Bradley v Barber[2016] QCA 53

COURT OF APPEAL

FRASER JA

BODDICE J

BOND J

Appeal No 9104 of 2015

SC No 4846 of 2015

ROSS JAMES BRADLEYAppellant

v

NATALIE BARBERRespondent

BRISBANE

MONDAY, 7 MARCH 2016

JUDGMENT

FRASER JA:  The application to the Court of Appeal to file new evidence is refused, it not being pressed.

…

BOND J:  By a document filed in the Supreme Court on 15 May 2015 the appellant - who represented himself before this Court and the learned primary judge - made an application for a statutory order of review under the Judicial Review Act 1991 (Qld).  I will refer to that as “the JR Act”.  The respondent named in the application was the registrar of the State Penalty Enforcement Registry.  I will refer to that as “SPER”.  SPER is the agency responsible for administering the State Penalties Enforcement Act 1999 (Qld).

The application was not in proper form.  It did not articulate in any coherent fashion the decision sought to be reviewed, the grounds upon which review was sought or the relief which was sought.

It appeared that the application had some connection with a penalty infringement notice given to the appellant’s son for the son’s failure to pay toll payments in respect of the son’s car.  It appeared that the applicant might have borrowed his son’s car and that the appellant’s use of the car may have led to his son’s liability to pay the toll payments.

I observe, parenthetically, that the relevant legislation operates so as to make the registered owner of a motor vehicle liable for the payment of the tolls on receipt of written notice and liable for an offence consequent upon non-payment, although the owner’s liability to pay the tolls may be avoided if, within a prescribed time, the owner takes certain steps to establish that he or she was not the driver: see s 99 of the Transport Infrastructure Act 1994 (Qld) and s 4 of the State Penalties Enforcement Regulation 2014 (Qld).

On 28 August 2015 the respondent applied to the learned primary judge for an order under s 48(1) of the JR Act summarily dismissing the application.  That section authorises summary dismissal if the Court considers that:

(a) It would be inappropriate–

(i) for the proceedings in relation to the application or claim to be continued; or

(ii) to grant the application or claim; or

(b) No reasonable basis for the application or claim is disclosed, or –

…

(d) The application or claim is an abuse of the process of the Court.

The respondents submitted that the Court should summarily dismiss the application on one or other of those bases.  The respondents submitted that:

(a) the appellant had no standing to bring the application and could not be a person aggrieved by any decision made by SPER as required by s 20(1) of the JR Act, because the debts about which he was concerned were debts owed by his son; and

(b) any enforcement action was taken against the son only and the son had in any event paid the relevant fine.

The evidence before the learned primary judge established that the tolls and associated fines had been levied against the appellant’s son, not him, and had in any event been paid by the son.  I should observe that there was evidence as to a small amount which might have been owed by the appellant personally, but that seemed to have no moment in the appellant’s argument before the learned primary judge or, indeed, in this Court.

The learned primary judge heard submissions from the appellant.  He disposed of the application in this way:

“The short point that has been made in support of the application to dismiss the originating application is that the applicant Mr Bradley is not a person aggrieved because no right or interest of his is affected by any decision which was made in respect of his son’s non-payment of the toll.

In my view, that is an unassailable proposition.

In responding to the application, Mr Bradley sought to make submissions about, firstly, the lack of authority of those appearing for the respondent to the originating application to appear for her.  In my view, there is no question that they have that right, in the usual way that a litigant has a right to appear by an Australian legal practitioner, whether it be a solicitor or counsel, in this Court.

Secondly, the applicant in the originating application sought to make submissions about the source of authority or power of the court to interfere with the decision, relying on a number of propositions which I had difficulty following at times.  But ultimately they seemed to be sourced in the concept that the powers of this court are - because the court is a court of plenary jurisdiction, derived ultimately from the principles or concepts that include who is a juridical person and the authority of the Pope in Rome.

In my view, none of those propositions has any legal foundation.”

The learned primary judge then ordered that the appellant’s application for a statutory order of review be dismissed and that the appellant pay the respondents’ costs of the proceeding.

Like the appellant’s application for statutory order of review which the learned primary judge dismissed summarily, the appellant’s notice of appeal from the decision of the learned primary judge was not in proper form.  It did not articulate grounds for appeal in any coherent fashion.  Written submissions filed in this Court did not improve the matter.

Indeed, the appeal should be treated as an application for leave to appeal, because s 48(5) of the JR Act provides that appeal may be brought from an order under that section only with the leave of the Court of Appeal.  When this section was brought to the appellant’s attention, he submitted that the section had no relevance.  He did not explain why that might be so.  His submission in that regard is rejected.

As far as can be ascertained from the notice of appeal and written submissions and, indeed, his oral submissions before this Court, the appellant seeks to agitate concerns about –

(a) whether the registrar of SPER, a natural person, could take the course which was taken in relation to the applicant’s son and/or be represented in court by a legal practitioner;

(b) whether the matter should properly be regarded as criminal not civil;

(c) the significance of a decree made by Pope Francis concerning the application of criminal law in the Vatican; and

(d) the inappropriateness of his application being dealt with summarily.

I will deal with those matters in that order.

As to the question of whether the registrar of SPER, a natural person, could be represented in court by a legal practitioner as against the appellant and whether there could be punishment levied in the way there was, the respondent before this Court submitted that the respondent was lawfully entitled, as registrar of SPER, to take enforcement action against the offences referred to by SPER, including offences committed by the appellant’s son for failing to pay tolls.  The lawful authority is contained in the State Penalties Act and, as the learned primary judge held, the appellant was not a person aggrieved as defined in the JR Act.  I agree with these submissions.

The respondent also submitted that, as to the question that the appellant sought to agitate that Crown Law and/or lawyers instructed by Crown Law could not represent the respondent in the appeal because of a “living man versus living woman” argument, the respondent correctly pointed out that the learned primary judge ruled against the point and the submission made in this Court should be rejected for the same reasons.  I agree.  There was no substance whatever in the appellant’s argument on this point.

As to whether the matter should properly be regarded as criminal not civil, the learned primary judge ruled against this, correctly.  There is no substance in this complaint.

As to the significance of a decree made by Pope Francis concerning the application of criminal law in the Vatican, the respondent correctly points out that the decree on its face seeks only to make a statement concerning certain aspects of the criminal law in the Vatican City State.  The decree has no relevance to this application.  The appellant contended that this Court’s oath of office to the Queen (or affirmation for that matter), somehow required it to apply the law of the Vatican, because the Queen owed her authority to the Holy See.  The appellant described this proposition as the foundation of his argument.  It was the thing he needed a trial to establish.  There was no substance to the argument, as was correctly found by the learned primary judge.

As to the inappropriateness of his application being dealt with summarily, there are a number of points to be made.  In his oral submission, the appellant submitted that no procedural fairness was accorded to him, but he was unable to explain why that was so, despite being asked to do so by this Court, except possibly that his application before the learned primary judge was, to use his words, not adjudicated upon by the learned primary judge.  The problem with this proposition is that an application to dismiss summarily under s 48 was properly made by the respondent.  The JR Act contemplates that, in appropriate circumstances, applications under that Act will be determined without trial and in a summary way.

There was no failure to accord procedural fairness to the appellant on the hearing of the summary dismissal application.  The appellant was given an opportunity to place documents before the Court.  He was given an opportunity to advance oral submissions before the Court.  It is true that some of the submissions were given short shrift by the Court, but no valid criticism could be directed towards that proposition, given the complete absence of legal merit of the submissions.  It was appropriate in the circumstances for the learned primary judge to entertain the application to dismiss summarily.

The appellant has not demonstrated that the discretion summarily to dismiss appropriate cases has miscarried.  No basis for leave to appeal has been demonstrated.  The application for leave to appeal should be dismissed.

FRASER JA:  I agree with the reasons of Justice Bond.

I will add one other point because the applicant relied upon a matter in support of an argument that he had been denied procedural fairness.  The applicant argued that he had been denied procedural fairness at least in part because there had been no reference to what he described as an application he had filed.  The document to which the applicant referred is described as “Matter: An Application for Leave to Appear and be Heard”.  Insofar as it raises any points at all, they are points which were dealt with in the course of argument before the primary judge.  It appears that this document was not filed as an application, which would not be surprising, because it does not have on it the Court heading required to be on documents to be filed as an application.  In the circumstances though, it is clear that it could not possibly have made any difference to the result whether or not it was filed as an application.  I agree that the application should be dismissed.

BODDICE J:  I agree with the reasons and orders of Justice Bond.  I also agree with the additional observations of Justice Fraser.

FRASER JA:  The application will be dismissed.

…

FRASER JA:  The respondent has applied for an order that the applicant pay the respondent’s costs of this application on an indemnity basis.  Since the respondent has succeeded in defeating the application for leave to appeal and there being nothing to suggest the contrary it must be ordered that the applicant pay the respondent’s costs.

As to the indemnity basis, whilst there is substance in the respondent’s argument that costs should be ordered to be assessed on the indemnity basis because of the lack of any real substance in the application to this Court, this is, so far as I’m aware, the first occasion on which the applicant has appeared before the Court to agitate these arguments.  In these circumstances, the order of the Court is that the applicant pay the respondent’s costs of the application to be assessed.