Plaintiff v First Defendant

PRACTICE AND PROCEDURE - Application for summary judgment - Whether proceeding has no real prospect of success - Proceeding has no real prospect of success - Application granted - Ss 62, 63 Civil Procedure Act 2010 - Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd [2013] VSCA 158; (2013) 42 VR 27.

PRACTICE AND PROCEDURE - County Court - Application for judicial review out of time as alternative to appeal - s 109 of the Magistrates' Court Act 1989 - s 274 of the Criminal Procedure Act 2009- Order 56 of the Supreme Court (General Civil Procedure) Rules 2015 - Kuek v Victoria Legal Aid and anor (2001_)_ 3 VR 289.

1 In March 2013, AB received a $70 parking fine in Shepparton. She had parked her car in order to attend court there. AB unsuccessfully requested the Greater Shepparton City Council ('the Council'), who had imposed the fine, to withdraw it. AB did not pay the parking fine and indicated she would contest it in court. Matters escalated from there. AB was charged for failing to pay the fine, and found guilty of the charge by a Judicial Registrar of the Magistrates' Court of Victoria. She sought review of this decision by a Magistrate, who also found her guilty. AB appealed to the County Court of Victoria ('the County Court'). Her appeal was dismissed in August 2014. She was ordered to pay the parking fine and costs, by then in excess of $5,000. AB obtained an instalment order. She defaulted in the payments under that order. In August 2017, a warrant was issued for her arrest. In September 2017, AB filed this proceeding, being an application for judicial review of the County Court decision. Shortly after filing this proceeding, AB obtained a stay on payment of costs from the County Court.

2 AB is almost three years out of time to issue this proceeding. She seeks an extension of time to enable her to pursue this proceeding. The Council opposes the application and says there should be summary judgment in its favour.

3 The two issues for determination in this proceeding are:

(1) Should time be extended to enable AB to commence this proceeding on the basis that there are special circumstances?

(2) Should there be summary judgment in favour of the Council?

4 For the reasons below, I find that there are no special circumstances so as to warrant the extension of time. Further, that summary judgment should be given in favour of the Council on the basis that the proceeding has no real prospect of success.

5 In March 2013, AB travelled to Shepparton to attend court there in order to provide support to her former partner who had been charged with violent offences. She parked her car, and then moved it again. When she returned to her car, she noticed she had received a parking fine. AB wrote to the Council asking for the fine to be withdrawn. It was not.

6 In October 2013, AB was charged by the Council for failing to pay the parking fine and served with a charge and summons.

7 In December 2013, AB was found guilty of the charge by a Judicial Registrar of the Magistrates' Court and ordered to pay the fine of $70, statutory costs of $73.20 and legal costs of $660. AB then requested the matter be reviewed by a Magistrate. It was subsequently listed for hearing before a Magistrate who made the same orders.

8 In March 2014, AB appealed to the County Court. In August 2014, the County Court dismissed her appeal. She was found guilty of failing to pay the parking fine and ordered to pay costs of $5,472.07, with a three month stay.

9 In July 2015, AB was granted an instalment payment plan of $10.00 per week by the County Court. Her housemate commenced paying the instalments on her behalf. In August 2017, a warrant was issued for AB's arrest because of default on the instalment plan.

10 In September 2017, AB filed an originating motion for judicial review, commencing this proceeding. Shortly afterwards, she obtained a stay of payment of the costs in the County Court until 24 September 2018. The costs now total $4,572.07.

11 AB's originating motion is in respect of the orders made by the County Court on 26 August 2014. AB seeks relief in the nature of certiorari, quashing the orders made on the ground of jurisdictional error.

(1) The first defendant has convicted me of an offence that I was never charged with.

(2) The first defendant denied me procedural fairness.

(3) The first defendant summarily dismissed the proceedings without adequate reasons.

(4) The first defendant ordered me to pay indemnity costs without adequate reasons.

Particulars

1. The charge by the second defendant was 'fail to pay a fee'. The first defendant has found me guilty of 'Staying in excess of my time'. Transcript page 6, para 8. Therefore I have been convicted of an offence that I was never charged with.
2. The first defendant denied me procedural fairness by:

(i) failing to assist me as a self-represented litigant,

(ii) summarily dismissing the proceedings before all evidence and all submissions had been made;

(iii) in summarily dismissing the proceedings prematurely, excluded evidence to made [sic] a fair and correct decision;

(iv) failing to give adequate reasons for the summary dismissal of proceedings;

(v) failing to give adequate reasons for the order to pay indemnity costs to the second defendant;

(vi) engaged in Apprehensive biased behaviour.

13 AB filed several affidavits in support of her originating motion and the application for an extension of time. She has deposed to affidavits:

(a) dated 11 September 2017 and sworn on 14 September 2017 ('the 11 September AB affidavit');

(b) dated and sworn 14 September 2017 ('the 14 September AB affidavit');

(c) sworn 5 October 2017 ('the 5 October AB affidavit'); and

(d) 6 November 2017 ('the 6 November AB affidavit').

14 There is also the affidavit sworn on 6 November 2017 by a person who shall be identified by his first name only, being Anthony, and who AB describes as her housemate and someone for whom she has caring responsibilities ('the 6 November housemate affidavit').

15 There are a number of inconsistencies concerning dates in AB's evidence. For instance, she deposes in her 14 September affidavit that she received the parking ticket on 23 March 2013, whereas the documentary evidence, such as the charge sheet, indicates the date was 12 March 2013, and she also uses the latter date in her submissions. Where there is a conflict between the dates referred to by AB and the documentary evidence, the latter is preferred.

16 The Council relies on the affidavit of Simon Pogue, solicitor, affirmed on 25 October 2017 ('the Pogue affidavit').

17 AB exhibited the transcription of the audio recording of the County Court hearing. The transcription was done by an organisation she engaged over the internet rather than an authorised provider. I have read the transcript. I have also watched and listened to the video recording of the hearing. Whilst the transcript has a few words missing, it is a fairly accurate transcription of the hearing.

18 AB and the Council each filed written submissions in addition to their oral submissions. Much of AB's affidavit material was also in the nature of submissions.

Are there Special Circumstances Warranting the Extension of Time?

20 Order 56.02(1) and (3) of the Supreme Court (General Civil Procedure) Rules 2015 are applicable and provide:

(1) A proceeding under this Order shall be commenced within 60 days after the date when grounds for the grant of the relief or remedy claimed first arose.

...

(3) The court shall not extend the time fixed by paragraph (1) except in special circumstances.

21 The principles concerning 'special circumstances' are well-established. They were recently summarised by McDonald J in Antonio Madafferi v The Chief Commissioner of Police,[1] and that summary is adopted:

In Kocak v Wingfoot Australia Partners Pty Ltd ('Kocak')[2] Cavanough J when considering the meaning of special circumstances in rule 56.02(3) stated:

In the most recent decision of this Court in which 56.02(3) of the Rules has been considered, Goodman v Victorian Civil and Administrative Tribunal, Habersberger J said:

It is, in my opinion, now well established that 'special circumstances' in r 56.02(3) means something that is not 'general in character', but something exceeding 'that which is usual or common'. As Toohey J said in Re Beadle and Director-General of Social Security when sitting as President of the Commonwealth Administrative Appeals Tribunal:

An expression such as 'special circumstances' is by its very nature incapable of precise or exhaustive definition. The qualifying adjective looks to circumstances that are unusual, uncommon or exceptional. Whether circumstances answer any of these descriptions must depend upon the context in which they occur. For it is the context which allows one to say that the circumstances in one case are markedly different from the usual run of cases. This is not to say that the circumstances must be unique but they must have a particular quality of unusualness that permits them to be described as special.

In Mann v Medical Practitioners Board of Victoria,[3] Osborn J stated:

Whether special circumstances exist is a question to be determined by reference to the whole of the circumstances of a particular case. It is essentially a question of characterisation of the particular case.

This statement of principle was expressly endorsed by the Court of Appeal.[4]

The inquiry as to whether special circumstances exist is not confined to the circumstances relating to the failure to commence a proceeding within the prescribed 60 day period.[5] In deciding whether or not special circumstances exist, the court can consider all of the circumstances of a particular case. Matters to be taken into account include the length of the delay, the reason for the delay, any prejudice to the defendants, whether the plaintiff has an arguable case and the public interest in the finality of litigation.[6]

Mr Merkel QC, who appeared with Mr Tran for the plaintiff, submitted that the determination of whether special circumstances exist involves a discretionary judgment of the type referred to by the High Court in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission ('Coal and Allied').[7] As to the nature of a discretionary judgment the plurality stated:

'Discretion' is a notion that 'signifies a number of different legal concepts'. In general terms, it refers to a decision making process in which 'no one [consideration] and no combination of [considerations] is necessarily determinative of the result.' Rather, the decision maker is allowed some latitude as to the choice of the decision to be made. The latitude may be considerable as, for example, where the relevant considerations are confined only by the subject matter and object of the legislation which confers the discretion. On the other hand it may be quite narrow where, for example, the decision maker is required to make a particular decision if he or she forms a particular opinion or value judgment.[8]

In Kocak, Cavanough J observed:

All relevant factors (positive and negative) need to be considered. It is conceivable that a single outstanding feature of a case may contribute enough to make the circumstances as a whole, on balance, special. However, the mere unusualness of a particular feature would not be relevant at all unless the feature tendered to support an extension. On the other hand, it is not essential that there be some particular circumstance that is unusual. Circumstances can be combined. An unusually clear or heavy balance of favourable circumstances over unfavourable circumstances may be enough, even if none of the individual circumstances is uncommon or unusual in itself.[9]

The reasoning of Cavanough J is consistent with that of the High Court in Coal and Allied. The court's determination of whether special circumstances exist involves a decision making process in which no one consideration and no combination of considerations is necessarily determinative of the result. It requires an evaluation of competing considerations and a determination of whether or not such considerations constitute special circumstances justifying the grant of an extension of time.

22 Further in Lazarevic v Victoria Police,[10] J Forrest J held that:

The authorities establish that:

(a) The rule requires the Court to be objectively satisfied that special circumstances exist;

(b) The existence of special circumstances is to be determined by reference to all the circumstances of a case;

(c) The factors relevant to the exercise of the discretion under Rule 56.03(2) [sic] include, but are not limited to:

(i) the period of the delay;

(ii) the reason for the delay;

(iii) whether the plaintiff has an arguable case;

(iv) the justice to both parties, including the prejudice to the parties;

and

(v) the public interest in the finality of litigation.[11]

23 The determination of whether the plaintiff has an arguable case must be considered in light of the merits of the case. Justice to both parties must be a relevant consideration. This includes any prejudice to the other party. However the authorities provide that although prejudice to the other party is a weighty matter, it 'often can be overcome by some suitable order, for example, adjournment or costs'.[12]

24 AB provides the following explanation for her delay in bringing this proceeding and in support of her submission that there are special circumstances that warrant an extension of time.

1. Consequences of former partner's sexual abuse of their daughter

25 AB says she has been attempting to deal with a number of issues mentally and emotionally. These are the consequences of AB discovering that her former partner ('DE') had sexually abused their daughter over a period of time when she was aged between 12 and 17 years old. DE was sentenced to five years' imprisonment in February 2016 for the offences against their daughter.[13]

26 AB first became aware of the police investigation against DE in 2012.[14]

27 DE was arrested in New South Wales in 2014 in relation to the offences against their daughter.[15] The first case concerning sexual offences against her daughter took place in 2014. This occurred interstate and it took some time to expedite the matter to Victoria. There were cases both in Victoria and interstate. DE was initially jailed in New South Wales and then transferred to Victoria.[16]

Upon his arrest in September, 2014 by New South Wales Police, and, already struggling emotionally and mentally, I was then left cleaning up his financial mess and affairs.[17]

29 AB says it took 13 months for DE to be extradited to Victoria and then another five months before his trial.[18] DE ended up pleading guilty and was eventually sentenced in February 2016.

30 AB deposes that she has 'spent most of my time since the exposure of these horrific and subsequent legal process took its course [sic], supporting and trying to keep my daughter alive'.[19] AB's daughter was diagnosed with post-traumatic stress disorder, depression and anxiety.[20] Her daughter nearly succeeded in a suicide attempt in September 2016.[21]

31 The Council concedes that the abovementioned matters AB says she was dealing with are stressful and serious. The Council notes that AB indicates the matters began in 2012 and that they predate the issuing of the parking ticket in 2013. Notwithstanding that she was facing life difficulties, it does not preclude her from complying with road regulations.

32 The Council says that there appears to be an ongoing issue with the impact of the sexual offences on AB and that it is a truly horrific life issue. The issue continues and has not prevented AB from initiating this proceeding.

33 AB's affidavit evidence of DE's conviction for sexual offences against their daughter, and the impact of those crimes and the litigation upon herself and her daughter is unchallenged. I accept it. I accept AB's categorisation of it as a horrific experience.

34 I accept that AB's emotional distress as a consequence of DE's crimes, and the impact on her and her daughter, is a relevant circumstance that should be taken into account in considering whether there are special circumstances such as to warrant an extension of time.

35 I also accept the Council's submission that the matters concerning DE were already on foot at the time of the review hearing at the Magistrates' Court and the appeal to the County Court and did not stop AB from initiating the review or bringing the appeal. AB's emotional distress does not explain the delay in initiating this proceeding.

2. Time expended on seeking interpretation of Road Traffic Rule 332

36 Secondly, AB says that she has been trying to seek a proper explanation of rule 332 of the Road Safety Rules 2009 ('the Road Rules') and that it takes everyone time to respond. She says that no one interprets rule 332 in the same way. She deposes that she now has five different interpretations of that rule.[22] AB refers to the letters, such as those to and from her State Member of Parliament.[23] She submits that every time she wrote to another authority, there was a lapse of time in them getting back to her. She has written to local members of parliament and received correspondence from the Office of the Attorney-General and the Minister for Roads and Roads Safety in January 2017.[24]

37 On the other hand, the Council says that there is a misapprehension. The parking ticket was issued under rule 207 of the Road Rules, not 332. The Council says that rule 207, not 332 of the Road Rules, is the regulation under which the parking fine was issued. This has been the case throughout. This is not an issue in dispute.

38 I accept the Council's submission. Rule 332 of the Road Rules is not in issue in this proceeding, as discussed further below. AB was charged under rule 207 of the Road Rules. Rule 207 is a penalty provision. Rule 332 is not. At the relevant time, rules 207 and 332 were as follows:

207 Parking where fees are payable

(1) This rule applies to a driver who parks on a length of road, or in an area, to which a permissive parking sign applies if information on or with the sign indicates that a fee is payable for parking by buying a ticket or putting money into a parking meter.

Note

With is defined in the dictionary.

(2) The driver must -

(a) pay the fee (if any); and

(b) obey any instructions on or with the sign, meter, ticket or ticket-vending machine.

Penalty: 2 penalty units.

Notes

1. Area, length, of road, park and stop are defined in the dictionary.
2. Rule 165 provides defences to the prosecution of a driver for an offence against a provision of this Division.

332 Parking control signs applying to a length of road

(1) If a parking control sign displays an arrow and is at the side of a road, then, unless information on or with the sign indicates otherwise, the sign applies to the length of road between the sign and the nearest (in the direction indicated by the arrow) of the following -

(a) a parking control sign at that side of the road that displays an arrow indicating the opposite direction;

(b) a yellow edge line on the road;

(c) if the road ends at a T-intersection or dead end - the end of the road.

Notes

1. Edge line, parking control sign, T-intersection and with are defined in the dictionary.
2. Rule 322(3) and (4) deal with the meaning of a traffic control device in or at an area or place.

(2) If a parking control sign displays an arrow and is at the centre of a road or on a dividing strip, then, unless information on or with the sign indicates otherwise, the sign applies to the length of road between the sign and the nearest (in the direction indicated by the arrow) of the following -

(a) a parking control sign at the centre of the road or on the dividing strip that displays an arrow indicating the opposite direction;

(b) a yellow edge line on the road;

(c) if the road ends at a T-intersection or dead end - the end of the road.

Note

Centre of the road and dividing strip are defined in the dictionary.[25]

39 There was a reference to rule 332 during the County Court proceeding by the representative for the Council, Ms Warne. The submission was made in respect of rule 332 informing rule 207:

Miss Warne: [to the parking officer giving evidence] with respect to the space we're talking about, between the signs where [AB] has parked, do you say that anything in that space breaks the continuation of those two signs, or the obligations of the person parking in that length of road?

Parking officer: No

Judge: That's what the issue is.

Miss Warne: Your honour, the legislation does, under section 332 of the Road Safety Rules 2009, clearly indicates about lengths of road and what would break the signage.

Judge: A foot crossing doesn't?

Miss Warne: A foot crossing doesn't, no. What it says is a parking control sign at the side of the road that displays an arrow indicating an opposite direction, a yellow edge line on the road, or C, if the road ends in a T intersection of a dead end, the end of the road.

Judge: Yes, I understand that.

Ms Warne: So it would be based on the evidence of [parking officer], the Australian standards and the road safety rules, with particular reference to section 332, that we say supports [parking officer's] evidence.

Judge: I understand that.

Miss Warne: There was no break there.

Judge: Right, I don't know that [AB] understands that, but I'll talk to her about it.[26]

40 The judge accepted that rule 332 informed rule 207 of the Road Rules.

41 In her written submissions, AB says that based on rule 332 it appears that one can park in driveways and on footpaths as they are not referred to in this rule as a no- parking area within guidelines.[27] She refers to the judge having trouble interpreting the law because of an analogy he used about parking in a driveway and paying a fee.[28]

42 I note the analogy used by his Honour was an attempt to explain the regulation to AB. Rule 332 of the Road Rules informed his Honour's decision but the finding was not in respect of it, but rather, in respect of rule 207 of the Road Rules.

43 AB's attempts to obtain information on the interpretation of Rule 332 were misconceived.

44 Thirdly, AB says that the County Court judge did not advise her that she could initiate a proceeding for judicial review. She says that no one told her she could initiate a proceeding for judicial review.

45 The Council says that the County Court judge was not obliged to inform her that she could initiate a proceeding for judicial review. It says that three years allowed her ample time to get legal advice and that AB has exhibited correspondence between herself and a barrister which is evidence that she had access to legal advice over the course of the proceedings. Consequently the Council submits that for a person not to take any action over three years is simply absurd.

46 I agree that the County Court judge was not obliged to inform AB that she could initiate a proceeding for judicial review in respect of the decision. The judge was not obliged to give legal advice. Assistance to self-represented litigants does not extend to giving legal advice. AB cited Tomasevic v Travaglini[29] in support of her submissions on supporting self-represented litigants. I accept Bell J's following statement of principles in that case:

Every judge in every trial, both criminal and civil, has an overriding duty to ensure the trial is fair. A fair trial is the only trial a judge can judicially conduct. The duty is inherent in the rule of law and the judicial process. Equality before the law and equal access to justice are fundamental human rights specified in the ICCPR [International Covenant on Civil and Political Rights]. The proper performance of the duty to ensure a fair trial would also ensure those rights are promoted and respected.

Most self-represented persons lack two qualities that competent lawyers possess - legal skill and ability, and objectivity. Self-represented litigants therefore usually stand in a position of grave disadvantage in legal proceedings of all kinds. Consequently, a judge has a duty to ensure a fair trial by giving self-represented litigants due assistance. Doing so helps to ensure the litigant is treated equally before the law and has equal access to justice.

The matters regarding which the judge must assist a self-represented litigant are not limited, for the judge must give such assistance as is necessary to ensure a fair trial. The proper scope of the assistance depends on the particular litigant and the nature of the case. The touchstones are fairness and balance. The assistance may extend to issues concerning substantive legal rights as well as to issues concerning the procedure that will be followed...

The judge cannot become the advocate of the self-represented litigant, for the role of the judge is fundamentally different to that of an advocate. Further, the judge must maintain the reality and appearance of judicial neutrality at all times and to all parties, represented and self-represented. The assistance must be proportionate in the circumstances - it must ensure a fair trial, not afford an advantage to the self-represented litigant.[30]

47 As to the issue of legal advice, clearly AB sought to obtain legal advice but does not appear to have been in a position to pay for it. She contacted a barrister and also Victoria Legal Aid.[31] She does not depose as to when she became aware of the option of initiating a proceeding for judicial review.

4. Allegation that the Council acted unconscionably

48 Fourthly, AB says that the Council acted unconscionably. She submits that the Council failed to provide parking near the court although it knew people take longer than two hours in court.

49 This is a submission that is completely speculative and without any relevance as to whether or not there are special circumstances to warrant the extension of time, or indeed the substantive matters in the proceeding.

50 A relevant circumstance is the length of the delay, which is nearly three years.

51 The Council submits that the fact AB entered into an instalment payment plan for the costs ordered by the County Court is relevant because it shows that she accepted the decision of the County Court. She made payments under the instalment plan. The Council believed the matter had been finalised. The principle of finality in litigation is relevant.

52 AB says that her housemate made payments under the instalment plan, although not always regularly. She says that the payments were made to buy her time, and that she had no choice other than to make them or face arrest.

53 There is a public interest in the finality of litigation. It was reasonable for the Council to conclude the matter had been finalised given that instalment payments were made, and because of the length of time that has elapsed following the County Court orders.

Justice to Both Parties, Including Prejudice to the Parties

54 There are no other relevant issues of justice in respect of either party. I accept the Council's submission that it will be prejudiced by a grant of time extension. It is prejudice that could potentially be remedied by a costs order.

55 In considering whether or not there are special circumstances such as to warrant an extension of time, a relevant circumstance to consider, as discussed above, is whether the plaintiff has an arguable case. This must be considered in light of the merits of the proceeding.

56 I adopt the following principles enunciated by the Court of Appeal in David Glass (a pseudonym) v The Chief Examiner & Ors:[32]

The circumstances of each case dictate the factors to be taken into account in determining whether or not the applicant for an extension of time has established that there are special circumstances justifying the extension. One of the factors will ordinarily be the merits of the case. If the case is unmeritorious, then it would be futile to grant an extension.[33] The stronger the case, the more weight that might be accorded to that factor. Whilst it is not necessary nor desirable to examine the merits in too much detail, the strength of the case should be sufficiently apparent from the review undertaken to enable the judge or associate judge to give the appropriate weight to it. In some situations all that might be said is that the case is arguable. In other cases, it may be more than arguable. Even if the case is a strong one, other factors may outweigh the merits such that overall it cannot be said that there are special circumstances justifying the extension. [34]

...

57 The Council says that there is no merit in the application. It submits that the parking ticket was validly issued. AB agrees she did not pay the parking fine, that she parked in the relevant spot and the fee that was payable was not paid. The Council submits that there are no issues of justice in this proceeding.

58 AB says that this proceeding has merit. This requires examination of the grounds upon which she seeks relief.

Ground - Conviction of an Offence for which she was Not Charged

59 AB says she was convicted of an offence she was never charged with. She refers to the transcript in the County Court and says that it is different to what is recorded on the extract of the County Court with the orders. She questions and compares the judge's comments made at the hearing with the extract of the County Court Result of Appeal, noting that the latter is just a piece of paper.[35]

60 The relevant paragraph of the transcript is as follows.

Judge [after referring to parking survey detail and other documents]... but you agree with everything that you've said, you agree with [sic] that you were the owner of the car, that this man inspected the car, that he saw it there at that time, and then he attached a certificate because, he says, that you had infringed by staying in excess of your time. (underline added)

AB Yes sir.

Judge You agree with all of that?

AB Yes sir.

Judge The only thing you disagree with is, you say the signs are faulty. Are there any questions you want to ask him [the parking officer], other than what I've said to you?

AB Yes sir.

AB is then invited to question the parking officer and does so.[36]

61 AB's characterisation of this as a conviction for a new offence is contrary to what the judge said. His Honour was referring to the Parking Survey Detail and the statement of the parking officer who issued the parking fine on 12 March 2013. The Parking Survey Detail describes the infringement as 'fail to pay fee and obey instructions on sign, meter, ticket or ticket-vending machine'. [37] It notes a photo attached shows 'meter expired 1.16 hours' and 'no ticket displayed'. The statement of the parking officer indicates that the meter was expired by one hour 16 minutes when the parking infringement was issued.[38]

62 The charge sheet states the charge to be 'The Accused at Shepparton on 12 March 2013 did without lawful excuse fail to pay the applicable fee and obey instructions'.[39] The charge is stated to be under rule 207(2) of the Road Safety Road Rules 2009.

63 The County Court Result of Appeal states the order appealed is 'fail to pay parking fee'.[40] The result of the appeal is stated to be, amongst other things 'charge(s) found proven'.

64 The County Court extract correctly records the relevant order. Having listened to the recording of the proceeding, I do not agree that the judge's comments above constitute a finding that there was any other conviction than the one recorded.

65 There is no foundation for AB's claim that she has been convicted of an offence she was never charged with. She was charged and convicted under r 207 of the Road Safety Road Rules 2009. This ground does not have any merit.

66 AB says the judge was biased towards the Council 'because no matter what evidence I had either disproved or contradicted the second defendant's evidence he would always take what she said over mine.'[41] In other words, the judge did not agree with AB.

...whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge was required to decide.[42]

68 Having listened to the audio recording of the hearing of the County Court proceeding, I do not consider there is any merit in AB's claim that the judge was biased because his Honour accepted the Council's evidence. The evidence was largely agreed. There was agreement as to where AB parked her car, that the parking fee was not paid, and that there was a parking sign. The dispute centred on whether or not the parking fine should have been imposed on AB at all. It was open, and indeed necessary, for the judge to consider the evidence and submissions, and make a decision applying relevant principles. This ground does not have any merit.

Ground - Failure to Assist AB as a Self-Represented Litigant

69 AB says that the judge did not assist her to understand her rights so that she was not unfairly disadvantaged by being in ignorance of them. The duty of the judge with respect to self-represented litigants has been discussed above.

70 As discussed above, the judge was not obliged to inform AB of her option to initiate a proceeding for judicial review.

71 Several times during the hearing the judge attempted to explain matters to AB in plain English and by way of analogy. She was given the opportunity to put her case, and it was open to the judge to ensure that this was done precisely. The judge also explained and gave AB the opportunity to cross-examine the parking officer. She did so and then the judge clarified whether she had further questions. AB indicated she did not, and the judge then enquired if she was sure and she reiterated that she did not.

72 Further, at several points during the hearing, the judge summarised and clarified AB's submissions with her. For instance, the following.

Judge ... what your basic defence is, because there's not a recommencement of the arrow, once it's crossed the footpath, anything from the footpath onwards is not in accordance with the regulations. Is that what you're saying?

1. Yes, your worship. Because these sections say that you can't park on driveways-

1. And they were inconsistent, and that's what I'm used to from where I come from.

1. I live in Melbourne. I looked up, it just says in their rules, when they're saying for a length of road, the only definition is the length of road, is just a basic... where there's lines. To me, it's reasonable to assume it's the legal areas that you can park in. I wouldn't go out of my way to park there and not pay a fee. I have too many other things going on in my life to want to cause complications, but there was no parking sign.

Judge Well, there was, but you say it wasn't legal.

73 AB also submits that she was not informed by the judge that she had a right of reply to explain what she said in the following exchange and she should have been so informed:[44]

1. I believe that the Magistrate last time convicted me, saying that if I had parked in the driveway and paid the fee it would have been legal, but it wasn't in a defined bay either, and that was the reason -

Ms Warne Your honour, I have to object to that. Firstly, this is a hearing de novo , but secondly I believe that that's inaccurate on my instructions as to what the magistrate indicated.

1. Anyway, I have the rules here...[45]

74 Given that AB did actually reply, there was no need for the judge to intervene.

75 AB says that the judge was not fully engaged and interested in the case:

...because of the type of case or was incapable of doing so for some medical reason. This was evident by his behaviour and the constant mistakes he was making throughout the hearing with the most obvious and serious being that he seems to have found me guilty of the wrong charge.[46]

76 As discussed above, I do not accept that the judge convicted AB of a wrong charge. Having listened to the hearing, the judge was quite engaged in the proceeding.

78 AB says that the judge bizarrely shut down proceedings without allowing her to present all her evidence.

79 The judge did acknowledge cutting off AB at one point and then gave her the opportunity to complete her submission.[47]

80 AB says that after reiterating her point about inconsistent signage, the judge responded 'Yeah, that doesn't make it right either.' His Honour then turned to Ms Warne and asked what costs she was claiming.

81 Having listened to the hearing, I observe the following. The judge asked the Council what costs they were claiming.[48] There was some further discussion then between the judge and the parties before his Honour found the charge against AB proven.[49] AB claims she was not allowed to finish presenting her evidence. However, she had not indicated that there was any further evidence to present. As discussed above, the key evidence was not in dispute.

82 AB submits the case was shut down without the judge viewing the area as he had indicated. As to the steps that the judge wished to take to understand the evidence, that was a matter entirely in his Honour's discretion.

83 AB says that the parties were not given an opportunity to sum up their cases. Given the nature of this proceeding, being a dispute about non-payment of a parking fine in which the facts of the case were not contested, the judge was entitled to focus on the real issues in dispute and deal with them efficiently. Indeed the judge acted in accordance with the overarching purpose of the Civil Procedure Act 2010 ('the CPA') which is to facilitate the just, efficient, timely and cost effective resolution of the real issues in dispute. Section 8 of the CPA elucidates that the court is to give effect to the overarching purpose. Having listened to the hearing, I am satisfied that both parties were given an opportunity to ventilate their central submissions. Indeed, even after the point at which the judge hears costs, he gives AB the opportunity to talk about the inconsistent signage again.[50] It was an issue that AB had already made submissions on and, as discussed below, the judge did not accept.

84 AB says she was denied a proper opportunity to challenge the case against her. Having listened to the hearing, I am satisfied that AB had the opportunity to provide submissions.

85 The nature of the proceeding must be borne firmly in mind. I do not agree that the judge shut down the proceeding prematurely or unfairly. His Honour conducted a fair trial. Contrary to the submission by AB, there was no summary dismissal of the proceedings. This ground does not have any merit.

86 AB says she was not given reasons for the judge's decision. The Council says that his Honour did give reasons for the decision.[51]

87 The judge's reasons for the decision are evident from the transcript. They are brief but expositive. His Honour indicates that the legislation states that AB is in the wrong.[52] AB made a submission about rule 198 of the Road Rules. It was dealt with. His Honour observes rule 198 of the Road Rules is a completely different offence to the one AB has been charged with.[53] The judge acknowledges AB's submission about inconsistent signage but states that it does not make her offence right either.[54] His Honour agrees with AB's submission that you cannot park in driveways or footpaths but states that 'producing s 198 has no relationship whatsoever with the offence that you are alleged to have committed'.

88 As discussed above, the judge also accepts the Council's submission that rule 332 informed rule 207.[55]

Ground - No Adequate Reasons for Indemnity Costs Order

90 AB says that she was not given any reasons for the indemnity costs order and that the amount is excessive, particularly given that the judge knew she was on a pension and had no capacity to pay.

91 After ascertaining that the Council is seeking its costs of $5,472.07 (ultimately what AB is ordered to pay), the judge asks AB if she was aware this might happen. AB responds: 'Well, your worship, I believe I have a good case.'[56] The judge says 'Yes, I know you do'. His Honour then gives an example of disproportionate costs being incurred in a case concerning a dog biting another dog.[57]

92 The judge gave a stay of three months and referred AB to the Clerk of Courts in response to her question about what happens if she cannot pay, after saying she could only afford to pay $20 a month.

93 Section 10 of the Administrative Law Act 1978 provides that any statement of a tribunal or inferior court of its reasons for decision, whether it be written or oral shall be taken to form part of that decision and accordingly form part of the record. In other words where discrete reasons are not published, the parts of the transcript that disclose the judge's reasons form part of the record. It is evident from the judge's comments at the hearing that he formed the view that the proceeding was unmeritorious. That is a basis upon which his Honour could award indemnity costs. The judge used an analogy about the dog biting case to explain, in plain English to AB, a self-represented litigant, how disproportionate costs may be. His Honour did so after querying whether AB was aware that this [indemnity costs] may be the result of her appeal. Costs are wholly discretionary. This ground does not have merit.

94 In addition to those above, there are a number of other grounds that AB raises in terms of procedural fairness.

95 AB says that a number of other errors such as a wrong reference to the name of the Council and an analogy about someone sitting roadside with his billy. Watching the video, this was an analogy discussed with the parking officer and the judge was pointing to a document that he held as he made the analogy. Further, AB says there is a confusion by the judge over the precise name of the Council and of street names. None of these amount to issues concerning procedural fairness. None of them had any impact on the ultimate determination of the decision either.

96 Overall, I find that the proceeding has little, if any, merit. AB does not have an arguable case.

97 I will decline AB's application to extend time. Considering the totality of circumstances, I find that they do not constitute special circumstances that warrant the extension of time. Whilst I accept the emotional distress that AB was experiencing, this does not explain the delay of nearly three years in initiating this proceeding. Further, I must balance that factor with all the other circumstances to decide whether, in totality, there are special circumstances. These other circumstances include, significantly, that AB does not have an arguable case as the proceeding has little or no merit, the Council's reasonable belief that the litigation was at an end due to the instalment payments, and the lengthy delay in commencing this proceeding.

Should there be Summary Judgment in Favour of the Council?

98 Sections 62 and 63 of the CPA are relevant. They provide:

62 Defendant may apply for summary judgment in proceeding

A defendant in a civil proceeding may apply to the court for summary judgment in the proceeding on the ground that a plaintiff's claim or part of that claim has no real prospect of success.

63 Summary judgment if no real prospect of success

(1) Subject to section 64, a court may give summary judgment in any civil proceeding if satisfied that a claim, a defence or a counterclaim or part of the claim, defence or counterclaim, as the case requires, has no real prospect of success.

(2) A court may give summary judgment in any civil proceeding under subsection (1) -

(a) on the application of a plaintiff in a civil proceeding;

(b) on the application of a defendant in a civil proceeding;

(c) on the court's own motion, if satisfied that it is desirable to summarily dispose of the civil proceeding

99 Additionally, the Court must consider whether a matter should be allowed to proceed to trial pursuant to s 64 of the CPA:

Court may allow a matter to proceed to trial

Despite anything to the contrary in this Part or any rules of court, a court may order that a civil proceeding proceed to trial if the court is satisfied that, despite there being no real prospect of success the civil proceeding should not be disposed of summarily because -

(a) it is not in the interests of justice to do so; or

(b) the dispute is of such a nature that only a full hearing on the merits is appropriate.

100 The principles concerning summary judgment are well established. I apply the following principles enunciated in Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd.[58]

1. the test for summary judgment under s 63 of the Civil Procedure Act 2010 is whether the respondent to the application for summary judgment has a 'real' as opposed to a 'fanciful' chance of success;
2. the test is to be applied by reference to its own language and without paraphrase or comparison with the 'hopeless' or 'bound to fail test' essayed in General Steel;

1. it should be understood, however, that the test is to some degree a more liberal test than the 'hopeless' or 'bound to fail' test essayed in General Steel and, therefore, permits of the possibility that there might be cases, yet to be identified, in which it appears that, although the respondent's case is not hopeless or bound to fail, it does not have a real prospect of success;

1. at the same time, it must be borne in mind that the power to terminate proceedings summarily should be exercised with caution and thus should not be exercised unless it is clear that there is no real question to be tried; and that is so regardless of whether the application for summary judgment is made on the basis that the pleadings fail to disclose a reasonable cause of action **(**and the defect cannot be cured by amendment) or on the basis that the action is frivolous or vexatious or an abuse of process or where the application is supported by evidence.

101 Firstly, given the finding in respect of merit above, I am satisfied that AB has no real prospect of succeeding in her claim. Further, section 64 of the CPA does not apply in this case.

102 Secondly, there is another reason why, even if the time extension were granted, it has no real prospect of success. I now turn to this.

103 The Council submits that the issues raised by AB are not matters that should be raised in judicial review. If she wished to agitate the issue of an error of law, she could have appealed the decision of the County Court and did not. This application for judicial review, the Council says, is really dressing up an appeal and ought not to be allowed.

104 The Council says that a litigant cannot seek judicial review where it is open to take an appeal unless there are exceptional circumstances. I agree and adopt the principle stated by Phillips JA in Kuek v Victoria Legal Aid and anor.[59]

In relation to errors of law, the appellant was not seeking recourse to O 56 because of some alleged defect or insufficiency in the appeal permitted under s 109 [of the Magistrates' Court Act 1989]. As pointed out by the trial judge, the appellant was seeking merely to circumvent one of the limitations quite plainly imposed on 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 where the time limit is not 30 days but 60...

...

...this 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. As has been said, judicial review should not be seen as a means of appealing from the decision of a magistrate... .[60]

105 AB could have appealed this decision under s 109 of the Magistrates' Court Act 1989 but did not do so. She could have exercised appeal rights under s 274 of the Criminal Procedure Act 2009 but did not do so. Instead, she elected to make instalment payments. Given the absence of exceptional circumstances, and that the errors of law she alleges could have been raised on appeal, they are not the proper subject of an application for judicial review. This factor alone is a ground for disposing the entire proceeding.

106 Thirdly, given that AB has been unsuccessful in her application for time extension, the proceeding should not continue.

107 Consequently, for each of the three reasons above, there should be summary judgment in favour of the Council.

108 Orders will be made refusing the application by AB for a time extension and granting the Council's application for summary judgment against the plaintiff.

[1] [2017] VSC 652 [38]-[43].

[2] [2011] VSC 285.

[3] [2002] VSC 256.

[4] Mann v Medical Practitioners Board of Victoria (Appeal) [2004] VSCA 148 [57] [72].

[5] Ibid; Lazarevic v Victoria Police [2014] VSC 497.

[6] Kocak [2011] VSC 285 [29].

[7] [2000] HCA 47; (2000) 203 CLR 194.

[9] [2011] VSC 285 [36].

[10] [2015] VSC 13.

[11] Lazarevic v Victoria Police [2015] VSC 13, [36], upholding the decision of Derham AsJ in Lazarevic v Victoria Police [2014] VSC 497.

[12] Lednar v Magistrates' Court [2000] VSC 549 [146].

[14] The 6 November housemate affidavit [3] [4].

[15] The 11 September AB affidavit [3(iv)].

[16] The plaintiff's submissions filed on 8 November 2017 [2].

[17] The 11 September AB affidavit [3 (iv)].

[21] The 11 September AB affidavit [3(vii)].

[22] The 14 September AB affidavit [31].

[23] Exhibits 'L' and 'M' to the 14 September AB affidavit.

[25] Road Safety Rules 2009 (Effective from 11/12/2012 version 009).

[26] Transcript of County Court Appeal Proceeding, 26 August 2014, 15, revised after listening to video of proceeding, ('Transcript').

[27] The plaintiff's submissions filed on 8 November 2017 [11].

[29] [2007] VSC 337; (2007) 17 VR 100.

[30] Tomasevic v Travaglini [2007] VSC 337; (2007) 17 VR 100[139]-[142].

[31] Exhibit 'O' and 'P' to the 14 September AB affidavit.

[32] [2015] VSCA 127.

[33] Mann v Medical Practitioners Board of Victoria [2004] VSCA 148.

[34] David Glass (a pseudonym) v The Chief Examiner & Ors [2015] VSCA 127 [71].

[35] Exhibit 'A' to the 14 September AB affidavit

[37] Exhibit 'SMP-5' to the Pogue affidavit, Parking Survey Detail dated Tuesday, May 21, 2013 9:25:24am.

[38] Ibid, statement of parking officer dated 27 September 2013.

[39] Ibid, Charge and Summons dated 8 October 2013.

[40] Exhibit 'SMP-7' to the Pogue affidavit.; Exhibit 'A to the 14 September AB affidavit.

[41] The plaintiff's submissions filed on 8 November 2017 [39].

[42] Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337, 350 [33] (Gleeson CJ, McHugh, Gummow and Hayne JJ).

[44] The plaintiff's submissions filed on 8 November 2017 [32].

[46] The plaintiff's submissions filed on 8 November 2017 [30].

[58] [2013] VSCA 158; (2013) 42 VR 27 [40] (Warren CJ and Nettle JA).

[59] [2001] VSCA 80; (2001) 3 VR 289 (with whom Winneke P and Buchanan JA agreed).

[60] Kuek v Victoria Legal Aid and anor [2001] VSCA 80; (2001) 3 VR 289 [16].