Monteith v Fitzgerald

[2018] VSC 217

IN THE SUPREME COURT OF VICTORIA	Not Restricted
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S CI 2017 02949

PAUL MELLERSH MONTEITH	Plaintiff
v
GAYLOR ESTELLE FITZGERALD	First Defendant
THE MAGISTRATES' COURT OF VICTORIA	Second Defendant

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JUDGE:	Ginnane J
WHERE HELD:	Melbourne
DATE OF HEARING:	3 May 2018
DATE OF JUDGMENT:	3 May 2018
CASE MAY BE CITED AS:	Monteith v Fitzgerald
MEDIUM NEUTRAL CITATION:	[2018] VSC 217

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JUDICIAL REVIEW — Convictions in the Magistrates’ Court for motor vehicle offences — Challenge to Magistrates’ Court’s jurisdiction to hear charges — No substance in challenge — No error by Magistrate – Road Safety Act 1986; Road Safety (Vehicle) Regulations 2009

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	In person
For the Defendant	Mr J McWilliams	Office of Public Prosecutions

HIS HONOUR:

1. Mr Paul Monteith seeks judicial review of orders made by the Magistrates' Court at Dandenong on 29 May 2017. The orders were convictions for two motor vehicle offences under the Roads Safety Act 1986 of using an unregistered motor vehicle on a highway whilst the motor vehicle was not registered and driving a motor vehicle on a highway whilst disqualified, and an offence under the Roads Safety (Vehicles) Regulations 2009 of using a vehicle on a highway displaying a number plate not issued for the vehicle, and orders imposing fines on Mr Monteith. He relies on three grounds: first, that the Magistrates' Court failed to freely and fully disclose the nature of the ‘contract’ offered to him with the Court; secondly, the Magistrates’ Court failed to obtain his consent to ‘enjoin’ with the Court; and thirdly, the Magistrates’ Court failed to follow due process to discuss the applicability of summary jurisdiction under provisions within the Magistrates' Court Act 1989.

1. At the commencement of the Magistrates' Court hearing, it was reasonably clear that Mr Monteith was seeking to raise the question of the jurisdiction of the Magistrates' Court to hear the charges against him. Mr Monteith said, "Could you please, with respect, Your Honour, explain to me what the Court believes". The Magistrate interposed, that the Court did not ‘believe anything’. He said that ‘the Court is part of the system set up under the Constitution for determining conflicts of law, simple. Unless you can point to some provision in the Road Safety Act that says it applies to everybody in Victoria but Paul Monteith, then it applies to you".

1. And then Mr Monteith said, "I would simply attempt to explain to the Court that I believe, under constitutionally-enshrined and federally-enacted legislation –" at which point the Magistrate said, "I'll stop you there, I'll stop you there. We don't operate on the belief, we operate on the law." Mr Monteith said: "If I produce evidence of that law, will the Court convey to a common law court?" His Honour: "Not before me until we go through the first process, which I'm going to now go through, if you wouldn't mind standing." Then the Magistrates proceeded to read the charges, to which Mr Monteith declined to plead. A plea of not guilty was recorded for each charge.

1. It is clear enough that Mr Monteith was seeking to raise arguments about jurisdiction and the Magistrate was stating that the Court did have jurisdiction to hear the charges.

1. To succeed in his application for judicial review, Mr Monteith must show either that there was an error of law on the face of the record or a jurisdictional error made by the Magistrate. There was no challenge to the sufficiency of evidence to prove the three charges.

1. None of the three grounds relied upon by Mr Montheith establishes an error that entitles Mr Montheith to obtain judicial review remedies. The Magistrates' Court has jurisdiction to hear cases involving motor vehicle offences; they are heard in Magistrates' Court across Victoria and Australia every day of the week. The motor vehicle offences with which Mr Monteith was charged were summary offences which the Magistrates' Court had jurisdiction to hear.

1. No error attracting judicial review has been established. The proceeding is therefore dismissed. Mr Monteith must pay the first defendant’s costs of the proceeding.