Appellant v Respondent

1 On 11 May 2017 the appellant, Andrew D Crowther, parked his six-tonne motorhome in a disabled parking bay in Market St, Nunawading, displaying a disabled parking permit. At 5:24pm he was given an infringement notice by an issuing officer of Whitehorse City Council ('the Council'). The infringement notice referred to r 200(2) of the Road Safety Rules 2009 ('the Road Rules') which provides, inter alia, that the 'driver of a heavy vehicle ... must not stop on a length of road in a built-up area for longer than 1 hour ... unless permitted to do so ... by the Council.'

2 On 5 June 2017, as is his statutory right,[1] the appellant elected to have the matter heard and determined in the Magistrates' Court. The Council then lodged the charge with that court, as is its statutory duty, and posted a Notice of Hearing to the appellant.[2] Meanwhile, on 10 July 2017, the appellant filed an originating motion seeking judicial review under O 56 of the Supreme Court (General Civil Procedure) Rules 2015 ('the Rules'). Henceforth there were two proceedings on foot: the appellant's prosecution in the Magistrates' Court and his proceeding for judicial review in this Court. The former was stayed pending the outcome of the latter.

3 The appellant does not dispute that he was the driver of the subject vehicle, that it was parked in the subject parking bay for longer than one hour, or that it is a heavy vehicle as defined by the Road Rules.[3] What he disputes is whether he was 'permitted to do so ... by the Council.' He says that the display of the disabled parking permit satisfies the proviso to Road Rule 200(2) such that it was jurisdictional error to issue the parking ticket. The relief he seeks is in the nature of certiorari, quashing the 'decision' to issue the infringement notice, or else prohibiting his prosecution in the Magistrates' Court.

4 The Council maintains that the permit, while valid, is not a grant of exemption from statutory offences. It says the arguments the appellant wishes to put to this Court can and should be put to the Magistrates' Court as the proper venue under the Infringements Act 2006 ('the Act'). In particular, it says the 'decisions' impugned by the appellant are insusceptible of judicial review, since they are of a prosecutorial nature. Further, and in the alternative, it says that to grant the relief sought would be to impermissibly fragment the workings of the criminal courts. Finally, and aside from any procedural deficiencies, it says the appellant's claim has no real prospect of success and so should be dismissed on that basis.

5 On 15 August 2017 the Council applied by way of summons for a grant of summary judgment.[4] On 25 September 2017 an Associate Justice of this Court heard argument and decided 'without reservation' to summarily dismiss the appellant's originating motion. His Honour's reasons for judgment disclose that he did so because the appellant's claim suffers from incurable procedural deficiencies.[5] His Honour made no comment on the merits or otherwise of the appellant's claim so as not to prejudice his pending prosecution in the Magistrates' Court.

6 Having reviewed the materials before the Associate Justice, and having heard argument myself, I am of the view that his Honour's orders disclose no error. The appellant's proceeding is misconceived and, by his own admission, was an attempt to attract this Court's supervisory jurisdiction so as to make his 'criminal prosecution go away'.[6] While I accept that there is a genuine question to be tried, as to the correct construction of r 200(2) of Road Rules, that question can and should be answered in the Magistrates' Court. From there the appellant has rights of appeal to the County Court de novo and to this Court on a point of law. Indeed, since these remain open to him, the appellant's use of O 56 must be seen as an abuse of the processes of this Court.

7 The appeal must therefore be dismissed. My reasons follow.

8 The factual and procedural history of this matter is set out in the reasons for judgment of the Associate Justice and does not need repeating here. I only wish to add a couple of details gleaned from my own reading of the materials.

9 On 12 May 2017 the appellant wrote to the Mayor of Whitehorse City Council. He explained that he was writing to her 'personally rather than to the Appeals Board' and advised that

in the event that the alleged offence is not withdrawn immediately I will be defending the matter in the Magistrates' Court on the grounds that the issuance of an infringement notice in these circumstances is itself allegedly unlawful pursuant to Section 8 of the Disability Discrimination Act 1992.[7]

10 On 24 May 2017 he again wrote to the Mayor. This appears to have been in response to an email from the Mayor, or her office, dated 12 May 2017. The appellant advised that

following telephone discussions with the Human Rights Commission (the Commission), I am preparing a formal complaint to the Commission over our dispute, which they may agree to conciliate.

Please have no doubt that my negotiating position in any such future conciliation of the dispute by the Commission will require a full admission by the Mayor and Councillors themselves that Council has discriminated against its disabled constituent, and an apology to your constituent for that.

...

That is a generous offer, Madam Mayor, which might yet keep this unfortunate matter off the public radar and out of court. Lest there be any more cowboys in your administration who might still be inclined to 'shoot low Sherriff, he's riding a Shetland', I would prefer a timely response to this offer from you, not your administration.[8]

11 Council responded by way of a letter dated 26 May 2017 advising that it would not withdraw the infringement notice. The letter states that:

Whilst council notes that you were parked in a disabled persons' parking area with a valid permit, it does not exempt you from complying with the Road (Safety) Road Rules - 2009.

...

In view of the above information, I am unable to warrant the withdrawal of the infringement notice on this occasion.

...

I note your comments that if the infringement notice is not withdrawn, that you would be prepared to defend the matter in the Magistrates' Court, please be advised that Council will withdraw the infringement notice and commence proceedings to have the matter heard and determined by a magistrate in open Court.

12 On 27 May 2017 the appellant replied and advised that he would be defending himself in the Magistrates' Court. As he put it:

So you go ahead ... make my day, and issue me with a summons to have this farce decided by a Magistrate in open court.[9]

13 On 5 June 2017 the appellant provided a formal notice requesting a court appearance.[10] On 6 June 2017 Council replied and advised that the matter would be heard and determined in the Magistrates' Court.[11] On 10 July 2017 the Council posted (which constitutes service under the Act) a Notice of Hearing to the appellant.[12] However, on the same day, the appellant commenced this proceeding. The effect was to fragment the process provided for in the Act and effectively force a stay of proceedings in the Magistrates' Court.

14 On 7 August 2017 the Council's solicitors wrote to the appellant. The letter stated that the appellant's judicial review proceeding was misconceived and had no real prospect of success. The appellant replied - copying in the Mayor of Whitehorse City Council, the Victorian Government Solicitors Office and a registrar of this Court - to the effect that he believed he had a strong case and would not be discontinuing this proceeding.

15 For completeness, I note that the appellant has asked several third parties to intervene in his dispute with Council, including the Attorney-General's department, the Victorian Equal Opportunity & Human Rights Commission and the Independent Broad-based Anti-Corruption Commission. Each has refused to do so.

16 It is convenient to briefly summarise the argument before the Associate Justice.

17 The appellant's position was that he could not have breached Road Rule 200(2) because he had displayed a valid disabled parking permit and so had satisfied the proviso to the rule. He stated that, on the day in question, he was working as a volunteer carer for a legally blind person and, in particular, was assisting her to move into her new place of residence in the City of Whitehorse. He explained that it was her permit which he had displayed and which he was relying on as an exemption to liability. He conceded that the permit was issued by the City of Knox rather than the City of Whitehorse but maintained that that was not relevant as to whether it constituted the 'permission' of the Council under Road Rule 200(2).

18 The appellant submitted that his claim ultimately revolved around a question of statutory interpretation. The question, as he saw it, was the scope of the statutory exemption to the offence set out in Road Rule 200(2). As the appellant put it in the course of oral argument before me:

The purpose of the judicial review was to have the court undertake the construction and interpretation [of Road Rule 200(2)] and to provide us all with a meaning for the alleged offence which would have resolved the real issue in dispute.[13]

Crucially, when he came before the Associate Justice, the appellant was labouring under the misconception that the Magistrates' Court lacked jurisdiction to answer this question. This misconception appears to have played a significant role in motivating him to institute proceedings in this Court. In short, he erroneously believed that only this Court could construe Road Rule 200(2), upon which his defence in the Magistrates' Court would necessarily rest.[14]

19 The Council's position, on the other hand, focused on the procedural deficiencies attendant upon the appellant's proceeding. The two main arguments put forward by the Council were as follows:

(a) The 'decisions' impugned by the appellant are insusceptible of judicial review. This is because:

(i) the decision to issue the infringement notice is 'moot or spent' in the sense described by the High Court in Wingfoot Australia Partners Pty Ltd v Kocak.[15] This is because the infringement notice was 'withdrawn' (to use the somewhat confusing language of the Act) and in its place the appellant was served with the charge that is to be heard and determined in the Magistrates' Court; and

(ii) the decision to 'charge' the appellant is mandated by the Act and is the flipside, so to speak, of the appellant's right to have the matter heard and determined in open court. It therefore has the character of a 'prosecutorial decision' and so is beyond review for the reasons enumerated by the High Court in Maxwell v The Queen[16] and Likiardopolous v The Queen.[17]

(b) In any event, even if they are susceptible to review (which is denied), this Court should not exercise its discretion because to do so would be impermissibly to fragment the workings of the criminal courts. This is especially so in circumstances where the Act provides for a right of hearing in the Magistrates' Court and the appellant has not shown any 'special circumstances' or principled reason for fragmentation.

20 Further, and in the alternative, the Council submitted that the appellant's claim had no real prospect of success. This was chiefly because its underlying basis - the construction of Road Rule 200(2) proposed by the appellant - is unsustainable. In support of this proposition the Council pointed to the fact that the disabled parking permit relied on by the appellant does not belong to him and was issued by another municipal council. Further, when one consults the Dictionary to the Road Rules, one sees that the term 'Council' (as used in r 200(2)) is defined as 'the Council (within the meaning of the Local Government Act 1989) within the municipal district within which a road ... or relevant part of the road ... is situated.' It follows, the Council submitted, that in this case the 'permission' sought could only be granted by the City of Whitehorse. Finally, it highlighted the operation of the conditions of the permit, including the condition which states that the permit is only valid 'provided no other restrictions on parking are breached'.[18]

21 In short, the Council submitted that every argument the appellant wished put to this Court can and should be put to the Magistrates' Court, which is the proper venue under the Act. It submitted that the appellant's efforts to attract the supervisory jurisdiction of this Court have been an attempt to avoid or else forestall his prosecution and so should be seen as an abuse of process.

22 As I have said, on 25 September 2017, the Associate Justice heard argument and decided 'without reservation' to grant the Council's application for summary judgment. His Honour's reasons for judgment, published on 3 October 2017, disclose that he did so principally for the reasons given at [19] above. In other words, while he was satisfied that the appellant's proceeding had no real prospect of success, this was based not on any findings as to the merits of the claim but rather because of its incurable procedural d[19]iciencies.19

23 The appellant now seeks to challenge the orders of the Associate Justice summarily dismissing his originating motion.

24 The law governing an appeal from a determination of the Trial Division constituted by an Associate Justice to a Single Judge of the Trial Division is well settled.[20] Pursuant to r 77.06 such an appeal is an appeal by way of rehearing rather than a hearing de novo. Ordinarily error must be shown on the part of the Associate Judge before appellate power will be exercised.[21] Such an appeal will not be strictly confined to errors of law or process.[22] However, where the orders from which an appeal is brought relate to practice and procedure (as is the case here), an appellate court will exercise particular caution in reviewing the decision.[23]

25 For the avoidances of doubt, I should state that I adopt the content of his Honour's reasons in their entirety, wishing only to add a couple of supplementary observations of my own.

26 It is convenient at this point to say something about the appellant's materials for the purposes of this proceeding.

27 As I have said, the appellant's case is premised on the fact that he was assisting a legally blind person on the day in question, whose disabled parking permit he displayed on his six-tonne motorhome. While it is not strictly necessary to say so - and while I have formed no firm view about this - I note that there is no evidence before the Court to support this proposition. One looks in vain for a statement or affidavit from the legally blind person among the appellant's materials. This is in circumstances where his folders run to many hundreds of pages and include extensive extracts from the Commonwealth of Australia Constitution Act 1900 (Cth), Supreme Court Act 1986, Supreme Court (General Civil Procedure) Rules 2015, Disability Discrimination Act 1992 (Cth), Equal Opportunity Act 2010, Acts Interpretation Act 1901 (Cth), Road Safety Road Rules 2009, Civil Procedure Act 2010, Criminal Procedure Act 2009, Administrative Law Act 1978, Local Government Act 1989 and Charter of Human Rights and Responsibilities Act 2006.

28 A second observation concerns the appellant's correspondence with Council to date and what it reveals about his case. (A small selection of passages is set out at [9]-[12] above). The Associate Justice aptly described the complexion of this correspondence as &#[24]red-blooded'.24 This appellant's querulous tone is reflected in the materials he has put before this Court. For example, the appellant sought leave to hand up a folder with over 200 PowerPoint slides in it, one of which is headed 'Sic Semper Tyrannus [sic]'. Students of history will know that the Latin phrase sic semper tyrannis translates as 'thus ever to tyrants'. Marcus Brutus supposedly uttered these words during the assassination of Julius Caesar on 15 March 44BC. The Shakespearean actor John Wilkes Booth shouted the phrase after murdering Abraham Lincoln at Ford's Theatre, in Washington DC, on 14 April 1865.

29 Once again, while it is not necessary for me to say so, I find this aspect of the appellant's materials troubling. It is difficult to tell whether the appellant is joking, whether these are his heartfelt beliefs, or both. Either way, the 'red blooded' language detracts from the appellant's objectivity, which colours every aspect of this proceeding.

30 Before turning to the substance of the appeal I should state that, at the oral hearing on 24 April 2018, I dismissed the appellant's application for leave to serve interrogatories. I did so for the following reasons.

31 The appellant sought leave to serve interrogatories not only on the Council (and several employees of the Council) but also on various non-parties to this proceeding. Those non-parties included the Mayor of Whitehorse City Council and the magistrate who presided over the appellant's permanent stay application.

32 The starting point is that under O 30 of the Rules interrogatories may only be served on parties to a proceeding. The appellant's interrogatories directed at non-parties would therefore need to be struck out. But even then the appellant's application is unsustainable. This is so for two reasons.

33 Firstly, since this is an appeal, the appellant would need to satisfy the Court that there are exceptional circumstances which warrant admitting fresh evidence. Those circumstances were relevantly summarised by Robson J in Re Ascot Vale Self-storage Centre Pty Ltd.[25] The essential point is that evidence will not be admitted where it could have been adduced at first instance. And none of the evidence sought by the appellant was unavailable at first instance.

34 A second and more insurmountable difficulty is that evidence gathering is not germane to judicial review. In the appellant's affidavit affirmed 19 March 2018 he stated that the interrogatories would 'put Council to the proof of the alleged offence'.[26] This would be improper. Judicial review is not a means of proving facts or propositions in issue: the proper place for that is at trial. In short, the appellant is attempting to use O 56 to circumvent proper procedure, which cannot be allowed.

35 The appellant's Notice of Appeal dated 17 October 2017 agitates seven grounds of appeal. While couched in the language of administrative law ('failure to make a relevant consideration, the making of irrelevant considerations'), each ground is directed towards a single complaint, namely that the Associate Justice made findings with which the appellant disagrees. The grounds are not only prolix and confusing but also fail to specify any appealable error. For example, ground three complains that the Associate Justice erred by 'vigorously and repeatedly asserting that the Magistrates' Court of Victoria possesses jurisdiction to determine the dispute between [the appellant] and the defendant'; this assertion seems to me unimpeachable. The other grounds are formulated in similar terms.

36 I do not see any benefit in striking out the appellant's grounds or requiring him to replead his Notice of Appeal.[27] The simple fact is that his proceeding suffers from incurable procedural deficiencies for the reasons given by the Associate Justice. This will be the case whether he is given further opportunities to reformulate his grounds of appeal.

37 The appellant seeks orders setting aside the grant of summary judgment by the Associate Justice and exercising this Court's prerogative power to the effect that a writ of mandamus command the Magistrates' Court to order a permanent stay on his pending prosecution.

38 The second of the orders sought, as the Council submitted in reply, is not available for at least three reasons:

(i) the Magistrates' Court is not a party to this proceeding;

(ii) there is no unperformed public duty on the Magistrates' Court to grant a stay (which would be a prerequisite for the making of an order in the nature of mandamus); and

(iii) such an order, if at all, would be made at the trial of the proceeding (i.e. at the hearing before the Associate Justice) and is not a matter to be decided on an appeal from a decision summarily dismissing the proceeding itself.[28]

This last point raises squarely the legal test that the appellant must surmount in seeking to persuade this Court to make the first order.

39 As I have said, for this appeal to succeed, the appellant must show that the Associate Justice erred at law in summarily dismissing his proceeding under s 63 of the Civil Procedure Act 2010.

40 The test was set out by the Court of Appeal in Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd.[29] Lysaght is authority for the proposition that the Court must ask whether the respondent to an application for summary judgment (here the appellant) has a 'real' as opposed to a 'fanciful' chance of success.[30] The Court of Appeal held that the power to terminate proceedings summarily 'should be exercised with caution' and should not be exercised unless there is 'no real question to be tried'.[31] Relevantly, a finding that there is 'no real question to be tried' will be the same whether summary judgment has been made on the basis that the pleadings fail to disclose a reasonable cause of action, or on the basis that the action is frivolous, vexatious or an abuse of the processes of the Court.

41 The question of whether the appellant's application for judicial review has no real prospect of success may thus be answered by reference to its merits or, as the Associate Justice approached it, its procedural deficiencies. Either way, as the Court of Appeal recently affirmed in Russell v Wisewould Mahony Lawyers, the test for summary judgment is a 'stringent one' which requires a high level of satisfaction on the part of the trial judge.[32]

42 The submissions of the parties may be set out in very brief compass as they were largely the same as those before the Associate Justice.

43 The appellant submitted that the purpose of his judicial review proceeding was to have this Court undertake the construction of Road Rule 200(2). He submitted that this would have resolved the real issue in dispute between himself and the Council. He submitted that the Associate Justice had erred at law by striking out his originating motion and refusing to construe the rule. He submitted that this was an 'improper purpose' which failed to fulfil the Court's overarching obligations under the Civil Procedure Act 2010.

44 The appellant submitted that he had commenced his civil proceedings one day prior to the Council's criminal prosecution and that, as such, the latter proceeding was lis alibi pendens. He further submitted that, in applying for his judicial review proceeding to be summarily dismissed and preventing it from going forward, the Council had engaged in an 'improper purpose' and abused the processes of the Court. He cited Williams v Spautz[33] as an authority in support of this proposition.

45 The appellant submitted that the Associate Justice had erred in determining that his application for judicial review had no real prospect of success. He submitted, in particular, that his Honour had failed to take into account, or to give sufficient weight, to the Attorney General's Guidelines to the Infringements Act 2006. That document, he submitted, showed that for certain offences which carry exemptions the ordinary scheme of the Act does not apply. In relation to such offences, he submitted, enforcement agencies (of which the Council is one) should not proceed to prosecution unless they have evidence that can rebut the presumption that the exemption applies once raised as a real possibility by a defendant. He submitted that the Council has no such evidence.

46 The appellant submitted that at all material times the Council has been acting as a 'public authority' and more particularly as a 'tribunal'. He submitted that, in this context, the impugned decisions must be seen as 'administrative' rather than 'criminal decisions'.

47 The Council submitted that the statutory regime obliges them to issue the charge once a person elects to have the matter heard and determined in the Magistrates' Court. It submitted that, since the appellant has made such an election, it cannot be criticised for commencing criminal proceedings against him. That it must do so, it submitted, is simply the other side to the person's right to a hearing in open court. It further submitted that no special circumstances have been demonstrated that warrant fragmenting the workings of the criminal courts.

48 The Council submitted that the Associate Justice was undoubtedly correct in applying the principles emanated in Wingfoot to the 'moot' or 'spent' decision to issue the appellant with an infringement notice. It submitted that his Honour was also correct to find that the second decision, to prosecute the appellant, was in the nature of a prosecutorial decision and so beyond review.

49 The Council submitted that it is for the Magistrates' Court, as the proper venue under the Act, to determine the merits or otherwise of the appellant's claim and that, in this respect, the situation has not changed from that which was before the Associate Justice. Finally, with reference to s 72 of the Criminal Procedure Act 2009, the Council submitted that an evidentiary onus lies on the appellant to raise as a real possibility the matters going to the proviso in the defence. And no evidence has been put before this or any other Court to discharge that onus.

50 The Associate Justice carefully considered the substantive and procedural aspects of the appellant's claim. His Honour found that the neither of the impugned 'decisions' is susceptible to review.

51 As I have said, with regard to the decision to issue the infringement notice, his Honour agreed with the submission that it had been 'subsumed' or 'superseded' by the laying of the charge after the appellant elected to have the matter heard and determined in the Magistrates' Court.[34] His Honour cited Wingfoot as authority for the proposition that certiorari will not be available where a decision has 'no legal effect' or 'no continuing legal consequences.'[35] That conclusion is, with respect, unimpeachable.

52 His Honour then explained why the second decision, to prosecute the appellant, is insusceptible to review.[36] The reasoning here is twofold. First, the administrative nomenclature of 'decision' is misleading, since Council, as an enforcement agency under the Act, was bound by s 40 to lodge a charge at the point that the appellant elected to have the matter heard and determined in the Magistrates' Court. Second, it is has the 'character of a prosecutorial decision', which is by definition an executive rather than a judicial decision.[37] His Honour cited Maxwell v The Queen[38] and Likiardopoulos v The Queen[39] as authorities supporting that proposition.

53 It follows that judicial review 'should not be enlisted in ways that may interfere with the progress of an ordinary criminal proceeding' save for where there are special circumstances.[40] There are many cases that echo this principle.[41] Once again, with respect, I agree with the Associate Justice that there are no special circumstances in the instant proceeding.

[The appellant] elected to have the matter heard and determined in the Court, that is, the Magistrates' Court, but has seen fit at the same time to issue proceedings in this Court for judicial review. In essence therefore he has created a situation of requiring this Court to concern itself with the decision to issue and maintain the infringement notice, not by reference to an abuse of power or some other element that vitiates the legality of the decision to prosecute, but on the sustainability of the charge according to his contention concerning the meaning of the expression 'permission of the council'. That only serves to expose that ... he is seeking impermissibly to have this Court in the exercise of its supervisory jurisdiction to determine the merits of his defence for a proceeding in another Court.[42]

I cannot improve on that reasoning and have nothing to add to it. I will briefly, however, address a couple of the appellant's submissions.

55 The appellant's submitted that his proceeding attracts the principle of lis alibi pendens. That is clearly wrong since it is this proceeding that has fragmented the appellant's pending prosecution and not the other way around. The claim that he initiated proceedings first is misconceived. The underlying point is that judicial review cannot be used as a vehicle to forestall or nullify legitimate criminal proceedings. The appellant's reliance on Williams v Spautz is similarly misconceived. If anything - for the reasons I give below in relation to 0 56 - it is the appellant rather than the Council who has attempted to abuse the processes of this Court.

56 I reject the appellant's submission that the Council is a 'tribunal' acting in an 'administrative' capacity. The statutory regime makes it plain that the Council is an 'enforcement agency' and, as such, is bound by the same rules of natural justice that apply to the Crown in an ordinary criminal hearing. Indeed, it was precisely in response to the criticism that the infringements system had become unduly administrative that the 2006 Act was introduced, its central aim being to ensure that all persons subjected to fines and/or other punitive measures have an opportunity to have the matter heard and determined in open court.[43] For a time in Victoria, as Beach J lamented in Alpay v Hargreaves, it was possible to be 'imprisoned for non-payment of fines without such a penalty be imposed upon [a person] by a court of law.'[44] This represented an affront to the separation of powers and the corollary that judicial determinations affecting a person's liberty should not be outsourced to an 'automated enforcement process'.[45]

57 The 2006 Act came into force with the aim of restoring due process and preventing vulnerable persons from becoming caught up in the infringements system.[46] In this light, since the Council has done no more or less than what it is required to do by statute, it is disingenuous for the appellant to complain that he has been bullied, victimised and is the subject of a 'malicious prosecution'.

58 In recent years this Court has begun to receive an increasing number of applications for judicial review. Some of them are ill-founded and needlessly consume judicial and administrative resources. The instant appeal falls into this category and is therefore an appropriate vehicle for saying something more generally about the proper use of O 56.

59 The starting point is that the Court may decline to exercise its prerogative powers where there are proceedings on foot before a court or tribunal - here the Magistrates' Court - which has the power to determine the subject matter of the dispute on the merits.[47]

60 The legal principles were restated by the Court of Appeal in Kuek v Victoria Legal Aid.[48] The plaintiff in that case had his proceeding dismissed in the Magistrates' Court. By way of originating motion, he sought leave to appeal out of time, pursuant to s 109(4) of the Magistrates' Court Act 1989. In the alternative, he sought judicial review under O 56, alleging error of law on the face of the record. A master refused leave to appeal out of time and a judge dismissed an appeal from that decision. Warren J (as her Honour then was) refused his application for judicial review. The appellant appealed against that decision.

61 The leading judgment was delivered by Phillips JA. His Honour said:

In substance the application for judicial review was no more and no less than the appellant's attempt to appeal by another means and so much was tacitly acknowledged by the form of the originating motion in that it sought leave under s 109(4) and judicial review in the alternative.

...

[T]he appellant was seeking merely to circumvent one of the limitations quite plainly imposed on an appeal by s 109 and it cannot be that a would-be appellant, who fails to act in timely fashion under s 109, can recast his or her appeal as an application for judicial review under O 56.

...

[T]his court should now affirm that, unless there are indeed exceptional circumstances, a litigant may not raise for determination under O 56 - or at all events may not raise with any real chance of success - a matter or thing which is proper for determination on an appeal where the very litigant has a right of appeal under s 109. In other words, if the proper course is an appeal under s 109, albeit an appeal which is subject to the limitations imposed by that section, the litigant cannot choose at his or her option to turn to O 56 as an alternative.[49]

62 The same holds true in the instant appeal. As I have said, the appellant has open to him a right of hearing in the Magistrates' Court, and rights of appeal to the County Court de novo or to this Court on a point of law.[50] In these circumstances, to file an originating motion in this Court for judicial review is tantamount to an abuse of process, since this Court cannot exercise its supervisory jurisdiction where there is no 'decision' of a lower court or tribunal review. This point distinguishes the present case from that of Kuek. Nevertheless, the principles articulated in Kuek are applicable; indeed, if anything they gain force in the circumstances, since the appellant is seeking to use O56 so as to pre-emptively determine the merits of his claim. This is a more egregious situation than attempting to use it as an alternative avenue of appeal. Indeed, the situation makes a mockery of the very idea of a proceeding for judicial review, in which, as Derham AsJ explained in Gurappaji v Tonkin, 'the court is concerned with the legality of what was done by the court of tribunal below and is not concerned with the merits of the decision under review.'[51]

63 There are compelling reasons for why the scope of judicial review has been, and should continue to be, strictly confined. All of this was carefully explained by the Associate Justice in his reasons for granting summary judgment in favour of the Council. Put simply, if every person issued with an infringement notice were able to seek judicial review, it would swiftly consume all available judicial and administrative resources. That would be an undesirable public policy outcome; and, as a matter of principle, it would be disproportionate to the real issue in dispute. These ends - efficiency and proportionality - are of course reflected in ss 7, 8 and 9 of the Civil Procedure Act 2010.

64 For completeness, I note that the appellant is technically out of time, since his Notice of Appeal was served at least eight days late. There is no need, however, to address this issue since I do not intend to disturb the orders of the Associate Justice.

65 I also note for completeness the Council's Notice of Contention dated 13 December 2017. The Council contends that the Associate Justice should also have found that the merits of the appellant's claim, quite apart from its procedural deficiencies, had no real prospect of success and granted summary dismissal on that basis.

66 As with the extension of time there is no need to address this issue. The Associate Justice was clearly correct to find that the appellant's proceeding had no real prospect of success for procedural reasons and to summarily dismiss it on that basis. Further, as I have said, his Honour took the correct approach in making no comment on the merits or otherwise of the appellant's proceeding so as to not prejudice his prosecution in the Magistrates' Court.

67 The appellant's application for judicial review has no real prospect of success. This is so because of the incurable procedural deficiencies identified by the Associate Justice. I respectfully agree with his Honour that the 'decision' impugned by the appellant are insusceptible of review and, even if they were, this Court should not exercise its discretion because to do so would be impermissibly to fragment the workings of the criminal courts.

68 As Nettle and Osborn JJA observed in Karam v Palmone Shoes Pty Ltd:

A self-represented litigant cannot be allowed forever to stand behind the shield of his own ignorance; especially when it continues to subject other parties to cost and inconvenience and to add pointlessly to the load on the Court's already limited resources. There comes a point at which a self-represented litigant must be required to take responsibility for his choices.[52]

The reality is that the appellant has doggedly sought to avoid his prosecution in the Magistrates' Court by initiating civil proceedings in this Court. He has sought to attract this Court's supervisory jurisdiction so as to pre-emptively determine the merits of his defence; that is an improper use of O 56 and one that must be strenuously disapproved.

69 Judicial review is not a means of challenging the issuing of infringement notices. The proper procedure is provided for in the Act and includes internal review mechanisms, a right of hearing in the Magistrates' Court, and rights of appeal to the County Court de novo and to this Court on a point of law. Since the appellant has not exhausted these avenues - indeed, he has not yet had his hearing in the Magistrates' Court, which is stayed pending the outcome of this proceeding - his attempt to attract this Court's supervisory jurisdiction is tantamount to an abuse of process.

70 The appeal must therefore be dismissed. It seems to me that costs should follow the event; however, I will hear the parties as to costs.

[1] See s 16 of the Infringements Act 2006.

[2] See s 40 of the Infringements Act 2006.

[3] Road Rule 200(3) defines a 'heavy vehicle' as any vehicle 'with a GVM [gross vehicle mass] of 4.5 tonnes or more.'

[4] See s 63 of the Civil Procedure Act 2010 and O 23 of the Rules.

[5] Crowther v Whitehorse City Council [2017] VSC 594 [25]-[27] ('Reasons').

[6] Transcript of Proceedings, Crowther v Whitehorse City Council (No 2) (Supreme Court of Victoria, Zammit J, 24 April 2018) ('T') 51.5.

[7] Exhibit G to the Affidavit of Andrew David Crowther affirmed 3 July 2017.

[8] Exhibit H to the Affidavit of Andrew David Crowther affirmed 3 July 2017.

[9] Exhibit J to the Affidavit of Andrew David Crowther affirmed 3 July 2017.

[10] Exhibit SM-3 to the Affidavit of Steven Morison sworn 15 August 2017.

[11] Exhibit SM-4 to the Affidavit of Steven Morison sworn 15 August 2017.

[12] Exhibit SM-5 to the Affidavit of Steven Morison sworn 15 August 2017. The notice is deemed to be a charge-sheet by reason of s 40 of the Act.

[15] [2013] HCA 43; (2013) 252 CLR 480, 492 [25], 494 [31].

[17] [2012] HCA 37; (2012) 247 CLR 265 [37] (Gummow, Hayne, Crennan, Kiefel and Bell JJ).

[20] See s 17(3) of the Supreme Court Act 1986.

[21] Oswal v Carson [2013] VSC 355 [11]; Schreuders v Grandiflora Nominees Pty Ltd [2014] VSC 310 [4].

[22] Hou v Westpac Banking Corporation Ltd [2015] VSCA 57 [44]; Djime v Le [2016] VSCA 105 [20].

[23] Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc [1981] HCA 39; (1981) 148 CLR 170, 177.

[25] (2014) 98 ASCR 243, 245 [45].

[26] Affidavit of Andrew David Crowther affirmed 19 March 2018 [9].

[27] See, eg, Knorr v CSIRO (No 2) [2012] VSC 268.

[28] Defendant's Written Submissions dated 13 December 2017 [17].

[29] [2013] VSCA 158; (2013) 42 VR 27 ('Lysaght').

[30] Ibid 40 [35] (Warren CJ and Nettle JA).

[31] Lysaght [2013] VSCA 158; (2013) 42 VR 27, 40 [35].

[32] [2018] VSCA 125 [8].

[33] [1992] HCA 34; (1992) 174 CLR 509.

[35] [2013] HCA 43; (2013) 252 CLR 480, 492 [25], 464 [31].

[39] [2012] HCA 37; (2012) 247 CLR 265.

[40] Reasons [30]. See also Rozenes v Beljajev [1995] VicRp 34; [1995] 1 VR 533, 571.

[41] See generally Chief Executive Officer of Customs v Jiang [2001] FCA 145; (2001) 111 FCR 395; Clarkson v DPP [1990] VicRp 65; [1990] VR 745; Peniche v Vanstone [19990] FCA 916.

[43] The PERIN (Penalty Enforcement by Registration of Infringement Notice) system was introduced in Victoria in April 1986 by the Magistrates (Summary Proceedings) (Amendment) Act 1985 and the Magistrates' Court (Penalty Enforcement by Registration of Infringement Notices) Rules 1986. See generally on the history of the legislative scheme, and recent reforms, Victoria Police Toll Enforcement v Taha [2013] VSCA 37; (2013) 49 VR 1 ('Vic Toll').

[44] (Unreported, Supreme Court of Victoria, 29 October 1998).

[45] Vic Toll [2013] VSCA 37; (2013) 49 VR 1, 21 [63] (Tate JA).

[46] Victoria, Parliamentary Debates, Legislative Assembly, 16 November 2005, 2186 (Mr Rob Hulls, Attorney-General) ('Second Reading Speech'). See also Attorney-General's Guidelines to the Infringements Act 2006.

[47] Commissioner of Police v Gordon [1981] 1 NSWLR 675.

[48] [2001] VSCA 80; (2001) 3 VR 289 (Phillips JA, Winneke P and Buchanan JA agreeing) ('Kuek'). See also AB v County Court of Victoria [2017] VSC 740 [103]-[105].

[49] Kuek [2001] VSCA 80; (2001) 3 VR 289, 292-3 [15]-[16].

[50] On the relevance of rights of appeal vis-à-vis judicial review, see Aronsen, Dyer & Groves, Judicial Review of Administrative Action (Lawbook Co, 4th ed, 2009) 829.

[51] [2015] VSC 177; (2015) 45 VR 324, 329 [24] (emphasis added).

[52] [2012] VSCA 97 [36].