Stefan v McLachlan

[2023] VSC 501

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2022 02804

ALEX STEFAN	Appellant
v
MARTIN MCLACHLAN	Respondent

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JUDGE:	John Dixon J
WHERE HELD:	Melbourne
DATE OF HEARING:	21 August 2023
DATE OF JUDGMENT:	28 August 2023
CASE MAY BE CITED AS:	Stefan v McLachlan
MEDIUM NEUTRAL CITATION:	[2023] VSC 501

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APPEAL — 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 — Consideration of the living man and sovereign citizen defences as arguments against jurisdiction — Construction of the definitions of vehicle, driver, and person considered – Road Safety Act 1986 (Vic) — Road Safety Rules 2017 (Vic) — Road Safety (Vehicles) Regulations 2009 (Vic).

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APPEARANCES:	Counsel	Solicitors
The Appellant in person
For the Respondent	Mr E Dober	Abbey Hogan, Solicitor for Public Prosecutions

HIS HONOUR:

1. This proceeding was an appeal brought pursuant to s 272 of the Criminal Procedure Act 2009 (Vic) against the decision of the Shepparton Magistrates’ Court made on 6 July 2022.

1. On 20 August 2020, police intercepted the appellant driving a Range Rover Discovery and issued two infringement notices. The notices were ultimately contested and the appellant was found guilty on a charge of exceeding the speed limit by less than 35km/h, contrary to r 20(1)(a) of the Road Safety Rules 2017 (Vic) and a charge of driving a vehicle without a number plate displayed contrary to r 50(1) of the Road Safety (Vehicles) Regulations 2009 (Vic). On each charge, without conviction, the appellant was fined $750 as part of an aggregate order with $84.40 statutory costs.

1. On the hearing of the appeal, the appellant identified himself as Alex Stefan and represented himself. His ’identity’ was an issue on the appeal.

1. The appellant did not contest, subject to the qualification that I am about to make, the findings of the magistrate that:

(a)   the informant and his partner observed a Range Rover Discovery that was travelling at a speed in excess of the speed limit as charged;

(b)  the rear number plate was unreadable as charged;

(c)   the appellant was the only person in the Range Rover Discovery;

(d)  the informant and his partner observed that the appellant was the driver of the Range Rover Discovery; and

(e)   the appellant, when asked, stated his name to be Alex Stefan and gave an address and produced a current Victorian driver’s licence.

1. The qualification that I alluded to was that although the appellant did not contest these matters of fact that are the basis of the two charges, he contested that he was amenable to the jurisdiction of the Magistrates’ Court to hear and determine such charges and that, properly construed, the relevant statutory provisions did not apply to him. I will shortly explain more fully the arguments that he developed that warrant consideration on this appeal.

1. His amended notice of appeal raised 71 questions, described as questions of law. The appellant categorised those questions in the following way:

(a)   Questions regarding the nature of the court;

(b)  Questions regarding the allegiance, separation of powers, jurisdiction and compliance of the court with Chapter 3 of the Constitution;

(c)   Validity of orders made by the Magistrates’ Court;

(d)  Questions regarding the lawful status of the Victorian Department of Public Prosecutions and the prosecutor acting on behalf of the informant;

(e)   Questions regarding the appellant’s status as a living man and personal representative of his legal person and limited liability for the debts of his legal person;

(f)    Validity of the Road Safety Act 1986 (Vic);

(g)  Lack of evidence of the informant’s claim that the Road Safety Act is a valid Act and that it applied to the appellant;

(h)  The power of private companies to dictate to a living man enforcement without agreement or contract;

(i)     Appellant’s honest claim of right, private administrative process and informant’s default;

(j)     No injured party/corpus delecti;

(k)  Misapplication of legal terms; and

(l)     Application of legal terms.

1. The number of questions was a product of the appellant’s want of legal training. In substance, he did not contest the facts, he contested that court’s jurisdiction and its interpretation of the statute.

1. The appellant filed two affidavits dated 2 August and 23 November 2022. The informant, Sydney Rudd-Schmidt filed one affidavit dated 5 December 2022. The informant’s affidavit explained what occurred in the Magistrates’ Court, the appellant having mostly used his affidavits to develop his submissions. In addition, each of the appellant and the respondent filed outlines of submissions as directed by the court. I have read all of this material, which included, in particular, the transcript and exhibits from the proceeding before the Magistrate.

1. To understand the arguments, it is desirable to have the statutory text at hand. I have highlighted the words about which meaning was in contest. Rule 20(1) of the Road Safety Rules 2017 (as in force at the time of the offence) read as follows:

A driver of a vehicle other than a heavy vehicle must not drive at a speed which exceeds the speed-limit applying to the driver for the length of road where the driver is driving by less than 35 kilometres per hour.

Penalty: In the case of a natural person, 10 penalty units;

In the case of a body corporate, 120 penalty units.

1. Rule r 50(1) of the Road Safety (Vehicles) Regulations (as in force at the time of the offence) read as follows:

A driver of a vehicle must not use a vehicle on a highway unless—

(a) the vehicle bears number plates affixed and displayed in accordance with this Part; or

(b) an authority under regulation 50A applies to the vehicle.

Penalty: 2 penalty units.

1. In oral submissions, the appellant distilled his arguments to some primary points, while inviting the court to rely on the full expression of his contentions in his written material, which I have done.

1. First, the appellant contended that he is ‘a living man in private jurisdiction’ as opposed to a ‘legal person in the public jurisdiction’. He submitted that, based on his ‘research’, private and public jurisdictions do not mix; private being the jurisdiction of living men and women and public jurisdiction being the jurisdiction of legal persons, whether they be a natural person, a company, a trust or any form of State-created entity. Living men and women are not subject to statutes: they are subject to the common law and to the rules of equity but, not having been created by the State, are not subject to statute law. Accordingly, the Magistrate, exercising a jurisdiction conferred by statute, had no authority to hear and determine the charges brought against a living man who is not a legal person.

1. Secondly, the Commonwealth Constitution does not permit the State to license travel and permits freedom of movement. While it may license commerce, the appellant was not engaged in commerce and was simply travelling in a private capacity. It was accordingly beyond the power of the police, on behalf of the State, to require the appellant to have or produce a licence. I pause to note that the appellant produced a licence when asked to do so and that licensing power is not an issue on this appeal. I need not say any more about why this submission is misconceived.

1. The appellant’s third point is that the Magistrate misinterpreted a number of key terms defined in the Road Safety Act. He contended that the magistrate erred in law in concluding that:

(a)   A Range Rover Discovery is a vehicle;

(b)  A car is a vehicle;

(c)   The appellant was the driver of the car.

1. He submitted that the Magistrate misunderstood the definition of the term ‘vehicle’. The appellant submitted that there is a distinction between the colloquial use of the term ‘vehicle’ and the legal definition in the Act. The Magistrate erred in concluding that the Range Rover that he was driving was a vehicle as defined by the Act because the Act makes quite clear what is, and is not, a vehicle. A private car being used for a private purpose does not meet the definition of a vehicle as provided for in the Act. I note that the definitions are in these terms:

vehicle means a conveyance that is designed to be propelled or drawn by any means, whether or not capable of being so propelled or drawn, and includes …but does not include …;

motor vehicle means a vehicle that is used or intended to be used on a highway and that is built to be propelled by a motor that forms part of the vehicle but does not include [exclusions not relevant for present purposes]

1. The police alleged that the appellant was the ‘driver’ when the Act defines ‘driver’ in these terms:

Driver of a vehicle includes –

(a)       a two-up driver of the vehicle who is present in or near the vehicle; and

(b)       a person who is driving the vehicle as a driver under instruction or under an appropriate learner permit.

The appellant contended that as neither of the sub-paragraphs applied to him, he was not defined as a ‘driver’ by the Act, there being no other definition of ‘driver’ within the Act that might capture his circumstances.

1. The appellant’s next point was, not being engaged in commerce but travelling for a private purpose, he had the right to travel down a road by whichever means he found fit so long as he did not cause any damage to other persons or property. There was, he submitted, no corpus delecti.[1] Not having caused damage to any persons or property, no basis to issue a fine ever arose.

   [1]The appellant appeared to delight in the citation of Latin maxims and old cases decided by the Supreme Court of the United States of America (to which I will need not refer).

1. The appellant developed this argument from the informant’s admission in evidence that he was travelling in a car. In other words, he submitted that the informant did not suggest that the appellant was travelling in a vehicle or a motor vehicle. This, he submitted, was critical as the definitions in the Act are exhaustive and the term ‘vehicle’ is not defined to include a car. The appellant submitted that this consequence followed by application of the maxim expressio unius est exclusion alterius.[2]

   [2]An express reference to one matter indicates that other matters are excluded. As to the correct application of this maxim see Houssein v Under Secretary, Department of Industrial Relations & Technology (NSW) (1982) 148 CLR 88, 94; O’Sullivan v Farrer (1989) 168 CLR 210, 215; Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, 575; Wentworth v New South Wales Bar Association (1992) 176 CLR 239, 250.

1. The appellant’s last oral point referred to grounds claiming that he was denied procedural fairness. Largely, the appellant complained that he was not permitted to question the police witnesses as he saw fit and was ‘cut off’ numerous times and that he was not permitted to fully develop his submissions. On analysis, it is plain that the magistrate did not cut the appellant off from developing his arguments, but did cut him off when he asked questions that could not generate a response that would be relevant to an issue and hence constitute admissible evidence. The magistrate did so quite correctly, and in particular disallowed questions in cross-examination of the informant about whether the appellant is a creature of statute, and about how legislation can apply to a living man. In the exchange, the magistrate told the appellant he could raise such matters in submissions, but they were not proper questions for the witness.

1. Having reviewed the whole transcript I reject the contention that the appellant was denied procedural fairness, either in relation to questioning witnesses or in putting submissions. The appellant was aggrieved that the magistrate rejected his submissions and his complaint is about the result not the process.

1. Turning first to the grounds relating to jurisdiction, the appellant’s attempt to distinguish himself from the ‘legal person’ who was charged with the offences was misconceived. There are 2461 instances of the use of the word ‘person’ in the Act, while the expression ‘legal person’ is not used. The natural and ordinary meaning of ‘person’ is a reference to an individual human being. The law carries the same meaning when using the expression ‘natural person’.  There is a distinction, evident in the use of the expressions ‘natural’ and ‘legal’ persons, between artificial constructs of legal personality, where rights and duties are ascribed to an entity such as an incorporated company, that are referred to as ‘legal persons’ and natural persons, meaning individuals. All forms of person, natural and artificial, are recognised by the law as legal persons. In simple terms, all are subject to the rule of law.

1. The appellant contended that he was a private man travelling in a private car for a private purpose on a common way without disturbing the peace nor causing any damage to people or property. As such he was not a person of direct concern to society and ‘therefore remains private’, meaning not amenable to the powers of the police or the jurisdiction of the magistrate. Apparently, in this context, the legal person who is so amenable is the person identified by the driver’s licence and not the living private man that the informant conceded he dealt with. That living private man, so the argument goes, is a conceptually distinct persona from the legal person.

1. The law does not recognise an alternate, or paper, identity of the kind described by the appellant as represented by the name and persona identifiable from his driver’s licence as different from the identity of an individual human being. The identifying characteristics of a human being, such as name, are an integral part of the individual human being. The law recognises a living person as having status in law and any person is, in this sense, a legal person. Conceptually, there may be differences between the legal status of a person and that of an entity that is granted a like legal status, but what ever they might be they have no application on this appeal. In asserting that he is a ‘living man’, the appellant does no more than identify that he is a person, an individual. Every person, every individual, and every entity accorded status as a legal person is subject to the rule of law. There are no exceptions in Australian society.

1. It is plainly wrong to assert that a natural person is not subject to statute law, only to common law and the principles of equity. All persons are subject to all law whether its source be the Constitution, statute, or judge made law. No distinction can be made by using an analogue, such as ‘living man’ for ‘person’. There was no legal significance in the informant’s agreement with the appellant’s proposition in cross-examination that he was a ‘living man’. That conclusion was, and remained, blindingly obvious.

1. A like argument was also based on the notion that the living man is created by God and not by the State and the Australian Constitution does not grant legislative power to the Parliament of Australia to affect the rights of the living man. No support can be found for such notions by reference to style guides, as the appellant sought to do, to draw inferences from obscure facts. In this case, the appellant noted that his name was printed on his driver’s licence wholly in capital letters. Such irrelevant matters cannot impugn the jurisdiction of a magistrate under the Road Safety Act.

1. The appellant also advanced a like proposition that seems to have developed some momentum as a ‘sovereign citizen defence’, based in some way on notions of freedom to contract with others, as developed in a commercial context. The defendant contends that a living man is only answerable to those articles of law and legal proceedings to which he or she has consented. The contractual notion that the appellant alluded to has no role in public law in the manner suggested. Regulatory schemes legislated by Parliament do not require the consent of every individual for the law to apply to that individual. There is no contract and nor does the authority of the Parliament to pass such laws come from a sovereign, notwithstanding that the legislative power of the State is vested in the King and the Parliament of Victoria. The ‘consent’ of Victorians to statute law, in the sense in which the appellant used the expression, follows from the election of parliamentarians to make laws for the peace, order and good governance of the State and their subsequent exercise of that legislative power.

1. The appellant also expressed this notion of his personal exemption from the application of the Road Safety Act as he drove his car on public streets by asserting that he is a subject of the King of the United Kingdom and not a citizen of the King of Australia.[3]

   [3]Compare Joosse v Australian Securities and Investments Commission (1998) 159 ALR 260.

1. Like arguments, which perhaps find some development in obscure corners of the internet, were put to, and rejected by, Solomon J in Yap v Matic.[4] I agree with his Honour’s statement that:

Insofar as it asserts a distinction between the fictional 'PERSON' named as the defendant in these proceedings and Mr Matic himself, it is a distinction that is neither recognised by the law nor suggested by rational observation. Mr Matic is quite entitled to his belief in that distinction, but it is not one that can impact upon the court's jurisdiction . Mr Matic, as a person or as a 'living breathing man', capitalised or in lower case, is subject to the court's jurisdiction and required to comply with its orders.[5]

[4][2022] WASC 181, [61].

[5]See also Deputy Commissioner of Taxation v Bonaccorso (No.3) [2016] NSWSC 1018, where Garling J struck out a pleading that advanced similar notions and Deputy Commissioner of Taxation v Palmer (No 2) [2022] VCC 2001, another case where Judge Macnamara rejected, inter alia, like submissions at [15], [16], [62].

1. In this court, like arguments were rejected by Ginnane J in Monteith v Fitzgerald.[6] In that case, as here, there was no challenge to the sufficiency of evidence to prove the charges, the challenge was to the jurisdiction of the magistrate. It was, in substance, put, as in this case, that the magistrate erred in determining that they had jurisdiction to hear and determine the charges. Busy judicial officers in the lower courts should not be troubled by such nonsense as is developed around these fatuous notions of ‘living man’ and ‘sovereign citizen’.

   [6][2018] VSC 217.

1. There was no error by the magistrate in assuming jurisdiction to hear a summary offence under the Road Safety Act against a driver involving a vehicle being driven in a manner contrary to the statutory regulatory scheme enacted to protect the safety of all road users.

1. The appellant’s other main contentions concerned the construction of the definitions in the Act were also misconceived. In particular, the appellant misconceived the use of the word ‘includes’ by the drafter of the Act, a misconception made clear when  the use of the word ‘means’ in other definitions is noted. The starting point is that statutory definitions are construed according to their natural and ordinary meaning, which the appellant described as a ‘colloquial’ meaning in distinction to a technical legal meaning. Then, as McHugh J explained in Kelly v The Queen:

[T]he better – I think the only proper – course is to read the words of the definition into the substantive enactment and then construe the substantive enactment – in its extended or confined sense – in the context and bearing in mind its purpose and the mischief that it was designed to overcome. To construe the definition before its text has been inserted into the fabric of the substantive enactment invites error as to the meaning of the substantive enactment.[7]

[7](2004) 218 CLR 216, [103]. This statement has been approved in numerous cases as the usual approach, although as Herzfeld & Ors note in The Laws of Australia, Ch 25, Interpretation and use of Legal Sources, at 25.1.1160 ff the proper approach may vary according to the circumstacnes and McHugh J’s approach should be deployed with some caution.

1. It was not in dispute that the Range Rover Discovery was not a heavy vehicle. The question of fact for the magistrate was whether it was a conveyance that is designed to be propelled … by any means. There can be no doubt that the magistrate was entitled to be satisfied beyond reasonable doubt that the Range Rover Discovery observed by the police was a vehicle; it was conveying the appellant to his destination by self-propulsion.  The appellant’s submissions avoided this analysis as I have noted. It was not necessary for the prosecution to prove by specific evidence that a Range Rover Discovery is a conveyance that is designed to be propelled, no other inference was open on the evidence before the magistrate. Further, the appellant contended that  the police agreed that the Range Rover Discovery was a car. A car is synonymous with a vehicle in colloquial use, and the appellant’s point was the statutory definition of vehicle made no reference to a car. The expressio unius maxim applied excluding a car from the definition of a vehicle.

1. I do not need to analyse the learning on that maxim or the closely related expressum facit cessare tacitum. The cases show that these maxims are applied in statutory construction with extreme caution and the phrase most commonly used is that it is ‘ a valuable servant, but a dangerous master’.[8] It has no role to play in construing the relevant parts of the Act.

   [8]See generally the discussion and the cases collected in Pearce & Geddes, Statutory Interpretation in Australia, 8th Ed, LexisNexis, [4.33] – [4.39].

1. The misconception in the appellant’s submission lies in the construction he placed on ‘includes’. Analysis of s 3 of the Road Safety Act reveals that the drafter deliberately uses both ‘means’ and ‘includes’. A definition constructed by the use of the word ‘means’ is generally regarded as an exhaustive statement of the meaning of the term being defined. The definitions of vehicle and motor vehicle set out above are examples of that approach. Although the appellant contended that definitions were exhaustive, the relevant definition for his argument is that of ‘driver’, which he also contended was exhaustive.

1. The natural and ordinary meaning of ‘driver’ encompasses the activity that the appellant was observed to be doing in the car when he was intercepted by the police. It was nonsensical to suggest otherwise. The references in the definition of ‘driver’ to a two-up driver and a learner/driver are plainly included to clarify that persons in such circumstances, not presently relevant, will be regarded as a ‘driver’, notwithstanding that they might not be thought to fall within the margins of natural and ordinary usage of the word driver.[9] This definition perfectly illustrates the natural and ordinary usage of ‘includes’.

   [9]See R vNovakovic (2017) 1 VR 21, [5]; Re Gray; Ex parte Marsh (1985) 157 CLR 351, 364-365; Federal Commissioner of Taxation v St Hubert’s Island Pty Ltd (in liq) (1978) 138 CLR 210, 216; Cohns Industries Pty Ltd v Deputy Federal Commissioner of Taxation (1979) 37 FLR 508, 510-511; Macfarlane v Burke; Ex parte Burke [1983] 2 Qd R 584, 589, 595; Brambles Australia Ltd v Commr of Taxes (NT) (1993) NTLR 167, 178.

1. Ultimately the appellant’s arguments, if capable of being followed to a logical conclusion, denied that individual persons driving cars on public roads was an activity regulated by the Road Safety Act.

1. Section 35(a) of the Interpretation of Legislation Act 1984 (Vic) provides that when interpretating legislation, a construction that promotes the purpose or object underlying it shall be preferred to a construction that would not promote that purpose or object. Section 1 of the Act identifies its purposes. The construction proposed by the appellant is clearly inimical to those purposes and is absurd.

1. There was no error demonstrated in the magistrate’s interpretation of the terms of the Road Safety Act. The magistrate correctly ruled that the appellant’s car fell within the Road Safety Act definition of ‘vehicle’ and that the appellant was the driver of that vehicle.

1. There were many other arguments raised that I need not deal with. For example, demonstrating a comprehensive misunderstanding of tax law, the appellant submitted that because Victoria Police had an ABN, it was a private corporation that  would require a written contract with him to enforce any remedies. The appellant also argued that unidentified principles of common law and equity apply to the regulatory scheme constituted by the Act. The appellant told the learned magistrate that he had filed a notice of conditional appearance, but developed no submission about that.

1. The appellant, contending that s 25D of the Acts Interpretation Act 1901 (Cth) was relevant, sought to raise error through inadequate reasons. Although this reasoning was flawed, looking in any event at the transcript of the hearing, I am satisfied that the magistrate gave adequate, albeit brief, reasons for her decision.

1. The appellant has failed to persuade me that there was any error of law by the magistrate and the appeal must be dismissed. I will hear further from the parties on the question of costs.

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