Rodi v City of Joondalup

[2014] WASC 330

RODI -v- CITY OF JOONDALUP [2014] WASC 330

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2014] WASC 330
Published:	18/09/2014
Case No:	SJA:1025/2014	Heard:	3 SEPTEMBER 2014
Coram:	CHANEY J	Delivered:	3/09/14
No of pages:	8	Judgment Part:	1 of 1
Result:	Extension of time to appeal refused
Category:	B
PDF Version

Parties:	PAUL JOSEPH RODI CITY OF JOONDALUP
Catchwords:	Appeal Extension of time Failure to display parking ticket Infringement notice Whether prosecution of individual open when infringement notice directed to company
Legislation:	City of Joondalup Parking Local Law 1998 (WA) Criminal Appeals Act 2004 (WA) Local Government Act 1995 (WA)
Case References:	Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : RODI -v- CITY OF JOONDALUP [2014] WASC 330 CORAM : CHANEY J HEARD : 3 SEPTEMBER 2014 DELIVERED : 3 SEPTEMBER 2014 PUBLISHED : 18 SEPTEMBER 2014 FILE NO/S : SJA 1025 of 2014 BETWEEN : PAUL JOSEPH RODI

Appellant

AND

CITY OF JOONDALUP
Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE GLUESTEIN

File No : JO 3472 of 2013, JO 4118 of 2013

Catchwords:

Appeal - Extension of time - Failure to display parking ticket - Infringement notice - Whether prosecution of individual open when infringement notice directed to company

Legislation:

City of Joondalup Parking Local Law 1998 (WA)

Criminal Appeals Act 2004 (WA)
Local Government Act 1995 (WA)

Result:

Extension of time to appeal refused

Category: B

Representation:

Counsel:

Appellant : In Person
Respondent : Mr T L Beckett

Solicitors:

Appellant : In person
Respondent : McLeods Barristers & Solicitors

Cases referred to in judgment:

Nil

CHANEY J:

(This judgment was delivered extemporaneously on 3 September 2014 and has been edited from the transcript.)

1 This application is brought by Mr Rodi seeking leave to appeal and to appeal against a decision made in the Magistrates Court on 18 November 2013 in which he was convicted, in his absence, of an offence against cl 14 of the City of Joondalup Parking Local Law 1998. That is, an offence that he failed to display an unexpired ticket so that the date, expiry time and number printed on the ticket were clearly visible to and be able to be read by an authorised person from outside the vehicle, when he parked a vehicle in a ticket zone within the City of Joondalup on 26 February 2013.

2 Section 10(3) of the Criminal Appeals Act 2004 (WA) provides that an appeal cannot be commenced more than 28 days from conviction, unless the Supreme Court otherwise orders. Section 9 of the Criminal Appeals Act also provides that leave to appeal is required in relation to each ground of appeal, and that the test as to whether leave should be granted is whether or not the relevant ground has a reasonable prospect of succeeding. On 24 July 2014, Corboy J ordered that the application for extension of time and for leave to appeal be heard at the same time as the appeal.

3 So there are several steps which need to be considered in the course of the application which is before me today. The first is whether or not there should be an order extending time for commencement of the appeal. The second, if that extension is granted, is whether or not leave to appeal should be granted in relation to any or all of the grounds of appeal which are agitated. And then the third consideration is as to the merits of those grounds.

4 The question of an extension of time and the question of leave are both affected, at least to some degree, by the consideration of the merits of the grounds and the prospects of any of those grounds succeeding. Obviously, if I were to conclude that the grounds had no prospect of succeeding, then it would follow that an extension of time for commencement of the appeal and leave to appeal ought not be granted. So I will turn to the particular grounds and examine their apparent merit.

5 When the appeal was commenced by Mr Rodi, the grounds which were set out in the notice of appeal dealt with questions relevant to the order that he pay costs in addition to the fine which was imposed. By a notice which was filed on 22 July 2014, Mr Rodi sought to amend his appeal notice and the matter has been argued before me today on the basis of the amended notice, which contained fresh and quite different grounds.

6 The amended notice set out five grounds upon which it is said that a miscarriage of justice has occurred as a result of him being wrongfully prosecuted and convicted of the alleged vehicle offence. I will deal with each of those in turn.

Ground 1

7 The first ground is that the prosecution notice did not identify the infringement number to which the prosecution relates. As a matter of fact, that is correct. The prosecution notice did not set out the number of the infringement notice which preceded it.

8 In my view, there is no merit in this ground. That is because there is no requirement for a prosecution notice to recite or make any reference to an infringement notice. And I might say at this point - because it is relevant to other grounds upon which Mr Rodi seeks to appeal - that I do not consider that the infringement notice procedure has any bearing upon, or amounts to any sort of precondition to, the institution of a prosecution by way of a prosecution notice where there has not been a payment of a modified penalty or notification of the identity of some other offender following receipt of that infringement notice.

9 So the fact that the prosecution notice does not identify an infringement number to which the prosecution relates has no bearing on the entitlement of the authority to bring the prosecution and the first of Mr Rodi's grounds, therefore, has no merit.

Ground 2

10 The second ground, on which considerable emphasis was placed in the course of oral submissions by Mr Rodi this morning, is that the City of Joondalup had previously issued an infringement notice that identified Montage Homes WA Pty Ltd (Montage Homes) as the alleged offender of the alleged vehicle offence on 26 February 2013.

11 There was no evidence to that effect before the magistrate when the matter was dealt with in Mr Rodi's absence. That is not surprising given that Mr Rodi was not present at the hearing, for reasons which, in his affidavit, he explains but which nevertheless resulted in the magistrate proceeding in his absence. Mr Rodi has appended to his outline of submissions filed in these proceedings a copy of an infringement reminder notice dated 28 March 2013, which is addressed to Montage Homes and appears to relate to the offence of which he was subsequently convicted.

12 There are questions which arise as to the extent to which I can have regard to this material which was not before the magistrate at the time of the conviction, but I will put those to one side for present purposes because it is unnecessary for me to deal with them. That is because I do not consider that the fact that an infringement notice had been issued to Montage Homes, nor the fact that, subsequent to that infringement reminder being sent, a final demand was sent to Montage Homes in relation to the same infringement number, have any effect on the capacity of the local government to bring the prosecution against Mr Rodi personally.

13 Mr Rodi argues, in essence, that by reason of the provisions of the Criminal Procedure Act which deal with infringement notices, the position is that once the process of infringement notices has been undertaken and an election to have the matter dealt with by the court has been made by the company (as I am told from the bar table was made, although there is no evidence before me of it), then there is no alternative open to the local government but to commence proceedings against the recipient of the infringement notice reminders and the final demand, namely, Montage Homes.

14 That submission is fundamentally flawed. The reason it is fundamentally flawed is because, whether or not the applicable legislation dealing with the infringement notice regime is the Local Government Act 1995 (WA) in pt 9, div 2, subdiv 2 or the Criminal Procedure Act, it remains open, in my view, for a prosecuting authority to commence such proceedings as it wishes against whomsoever it wishes regardless of who might have received an infringement notice, unless, of course, the penalty has been paid under the infringement notice, which would then bar any action from proceeding.

15 My view is that the applicable legislative provision is the Local Government Act, which deals with infringement notices. The scheme of pt 9, div 2, subdiv 2 is that the giving of an infringement notice is facilitated and has the consequence, by s 9.21 of the Act, that where a modified penalty specified in an infringement notice has been paid within 28 days or such further time as is allowed, then the bringing of proceedings and the imposition of penalties is barred in relation to the alleged offence.

16 However, where the infringement notice has not been paid within 28 days and the notice has not been otherwise withdrawn, there is nothing to prevent the local authority from instituting such proceedings as it considers necessary and appropriate. It is not, in my view, committed to a process which requires that any proceedings which it might commence be commenced against the person to whom it has issued infringement notice reminders and demands.

17 Thus, in this case, it was open to the local authority to commence proceedings by way of prosecution against Mr Rodi as it did. As I have said, the provisions of the Local Government Act are the operative provisions for present purposes. Even if that were wrong, however, and the provisions of the Criminal Procedure Act relating to infringement notices were applicable, then the result would, in my view, be the same.

18 There is a presumption which arises under s 13 of the Criminal Procedure Act, namely, that a person is presumed to have been the driver unless within 28 days the modified penalty is paid or the responsible person informs an authorised officer that they were not the driver of the vehicle. Mr Rodi relies upon that presumption to say that, in this case, there was a presumption that the company, Montage Homes, was the driver or person in charge of the vehicle at the relevant time and thus he could not be liable for the offence. However, that presumption does not affect the liability of the person who actually committed the offence - that is specifically provided by s 13(6) of the Criminal Procedure Act.

19 That provision makes it abundantly clear that it is open to a prosecuting authority to pursue a person who actually committed the offence regardless of whether or not there might be a presumption in existence against some other person who had received and not dealt with the infringement notice in a way which would remove the presumption. But as I say, I do not consider in any event that the Criminal Procedure Act applies in this case but it gives rise, in my view, to the same outcome as arises in the context of the application of the infringement notice provisions of Local Government Act. So for those reasons I do not consider that the second of Mr Rodi's grounds has a reasonable prospect of succeeding and I would not grant leave in relation to it.

Grounds 3 and 4

20 The third and fourth grounds I can deal with together. Ground 3 is that the facts stated aloud by the prosecutor under s 55 of the Criminal Procedure Act were not those in the written statement of material facts that was last served. The fourth ground is that a statement of the material facts has never been served on the appellant. As to ground 3, as I understand Mr Rodi's contention, it is that what was stated aloud by the prosecutor to the court at the time of the prosecution were the facts as recited in the description of the offence in the prosecution notice, whereas there had been the service of the infringement notice reminder on Montage Homes which asserted different facts, namely, that Montage Homes was the offender rather than Mr Rodi.

21 That submission again depends upon the broad proposition advanced by Mr Rodi that the infringement notice procedure in advance of a prosecution conditions somehow the subsequent prosecution that might be brought, a proposition which I have already found is not sustainable. And the other thing which can be said about that ground is that there was in fact no statutory requirement under the Criminal Procedure Act to provide a statement of facts in advance of the prosecution being heard because this charge was not a prescribed simple offence for the purposes of s 35(5) of the Criminal Procedure Act and, therefore, no statement of facts was required.

22 As to ground 4, that is that a statement of material facts had never been served, that ground falls away for the reason which I have just stated, namely, that there was no obligation under the Criminal Procedure Act for a statement of facts to be served in relation to this offence.

Ground 5

23 The final ground of appeal was that the prosecution notice was signed by a person who was not acting under s 20(3) of the Criminal Procedure Act and the person did not have the authority to sign the prosecution notice. There is no merit in that ground.

24 The submissions provided by Mr Rodi refer to section 1.5 of the Local Government Act which provides that descriptions in italics are not part of the law and in particular that 'a description that is printed in italics at the beginning of a part of this Act explaining what it is about, it's not part of the Act'. Mr Rodi's argument, as I understand it, is that when one looks at s 9.15 of the Local Government Act which explains the terms used in div 2 of pt 9, the terms which are explained and defined are printed in italics.

25 They are clearly not words in italics at the beginning of a part explaining what the part is about. They are simply in italics because they are the terms being defined and it would be nonsense to suggest, as I understand Mr Rodi does, that those terms do not form part of the Act and therefore the infringement notice provisions in effect have no effect. Clearly, the prosecution notice was issued by a person who described himself as an employee of the City of Joondalup. Section 9.47 of the Local Government Act provides that until evidence is given to the contrary, proof is not required of the authority of a local government or any of its employees to prosecute. I accept therefore the submission by the respondent that the person who signed the prosecution notice is taken to be an authorised person for the purposes of s 20(1) of the Criminal Procedure Act.

26 There is no merit in the final ground upon which Mr Rodi seeks to appeal.

Conclusion

27 For those reasons I do not consider that any of the grounds which are outlined in the amended notice of appeal have any reasonable prospect of success. For that reason, time for the commencement of the appeal should not be extended. If it were to have been extended, I would not have granted leave to appeal in relation to any of the grounds. The application will be dismissed.