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[2017] VSC 594
defendant. Proceeding summarily dismissed under section 63 of the Civil Procedure Act 2010 (Vic); certiorari was held unavailable as the infringement notice's legal effect had been superseded by the...
The Supreme Court dismissed Mr Crowther's application for judicial review. He was issued a parking infringement for leaving a 6-tonne motorhome in a built-up area over one hour while displaying a disabled parking permit belonging to another person. After he elected a court hearing, the Council commenced prosecution in the Magistrates' Court. The Supreme Court held certiorari was unavailable because the prosecution superseded the infringement notice procedure; decisions to prosecute are generally not subject to judicial review; and there were no exceptional circumstances to interrupt the ordinary course of the prosecution. The plaintiff can raise his statutory construction, Charter and discrimination arguments in the Magistrates' Court and by appeal mechanisms.
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1,753 words · generated 10/08/2026
4 cited instruments linked from this judgment.
Andrew Crowther, who lives in a 6-tonne motorhome, received an infringement notice (parking ticket) from Whitehorse City Council on 11 May 2017 for breaching Road Rule 200(2): a heavy vehicle stopped in a built-up area for longer than one hour (see [1], [16]). The motorhome displayed a disabled parking permit issued by Knox City Council to another person for whom Mr Crowther said he was a carer. Mr Crowther refused to pay the $93 penalty and elected to have the matter determined in the Magistrates' Court under the Infringements Act (s40). The Council, following statutory procedure, lodged a charge and fixed a hearing (see [7], [24]).
Before the Magistrates' Court hearing, Mr Crowther commenced judicial review proceedings in the Supreme Court seeking certiorari to quash the issuing officer's decision to give the infringement notice and seeking relief (effectively prohibition or injunction) to prevent the Council prosecuting him in the Magistrates' Court. He argued (inter alia) that the displayed disabled parking permit meant he was 'permitted by the Council' within Road Rule 200(2), and raised arguments under the Charter of Human Rights and Responsibilities 2006 and the Commonwealth Disability Discrimination Act 1992 (see [4]–[6], [10]–[12], [22], [32]–[37]).
Mukhtar AsJ summarily dismissed the Supreme Court proceeding under s63 Civil Procedure Act 2010, holding that certiorari was unavailable because the issuing of the infringement notice had been superseded by the Council's statutory move to prosecute; decisions to prosecute in the character of prosecutorial acts are ordinarily not susceptible to judicial review; and no exceptional circumstances justified pre-emptive intervention by the Supreme Court in the ordinary course of the Magistrates' Court prosecution (see [13], [25]–[31], [38]–[39]).
Three interlocking legal considerations decided the matter.
Mootness/spent-decision principle and certiorari: The Court relied on the High Court's approach in Wingfoot to explain that certiorari is aimed at removing ongoing legal consequences of an administrative action. If those consequences have been superseded or the legal effect is spent, certiorari is not available: it would be inutile (see [25]). Here the enforcement path under the Infringements Act had moved from the infringement-notice regime to a Court prosecution after the plaintiff's election under s40. That statutory step effectively supplanted the earlier 'decision' of the issuing officer, rendering certiorari unavailable (see [25]–[26]).
Prosecutorial decisions are generally non-justiciable: The Court applied the principle in Maxwell (and followed in Likiardopoulos) that certain functions involved in prosecution, whether to prosecute, what charge to lay, and related decisions, are of their nature insusceptible of judicial review because judicial intervention in such choices would compromise judicial independence and the public perception of prosecutorial and judicial roles. Any fairness issues in prosecution are ordinarily remediable before the trial judge (see [27]–[28]). The Council's action in lodging a charge in the Magistrates' Court, especially where the plaintiff had elected that course, had the character of a prosecutorial step and so was not a proper subject for supervisory review.
Avoidance of pre-trial fragmentation unless exceptional circumstances: The Court emphasised the policy against fragmenting criminal or quasi-criminal proceedings by judicial review. Authorities such as Sankey and the local Rozenes decision require exceptional or special circumstances before pre-trial judicial review will be entertained. The plaintiff had not shown such circumstances; instead he was seeking to have the Supreme Court decide the merits of his defence (the construction of Road Rule 200(2)) before the trial, an improper attempt to pre-empt the Magistrates' Court's function (see [30]–[31]).
On the Charter point, the Court also stated that s32(1) requires interpretation to be compatible with human rights only so far as the language and purpose of the provision permit; it does not authorise courts to rewrite statutory language or to strain meaning beyond permissible interpretive choices. The High Court's decision in Momcilovic explains that s32 is not a licence for judicial re-writing; where a provision cannot be interpreted compatibly, the provision remains (see [33]–[35]). The Court declined to decide the merits of the Charter or DDA arguments because the judicial-review pathway was unavailable.
Before this decision: Existing authority establishes (a) certiorari remedies target live legal consequences and are inappropriate where the legal effect has passed (Wingfoot); (b) certain prosecutorial decisions are non-justiciable (Maxwell); and (c) courts should avoid fragmenting criminal proceedings absent exceptional circumstances (Sankey, and applied in Rozenes).
After this decision: Crowther v Whitehorse City Council applies those principles concretely in the context of infringement-notice regimes under the Victorian Infringements Act. The case confirms that where a defendant elects a court hearing and the enforcement agency proceeds to commence prosecution in the Magistrates' Court, the issuing officer's decision to serve an infringement notice is subsumed and not amenable to certiorari; the Supreme Court should not use supervisory jurisdiction to resolve substantive defences that properly belong to the trial process. The judgment also reiterates the limits of Charter-based remedial interpretation per Momcilovic.
Passage (para 25), legal principle on certiorari: "The function of an order in the nature of certiorari is to remove the legal consequences... available only in respect of an exercise... which has, at the date of the order, an 'apparent legal effect'... not available... where the legal effect... is moot or spent." Plain English: Certiorari can only undo a decision that still has legal bite; if later steps have already changed things so no legal consequences remain, certiorari will not help.
Passage (para 27), prosecutorial non-justiciability: "Certain decisions involved in the prosecution process are, of their nature, insusceptible of judicial review... decisions whether or not to prosecute... decisions as to the particular charge to be laid..." Plain English: Choices about whether to prosecute and what to charge are generally for prosecutors and trial courts, not for the supervisory court to second-guess.
Passage (paras 30–31), fragmentation principle: "In the criminal jurisdiction... fragmentation should be avoided unless there are exceptional or special circumstances... a court will be reluctant to make declarations in a matter which impinges directly upon the course of proceedings in a criminal matter." Plain English: The supervisory court will not interrupt an ongoing criminal process just because the accused asks it to, unless there is something unusual and compelling to justify that interruption.
Passage (paras 33–35), Charter s32 limits: "Section 32(1) ... does not require the language of the section to be strained to effect consistency with the Charter... When a provision cannot be construed consistently with the Charter, the provision stands." Plain English: You may interpret a law compatibly with rights when possible, but you cannot warp words or invent meanings to make the law fit the Charter.
This decision will be relevant where:
The benchmark facts are: (a) initial administrative enforcement action; (b) defendant elects court hearing under statute; (c) enforcement agency lodges a charge; (d) defendant seeks to prevent or quash the charge via supervisory process rather than contesting in trial.
As this is a 2017 Victorian Supreme Court judgment, subsequent courts may cite it for the proposition that certiorari is unavailable where an infringement process has moved to prosecution and for the court's application of Maxwell and Wingfoot to the Infringements Act context. In particular, practitioners should expect Crowther to be persuasive in contexts where litigants try to use the supervisory jurisdiction to short-circuit the statutory court process triggered by a defendant's election. Its use will be strongest in state jurisdictions with similar infringement-to-prosecution statutory schemes.
(As this deep dive is confined to the judgment itself, detailed research into subsequent appellate treatment or citation history is outside the present text. Readers should check later authorities for any subsequent endorsement, qualification, or distinction.)
Borderline cases about "withdrawal" and "supersession": The judgment treats the prosecution step as superseding the issuing officer's decision for certiorari purposes. There may be borderline cases where an enforcement agency purports to take prosecutorial steps but does not fully displace the administrative process. How much procedural formality is required to render the earlier administrative decision 'spent' for certiorari purposes? The judgment hints that the statutory machinery in the Infringements Act (s40 and Division 3) suffices (see [20], [24], [25]) but does not set a broad test.
Exceptional circumstances threshold: The Court applied the 'exceptional or special circumstances' threshold to decline intervention. The precise contours of what qualifies as exceptional remain case-specific. A future litigant with clearer evidence of abuse of power, procedural unfairness or urgency might obtain different treatment. Crowther emphasises that mere assertion of Charter or discrimination rights will not suffice without a showing that ordinary trial process cannot vindicate those rights.
Charter's interpretive reach in minor regulatory contexts: The decision reiterates Momcilovic's limitation on s32(1). Yet public-law litigants will continue to test how far s32(1) can press interpretations in low-value regulatory offences where human-rights interests (privacy, liberty, non-discrimination) are advanced. Crowther shows restraint but leaves open disputes about how nuanced Charter-compatible readings may be where statutory language permits multiple plausible constructions.
Relationship between DDA complaint mechanisms and immediate criminal enforcement: The judge treated the DDA regime as separate and not a basis to restrain prosecution. Questions remain about overlap where exercising a statutory complaint mechanism would be futile or where immediate criminal enforcement conflicts with disability-protective obligations. Crowther does not resolve those tensions in detail.
Remember: this is a summary and analysis of the Court's reasoning in Crowther v Whitehorse City Council [2017] VSC 594. It explains what the judgment says and how it reasons, but it is not legal advice. Before relying on this analysis or any draft documents, get a qualified Australian lawyer to check it.
ADMINISTRATIVE LAW ― Judicial review ― Municipal City Council as enforcement agency for infringements of road safety rules ― Issuing of infringement notice to driver and imposition of penalty ― Expiation of offence on payment ― Council's refusal to withdraw infringement notice ― Driver's refusal to pay penalty ― Statutory requirement to proceed to Court prosecution ― Prosecution instigated ― Availability of certiorari to quash decision to issue infringement notice ― Availability of prohibition or injunction to prevent prosecution ― Infringements Act 2006 (Vic), Part 2
1 On 11 May 2017 at 5.24 pm in Market Street Nunawading, the plaintiff was given an infringement notice (commonly called a parking ticket) by an issuing officer of the Whitehorse City Council. The penalty shown on the ticket was $93. The infringement was of Rule 200(2) of the Road Safety Road Rules 2009 (made under the Road Safety Act 1986 (Vic)) which states:
The driver of a heavy vehicle, or long vehicle, must not stop on a length of road in a built-up area for longer than 1 hour, unless the information on or with a traffic control device specifically permits the driver of a heavy vehicle, or long vehicle, to stop on the length of the road for longer than 1 hour, or is permitted to do so under subrule (2A) or by the Council.
Penalty: 3 Penalty units
2 'Heavy vehicle' is defined under Road Rule 200(3) to mean 'a vehicle with a GVM of 4.5 tonnes or more'. GVM means gross vehicle mass, defined under the Road Safety Act to mean the maximum loaded mass of the vehicle as specified by the vehicle's manufacturer. The reference in the Rule to permission under subrule (2A) is irrelevant. That subrule says that the driver of a heavy or long vehicle can stop for longer than one hour 'if, throughout the period when the vehicle is stopped on the length of road, the driver is engaged in dropping off, or picking up, goods'. That was not the case here. Furthermore the Dictionary provisions of the Road Rules define 'Council' to mean the 'municipal district within which a road, area, land or place or the relevant part of the road, area, land or place is situated'. The location of the road on which the infringement occurred was within the municipality of Whitehorse City Council.[1]
3 Mr Crowther's vehicle is a 6-tonne motorhome. He lives in it. It is not disputed the motorhome is a heavy vehicle under the Rules. Nor is it disputed that it was parked for more than one hour in a built-up area. Of his situation in life he says:
[I] ... was almost bankrupted in the Global Financial Crisis of 2008. I am currently homeless and have lived below the poverty line ever since. The subject vehicle is a motorhome and my only asset and home. Centrelink benefits are my only income. I am proud to be able to care for, guide, drive, exercise with, and provide secretarial, reading and general factotum services to some six blind and vision impaired people at my own expense. My integrity means everything to me.[2]
4 Mr Crowther has challenged tenaciously his liability for the infringement offence on the ground that his motorhome displayed a disabled parking permit. It did. The permit was issued not by the defendant the City of Whitehorse, but by the City of Knox. And the permit was not issued to him. Mr Crowther's materials acknowledge that the permit belonged to a legally blind person for whom he says he is a carer. According to his materials, Mr Crowther says he is a volunteer carer, sighted guide, assistant, reader and driver for people with disabilities, including a new resident of the City of Whitehorse who was legally blind and who he was assisting on that day to move into her new apartment.
5 Mr Crowther insists that he is not liable for the infringement because the display of the Disabled Parking Permit means that, following the exemption in the words of Rule 200(2), he was 'permitted to do so ... by the Council'. As I understand it, the conditions of a Disabled Persons' Parking Permit say that 'Provided no other restrictions on parking are breached' - and I think those are very important words - a vehicle displaying the permit may be parked in a parking area designated for use by people with disabilities for the time and parking fee specified for that area; or, for 'twice the specified time for any parking area or bay not designated for use by classes of persons or classes of vehicle, upon payment of any parking fee, if applicable'.[3]
6 In correspondence I shall expose later, the Council confined itself to the view that the permit did not constitute permission for the purposes of Rule 200(2). The Council's position, as I see it, was that Road Rule 200(2) is a law that is concerned specifically with a heavy vehicle as subject; to be exculpated there must be permission from the relevant Council to park the heavy vehicle in the built up area; and the Disability Permit is not and does not purport to give such permission, and cannot be used to escape liability for statutory offences, in this case, a specific offence concerning the use of a heavy vehicle. I do not say whether that is right or that is wrong. For present purposes, I say no more than, a prosecution will involve a question of construing the Road Rule.
7 Mr Crowther would not pay the penalty and asked for a Court hearing. Therefore, adhering to the procedures in the Infringements Act, the Council as enforcement agency has commenced a prosecution of the alleged infringement against Mr Crowther in the Magistrates' Court at Ringwood. The Council lodged a notice of hearing with the Court on 7 July 2017 which is deemed under the Act to be the charge.[4]
8 The charge was despatched by post to Mr Crowther on 10 July 2017. On that day and before receiving the notice of hearing, Mr Crowther filed in this Court an originating motion seeking, principally, judicial review and relief in the form of certiorari and mandamus. His material filed on the motion is, now, plentiful and discursive. I am afraid to say its zeal and extent, and a lay attempt to expound on legal matters, makes it very difficult to follow or to contain. But it is tolerably clear that he seeks review of two decisions. First, the decision of the Council's issuing officer to issue and serve the infringement notice. Secondly, the Council's decision to not withdraw the infringement notice and to then proceed to commence a prosecution. He seeks relief by way of certiorari to quash the first decision to issue the infringement. As for the second decision, although his motion refers to mandamus, it ought be treated I think as really seeking prohibition or injunction (which do not quash anything) against the Council to prevent the prosecution of the alleged infringement in the Magistrates' Court.
9 The prosecution in the Magistrates' Court has been fixed for hearing on 22 February 2018. Since filing his motion for judicial review in this Court, Mr Crowther has also filed an application in the Magistrates' Court for a permanent stay of the prosecution on grounds including, as so expressed by him in his own materials, lis alibi pendens (a pending suit or action elsewhere) or forum non conveniens (the court is not the convenient forum), abuse of process and other cognate grounds. As I understand his pursuit, he looks to the 'golden thread' of innocence; and says he should not have to face with humiliation the Magistrates' Court as an alleged criminal before first having the Supreme Court in the exercise of its supervisory jurisdiction examine and determine the questions of law and interpretation concerning Road Rule 200(2) that show, he contends, that he cannot be liable for the infringement and that it is unlawful or an abuse of power to have given him a ticket in the first place and to then prosecute him. Amongst his material, and in argument, there is a contention that both decisions, involving the exercise of power, are also bad for Wednesbury unreasonableness;[5] that is a decision so unreasonable that no reasonable person could have arrived at it, or as recently stated, a decision which so lacks an evident and intelligible justification that it can be concluded to be unreasonable, and an abuse of statutory power.[6]
10 As part of his pursuit, Mr Crowther says the prosecution (or, more precisely, the Council's interpretation of the Road Rule on which it brings the prosecution) violates the Charter of Human Rights and Responsibilities 2006. He says the Rule has more than one meaning. He says a question of law arises for this Court alone about the interpretation of Road Rule 200(2) for which he seeks a declaration of inconsistent interpretation with s 8 of the Charter (the right to recognition and equality before the law) and s 24 (the right to a proceeding conducted by a competent independent and impartial court). He has served notice on the Victorian Equal Opportunity and Human Rights Commission under s 35 of the Charter, who have written to say the Commission will not be intervening. He has sought to involve the Attorney General for the State of Victoria. He has made a complaint to the Independent Broad Based Anti-Corruption Commission. He says he has made a complaint to the Australian Human Rights Commission under the Disability Discrimination Act about the subject matter of this dispute_._
11 On his disability discrimination case, I understand him to be contending that the disability parking permit displayed on his motorhome means that he was permitted to stop this heavy vehicle for longer than 1 hour, within the meaning of Road Rule 200(2). He contends that the permit was 'Disability Aid' within the meaning of the Disability Discrimination Act because it alleviates the effect of a disability (of the person for whom he is a carer) and it was direct discrimination (actionable by him as the carer) and against the law for the Council to prosecute him. He says the Disability Discrimination Act prevails over State laws under s 109 of the Constitution.
12 Whether under the Charter or by means of the Disability Discrimination Act, as I understand his contention, Mr Crowther is looking to say that the phrase 'permitted to do so ... by the Council' must have added to it the words 'or any other law' or something to that effect to enable the disability for which the permit was issued to prevail so as to excuse him, as carer for the disabled person, from parking his heavy vehicle in a built up area for longer than permitted under the Road Rules. Before the prosecution can proceed any further, he seeks to have this Court, in the exercise of its supervisory jurisdiction, to adjudicate his contention that an infringement has not occurred without permission of the Council, or that the Road Rule does not apply, or is somehow invalid as a law. In the meantime, he has applied to the Magistrates' Court for a stay of the prosecution. That application is due to be heard on 25 October next.
13 On 26 September 2016, after hearing extensive argument, I decided without reservation to grant the Council's application for a summary dismissal of the whole of this proceeding under s 63 of the Civil Procedure Act 2010 (Vic), for reasons to be published. That is, I decided that Mr Crowther's application for judicial review has no real prospects of success. I now publish my reasons. In doing so I will not refer to every part of the wide ranging material filed by Mr Crowther for there is much that is irrelevant or unclear, or is protestation. I shall confine myself to the dispositive legal issues, which I think are limited.
14 The following facts should not be taken to be findings of this Court or established facts, for I am unconcerned with the proof of the infringement and do not wish in any way to prejudice or embarrass the prosecution in the Magistrates' Court. But, as Mr Crowther's application for judicial review was conducted with an emphasis on the merits of his challenge to the infringement notice as going to the justification for judicial review, it is necessary that I refer to the obvious facts and the alleged facts on which the issuing officer presumably regarded himself as having reasonable grounds for believing that an infringement offence had been committed. I think it is safe to do so because I did not comprehend Mr Crowther to be really contesting the facts that constitute the ingredients of the offence. He accepts that he was the driver of a heavy vehicle and that it was stopped in a built-up area for longer than one hour.
15 Acting on a complaint, a council officer attended the location on the day of the alleged infringement. Mr Crowther's vehicle is a mobile caravan or mobile home with a gross vehicle mass of 6,000 kilograms or 6 tonnes, which makes it a 'heavy vehicle' under the Road Rule. The heavy vehicle was parked in a disabled parking zone, and it displayed a disabled person's parking permit issued by the Knox City Council, which is not the defendant Council. There is an affidavit from a manager at the Whitehorse City Council stating that enquiries to the Knox City Council revealed the permit was not Mr Crowther's.
16 Back at the location, the Council officer marked the vehicle tyre at 3.55pm. The vehicle was still standing there at 5.24pm. An hour having passed , the officer then issued the infringement notice.
17 On the day after getting the infringement notice, Mr Crowther wrote to the Mayor of the City of Whitehorse stating 'I am writing to you personally rather than to the Appeals Board, Madam Mayor ... '[7] His letter contends that no infringement occurred 'in the event that my provision of disability services to your constituent in her home in the relevant circumstances "is permitted ... by the Council".' The letter asked:
Is the holder of a Category 1 Disabled Parking Permit, who enjoys associated parking priveleges, permitted by Council as of right, not permitted by Council to receive disability support services in their own home and in the broader community, provided by a volunteer carer who happens to drive a vehicle defined in Schedule 5 of the RSSR as a "heavy vehicle"?
18 This confirms the holder of the permit was someone else who was disabled and for whom he was a voluntary carer. More importantly for present purposes the letter also says (with my underlining):
I advise 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 (DDA).
19 By letter dated 26 May 2017, the Manager Compliance for the City of Whitehorse responded to Mr Crowther on behalf of the Mayor.[8] The relevant parts of that letter stated (with my underlining):
As you may be aware, Rule 200(2) of the Road (Safety) Road Rules - 2009 states that a driver of a Heavy or Long vehicle is only permitted to leave their vehicle in a built-up area for no longer than one hour.
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.
Holders of disabled parking permits are able to park in designated disabled parking zones or park for double the time indicated on any time restricted parking areas. The parking exemptions are not applicable to statutory offences such bus or no stopping zones or, as in this case, overweight vehicles.
In view of the above information, I am unable to warrant the withdrawal of the infringement notice on this occasion.
In relation to your concerns over potential breaches of the Disability Discrimination Act 1992 I refer you to Section 47 of that Act which advices the enforcement of legislation including State legislation is not an unlawful act.
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.
A Charge and Summons will be issued in due course.
20 The reference in the Council's letter to 'withdraw' the infringement notice and commence proceedings requires a little explanation. 'Withdrawal' in that letter does not in its context mean discontinuing or deciding not to prosecute. But it can in another context. There are provisions in Division 3 of Part 2 of the Infringements Act which concern 'internal reviews'. In substance, a person who is served with an infringement notice can apply to the Council for review of the decision if the person believes the decision was contrary to law, or that special circumstances should apply to the person, or the conduct should be excused having regard to any exceptional circumstances relating to the infringement offence. On such an application, the Council must review the decision and advise of its outcome. Section 25 sets out the things that may occur after review such as: confirming the decision to serve the infringement notice; 'withdrawing' the notice and serving a warning instead, or to 'withdraw the infringement notice and refer the matter to the Court ...' Thus withdrawal in the context here means, as I see it, withdrawal of the notice procedure to substitute it with another means of enforcement, by Court proceedings.
21 I do not think anything turns on this, but the materials before me show that there appears to be a body at the Council known as the Infringement Appeals Panel. Mr Crowther's request for an internal review of sorts was not sent to that panel, but to the Mayor. Section 24(5) of the Infringements Act states that 'Nothing in this section limits the power of an enforcement agency to review a decision to serve an infringement notice on any other basis'. I see nothing in the Infringements Act to prevent the Council reviewing the decision as it was asked to do by Mr Crowther 'on any other basis' including on a request to the Mayor as happened here. In any event, what matters is that the Council was willing to review for him the issuing of the infringement notice. In the outcome, the Council took the view that he was not exempt from Road Rule 200(2) and that is what has actuated Mr Crowther.
22 Thus, the question concerning Mr Crowther's liability for the alleged contravention turns on a construction of the Road Rule 200(2). Was he, as the driver of a heavy vehicle, 'permitted by the Council' to stop on a length of road in a built-up area for longer than 1 hour? The Rule is a law concerned with the usage of a specific type of vehicle. Although it was not part of the Council's letter, as I have said already, under the Road Rules the permission must be from the Council of the municipal district in which the road is situated. So, did he have that permission? Did the permit as displayed and the entitlements that come with it permit Mr Crowther to park his heavy vehicle contrary to that Road Rule?
23 In response, Mr Crowther went on the attack in what can be describe as some red-blooded correspondence. I need not refer to the contents of that correspondence except to say that it is plain that in all correspondence Mr Crowther is not only made aware that the prosecution occurs in the Magistrates' Court but he himself sought that the matter so proceed. In one letter he writes:[9]
So you go ahead, Mr Morisey, make my day, and issue me with a summons to have this farce decided by a magistrate in open court, in the quiet confidence that both you and your staff member will somehow be indemnified from bearing the consequences for allegedly illegal behaviour which you would reveal yourselves are responding to these questions under oath in the witness stand.
24 On 5 June 2017, Mr Crowther lodged with the Compliance Department of the Council a form of application 'requesting a Court Appearance.[10] Under section 40 of the Infringements Act, his election to have the matter of the offence heard in Court then obliged the Council to file a charge. Contrary to the pursuit now made in this Court, his evinced intention was to defend himself on the charge in the Magistrates' Court in accordance with the procedure under the Infringements Act. Can, and should, the Supreme Court interfere with the decision to prosecute?
25 This leads to my first determination. Mr Crowther's application for judicial review of the 'decision' of the parking officer to issue the ticket at the location is not possible because that 'decision' has been subsumed or superseded by the decision to withdraw the infringement notice and to prosecute him in the Magistrates' Court. Certiorari is therefore not available. As was said by the High Court of Australia in Wingfoot:[11]
The function of an order in the nature of certiorari is to remove the legal consequences or purported legal consequences of an exercise or purported exercise of power. Thus, an order in the nature of certiorari is available only in respect of an exercise or purported exercise of power which has, at the date of the order, an 'apparent legal effect' [citation omitted]. An order in the nature of certiorari is not available in respect of an exercise or purported exercise of power the legal effect or purported legal effect of which is moot or spent. An order in the nature of certiorari in those circumstances would be not simply inutile; it would be unavailable.
26 To proceed to prosecution in Court was the statutory entitlement, indeed obligation of the Council in these circumstances, of the Council as much as it is the right, on election, of a driver who wishes to challenge an alleged infringement. The prosecution in the Magistrates' Court will be Mr Crowther's opportunity to advance his defence that he had 'permission to do so' under the Road Rule or advance any other ancillary argument about the construction of that Rule under the Charter. If he wishes to advance a construction of the Road Rule according to the Charter he can do so before the Magistrate and if, under s 33 of the Charter, a question of law arises, there may be a reference to this Court if the Magistrate considers that the question is appropriate for determination by the Supreme Court. If he is to contend that he has been wrongly or unfairly prosecuted in some way, the trial in the Magistrates' Court is the occasion to make that contention. What is more, if Mr Crowther is dissatisfied with the outcome of the trial, he has a right of appeal de novo to the County Court or the right to appeal on a question of law to this Court. It is simply untenable for Mr Crowther to assert that the Magistrates Court has no power to deal with the questions of law that he says are involved in the prosecution.
27 All this leads to focussing on the second decision for which Mr Crowther seeks judicial review; that is the Council's decision to prosecute. If under s 40 of the Infringement Act the Council was bound to lodge a charge, I cannot see how the 'decision' to do so is susceptible to judicial review. In any case, if Mr Crowther wishes to quibble whether, in the face of the unequivocal documentation, he truly did elect to have the matter determined in the Magistrates' Court , then I think it was correct for counsel for the Council, Mr Solomon-Bridge, to equate the Council's decision here as having the character of a prosecutorial decision, so as to attract the principle that such decisions are insusceptible of judicial review. That principle was stated by the High Court of Australia in Maxwell v The Queen as follows:[12]
It ought now be accepted, in our view, that certain decisions involved in the prosecution process are, of their nature, insusceptible of judicial review. They include decisions whether or not to prosecute, to enter a nolle prosequi, to proceed ex officio, whether or not to present evidence and, which is usually an aspect of one or other of those decisions, decisions as to the particular charge to be laid or prosecuted. The integrity of the judicial process - particularly its independence and impartiality and the public perception thereof - would be compromised if the courts were to decide or were to be in any way concerned with decisions as to who is to be prosecuted and for what.
28 That view was affirmed in Likiardopoulos v The Queen[13] with the important ancillary factor that questions about prosecutorial fairness are within the province of the trial court:
As Gaudron and Gummow JJ explained in Maxwell v The Queen, the independence and impartiality of the judicial process would be compromised if courts were perceived to be in any way concerned with who is to be prosecuted and for what [citation omitted]. For this reason, their Honours considered that certain decisions involved in the prosecutorial process are insusceptible of judicial review. Further, sanctions available to enforce well-established standards of prosecutorial fairness are to be found mainly in the powers of a trial judge and are not directly enforceable at the suit of the accused or anyone else by prerogative writ, judicial order or an action for damages.[14]
29 On closer pressing by the Court, Mr Crowther's contention was put in this way: the Supreme Court should first look into and decide the question whether he was 'permitted by the council' within the meaning of the Road Rule before 'anybody starts alleging I'm a criminal.' He goes further and says that until the Supreme Court gives its construction or interpretation of the 'permission of council' then the Council cannot proceed with a prosecution in the Magistrates' Court. But even that question will have to involve the facts so as to require this Court on judicial review to deal with the merits of his defence to the charge. But that is the very subject of the prosecution. The question whether he has an exemption because the permit amounts to permission by the Council will presumably be his defence in the Magistrates' Court prosecution. It is a serious misconception to say that the Magistrates' Court does not have the power or the authority or the jurisdiction to construe the meaning of that phrase and to decide the question whether permission existed here. That will be the Magistrates' Court's judicial function. That dispels incidentally his resort to the human right under s 24 of the Charter to have a charge decided by a competent, independent and impartial court after a fair and public hearing.
30 All this attracts the ancillary principle that judicial review should not be enlisted in ways that may interfere with the ordinary progress of a criminal proceeding. (Rights of appeal against interlocutory decisions under the Criminal Procedure Act are an example of one form of legislative alteration). The principle is that fragmentation by judicial review should be avoided unless there are exceptional or special circumstances. In Rozenes v Beljajev,[15] the Appeal Division of this Court stated:
In the criminal jurisdiction an important consideration will be the need to observe and not fragment the ordinary, and orderly, process of a committal or trial. Such fragmentation should be avoided unless there are exceptional or special circumstances. It is sufficient to refer in this context to Sankey; R v Iorlano [1983] HCA 43; (1983) 151 C.L.R. 678 [other authorities omitted] These considerations apply whether the application be for a declaration or other form of judicial review such as relief in the nature of certiorari.
...
In Sankey Gibbs A.C.J said at 25-6:
In any case in which a declaration can be and is sought on a question of evidence or procedure, the circumstances must be most exceptional to warrant the grant of relief ... even when such an application is made without any improper motive it is likely to be dilatory in effect, to fragment the proceedings and to detract from the efficiency of the criminal process ... a court will be reluctant to make declarations in a matter which impinges directly upon the course of proceedings in a criminal matter. Once criminal proceedings have begun they should be allowed to follow their ordinary course unless it appears that for some special reason it is necessary in the interests of justice to make a declaratory order.
31 The presence of exceptional or special circumstances, or a special reason in the interests of justice are all definitely absent here. Under the statutory scheme in the Infringements Act, the decision to issue an infringement notice then engages a scheme where the driver may then expiate the offence or elect to have the matter of the infringement notice heard and determined in court. Here, Mr Crowther 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 in the Supreme Court 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. That is a matter for the criminal trial. Mr Crowther has not shown any grounds for this Court to interfere with the decision to prosecute, or to interfere with and delay the ordinary and orderly process that is underway in the Magistrates' Court.
32 Residual submissions were made on behalf of the Council that the underlying merits of Mr Crowther's claim were hopeless anyway. I have exposed the issue of construction of the Road Rule and the available facts. Faithful to my determinations, this Court ought abstain from making any assessment about the question of construction. This proceeding is bound to fail because the judicial review that Mr Crowther seeks is unavailable. However, I think it appropriate to say something about the issues concerning the Charter and the Disability Discrimination Act.
33 As I have said, the prosecution will involve a construction of Road Rule 200(2). Section 32(1) of the Charter states that 'So far as it is possible to do consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights.' That is the principal remedial tool. Mr Crowther seeks to use the Charter to support his contention about the construction of Road Rule 200(2) presumably to say that to be deprived of the exemption is discriminatory to the disabled person who holds the permit if, fortuitously, the vehicle being driven by her carer who is giving supporting disability services at the disabled person's home happens to be a heavy vehicle. In addition his contention seems to be that the expression 'permitted by the Council' ought to be read to say 'permitted by the Council or under another law of this jurisdiction' so as to attract laws against discrimination of people with disabilities.[16] This involves the instillation of words and meanings into the Rule.
34 I will confine myself to the attention the Mr Crowther gives to the Court's approach to the application of section 32 of the Charter rather than the merits of anything asserted by him. The High Court's decision in Momcilovic[17] establishes that s 32 does not establish a new paradigm of interpretation. It cannot be employed to rewrite a statutory provision or permit remedial interpretation of a statutory provision in order to render the provision rights compatible. In Momcilovic, it was said:
It cannot therefore be said that s 32(1) requires the language of the section to be strained to effect consistency with the Charter. When a provision cannot be construed consistently with the Charter, the provision stands. ... Such a provision reaffirms the role of the legislature and makes clear that a court's role in ascertaining the meaning of the legislation remains one of interpretation.[18]
35 Of section 32, French CJ said:[19]
[Section 32(1)] ... does not require courts, in the pursuit of human rights compatibility, to depart from the ordinary meaning of the statutory provision and hence the intention of the parliament which enacted the statute. [citation omitted]
...
[Section 32(1)] ... mandates an attempt to interpret statutory provisions compatibly with human rights. There is, however, nothing in its text or context to suggest that the interpretation which it requires departs from established understandings of that process. The sub-section limits the interpretation which it directs to that which is consistent with the purpose of the statutory provision under consideration. It operates upon constructional choices which the language of the statutory provision permits.
...
[Section 32(1)] ... requires statutes to be construed against the background of human rights and freedoms set out in the Charter in the same way as the principle of legality requires the same statutes to be construed against the background of common law rights and freedoms. The human rights and freedoms set out in the Charter in significant measure incorporate or enhance rights and freedoms at common law. Section 32(1) applies to the interpretation of statutes in the same way as the principle of legality but with a wider field of application.
36 Another part of his case concerns the Commonwealth Disability Discrimination Act. In one way or another, Mr Crowther alleges that the Council has directly discriminated against him under that Act. As I follow his contention, he says the actual bringing of the prosecution represents direct disability discrimination against him as the carer of a person with a disability. The Disability Discrimination Act applies in relation to having 'a carer, assistant, assistance animal or disability aid in the same way as it applies in relation to having a disability'.[20] He says:
I submit that it is in reality the Disabled Person who is the alleged real victim of the behaviour of the Informant Council in these matters, through the proxy of her carer, the Accused 'who provides assistance or services to a person with a disability', and the device of her Disabled Parking Permit, which 'alleviates the effects of a person's disability' (s 7 EOA).[21]
37 For present purposes, I need not concern myself with determining the sustainability of such a contention. As was submitted on behalf of the Council, the Australian Human Rights Commission Act 1986 provides the mechanism for redress where unlawful discrimination under that Act is alleged. The right to apply to a Court arises only if the President of the Commission terminates a complaint made. An application may then be made to the Federal Court or the Federal Circuit Court. Otherwise, s 125 of the Disability Discrimination Act states that no other right of action vests in the plaintiff in relation to unlawful discrimination under the Act.
38 The outcome is as follows. The issuing of the parking ticket is beyond judicial review. The application to review the subsequent decision to prosecute is baseless. Mr Crowther sought a hearing in the Magistrates' Court to challenge the alleged infringement. The prosecution has been commenced by the Council as a matter of regularity under the Infringements Act. There are no special or exceptional circumstances to justify this Court's interference with the ordinary course of that prosecution. There is no injustice as nothing has impaired Mr Crowther's right to defend himself on the charge in the Magistrates' Court according to his contentions concerning the meaning of the exemption in Road Rule 200(2).
39 It was for those reasons that the Court summarily dismissed this proceeding.
[1] The permit is exhibit D to his affidavit sworn 4 July 2017.
[2] See his written submissions 'The Appropriate Forum' dated 6 September 2017.
[3] See Exhibit E to Mr Crowther's 'Special Mention Affidavit' sworn 12 September 2017.
[4] See s 40(1) Infringements Act.
[5] See Associated Provincial Picture Houses v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223.
[6] See Minister for Immigration v Li (2013) 249 CLR 332.
[11] Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480, [25].
[12] (1996) 184 CLR 501, 534 (per Gaudron and Gummow JJ) .
[13] [2012] HCA 37; (2012) 247 CLR 265, 280 (per Gummow, Hayne, Crennan, Kiefel and Bell JJ).
[15] [1995] VicRp 34; [1995] 1 VR 533, 571.
[16] See his affidavit 4 July 2017 at [129] to [138].
[17] Momcilovic v The Queen (2011) 245 CLR 2.
[21] See 'Special Mention Hearing Written Submission A Clearly Inappropriate Forum' dated 31 August 2017 at [7] ff.
Crowther
Whitehorse City Council [2017] VSC 594
(2013) 249 CLR 332
(2013) 252 CLR 480
(1996) 184 CLR 501
(2012) 247 CLR 265
(2011) 245 CLR 2
Proceeding summarily dismissed under section 63 of the Civil Procedure Act 2010 (Vic); certiorari was held unavailable as the infringement notice's legal effect had been superseded by the prosecution; no relief granted to restrain prosecution; Council permitted to proceed in the Magistrates' Court (see [13], [25]–[31], [38]–[39]).