Moyle v County Court of Victoria
[2006] VSC 87
•18 January 2006
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 4539 of 2005
| ANDREW MOYLE | Plaintiff |
| v | |
| COUNTY COURT OF VICTORIA AT BENDIGO & ANOR | Defendant |
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JUDGE: | Bongiorno J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 January 2006 | |
DATE OF JUDGMENT: | 18 January 2006 | |
CASE MAY BE CITED AS: | Moyle v County Court | |
MEDIUM NEUTRAL CITATION: | [2006] VSC 87 | |
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Administrative law – Judicial Review – Courts are not political forums – ss 92 & 116 Commonwealth of Australia Constitution Act 1900 (Cth) -– Patents Act 1990 (Cth) – Statute of Monopolies 1624 21-22 James I Ch 3.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | The plaintiff appeared on his own behalf. | |
| For the Defendant | Ms M. Williams SC | Mr S. Carisbrooke Acting Solicitor for Public Prosecutions |
HIS HONOUR:
This is an application for judicial review of a decision of the County Court sitting at Bendigo. On 15 December 2004 His Honour Judge Robertson of that Court dismissed an appeal by the plaintiff against convictions by the Magistrates' Court on four charges of driving an unregistered motor vehicle, contrary to s.7 of the Road Safety Act 1986.
The plaintiff's application for judicial review was supported by an affidavit which set out the course of the proceeding in the County Court but did not exhibit any record of the order or judgment which it was sought to quash as required by RSC r.56.01, nor was any such order produced by the Crown as might have been expected. In the circumstances, however, having regard to the conclusion which I have reached, that defect will not affect the determination of this proceeding.
Mr Moyle, the plaintiff, who was unrepresented, based his primary submission on what he said was the County Court judge’s bias with respect to his case. He sought to make good this submission in a number of different ways by reference to the material in his affidavit. That affidavit was not contested, but, even taking that fact into account and giving full weight to the evidence it contained, his argument as to bias cannot be sustained on the facts. This is particularly so because Judge Robertson was not concerned with any of the facts of the case before him. They were all conceded by Mr Moyle. The matter he was determining was a legal question; whether the statute under which Mr Moyle was charged was valid. Even if there was some vitiating element in what the primary judge did the determination which I have made with respect to the merits of the legal propositions put by Mr Moyle would render any such defect now irrelevant. His conviction was inevitable.
As I have said the plaintiff did not contest any of the evidence led by the prosecutor against him either in the Magistrates' Court or before Judge Robertson. He sought to defend the matter by reliance upon a number of legal submissions which, as I understand them, sought to impugn the validity of the law under which he was charged. He put the same arguments before this Court in support of a contention that Judge Robertson erred in law in dismissing his appeal, an alternative ground upon which judicial review was sought.
The plaintiff's own affidavit shows that Judge Robertson sought to have the plaintiff explain his not uncomplicated arguments, just as any judge hearing such a case might have done. Mr Moyle complained in this Court that Judge Robertson refused to hear the four charges which were before him together as he said he should have done, but rather took the evidence of the police officers serially and decided each case on its own facts. Accordingly, said Mr Moyle, he did not give full weight to the plaintiff's arguments in respect of each charge. Mr Moyle said the judge only considered his arguments in respect of the last charge which he heard.
Judge Robertson was entitled to proceed in the way he did, and even if he did appear to have considered the plaintiff's arguments only in respect of the last charge (which finding could not be made on the material before this Court) he was so clearly right in his legal conclusion as to the plaintiff's defence, which conclusion was equally applicable to all the charges, the plaintiff has suffered no detriment by His Honour having proceeded in the way that he did. Even if judicial review was available on some appropriate ground on the facts of this case, in the exercise of this Court's discretion, it would properly be refused.
Before this Court the plaintiff put five separate arguments as to the invalidity of the statute under which he was charged. I shall deal with each of them briefly.
First, he referred to s.116 of the Australian Constitution. He claimed it was breached by the provision of the Road Safety Act which required motor vehicles to be registered with Vicroads.
Section 116 of the Constitution, which was derived from a similar provision in the U.S. Constitution, is headed: "Commonwealth Not to Legislate in Respect of Religion". Its terms are well known and it was discussed by the High Court extensively in two cases: A-G for Victoria at the relation of Black & Ors v The Commonwealth[1] (the DOGS case) and the Adelaide Company of Jehovah's Witnesses v The Commonwealth[2]. How the Road Safety Act and its requirement that motor vehicles driven on a highway in Victoria be registered with the Roads Corporation constitutes a breach of s.116 of the Constitution is extremely difficult to understand as is Mr Moyle's submission that he had an inalienable right to go about the highway as he pleased. Nothing Mr Moyle said appeared to raise any arguable question involving s.116 of the Constitution. There is nothing in the point.
[1] (1982) 146 CLR 559
[2] (1943) 67 CLR 116 especially per Chief Justice Latham at 118 et sec.
The second matter that Mr Moyle raised was that by enacting the Road Safety Act, the Victorian Parliament had infringed an Imperial statute which Mr Moyle submitted was still in force in Victoria. The statute to which he was referring was the statute commonly referred to as the Statute of Monopolies[3]. It was enacted in Jacobean times in England and was directed to preventing abuse of the Royal privilege to grant monopolies which had generated an unworkable array of reduplicated monopoly rights spanning many commercial endeavours. Common law principles which emerge from this statute provide part of the modern criteria for patentable inventions and the concept of patentability[4].
[3] (1624) 21-22 James I, Chapter 3
[4] See s.18 Patents Act 1990 (C'th) and National Research Development Corporation v The Commissioner of Patents (1959) 102 CLR 252 per Dixon J at 268-69.
The monopolies referred to in the Statute of Monopolies are monopolies relating to what is called in modern legal parlance intellectual property. It has nothing whatsoever to do with corporations such as the Roads Corporation that is being attacked by Mr Moyle in this case. Insofar as the Roads Corporation (known as VicRoads) has a monopoly on the registration of motor vehicles such a monopoly is not affected by the Imperial Statute. Even if it was, the Imperial Statute would have to be read down to accommodate the Road Safety Act 1986, an Act which is, of course, within the competence of the Parliament of Victoria. Interesting as the Statute of Monopolies is, it has nothing whatsoever to do with the registration of motor vehicles in Victoria or the functions of VicRoads and has no application to any of the points being sought to be made by Mr Moyle.
The third point that Mr Moyle made was that the requirement that he drive a motor vehicle which was registered infringed his right of peaceful political protest. He referred to the case of Levy v. State of Victoria[5]. This case concerned regulations which prohibited people from entering certain hunting areas in Victoria at certain times. The High Court considered that although those regulations restricted rights of access to certain places they were valid as they were: "...reasonably appropriate and adapted to the protection of individuals or public safety". Levy is in the same line of cases which examine the defence of qualified privilege in defamation as it applied to the discussion of political or government matters, but it has nothing to do with motor registration.
[5] (1997) 189 CLR at 579
It is a far cry from Levy's case to argue that the imposition of a requirement that a motor car be registered with a public authority constitutes disruption of a right of peaceful political protest. Not only is the connection not immediately apparent, nothing Mr Moyle said made it any clearer. Freedom of movement or freedom of communication is not in any way inhibited by a requirement that a motor vehicle must be registered with a government authority if it is to be used on a public highway. There is nothing in Mr Moyle's third point.
Fourthly, Mr Moyle referred to Freightlines and Construction Holdings Ltd v. State of New South Wales[6] in which the Privy Council upheld the validity of a commercial goods vehicle tax imposed by the State of New South Wales as not infringing s.92 of the Constitution, the section which protects interstate trade and commerce. He did not explain the connection he wished to make between the freedom of interstate trade and commerce and the necessity to register motor vehicles or, more particularly, how a case which upheld the validity of a commercial goods vehicle tax could assist an argument that the Parliament acted illegally in requiring that a motor vehicle be registered. There is no connection.
[6] (1967) 116 CLR 1
Finally, Mr Moyle said that the requirement that a motor vehicle be registered constituted a tax, but not a Federal tax and was therefore illegal. He made reference to various passages in Quick and Garran's Annotated Constitution. The complexity of the boundaries between State and Federal taxes is far greater than was given credit in the argument put by Mr Moyle. Nothing that he said cast any doubt on the legality of a requirement by the State that owners of motor vehicles register them with VicRoads and pay a fee on registration. Much less did his argument raise any real question of a breach of constitutional rights.
Finally, Mr Moyle referred again to the question of his "right of freedom of movement" and "freedom of political protest". But neither this Court, the County Court nor the Magistrates' Court is a political forum. If Mr Moyle has a political point, whatever it is, it must be taken up with the legislature, not the Courts. It is not part of a Court's function to entertain political argument nor is it a Court's function to rule on the validity or otherwise of any political argument.
In the circumstances, the plaintiff's application for judicial review will be dismissed.
(Discussion ensued as to costs)
HIS HONOUR:
This is an application for costs by the defendants. Mr Moyle has opposed the application on the grounds of impecuniosity and that he is a worthy taxpayer who contributes. In that, he is in common with everybody else. In the circumstances, there will be an order that the plaintiff pay the defendants' costs of the originating motion to be taxed.
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