Appellant v First Respondent

**1 The appellant issued a summons returnable in the Magistrates' Court seeking a stay of infringement warrants issued against it; the return of its vehicle, which had been seized pursuant to the warrants; the vacation of 'void judgments' against it; and damages. Magistrate Crowe dismissed the summons.

2 This is an appeal under s 109 of the Magistrates' Court Act 1989 from the decision of Magistrate Crowe made on 2 December 2013.**

**3 The legislative framework for the issuing and enforcement of infringement notices is provided by the Infringements Act 2006 ('the Act').

4 A person issued with an infringement notice must pay the infringement penalty within the time period specified in the infringement notice.[1] Alternatively, that person may elect to have the matter heard and determined by the Magistrates' Court,[2] or apply to the relevant enforcement agency for an internal review.[3]

5 A person who is unaware that an infringement notice has been served may apply to have the notice cancelled within 14 days.[4] The infringements registrar must refer that application to the Magistrates' Court.[5]

6 If a penalty reminder notice has been issued to a person and that person has failed to make full payment to the enforcement agency within the time specified in the penalty reminder notice, an enforcement agency may lodge details of the outstanding amount with an infringements registrar.[6] The lodgement of details of an infringement notice with an infringements registrar extinguishes the opportunity for the person to apply for internal review.[7]

7 Upon lodgement with the infringements registrar, the infringements registrar may make an enforcement order that the person pay to the Court the outstanding amount of the infringement penalty.[8] An enforcement order is deemed to be an order of the Court.[9] Once an enforcement order has been made, the person can no longer elect to have the matter of the offence dealt with by the Magistrates' Court.[10]

8 When making an enforcement order, the infringements registrar must send an enforcement order notice to the person stating that, if the person fails to pay the penalty within 28 days, an infringement warrant will be issued.[11]

9 A person may apply to an infringements registar for revocation of the enforcement order.[12] If the infringements registrar is satisfied that there are sufficient grounds to revoke the enforcement order, he must revoke it.[13] If the infringements registrar decides that the enforcement order ought not to be revoked, the person may apply within three months of receiving notice to have the matter referred to the Magistrates' Court, upon which the infringements registrar must refer the matter to the Court.[14]

10 If the person fails to pay the outstanding amount, the infringements registrar must issue an infringement warrant.[15] An infringement warrant authorises the recipient of the warrant, inter alia, to seize the personal property of the person named in the warrant and, if necessary, to sell the seized property.[16] Once property has been seized under an infringement warrant, the person may no longer apply for revocation of an enforcement order.[17]**

**11 Between 13 November 2009 and 3 November 2011 the appellant accumulated 47 infringement notices. The appellant failed to pay the infringement penalties. The appellant did not elect to have the matters heard in the Magistrates' Court, nor did it apply for internal review.

12 Between 11 May 2010 and 23 March 2012, the relevant enforcement agencies lodged details of the infringements with the infringements registrar. The opportunity for the appellant to apply for internal review was thereby extinguished.

13 The infringements registrar subsequently made enforcement orders requiring the appellant to pay the infringements. The making of those orders extinguished the opportunity for the appellant to elect to have the infringement offences heard by the Magistrates' Court.

14 The appellant failed to pay the outstanding amounts within 28 days. Nor did it apply to the infringements registrar for revocation of the enforcement orders.

15 Between 2 September 2010 and 11 October 2012, the infringements registrar issued infringement warrants. On 26 February 2013, a Ford Territory 2005 Wagon, which was registered to the appellant, was seized under the infringement warrants. The appellant's opportunity to apply for revocation of the enforcement orders was thereby extinguished.**

**16 By summons dated 24 April 2013, the appellant sought a stay of the infringement warrants; a stay of the disposal of the vehicle; the vacation of 'void judgments' against the appellant; and damages for 'illegal and void' fines and forfeitures. Magistrate Crowe dismissed the appellant's summons on 2 December 2013 and the appellant filed a notice of appeal on 17 January 2014.

17 Mr McInnes, solicitor, appeared on behalf of the Deputy Sheriff of Victoria. First, he submitted that the vehicle was seized pursuant to infringement warrants in accordance with the procedure laid down in the Act. Hence, if the appellant were to succeed in setting aside the enforcement orders, it needed to establish some other basis for the claim. That other basis advanced by the appellant appeared to be that the Act was somehow void, unenforceable or invalid by reason of its conflicting with the Bill of Rights 1688,[18] as transcribed in the Imperial Acts Application Act 1980.

18 Mr McInnes submitted that the 'fines' and 'forfeitures' in the Bill of Rights 1688 did not refer to pecuniary penalties for breaches of law, but were obsolete conveyancing terms. In any event, Mr McInnes submitted that the Bill of Rights 1688 was now merely a part of constitutional history; that document had no effect on the law in the State of Victoria as it now stood.

19 Mr McInnes also responded to the appellant's submission that a contract had come into effect upon the filing of a document. He submitted that there was no evidence that anyone ever agreed to be bound by any of the documents received.

20 The learned magistrate observed that the mechanism for referring infringement matters to the Magistrates' Court was provided by the Act. It was held that, as the appellant had not followed the procedure set out in the Act, its application failed. As for the appellant's argument on the Bill of Rights 1688, the learned magistrate held that the Imperial Acts Application Act 1980 did not permit the reasoning contended for by the appellant. The rights enumerated therein were mainly civil and political in character. Finally, the learned magistrate found that no contract of the sort claimed by the appellant existed.**

21 The appellant filed a notice of appeal on 17 January 2014. The appellant sought that:

(a) the decision of the magistrate be annulled;

(b) the infringement claims against the appellant be declared void;

(c) the infringement claims against the appellant be heard by a court of competent jurisdiction;

(d) the vehicle be returned; and

(e) the appellant be awarded damages for wrongful seizure of the vehicle.

**22 The appellant identified six bases upon which it argued that the learned magistrate erred in law.

23 First, by failing to hear the appellant on the substance of the underlying infringement claims and insisting to adhere to the procedure under the Act, the magistrate denied the appellant of its right to a hearing. Secondly, the failure to hear the underlying infringement claims was also a denial of procedural fairness. Thirdly, in following the procedure under the Act and rejecting the appellant's protestations concerning due process, the magistrate denied the appellant due process. Fourthly, the magistrate acted arbitrarily and not impartially. Fifthly, the magistrate rejected the unchallenged sworn testimony of the appellant without just cause. Sixthly, in following the Act, the magistrate subjugated the lawful rights of the appellant to the provisions of the Act.**

**24 At the hearing of the appeal I granted leave to Mr Chris Field, who is the director of the appellant association, to appear and make submissions on its behalf.

25 Mr Field submitted that the fountain of authority in this State is Queen Elizabeth II. The Magistrates' Court and this Court are subject to the authority of her Majesty. The power vested in the State cannot exceed that of her Majesty. The Queen's power is subject to promises set out in various Imperial acts, to which the State, and by extension the Magistrates' Court, are also bound.

26 Mr Field submitted that the Act unfairly restricted the options that were available to the appellant and that the procedure under the Act denied the appellant due judicial process. Mr Field cited two examples of failures of due process under the Act. First, when he initiated 'lawful correspondence' with Connect East Pty Ltd, the operator of the EastLink tollway, the appellant did not receive a reply. Rather, infringement notices were issued against the appellant. Secondly, Mr Field submitted that the procedure by which the infringement warrants were issued against the appellant did not afford the appellant due process.

27 In essence, Mr Field contended that the learned magistrate, in following and applying the scheme established by the Act, which scheme he submitted compromised the appellant's rights to due judicial process, thereby denied the appellant due process and a fair hearing.

28 Mr Field also submitted that the Victorian Government Solicitor's Office (the 'VGSO') ought not to be allowed to appear on behalf of the respondents, because it had participated, as a branch of the Victorian government, in a denial of the appellant's rights.

29 Mr Field asserted in addition that there existed a commercial lien between the appellant and the VGSO. Mr Field submitted that the appellant had 'issued' commercial liens against the VGSO containing claims that the VGSO failed to rebut and so must be held to have accepted.**

**30 Ms Batten, of counsel for the respondents, submitted that the appellant had failed to identify any question of law. The magistrate neither asked a wrong question of law nor made a wholly erroneous finding of fact.

31 Ms Batten submitted that the arguments of the appellant must fail for two reasons. First, under the legislative scheme imposed by the Act, the appellant was not entitled to a hearing in respect of the underlying infringement notice. Secondly, there was nothing to support the contention that the magistrate denied the appellant procedural fairness at the hearing.

32 The appellant had been entitled to refer the matter to the Magistrates' Court at two intervals: before enforcement orders were made[19] and upon the denial by an infringements registrar of an application for revocation of the enforcement orders.[20] Because property of the appellant had already been seized pursuant to the Act, the window for seeking revocation of the enforcement orders had closed.[21] The appellant, having failed to avail itself of the avenues prescribed by the Act, had lost its right to a hearing.

33 Ms Batten made the following submissions against the appellant's grounds of appeal and its contention that the procedure imposed by the Act denied it procedural fairness.

34 Ms Batten submitted that the following was evidence that the magistrate afforded the appellant procedural fairness:**

(f) the appellant was aware of the date the summons would be heard;

(g) the matter adjourned from 19 August 2014 because the appellant was not ready;

(h) the appellant was granted an oral hearing;

(i) the magistrate heard all of the claims of the appellant; and

(j) the magistrate considered the written material relied on by the appellant.

**35 Ms Batten emphasised that the magistrate heard and considered the appellant's argument that the entire scheme contemplated in the Act was invalid by reason of the Imperial Acts Application Act 1980. The learned magistrate also heard and dismissed the appellant's claim that a contract was in effect.

36 As regards the appellant's renewed argument that the Act was invalid, Ms Batten submitted that the s 16 of the Constitution Act 1975 grants parliament power to make laws for the State of Victoria.

37 Ms Batten relied on the submissions contained in the first defendant's outline of submissions in the Magistrates' Court proceeding. Ms Batten referred the Court to Port of Portland Pty Ltd v State of Victoria [22] as authority for the proposition that the provisions in the Imperial Acts Application Act 1980 transcribing the Bill of Rights 1688 were best understood as reinforcing settled constitutional principles.

38 Ms Batten also referred to Antunovic v Dawson,[23] where Bell J said that the operation of the ancient imperial statutes, including the Bill of Rights 1688, were subject to contrary legislation.

39 Ms Batten understood the appellant's fourth ground of appeal to be an allegation of bias against the learned magistrate. It was submitted that nothing the magistrate did could suggest to a fair-minded observer that the magistrate might not have brought an impartial mind to the determination of the proceeding. On the contrary, the magistrate heard and considered all the material put forward by the appellant, stood the matter down, and delivered a considered ruling.

40 Ms Batten submitted that the appellant's contention that the magistrate rejected Mr Field's unchallenged sworn testimony was irrelevant. The question was really whether the appellant was entitled to apply for revocation of the infringement warrants. As a matter of interpretation of the Act, the appellant was not entitled to apply for revocation after property had been seized, which, the appellant in fact conceded, it had.

41 In answer to the appellant's argument that the magistrate had subjugated its rights to the provisions of the Act, Ms Batten relied on the submissions made earlier on the Act's validity.

42 Ms Batten submitted that the appellant had adduced no evidence of any reason why it was improper for the VGSO to act. The VGSO was not in a conflict of interest because it did not hold any confidential information on the appellant.

43 It was submitted that a commercial lien can only arise as a result of a right to hold property as security for the performance of an obligation or debt. Since the VGSO owes no obligation or debt to the appellant, no lien can have arisen.**

**44 There is no doubt that, upon the proper construction of the Act, by the time the appellant issued the summons in the Magistrates' Court, the opportunities prescribed in the Act for referring the infringement notices to the Magistrates' Court or for seeking revocation of the enforcement orders had been extinguished. Mr Field did not pursue any argument to the contrary at the hearing. Hence if the appellant is to succeed on this appeal, it must succeed on its argument directed toward the validity of the Act itself or satisfy the Court that there was a denial of procedural fairness, lack of due process, or bias in the Magistrates' Court proceeding.

45 The central question for the Court, then, is whether the learned magistrate erred in law in considering that the Act was not invalidated by operation of the Imperial Acts Application Act 1980 or for some other reason.**

46 The legislative scheme prescribed by the Act became law in this State on 1 July 2007. The appellant contends that the scheme imposed by the Act impermissibly curtails its rights and liberties and is therefore invalid. The appellant submits that the State's law-making authority flows from the authority of the Queen herself as sovereign and is subject to the same restrictions.

Imperial Acts Application Act 1980

47 The power of the Victorian parliament to make laws is provided in the constitution. Section 16 of the Constitution Act 1975 provides:

The parliament shall have power to make laws in and for Victoria in all cases whatsover.

**48 In Port of Portland Pty Ltd v State of Victoria, the High Court considered the force of the principles enunciated in the Imperial Acts Application Act 1980.[24] That Act, which is an act of the Victorian parliament, transcribes several Imperial acts, including the Bill of Rights 1688.[25] Section 3 provides that the transcribed enactments 'shall continue to have in Victoria ... such force and effect, if any, as [it] had at the commencement of this Act'.

49 Considering the interpretation of the Imperial Acts Application Act 1980, French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ said that '[t]he preferable view is that these provisions in the Victorian statute at best serve only to reinforce what are settled constitutional principles'.[26] In Antunovic v Dawson, Bell J considered the relevance of the Bill of Rights 1688 in a contemporary context.[27] His Honour said:**

The rights and liberties in the Bill of Rights restricted the powers of the sovereign, specified and confirmed the responsibilities of Parliament and declared certain fundamental freedoms of the people. The focus of these rights and liberties is mainly on the relationship between the sovereign, the Parliament and the people, rather than on the rights of the people as such. The rights are mainly civil and political in character ...[28]

**50 It follows from what was said in the above cases that the provisions of the Imperial Acts Application Act 1980 are not to be understood as being capable of striking down provisions in other statutes. Rather, the principles there enshrined lay the groundwork of the constitutional framework and find expression in more specific principles.

51 Accordingly, I see no error in law in the decision of the learned magistrate to reject the appellant's argument that the Act is somehow invalid.**

The Infringements Act 2006

**52 In any event, I am not satisfied that the procedure created by the Act fails to ensure due judicial process.

53 The Act introduced a new procedure designed to enhance due process.[29] As Cavanough J said in Tsolacis v McKinnon, the Act contains an 'elaborate regime for dealing with infringement notices, their withdrawal, their revocation, their enforcement and the determination by the Court of matters alleged in infringement notices. Matters may be referred to the Magistrates' Court for hearing at various stages of the process'.[30]

54 The appellant chose not to avail itself of the opportunity provided under the Act, which remained open until enforcement orders were made, to refer the matter of the underlying infringement claims to the Magistrates' Court. The appellant did not seek revocation of the enforcement orders, which would have allowed it another opportunity to refer the matter to the Magistrates' Court. Finally, the appellant made no application for cancellation of the notices on the basis that it was unaware that infringement notices had been served.

55 The seizure of the appellant's vehicle was in strict accordance with the law established under the Act. That Act provides a just and orderly process for dealing with infringements and their enforcement. It is replete with mechanisms for review.**

Procedural fairness before the Magistrates' Court

**56 The appellant's protestations concerning procedural fairness seemed to boil down to this: the magistrate, in following the procedure of the Act, thereby participated in the denial of the appellant's rights caused by the Act. The appellant also submitted, however, that the magistrate acted arbitarily.

57 As I have found that the Act is not invalid for any reason, and that in any event it does not lack procedural fairness, there can be no denial of procedural fairness by the magistrate flowing from application of the Act. As for the conduct of the hearing itself, I am satisfied that the appellant was accorded a fair hearing. The learned magistrate heard from Mr Field, took time to consider the written material and delivered a reasoned judgment after a short adjournment. In my view, there was nothing in the conduct of the proceeding that might induce a fair-minded observer to think that the magistrate brought anything other than an impartial mind to it.**

58 As submitted on behalf of the respondents, there is no basis for the assertion of a commercial lien. A lien is the personal right to withhold to property as security for the performance of an obligation or payment of a debt. The appellant has not established any obligation or debt on the part of the VGSO, with the result that there can be no lien.

**59 The appellant could point to no specific circumstance that made it improper for the VGSO to act, other than that it was, as a branch of the Victorian government, complicit in the appellant's alleged denial of rights under the Act and before the Magistrates' Court. There is of course nothing improper in the VGSO making submissions on behalf of the government and, as I have concluded, there was no denial of due process either under the Act or before the magistrate.

60 For the foregoing reasons I dismiss the appeal.**

[1] Infringements Act 2006, s 14.

[2] Ibid s 16. If a penalty reminder notice has been issued, under s 30.

[3] Ibid s 22.

[4] Ibid s 37.

[5] Ibid s 37(3).

[6] Ibid s 54.

[7] Ibid s 22(2)(a)(i)(A).

[8] Ibid s 58(1).

[9] Ibid s 59(2).

[10] Ibid s 16(1)(a).

[11] Ibid s 60.

[12] Ibid s 65.

[13] Ibid s 66(2)(a).

[14] Ibid s 68.

[15] Ibid s 80.

[16] Ibid s 82.

[17] Ibid s 65(2).

[19] Infringements Act 2006, s 16.

[20] Ibid s 68.

[21] Ibid s 65(2).

[22] (2010) 242 CLR 348.

[23] [2010] 30 VR 355.

[24] (2010) 242 CLR 348.

[26] Port of Portland Pty Ltd v State of Victoria (2010) 242 CLR 348, 359.

[27] (2010) 30 VR 355.

[29] Victorian Toll v Taha [2013] VSCA 37 (4 March 2013) [75].

[30] [2012] VSC 627 (21 December 2012) [115].