Smart v City of Whitehorse [2004] VSC 374

Supreme Court of Victoria|2004-09-10|Before: Cummins J

I have before me a Notice of Appeal by Mr Smart from a decision below of the Magistrates' Court at Ringwood on 8 July 2004 constituted by a Magistrate, Mr Hallenstein.

I have had exhibited before me to Mr Smart's affidavit of 3 August 2004 a number of documents including, as Exhibit AIS1, the summons upon which Mr Smart came before that Court and with which he was charged.

It appears that at the hearing at the Ringwood Magistrates' Court on 8 July 2004 Mr Smart appeared in person and did not dispute the alleged facts in the summons, which was a parking summons, but rather made submissions of law as to the incompetence in law of the charge against him and of the proceedings against him.

Mr Smart appeared before me in person. There was no appearance by the respondent, which had been informed of the appeal. On 6 August 2004, a Master had dismissed Mr Smart's appeal from the Magistrates' Court. The matter thereby comes before the Practice Court as an appeal from the Master. However, the same issues arose before the Master as before the Magistrate and for the purpose of finality I shall deal with the matters arising in both appeals.

Essentially, in a very comprehensive submission which he summarised in his affidavit of 3 August in paragraph 7, Mr Smart has submitted incompetence in law of the document entitled "Road Rules - Victoria" as the foundation of the charge against him.

In my view, Mr Smart's argument is incorrect in law. The relevant charge comes under delegated legislation from the Road Safety Act 1986, by which regulations in law can be promulgated and were promulgated. The complaint Mr Smart has of this document entitled "Road Rules - Victoria" is that it is not an Act of Parliament and is not delegated legislation. However, that document is not what the charge is based upon. The charge was based upon the Act, the Road Safety Act 1936 and the lawful regulations made thereunder. Section 95(1) Road Safety Act 1986 is the source of power enabling regulations to be made under that Act. Thereby the Road Safety (Road Rules) Regulations 1999 (S.R. 120 of 1999) were made (see Reg. 102). By Regulation 201(1) the Road Rules are incorporated into the Regulations, having been published in the Victorian Government Gazette on 28 October 1999. The particular physical document relied upon by Mr Smart is simply the publication for ease of access for ordinary lay persons such as himself. The constituent power derives from the exercise of Parliament through its delegated and lawful system.

Accordingly, I consider there is no legal substance in Mr Smart's submission below, before the Master or before me, although it has been made very fully and very carefully by him. I am not satisfied that there is any ground for upholding his appeal from the Court below or his appeal before me from the Master and I accordingly dismiss his appeal.

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