Smart v City of Greater Geelong

[2005] VSC 71

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

PRACTICE COURT

IN THE MATTER of an appeal under s. 92 of the
Magistrates Court Act 1989

No.  9097of 2004

ANTHONY-IVAN-SMART	Appellant
CITY OF GREATER GEELONG	Respondent

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JUDGE:	Byrne J
WHERE HELD:	Melbourne
DATE OF HEARING:	16 March 2005
DATE OF JUDGMENT:	21 March 2005
CASE MAY BE CITED AS:	Smart v City of Greater Geelong
MEDIUM NEUTRAL CITATION:	[2020] VSC 71

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Appeal from Magistrates’ Court – whether prima facie case for relief – whether respondent incorrectly named – whether Constitution Act 1995 (Vic) invalid – whether Road Rules – Victoria not part of the law of Victoria.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Appeared in person
For the Respondent	Mr Gibbons	Harwood Andrews Lawyers

HIS HONOUR:

1. On 10 February 2004, the motorcar of the appellant, Anthony-Ivan-Smart[1] was parked for over two hours in a two hour parking zone in Myers Street, Geelong.  Kathy Reynolds, a traffic officer of the respondent, City of Greater Geelong, accordingly served a parking infringement notice.  The notice was not complied with and a charge and summons was filed by Ms Reynolds as informant on 17 June 2004 returnable at the Magistrates’ Court of Victoria at Geelong on 2 September 2004. 

   [1]Notwithstanding that I was told that the correct surname of the appellant was Mr Anthony-Ivan-Smart, I refer to him in the interests of brevity as Mr Smart.

1. On 14 October 2004, the charge came on for hearing as an opposed matter before the Magistrate.  Mr Smart represented himself and pleaded not guilty.  The factual basis of the charge, it seems, was not put in issue;  Mr Smart preferred to raise a number of legal matters.  In the event, the Magistrate found the charge proved, convicted him and imposed a fine of $50 with $125 costs with a stay to 11 November 2004.  On 13 November 2004, Mr Smart filed a notice of appeal.  It is irregular in at least one significant respect:  the document describes as respondent the City of Greater Geelong, and not Ms Reynolds.

1. In his notice of appeal Mr Smart raises five questions of law:

1.Does the Greater Geelong City Council have legal standing to bring this action?

2.What jurisdiction was the venue of the Magistrates’ Court at Geelong constituted in?

3.Is the document entitled “Road Rules-Victoria” a law of the Parliament of Victoria?

4.Has Her Majesty Queen Elizabeth II., as lawful Sovereign of the United Kingdom and of this State of Victoria, given Her personal signification and pleasure to the Constitution Act 1975, No 8750/1975, of the Parliament of Victoria?

5.Who is the “Crown in right” of the State of Victoria?

1. On 25 February 2005, Master Evans refused the application for appeal pursuant to Rule 58.09.  Mr Smart appeals against the Master’s order by notice of appeal filed on 2 March 2005.

1. I shall address in turn each of the questions of law which were advanced by Mr Smart:

1.Does the Greater Geelong City Council have legal standing to bring this action?

1. The point taken here was that the municipality was incorporated by statute under the name Greater Geelong City Council[2] there is no legal entity known as “City of Greater Geelong”. 

   [2]City of Greater Geelong Act 1993 s. 5. See, too, Local Government Act 1989 s. 5A

1. There is no substance in this point.  The short answer is that the municipality, by whatever name, was not the informant;  it was Ms Reynolds.  This appears from the charge and summons and from the certified order of the Magistrates’ Court.  I am not persuaded that there is here an arguable case.

2.What jurisdiction was the venue of the Magistrates’ Court at Geelong constituted in?

1. This point was not pressed.

3.Is the document entitled “Road Rules-Victoria” a law of the Parliament of Victoria?

1. In 1999 the Parliament of the State of Victoria adopted a set of Road Rules as part of a nationwide standardisation of traffic law developed by the National Road Transport Commission and endorsed by the relevant ministers in the Australian Transport Council. This was achieved by the regulation-making power conferred by s. 95 of the Road Safety Act 1986. On 9 November 1999, the Road Safety (Road Rules) Regulations 1999 (SR No. 120/1999) were made by the Governor in Council. By Regulation 201(1) it is provided that the Road Rules published in the Government Gazette on 28 October 1999 are to be read as if they formed part of the regulations. The consequence of this is that the Road Rules are part of the law of Victoria[3]. 

   [3]In Smart v City of Whitehorse [2004] VSC 374, Cummins J so held.

1. The point taken by Mr Smart is that s. 32 of the Interpretation of Legislation Act 1984 (Vic) requires that, where a subordinate instrument incorporates a document such as the Road Rules, then the Minister must lodge a copy of the document and of the notice of the document with the Clerk of the Parliaments and publish it in the Government Gazette. He contended that the Regulations or the Road Rules, or perhaps both, were invalid for non-compliance with this provision.

1. It is known that the Road Rules were published in the Government Gazette on 28 October 1999. I would, in any event, be prepared to find, in the absence of contrary evidence, that all of these steps had been taken. There is a rebuttable presumption of regularity which has the effect that public acts of this nature are take to be properly performed unless evidence is led to show that this is not the case. But it is not necessary that I act upon this presumption, for s. 32(5) provides that a failure to comply with these requirements “does not affect the validity, operation or effect of the subordinate instrument”.

1. I mention, too, that Regulation 202 provides that the Acts Interpretation Act 1901 (Cth) applies to the interpretation of the Road Rules and that this Act, by s. 46AA, permits an instrument to incorporate a document by reference. It may be, however, that the point raised by Mr Smart is not one of interpretation.

1. There is no arguable case for relief here. 

4.Has Her Majesty Queen Elizabeth II., as lawful Sovereign of the United Kingdom and of this State of Victoria, given Her personal signification and pleasure to the Constitution Act 1975, No 8750/1975, of the Parliament of Victoria?

1. This is a very confusing and confused argument.  As best I understand it Mr Smart contended that the Constitution Act 1975 (Vic) was invalid so that any Act of the Parliament performed thereafter, including the passing of the Road Safety Act 1986 and the regulations made under that Act were likewise invalid.

1. The argument seems to be this.  The Commission given to his Excellency Sir Henry Winneke as Governor of Victoria on 18 April 1974 conferred upon him certain powers, including those contained in Letters Patent dated 29 October 1900 which constituted the office of the Governor of Victoria.  On that date in 1900, too, Her Majesty Queen Victoria issued certain instructions to the Governor which included in cl. VII:

“The Governor shall not, except in the cases hereunder mentioned, assent in Our name to any Bill of any of the following classes:-

...

2Any Bill whereby any grant of land or money or other donation or gratuity, may be made to himself...”

The Constitution Act 1975 included provisions with respect to the Governor’s salary.

1. Mr Smart also referred me to the Australian States Constitution Act 1907 (Eng) which required that a bill of an “Australian State Parliament which affects the salary of the Governor must be reserved for the signification of His Majesty’s pleasure thereon”. 

1. Included in Mr Smart’s exhibits was a copy of the Constitution Act 1975 with the signature of the Governor there appearing under the following words:

“I reserve this bill for the signification of Her Majesty’s pleasure thereon”.

1. Finally, I was provided with an extract from the Government Gazette of 19 November 1975 which shows that the Bill was so reserved and that “by an Order in Council dated the 22^nd day of October 1975, Her Majesty has been pleased to assent to same”.  The proclamation recording this is signed by the Governor and dated 18 November 1975.

1. In the circumstances, if the legal position was as Mr Smart outlined it, it is clear enough that the Constitution Act 1975 was properly assented to. There is no substance in this point and no arguable case here.

5.Who is the “Crown in right” of the State of Victoria?

1. I regret that I found Mr Smart’s development of this point entirely incomprehensible.  Nor is it apparent to me that anything about this topic could have a bearing upon the validity of the conviction which he seeks to impugn.  I am not persuaded that there is here an arguable case. 

1. Accordingly, I am satisfied that the Master was correct in refusing the application for appeal under s. 92 of the Magistrates’ Court Act.  The appeal against the Master’s order will be refused.  The order of the Magistrates’ Court of Victoria at Geelong made on 14 October 2004 stands.

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