Jarvis v Department of Transport and Main Roads
[2024] QDC 234
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- Jarvis v Department of Transport and Main Roads[2024] QDC 234
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Jarvis v Department of Transport and Main Roads[2024] QDC 234
Jarvis v Department of Transport and Main Roads[2024] QDC 234
[2024] QDC 234
DISTRICT COURT OF QUEENSLAND
CIVIL JURISDICTION
JUDGE KENT KC
No 3214 of 2023
ROBERT SIDNEY JARVISAppellant
and
DEPARTMENT OF TRANSPORT AND MAIN ROADSRespondent
BRISBANE
11.19 AM, WEDNESDAY, 28 AUGUST 2024
DAY 1
RULING
HIS HONOUR: This is an appeal by Mr Jarvis following his conviction of two offences against section 99(7) of the Transport and Infrastructure Act 1994 for failure to comply with a notice that was given under section 99, subsection (1), of that Act. There was a summary trial before the Magistrates Court including in a decision handed down on the 15thof June 2023.
The respondent notes that the notice of appeal was filed out of time, but for the reasons outlined by the respondent, the respondent does not oppose an extension of time being granted so that the appeal may be heard. In the circumstances outlined by the respondent touching on that question, in my conclusion, that is a reasonable conclusion and, thus, the relevant extension of time to file the notice of appeal will be granted.
The hearing of the appeal is pursuant to the powers outlined in the Justices Act and particularly operative, I think, is section 222. And I will return in a moment to the nature of that kind of appeal and the way in which such appeals are normally determined. Before doing so, I also note that the respondent has helpfully identified that some of the matters agitated by Mr Jarvis at trial really – and on appeal – are the kinds of things, if they had any significant weight or moment, might justify consideration of the process in section 78B of the Judiciary Act.
That is, whether relevant notifications should be given to various Attorneys-General for possible intervention in or participation in one way or another in the proceeding. That was raised with me by Mr Ross at – on the hearing today, but, as I discussed with him, none of the things are of sufficient moment to justify such a process, and I decline to in any way interrupt the hearing of the appeal before that process or make any directions or other orders about such a notification.
That brings me then to the hearing of the appeal. The various things that are offered in the commentary by Mr Jarvis in the documents that he has filed, an original outline of argument and then some further documents that arose, I think, from some process, by which the matter was discussed before Judge Sheridan at one stage, canvas many different conceptual perceptions of the nature of the proceedings and possible flaws in them. The respondent, respectfully, has helpfully teased out what those things might really mean and dealt with them seriatim in the outline of submissions.
Before descending to that, the respondent refers to Osgood v Queensland Police Service as to the nature of these appeals. And that is consistent with other authorities such as TLO v Commissioner of Police, and, I think, MacDonald v Queensland Police Service.
In any event, the relevant principles are easily well settled and well-known that this kind of challenge on appeal gives rise to a jurisdiction which is only exercisable where there is an identified legal, factual or discretionary error. So with that template in mind, as I say, various possible arguments or grounds of appeal are teased out, and I will deal with them really in a relatively truncated fashion, under the headings and with the paragraph references contained in the respondent’s outline.
Firstly, a possibility is that the various complaints amount to a complaint that the Magistrate made error in being satisfied that the charges had been proven beyond reasonable doubt. In other formulations sometimes described as being a verdict that is unsafe or unsatisfactory or simply – and, I think, consistently with the Criminal Code – unreasonable.
Submissions are made about that by the respondent between paragraphs 28 and 44 of the respondent’s outline. In it– unsurprisingly in a case of this kind – the evidence produced at the hearing comfortably proved the offences to the relevant standard. Any challenge to the Magistrate’s finding as being unreasonable or in any way in error, in that sense, has no merit, in my conclusion.
Secondly, there is commentary to the effect that the Magistrate ought to have rejected the evidence of Kellie Hebrard because of what was agitated as being a possible conflict of interest, in that she was employed by an entity referred to as Transurban. Really, to the extent that that is ventilated, the proposition needs to only be stated to be rejected. As the respondent outlines that argument, to the extent that it was an argument, is mentioned in a very tangential way at the hearing and not pressed with any force.
As the respondent says, it is reasonably clear on a reading of the Magistrate’s finding that he had no concerns about Ms Hebrard’s credit worthiness. I pause to note it is not really clear to me to what extent her credit was meaningfully in issue, in any case, at the hearing.
The next concept dealt with is an argument advanced by the appellant is that a driver who wishes to pay cash for toll fees should be exempt from paying some additional charges set out in demand notices. The commentary about that in the respondent’s argument engages what it says is the correct formulation of the extra charges. That is, what is being referred to in that discussion as an administration charge prescribed under section 93, subsection (5), of that Act. And that it is justified by the legislation and in no way improper or challengeable.
The next passage deals with an alleged inconsistency between the operative positions of the Transport Infrastructure Act, which is obviously a Queensland Act, and section 92 of The Australian Constitution, and Mr Jarvis raised that again today. The respondent sets out commentary about that in paragraphs 58 to 63 of the response. And, in essence, the ground is without merit.
Section 92, it is trite to observe, is in the Constitution to prevent custom duties being erected at the borders between Australian states, and a road toll or a bridge toll does nothing to trespass on that concept.
The next topic raised is whether the State by this legislative scheme impose a tax on users of toll roads which could have been invalid in the sense of being inconsistent with some Commonwealth legislation and possibly the Excise Tariff Act of 1921 or, more generally, being an excise and, thus, falling foul of the exclusive Commonwealth power in section 90 of the Constitution. However, framed as the respondent outlines, this concept has no merit. There is reference to Vanderstock v Victoria which is [2023] HCA 30 for the authority for that proposition, if authority is needed. There is no merit in that concept.
The next two concepts dealt with together are whether there is an inconsistency between the Transport Infrastructure Act and section 115 of the Constitution or between that Act and the Currency Act 1965, another Commonwealth Act. The respondent deals with those ideas at paragraphs 72 to 79 of its outline. And there is reference to a passage from Pullen v O'Brien [2014] QDC 92. And the commentary on this topic by his Honour Judge Long SC is between paragraphs 49 and 51 of that decision, and they are observations that I embrace. There is also discussion about section 16 of the Currency Act which goes as far as paragraph 53 of that judgment.
The next concept agitated is the idea that a driver who either wishes or is only able to pay for toll fees in cash or is unable for some reason to navigate the internet is unlawfully discriminated against by this legislated scheme. The respondent deals with that at paragraphs 80 to 85 of its outline. For the reasons there identified – and some of which are mentioned by the Magistrate at first instance – such an argument is without merit.
The next concept that is dealt with is whether there was an inconsistency between relevant provisions of the Transport Infrastructure Act and the appellant’s right as an Australian citizen to pass freely without let or hindrance which is part of the commentary from the passport document issued to Australian citizens for international travel. Without saying more about it, passports have nothing to do with whether someone has to pay tolls.
The next argument grappled with is whether the evidence admitted at trial, including the two demand notices, had been unlawfully generated because in some way the appellant’s privacy had been breached. The respondent deals with this at paragraphs 88 to 93 of its outline. For the reasons there analysed, such an argument is without merit. As with many of these arguments really, they are so far outside relevant jurisprudence that they need only to be stated to be rejected, but the respondent has thoughtfully dissected them in a method which is respectfully correct.
The next thing identified is that there might be a complaint about an error by the Magistrate in permitting the respondent to lead evidence at the trial that had not been disclosed. A complaint about late disclosure. That is dealt with at paragraphs 94 to 99 of the outline. No error by the magistrate is identified in that regard.
The next topic is whether the Magistrate erred by finding the onus of proof lay on the appellant to establish a reasonable excuse for failing to comply with a demand notice as the legislation requires. The authority referred to in that regard is Fuller v RSPCA [2021] QDC 94, where Judge Smith analysed a similar provision in relation to animal welfare. As his Honour analysed, such provisions do create an onus to prove on the balance of probabilities that there was a reasonable excuse when such a thing is provided for in legislation of this kind. Reference is made to paragraphs 83 and 84 of the judgment in that regard. Again, no error by the Magistrate is identified.
The next issue is whether the Magistrate erred in being satisfied that the appellant did not have a reasonable excuse in any case, whoever bore the onus. The respondent deals with this at paragraphs 106 to 108 of its outline but then further teases out the possible subcategories of reasonable excuses. Firstly, the idea of a non-receipt of the demand notices. Mr Jarvis said something about this today as well. That is dealt with at paragraphs 109 to 116 of the respondent’s outline.
The evidence comfortably established in the way there set out the delivery of the demand notices by post to the appellant’s residential address. As the respondent outlines at paragraph 114, not only was service of the demand notices effective, but also a lost opportunity, if there was one, to actually read notices was brought about by the respondent’s voluntary practice to not engage with Linkt correspondence.
The next possible reasonable excuse that is ventilated is various possible mistakes of law. The respondent deals with this at paragraphs 117 to128. . Without descending into too much detail, it is trite to observe that ignorance of law is no excuse. That is embodied, of course, in Queensland jurisprudence particularly by such provisions as referred to by the respondent, section 22, subsection (1), of the Criminal Code.
I do not really find it necessary to descend into much more detail than that. There is reference by the respondent, helpfully, to some of the authorities touching on this. But, again, it is just trite that this kind of argument, in the facts as established in this case, is without merit.
The next idea engaged with is that the Magistrate may have demonstrated some bias. The respondent analyses this at paragraphs 129 to 134 of its outline. I endorse the commentary offered there. Particularly, paragraph 131: that the presiding Magistrate was polite and patient with the appellant and gave ample regard to him being a self-represented litigant. Perusal of the transcripts bears out the correctness of those observations. The respondent is correct to submit that there was no evidence of actual or apprehended bias by the presiding Magistrate.
The next concept is that the complaint had been brought out of time. This is dealt with at paragraphs 135 to 141 of the respondent’s outline. For the reasons there ventilated, the proceedings were commenced within time.
The next concept is whether there was some unlawful prosecution of the appellant. The heading – Mr Ross uses the word “persecuted”, but I presume that is incorrect.
MR ROSS: Yes. If I could – there was previous correspondence that that was originally based on but that did not translate into the formal outline of argument by the appellant, hence the change to prosecuted.
HIS HONOUR: Yes, yes.
MR ROSS: There is an error on my behalf to leave that in, your Honour.
HIS HONOUR: Sure. So that is in the heading about part O of your – – –
MR ROSS: That is so.
HIS HONOUR: – – – outline. So the correct stylisation of the verb probably does not matter that much.
MR ROSS: No. That is so.
HIS HONOUR: It means about the same in – in context, but really, I just noted that you previously said that – – –
MR ROSS: Yes.
HIS HONOUR: – – – the word “prosecuted” is apt.
MR ROSS: That is so. I agree.
HIS HONOUR: Okay. So in any way – in any case this ground is that the respondent by commencing summary proceedings was acting unlawfully in prosecuting the appellant. This is teased out by the respondent at paragraphs 142 to 146. Suffice to say that in the statutory scheme authorised by the Queensland Parliament dealing with these issues, these proceedings were regularly commenced. There is nothing in any challenge to the way in which the way prosecution was commenced or pursued.
I do note – I am not sure if it is intended to engage with this concept or not, but as the respondent notes at paragraph 142 in the appellant’s outline he asserts he never elected or litigated to go to Court. Something that he has said in his submissions this morning was that he had never pleaded not guilty, so that may be part of that general concept. In any case, for the reasons outlined by the respondent, my conclusion is that those ideas, whatever they are, do not give rise to a conclusion of any identifiable error by the Magistrate.
The next possible complaint that is identified is that the Magistrate may have made an error in awarding professional costs. The respondent deals with this at paragraphs 147 to 154 for the reasons there set out. The respondent is correct to argue that the Magistrate made no error in awarding professional costs as sought.
Overall, leave having been given to file the notice of appeal out of time and the appeal thus being on foot such that it is – the hearing of the appeal is appropriately commenced in this Court today. My conclusion, for those reasons, as agitated by the respondent, is that no error, legal factual or discretionary, is identified and, accordingly, the appeal should be and is dismissed.