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Crossman v Department of Transport and Main Roads

 

[2019] QSC 67

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

Crossman v Department of Transport and Main Roads & Anor [2019] QSC 67

PARTIES:

IAN NORMAN CROSSMAN

(Applicant)

v

DEPARTMENT OF TRANSPORT AND MAIN ROADS

(First Respondent)

And

QUEENSLAND POLICE SERVICES

(Second Respondent)

FILE NO/S:

No 502 of 2018

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Cairns

DELIVERED ON:

21 March 2019

DELIVERED AT:

Cairns

HEARING DATES:

14 December 2018, 1 February 2019

JUDGE:

Henry J

ORDER:

  1. Application dismissed.
  2. I will hear the parties as to costs.

CATCHWORDS:

TRAFFIC LAW – TRAFFIC REGULATION – TRAFFIC SIGNS AND ROAD MARKINGS – where the applicant claimed a school zone installed by the first respondent was illegitimate, due to an alleged failure to comply with guidelines the applicant found on the Internet – where the applicant did not produce evidence of the legal status of the guidelines – where the Court considered the lawful process for installation of a school speed zone – whether the applicant could show the lawful process was not followed

ADMINISTRATIVE LAW – JUDICIAL REVIEW – POWERS OF COURTS UNDER JUDICIAL REVIEW LEGISLATION – DECLARATIONS – where the applicant sought declaratory relief in the Supreme Court – whether the applicant identified a legal controversy for determination – whether the application failed at the threshold

Transport Operations (Road Management) Act 1995 (Qld) ss 68, 72A, 166

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, applied

COUNSEL:

F Chen for the first respondent

R Logan for the second respondent

SOLICITORS:

Applicant Mr Crossman appeared self-represented

Crown Law for the respondents

  1. [1]
    The Applicant, Mr Crossman, has long been perturbed by the existence of a 40 km per hour school speed zone adjacent to the Mother of Good Council School (“MOGCS”) on Sheridan Street, North Cairns.
  1. [2]
    The MOGCS speed zone was installed on Sheridan Street in 2013 by the First Respondent, the Department of Transport and Main Roads (“the Department”).  On 30 May 2013 Mr Crossman was issued with an infringement notice by a member of the Second Respondent, the Queensland Police Service, for exceeding the school speed zone limit.  This infringement notice was the impetus for Mr Crossman’s apparently unsuccessful attempts elsewhere to challenge the validity of the MOGCS speed zone.[1]
  1. [3]
    Mr Crossman has now applied to this court for declarations that:
    1. (a)
      the Department installed and operated an illegitimate local fabrication of a school zone adjacent to Mother of Good Council School on Sheridan Street, North Cairns, in May 2013;
    2. (b)
      the school zone should be uplifted; and
    3. (c)
      restitution should be paid to motorists fined for committing a speeding offence in the school zone.
  2. [4]
    In a further document Mr Crossman mused over the potential appropriateness, in the alternative, of judicial review of the decision to install the school zone sign.[2]When this was queried by the Court, he declined to apply to vary the status of the present application.
  3. [5]
    That is unsurprising.  An application for judicial review of the Department’s decision would fail because it was not made within the period required by s 46 Judicial Review Act 1991 (Qld) and an extension of time would be inappropriate in circumstances where the fact and nature of Mr Crossman’s issue with the Department’s decision has long been known to him.  Other aspects of the case tell against the suitability of judicial review as a potential remedy, including the availability of arguing the unlawfulness of the MOGCS speed zone official traffic signs at a trial by a driver charged with exceeding the zone’s speed limit.  Such an argument might be challenging, given that s 60(2)(f) Transport Operations (Road Use Management) Act 1995 (Qld) provides that a certificate stating matters including that a specified sign was an official traffic sign “is evidence of the matter”.  However the section does not provide such a certificate is conclusive evidence.[3]Whether at trial a court would choose to act upon the evidence of the matter which such a certificate provides would doubtless depend on what if any other evidence about the matter is advanced during the prosecution and defence cases.
  4. [6]
    The past existence of the forum of such a trial would likely either mandate the dismissal of a judicial review application pursuant to s 14 Judicial Review Act or result in a discretionary dismissal on the basis such an application is inappropriate, frivolous, vexatious or an abuse of process, pursuant to s 48(1) Judicial Review Act. 
  1. [7]
    The passage of time and the past existence of the forum of such a trial also likely weighs against the exercise of the discretion to make a declaration.  However, there is a more fundamental, threshold obstacle to the granting of a declaration here, namely the applicant’s inability to identify a legal controversy for determination.
  2. [8]
    The importance of there being some legal controversy to quell in order to potentially attract declaratory relief was explained by the High Court in Ainsworth v Criminal Justice Commission.[4]The plurality there explained of the remedy of declaratory relief:

“It is a discretionary power which “[i]t is neither possible nor desirable to fetter … by laying down rules as to the manner of its exercise”.  However, it is confined by the considerations which mark out the boundaries of judicial power.  Hence, declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions.”[5](emphasis added)

  1. [9]
    In the present case Mr Crossman cannot identify the legal foundation of the complaint allegedly giving rise to the need for declaratory relief.  He complains the Department failed to follow its published guidelines in deciding to install the MOGCS speed zone but cannot identify why that alleged failing meant the speed zone was installed contrary to law, as “an illegitimate local fabrication of a school zone”. 
  1. [10]
    Power to install school speed zone signs is conferred by the Transport Operations (Road Use Management) Act 1995 (Qld):

68  Chief executive may install or remove official traffic signs

The chief executive may, for the purposes of this or another Act—

  1. (a)
    install an official traffic sign on a road …

Official traffic sign is defined in schedule 4 of the Act as meaning “a sign, marking, light or device placed or erected to regulate, warn or guide traffic.”

  1. [11]
    The power to impose school zones is thus vested in the chief executive of the Department, being the “relevant public sector unit” as per s 33 Acts Interpretation Act 1954 (Qld).  I note for completeness Mr Crossman submitted there is no evidence about whether it was the chief executive who made the decision to impose the MOGCS speed zone.  That submission seemed to misconceive the Court’s role and the onus on Mr Crossman.  The court is not conducting an investigative enquiry.  The onus is on Mr Crossman as applicant to advance evidence in support of the making of the declaration he seeks. 
  2. [12]
    The regulation of the decision-making process for installing an official traffic sign appears to be provided for by s 72A and, less directly, s 166 Transport Operations (Road Use Management) Act.
  3. [13]
    Section 72A provides:

72A Way to install official traffic sign

An official traffic sign must be installed in a way specified by the MUTCD.” (emphasis added)

“MUTCD” is defined in schedule 4 of the Act as meaning “the Manual of Uniform Traffic Control Devices issued by the chief executive”.

  1. [14]
    Section 166 provides:

166 Official traffic sign approvals

(1) The chief executive may approve the design of, and a method, standard or procedure about, an official traffic sign.

(2) The approved design, method, standard or procedure must be contained in the MUTCD or an approved notice.

(3) The MUTCD or approval notice must be available for purchase or inspection by the public at the department’s head office or the other offices of the department that the chief executive directs.” (emphasis added)

  1. [15]
    Mr Crossman did not file any evidence of or otherwise identify as relevant, any content of either the MUTCD or an approved notice.
  2. [16]
    At the first hearing of the application, Mr Crossman referred to two documents as creating compulsory guidelines for school zones.[6]The first of those was a document styled “Queensland multi-lane school zone trial”, authored by engineer Rohit Singh and published in 2011.  The report states that at the time of the trial, school zones were not permitted on multi-lane roads in Queensland.  It appears that in trial zones across Queensland, including on the multi-lane road adjacent to MOGCS, the Department installed and monitored driver compliance with a variety of school zone signs for a one-year period, from which Mr Singh’s report was produced.  His report says nothing as to whether the process for deciding on the installation of the MOGCS speed zone was lawful.
  3. [17]
    The second document bears the insignia of the Department and was apparently downloaded from the internet.  Its legal pedigree was not deposed to.  It is headed “School Zones” and commences with a statement of the purpose of the document, describing the document as guidelines (“the guidelines”).  It states:

“The guidelines are intended to provide a single point of reference for any organisation or authority involved with, or seeking information about, traffic management and road safety at schools.”

  1. [18]
    Part 9 of the guidelines includes specifications for multi-lane roads which Mr Crossman claimed the MOGCS speed zone contravenes.  He emphasised the obligatory language used in that context, for example the guidelines say, “Enhanced School Zone signs … must be installed to indicate the start of a school zone on multi-lane roads”.[7]  A document may of course purport by its language to be obligatory, however, the use of such language cannot confer legal status upon a document.
  2. [19]
    After the statement of the guidelines’ purpose it addresses the guidelines’ background:

2. Background

Part 4 of the Manual of Uniform Traffic Control Devices (MUTCD) contains the policy for speed management at schools including the installation of school zones.  It also includes requirements for the type of signs for use at school zones, the size of signs, the school zone speed limit and minimum length of school zones.

This guideline builds on the requirements of the MUTCD by providing additional information to practitioners to improve road safety by managing traffic and speed at schools.”

  1. [20]
    That statement of background makes it clear the guidelines are a separate document from the MUTCD.  There is no evidence that the guidelines were contained in an approved notice.  In short there is no evidence the lawful process for exercise of the Chief Executive’s power to install the relevant official traffic signs designating the MOGCS speed zone was not followed.
  2. [21]
    At the first hearing I informed Mr Crossman his application was doomed to fail at the threshold for want of evidence of any breach of the processes the Department was required by law to comply with in deciding to install the MOGCS speed zone.  Mr Crossman is an experienced litigant.  Published on the Queensland Courts website are no fewer than four appeals by Mr Crossman from the Magistrates Court to the District Court,[8]four appeals from the District Court to the Court of Appeal[9]and one appearance in QCAT.[10]In relation to the MOGCS speed zone alone he claims “nineteen appearances (two by phone QCAT) over three years”.[11]I am confident he understood the nature of the threshold problem and its fatal consequences for his application if he could not remedy the problem.
  3. [22]
    Mr Crossman sought and was granted an adjournment in order to have the opportunity to gather the missing evidence, if he could. 
  4. [23]
    By the resumption of the hearing Mr Crossman still had not gathered the evidence needed to address the fatal threshold problem.  Nor did his further written submissions provide any answer at law to the problem.  In essence he continued to complain of a failure to comply with guidelines but did not identify a failure to comply with the MUTCD or an approved notice.  That is, he did not identify how the alleged failure constituted a failure to comply with the lawful process regulating the relevant exercise of power.  On the materials in evidence he at the highest seeks to agitate a policy disagreement, not a legal controversy.
  5. [24]
    I record for completeness the Court was informed by both respondents’ counsel that no legislative source had been found according any legal status to the guidelines relied upon by Mr Crossman.  Counsel for the Department went on to submit the guidelines were without any apparent legal force.[12]
  6. [25]
    Mr Crossman has failed to identify a legal controversy warranting the potential exercise of this Court’s power to quell the controversy by granting declaratory relief and his application must therefore be dismissed.
  7. [26]
    I will hear the parties as to costs.  In that regard I note that in granting the initial adjournment of this matter I ordered Mr Crossman to pay the respondents’ costs thrown away by the adjournment to be assessed on the standard basis.  However, I explained to him then that if he pressed on with the application, without having gathered the missing legal substance in support of it, he may confront a submission it was unreasonable for him to have persisted further with it and that he should be ordered to pay the respondents’ costs incurred subsequent to the adjournment on the indemnity basis.[13]
  8. [27]
    My orders are:
    1. Application dismissed.
    2. I will hear the parties as to costs.

Footnotes

[1]  Court file doc 2 [8].

[2]  Court file doc 7 ‘Critique by applicant’.

[3]  As that Act does in other contexts – see s 124.

[4]  (1992) 175 CLR 564.

[5]  Ibid 581-582 (citations omitted).

[6]  Each are labelled exhibit D to the affidavit of Mr Crossman court file doc 2.

[7]  Court file doc 7 Guidelines pt 9.2.

[8] Crossman v The Commissioner of Police [2015] QDC 265; Crossman v Queensland Police Service [2017] QDC 257; Crossman v Queensland Police Service [2018] QDC 267; Crossman v Queensland Police Service (No 2) [2019] QDC 2.

[9] Crossman v Queensland Police Service [2015] QCA 115; Crossman v Commissioner of Police [2016] QCA 75; Crossman v Queensland Police Service [2017] QCA 112; Crossman v Queensland Police Service [2018] QCA 169.

[10] Crossman v Department of Transport and Main Roads [2018] QCAT 60.

[11]  Court file doc 2, [8].

[12]  T2-15L47; also see T2-9L45.

[13]  T1-17L19.

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Editorial Notes

  • Published Case Name:

    Crossman v Department of Transport and Main Roads & Anor

  • Shortened Case Name:

    Crossman v Department of Transport and Main Roads

  • MNC:

    [2019] QSC 67

  • Court:

    QSC

  • Judge(s):

    Henry J

  • Date:

    21 Mar 2019

Litigation History

Event Citation or File Date Notes
Primary Judgment [2019] QSC 67 21 Mar 2019 Application for declaratory relief refused: Henry J.

Appeal Status

No Status