Meyerhoff v Darwin City Council - [2005] NTCA 8

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PARTIES: GARY WILLIAM MEYERHOFF

DARWIN CITY COUNCIL

TITLE OF COURT: COURT OF APPEAL OF THE NORTHERN TERRITORY

JURISDICTION: CIVIL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION

FILE NO: AP 05 of 2005 (20325359)

DELIVERED: 1 November 2005

HEARING DATES: 1 November 2005

JUDGMENT OF: MILDREN, THOMAS & RILEY JJ

CATCHWORDS:

CRIMINAL LAW – appeal – fixing handbill to fixture in the street without permit – Darwin City Council By-laws – whether by-law impugned against the right to free speech – whether freedom of speech gives unlimited freedom to individuals appeal dismissed

Control of Roads Act, s 7
Darwin City By-law, s 97(1)(b)
Local Government Act, s 131(1), s 131(4)
Planning Act, s 64
Trespass Act, s 5

Referred to
Coleman v Power and Ors (2004) 209 ALR 182
Highway, Meyerhoff & Inder-Smith v Thomas (unreported, Court of Appeal of the Northern Territory, 21/5/2004 AP 25 of 2003)
Highway, Meyerhoff & Inder-Smith v Thomas (unreported, Supreme Court of the Northern Territory, 26/11/2003, JAs 123, 124 & 125 of 2003)
Levy v The State of Victoria and Ors (1997) 189 CLR 579

Followed
John Fairfax Publications Pty Ltd and Others v Ryde Local Court and Ors (2005) 152 A Crim R 527
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520

REPRESENTATION:

Counsel:
Appellant: Litigant in person
Respondent: C. Ford

Solicitors:
Appellant: Litigant in person
Respondent: Cridlands

Judgment category classification: B
Judgment ID Number: Mil 05363
Number of pages: 9

IN THE COURT OF APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Meyerhoff v Darwin City Council [2005] NTCA 8
No. AP 5 of 2005 (20325359)

BETWEEN:

MEYERHOFF, Gary William
Appellant

AND:

DARWIN CITY COUNCIL
Respondent

CORAM: MILDREN, THOMAS & RILEY JJ

REASONS FOR JUDGMENT

(Delivered 1 November 2005)

Mildren J:

[1] On 28 October 2004 the appellant was convicted of an offence that contrary to Darwin City By-law 97(1)(b) on 26 August 2003 at the intersection of the Stuart Highway and Goyder Road in Darwin he affixed or caused to be affixed a handbill to a fixture in a street without having a permit to do so.

[2] From that decision the appellant appealed to the Supreme Court, the only ground of appeal being that the learned magistrate erred in finding that the relevant Darwin City Council By-law did not breach the implied right to free speech and political communication contained in the Australian Constitution. On appeal to the Supreme Court Southwood J held that the by-laws were not repugnant to the Australian Constitution and dismissed the appeal.

[3] The relevant By-law, 97(1)(b) provides as follows:

“(1) It is an offence committed by a person for that person, without a permit, in or on a public place.'

(b) to affix or caused to be affixed a handbill to a fixture in a street.”

[4] There are provisions in the By-laws that enable a person to apply to the council for a permit. The evidence was that no such application…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Meyerhoff v Darwin City Council

Details

AGLC: Meyerhoff v Darwin City Council [2005] NTCA 8
Case: [2005] NTCA 8
Decision Date: 01 November 2005

CaseChat Overview and Summary

In the case of Meyerhoff v Darwin City Council, the appellant, Gary William Meyerhoff, was convicted of affixing a handbill to a fixture in a street without a permit, contrary to Darwin City By-law 97(1)(b). The Darwin City Council By-law in question prohibits the affixing of handbills to fixtures in public places without a permit. The appellant appealed to the Supreme Court, arguing that the by-law breached the implied right to free speech and political communication under the Australian Constitution. The Supreme Court dismissed the appeal, and the appellant further appealed to the Court of Appeal of the Northern Territory.

The key legal issue before the Court of Appeal was whether the Darwin City By-law, which restricts the affixing of handbills to fixtures in public places, is constitutionally valid under the implied right to free speech and political communication. The Court examined whether the by-law effectively burdens freedom of communication and if it is reasonably appropriate and adapted to serve a legitimate end compatible with the maintenance of the constitutionally prescribed system of representative and responsible government.

The Court of Appeal held that the by-law does not infringe the implied constitutional right to free speech and political communication. The Court reasoned that the right to free speech does not confer personal rights on individuals to trespass on property, whether private or governmental. The implied constitutional freedom of communication does not authorize an individual to override private property rights or to trespass on government property. The Court found that the by-law was reasonably appropriate and adapted to serve a legitimate end, which is the maintenance of order and management of public places. The by-law serves the purpose of preventing unauthorized and potentially disruptive activities in public spaces.

Accordingly, the Court of Appeal dismissed the appeal, affirming the conviction of the appellant for affixing a handbill to a fixture in a public place without a permit. The by-law was found to be valid and consistent with the constitutional protection of free speech and political communication.

Orders