trial then proceeded, at the conclusion of which the magistrate found the charge proved.  He recorded a conviction and fined the plaintiff the sum of $500 and disqualified him from holding or obtaining a drivers licence for a period of six months.  The conviction and sentence are the subject of an appeal by the plaintiff in separate proceedings which were heard on the same date as the within application.
10 In paras 2 to 5 inclusive of his application for judicial review, the appellant sought orders in the nature of certiorari and mandamus arising- out of the refusal to transfer the proceedings to the Adelaide Magistrates Court and the refusal to revoke the order for the issue of the warrant or to nullify the bail agreement.  At the commencement of this hearing, however, the plaintiff indicated that he no longer wished to pursue those matters and was content to pursue the orders in the remainder of the application, namely:

1. A finding that the provisions of sections 49, 57A and 58 of the Summury (sic) Prosedure (sic) Act 1921 were contravened.

2. A finding that the provisions of rule 13 of the Magistrates Court rules 1992 were contravened.

3. A declaration that the execution of the Warrant and the subsequent arrest of the plaintiff were unlawful.

4. Aggravated damages incurred by the plaintiff from the Misfeasance in public office (or breach of Statutory duty or negligence).

5. Exemplary damages for unlawful arrest and subsequent.  restriction of the plaintiff's Constitutional freedom."
   11 Essentially the plaintiff’s complaint relates to his arrest on the warrant.  In his affidavit in support of this application, he referred to the arrest taking place in front of his son, two friends as well as the neighbours.  He said that although the two officers were most courteous and polite it caused him substantial distress and he felt humiliated.  He had also cancelled a planned trip to visit relatives in Melbourne to spend Greek Easter with them as a result -of restrictions imposed by bail conditions.  In the course of his submissions he said that he had been anxious to transfer his proceedings to the Adelaide Magistrates Court as he would have been able to obtain the assistance of solicitors in Adelaide who had acted for him with respect to other matters but it was not possible to arrange for them to act on his behalf in proceedings at Holden Hill.
   12 The plaintiff’s sense of grievance is understandable.  It would seem that there was no need for any warrant to issue, had the plaintiff’s notification of his change of address been effectively communicated internally within the police department.  That, however, does not make the issue of the warrant unlawful.  Section 49 of the Summary Procedure Act 1921 does not appear to have been contravened.  That section simply sets out the procedure for the making of a complaint and provides that a complaint need not be made on oath unless:
   "(a)    some special Act requires the complaint to be made on oath; or
   (b) a warrant for the arrest of the defendant is to be issued."
   13 Section 57A is irrelevant to the present proceedings as it merely sets out the procedure enabling a written plea of guilty.  Section 58 deals with the issue of the warrant and is the substantial cause of complaint by the plaintiff, but that section simply provides:
   "The Court may issue a warrant to have the defendant arrested and brought before the Court if -
   (a)     the allegations in the complaint are substantiated on oath; or
   (b)     the defendant fails to appear in obedience to a summons and the Court is satisfied that the summons was served a reasonable time before the time appointed for the hearing."
   14 In this case, the police prosecutor substantiated the allegations in the complaint in accordance with s58(a).  It was on that basis that the warrant issued.  It follows, therefore, that the issue by the court of the warrant was lawful and there is no entitlement to damages of any kind arising therefrom.  In any event, it would appear that the plaintiff was not unduly disadvantaged as a result of his arrest, apart from the obvious embarrassment of having police officers attend at his home.  The warrant was marked "certified for bail" and the plaintiff was released on bail soon after being arrested.  Any inconvenience suffered on account of his arrest was therefore minimised.  Regardless of any lack of diligence on the part of the police in attempting to serve the complaint upon him, the plaintiff was ultimately given due notice of the complaint and had the opportunity to defend the charge at trial.
   15 Rule 13 deals with the legal representation of a party in a minor civil action.  There is no contravention of that rule arising out of these proceedings.  In any event, the plaintiff had ample opportunity to make appropriate arrangements for legal representation.  The magistrate was entitled to exercise his discretion not to transfer the proceedings to Adelaide.  The complaint was properly laid in the Magistrates Court nearest the cause of action and the plaintiff’s address.  This was an unfortunate sequence of events but the plaintiff has not demonstrated any basis which would require this court to exercise its discretion by way of judicial review.  The application is therefore dismissed.